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Private Road Maintenance Agreement 1994-0459337 ,", .~. , . 2105 Otl " 1994=04593~7 26-JUL-1994 09:1J AM OFFICIAL RECORDS SAH DIEGO COUHTY.RECOROER'S OFFICE GREGORY SMITH, COUHTY RECORDER RF: 13.00 FEES: 35.00 AF: 21.00 MF: 1. 00 '--.: RECORDING REQUESTED BY: City of Poway AND WHEN RECORDED MAIL TO: City Clerk City of Poway P.O. Box 789 Poway, CA 92074-0789 f'r{-; I' ~{l- C This space for Recorder's use PRIVATE ROAD MAINTENANCE AGREEMENT " THIS AGREEMENT for the maintenance and repair of that certain private road easement, the legal description and/or plat of which is set forth in Exhibit A attached hereto and made a part hereof, is entered into between THOMAS NODES AND BEVERLY NODES (hereinafter referred to as "DEVELOPER") and the CITY OF POWAY (hereinafter referred to as "CITY" ) for the benefit of future subdivision lot owners who will use the private road easement (hereinafter referred to as "LOT OWNERS", which shall include the DEVELOPL~ to the extent the DEVELOPER retains any ownership interest in any lot or lots). WHEREAS, this Agreement is required as a condition of approval by the CITY of a subdivision project as defined in Section 21065 of the Public Resources Code; and, WHEREAS, DEVELOPL~ is the owner of certain real property being subdivided and developed as TPM 91-11 that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Exhibit B, and incorporated by reference. Said real property is hereinafter referred to as the PROPERTYj and, WHEREAS, it is the mutual desire of the F~rties hereto that said private road easement be maintained in a safe and usable condition by the LOT OWNERSj and, WHEREAS, it is the mutual desire of the parties hereto to establish a method for the maintenance and: repair of said private road easement and for the apportionment of the expense of such maintenance and repair among existing and future LOT OWNERSjand, WHEREAS, the CITY shall be deemed .a party hereto with the right but not the obligation to enforce full compliance with the terms a~d conditions of this Agreementj and, -1- " . . 210G WHEREAS, i.t'. is tl1e mu tual Agreement ',cohstitu-te a covenant :each ,successive LOT OWNER of all njEREFoRE, inten.tion of the ?arties that running with :the land; binding or any por~ion of the property, this upon NOW, IT IS HEREBY AGREED AS FOLLOWS: 1. The property benefitted by this Agreement, and present and successive .LOT OWNERS of all or any portion .of' the property are expressly bound hereby for the benefit of the land. 2. The cost and e~pense of maintaining the private road easement shall be divided equally among the subdiVided parcels created in the subdi vision and paid by the LOT OWNER or the heirs, assigns and successors in interest of e~bh such owner. 3. In the event any of the herein describ'ed parcels of land are subdivided further, or any additional parcel(s) not originally contemplated by this Agreement gains access to said private road easement, the LOT OWNERS, heirs, assigns and successors in interest of each such newly created. parcel or additional parcel shall be iiabl'e under this Agreement for their then pro rata share of expens'es a'nd such pro rata shares of expenses shall be computed to reflect such newly created or additional parcels. 4. The repairs and maintenance to be performed under this Agreement shall be limited to the following" ,unless the consent for additional work is agreed to by amaj ori ty vote of the LOT OWNERS owning 100% of the number of parcels, including subdivisions there.of and additions thereto as described in paragraph 3 above. Reasonable and normal road improvement maintenance work to adequately maintain said private road easement and related drainage facili.ties to permit all weather and emergel1SY vehicle access. Repairs and maintenance under this Agreement shall include, but is not limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds, repairing and maintaining drainage s,tructures, removing debris, maintaining signs, markers, striping and lighting, if any, and work reasonably necessary or proper to repair and preserve the easement for ,all weather and emergency vehicle ;road purposes. 5. If there is a covenant, agreement., or other obligation imposed as a condition of subdivision approval, .to make private road improvements to the private road easement, the obligation to repair and maintain the private road easement as herein set forth shall commence when the private rO'ad improvements have been completed and approved by the CITY. -2- . . 2107 6.An'f. ~:ift1;aor,<iinal:''Y repair required to c6r~ect dalllage to said road easement' that, ,results from action taken or contracted for by partie hereto or,"their successors in interest' shall 'be' paid for .by the party taking acticinor' party con.tr3.ctingfor work ,which caused thel1ecessity for. the extraor<;i-in,ary repair. The repair. shall be such as to restore the rqad"eas,e.ment to the condition existing prior to said damage. ~. It is agreed that 9I~LOPER is initially the agent to contract and ,oversee" and do all acts necessary to accomplish,the~epairs '.find maintenance required and/or authorized under 'this Agreement. The parties further agree' that' the agent may at "any time I?e replaced at .the direct'ionof a majority of the LOT OWNERS. 'Repair and maintenance work 'on the private road easeIl!~nt shall be commenced when a majority of the .LOT OWNERS agree in' wr.iting that such work is needed. The agent s~all obtain three bids from licensed contractors and' shall accept the lowest .of said three bids andsha.llthen initiate the woik. The ageritsha:ll. 'be paid for all costs incurred, i,ncluding a reasonable compensatlonfor the agent's services, and ~udJ costs shall be added to and :paid as Cl. part of ther~paira:nd maint~nanc~ c9stj provided, however, that compensa:t;ion for the ageni:.'s services shall in no event exceed an amount eqUivalent to 10% of the actual cost of repairs and maintenance performed. In performing his duties, the agent, as he anticlpatesthe need for funds, shall notify the parties and each party shall within, fC)r.ty"fiv,e '(ofs) days pay the agent, who shall maintain a trUstee account and also maintain accurateaccoWlting records which are to be available for inspection by any party or authorized agent upon reasonable request. All such records shall lie re'tained by the agent for a period of fiv,- "years. 8. Should (l.l}Y LOT OWN~ fail to pay the pro rata share of costs and expenses as provided in this Agreement, then 1:.h~ ,agent or any LOT OWNER or OWNERS sh'allbe entitled without further notice to institute legal action for the collectio!,! o~ funds advanced' on behalf of such LOT OWNER in accordance with the provisions of California Civil Code Section 845, and shall be ,entitled to' recover in such action in addition to the funds advanced, interest thereon ~t. the current pr..tme rate of interest, until paid, all costs and disbur~ements of such action, including such sum or sums as the Court may fix as and for a reasonab~e attorney's fees. 9. Any liability of the LOT OWNERS for p~rsonal injury to the agent hereunde"r, or .to any worker employed t9 make repairs or provide maintenan,ce underthi:"s 'Agreement, or t9third p,ersons, as well as any lia,bilitY"of the LOT OWNERS for damage to the property of agent, or any such' w9rker, or of any third persons, as a result of or arising out of repairs and ,maintenance und~r this Agreemeri"t, shall be borne, as between the LOT OWNERS in the same.. perceritages as they bear the costs and expenses of such repairs arid 'maintenance. Each LOT OWNER shall be responsib],e for and maintain his o~' .f.nsurance, if any. By this Agreement, the parties do not intend to provide for the sharing of ~3~ . . 2108 li'abilitywith respect to personal injury or property damage other than that attributable to thei,epairs and maint'enance undertaken under this Agreement, E,,!-ch of the LOT. OWN~S agrees to ind,emnify the others f::-o::l any and. all H'ability for injury to h'im ,or da::lage to his property when such ihj\l.ryor damage results frcm, arises out of, or is attributable to any maintenance or repairs undertaken pursuant to this Agreement. 10. LOT. OWNERS shall jointly and severally defend and indemnify and hold harmless CITY, CITY'S engineer ,and their consultants and' each of the,irofficials, directors, officers, agents and employees from and against all liability i claims, damages, ~osses, expe!,!ses, personal injury and other costs, including casts of defense and attorney's fees, to the agent hereunder, or to any LOTOWN'ER, any contractor, any subcontractor, any user" of the road easement, or to any ather third persons arising out of or in any way related to the use of, repair or maintenance of, or the failure to repair or maintain the private road easement. Nothing in the Agreement, the specifications or other contract docwnents or CITY I S approval of the plans and spec.ifications or inspection of the work is intended to include a review, inspection, acknowledgnlent of a responsibility for any such matter, and CITY , CITY'S engineer, and the"ir consultants, and each of their offic{als; directors, officers, employees and agents, shall have absolutely r.o responsibility or liability therefor. :U. If in the CITY'S sole j,udgnlent sa'idprivate road easement is not being maintained to standards set forth in paragraph 4 of this Agr.eement, the CITY may thereupon provide, vrittennotice to all LeT OHNERS to inItiaterepai;,s or cons1;ruction within ninety (90) days. Upon failure to demonstrat,e good faith to make repairs or construction within ninety (90) daysithe LOT OWNERS agree that the CITY may ma."<e all needed repairs to said road easement and/or construct said rcad easement to meet the standa;:ds set forth in paragraph 4 and totr.en assess costs to all LOT OWNERS proportionately. The agent shall be responsib~e ~or collecting the assessments and ensuring payment to ~,e CITY. If the agent fails to collect the assessments for any reason, the CITY . may pursue ther,emedy provided for LOT OWNERS in Paragraph 8 hereof, or any other remedies at law or in ,equity. 12. If the CITY elects to make necessary repairs in accordance with paragraph ,11 above ,said' work shall be without wa,rranty. Said repair ,shall be accepted "as is" by the LO,T OWNERS wit,hout any warran-::y of worlcnanship an"d be guaranteed and indemnified by them in accordance wi th paragraph 9.. 13. The foregoing cov,~nants shall. run with the land and shall l:e deemed to be for the benefit of the land of each of the LOT OWNERS and each and every person who shall at anytime own all or any portion of the property referred to herein. -4 - ~: . . 2109 14.. It is understood a:ld agreed that the cov.enants herein contained shall be binding on the heirs, executors, administrators~ successors and assigns of each of'the LOT OWNERS. 15. It is the purpose of the signators hereto that this Instnune:lt be recotded to the end and intent that the obligation hereby created 'shall be and constitute a covenant running with the land and any subsequent Purchaser of all or any portion thereof, by acceptance of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become bound by these presents, including without limitation, the right of any person' entitled to enforce the terms of this Agreement to institute legal action as provided in paragraph 8 hereof, such remedy to be cumulative and in addition to other remedies provided in this Agreement and to all other remedies at law or in equity. 16. The terms of this Agreement may be amended in writing upon majority approval of the LOT OWNERS and consent of the CITY. 17. This Agreement shall be governed by the laws of the state of California. In the event that any of the provisions of this Agreeme:lt are held to be unenforceable or invalid by any court of cOmpete:lt jurisdiction, the v.alidH;y, and enforceability of the remaining provisions shall not be affected thereby. 18. If the" Proper,ty constitutes a "Common Interest Development" as defined in California Civil Code Section 1351(c) which willincluce membership in or ownership of an "Association" as defined in California Civil Code section 135.,1 (a), anything in this Agreement to the contrary not',o/i thstanding, the following provisions shall apply at and during suc~ time as (i) the. Property is encumbered by a "Declaration" (as defined in California civil Code section 1351(h), and (ii) the Common Area of the property (including t~e private road easement) is managed and controlled by an Association: (a) The Association, through its 50ard of Directors, shall repair and maintain the private road easement and shall be deemed the "agent" as referred to in Paragraph 7 above., The Association, whic~ shall not be r"eplaced except by amendlllent to the Declaration, shall receive no compensation for performing sucl1 duties. The costs ,of such maintenance and repair s~all be assessed against each owner and h'is subdivision interest ih the Property,pursua~t to the Declaration. T~e assessments shall be deposited in the Association's corporate account. (b) The provisions in the Declaration which provide for assessment liens in favor of the Association and enforcement thereof shall supersede Paragraph 8 of "this Agreement in its entirety. No individual owner ,shall have the righ,t to alter, maintain or repair any of the COlllmonAr.ea (as defined in California. Civil Code Section 1351(b) in the Property except as may be allowed by the Declaration. -5- . . 2110 (c) which reduces to its ~ylaws This Agreemen t shall not be or limits the Association's and the Declaration. interpreted in any manner rights and duties pursuant IN WIT/iESS WHEREOF, the parties have executed this Agreement on the dates set forth hereinafter: * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *, * * * * 321-110-18 Tax Assessors Number 321-111-01 Date h.(? Z /'rf'f" ~44'4~/ ~jfria ture O~NERS Thomas Nodes Type or Print Beverly Nodes Type or Pri nt >d~~ 4'hr/~V Signature/ (Each owner shown /on Gr;ant Deed must si9D) (Notary Acknowl edgment attached) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ACCEPTED: CITY OF POlo/A Y By 'YYl~. ~ Date 7~/14- ,[ Approved as to form: ney Date 7-/f'- ~y -6- . }ss . 2111 State of California County()f < ).;J712?fO ~~~ikl~rSoLt~~ed' before me~ ~ ,~; , persona1ly'known tome (or'proved to me on the baSIS 0 salis actory ev'dence) to be theperson(s) whpse name(B1~an~ subscribed to the wii.lJill instrument and acknowledged tome that hetslre/they exec'jted the same in hisAler/their. authorized capacity(ies), and that by iJi.s.lI:ler/their signature(s) on theihstrument the person(s), onhe entity upon beh2..1fof which the person(s) acted, exetuted the instrument. '/!(Se:aJ) Signature . ~ .,."..'.. ,... OFF.IC.IALN.OT ARy..SE...AL ... . " .CHRISTlNAS, RETTENMUND : -:1" ' Notary Public ,- COIilon.. , "" S"'N DIEGO COUN1Y , ", My COmm, Expli.. OCT 06.1995 County of } Ss State of California On before me, , Notary Public, personally appeared , .personally known tOime (or, prov~'to m,eon'the basis of salisfactorye\'idence)to be thepersOn(s) whose name(s) is/are subscrib,ed to the within instrument and acknowledged,lo me that he/she/they'executed'the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or. the entity upon beh2..1f of which' the person(s) acted, eXeCilted the instrument. WITh'ESS my hand and official se:aJ. S,gnature (Se:aJ) FD,J (12/90) . . 2112 EXHIBIT "A" A STRIP OF LAND 60.00 FEET IN WIDTH AND BEING A PORTION OF LOTS 1, 2, 3 AND 4 IN SECTION 4, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DtEGO" STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED JANUARY 1'3, 1883, THE CENTERLINE OF SAID STRIP BEING DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY LINE OF LOT. 1 OF SAID SECTION 4, WHICH IS DISTANT THEREON SOUTH 1" 1,1' 19" EAST, 368.91 FEET FROM THE NORTHEAST CORNER THEREOF; THENCE SOUTH 59"21'40" WEST, 206.16 FEET TO THE BEGINNING OF A TANGENT 200.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 26"42' 30", A DISTANCE OF 93.23 FEET; THENCE TANGENT TO SAID CURVE SOUTH 86"04'10" WEST, 151.16 FEET TO THE SOUTHEAST CORNER OF LAND. CONVEYED TO NEIL TRIVETT, ET UX, BY DEED DATED MARCH IS, 1955 AND RECORDED. IN BOOK 5061, PAGE 294 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LAND AS FOLLOWS: SOUTH 86.04' 10" WEST, 83.01 FEET TO THE BEGINNING OF A TANGENT 500..00 RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 15"24'30", A DISTANCE OF 134.46 FEET; THENCE TANGENT TO SAID CURVE NORTH 78"31'20" WEST, 1'37.23 FEET TO THE BEGINNING OF A TANGENT 900.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 14.07~30' A DISTANCE OF 221.87 FEET; THENCE TANGENT TO SAID CURVE SOUTH 87"21'10" WEST, 119.27 FEET TO THE MOST EASTERLY CORNER OF LAND CONVEYED TO CHARLES J. SCHULTZ, ET UX, BY DEED DATED JUNE 4, 1954 AND RECORDED IN BOOK 5294, PAGE 337 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHEASTERLY BOUNDARY OF SAID SCHULTZ LAND SOUTH 74~19'10~ WEST, 95.71 FEET TO THE BEGINNING OF A TANGENT 250,.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE ,SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 30"39'50" A DISTANCE OF 133.80 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 43"39'20" WEST, 56.47 FEET TO THE BEGINNING OF A 'TANGENT 300.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 23~20'30" A DISTANCE OF 122.22 FEET TO THE BEGINNING OF A COMPOUND 1,328.28 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 7"28' A DISTANCE OF 173.10 FEET; THENCE TANGENT TO SAID CURVE SOUTH 74"27'50" WEST" 64.79 FEET; THENCE NORTH 75"36'00 WEST, 614.54 FEET; THENCE NORTH 79"16'00" WEST, 541.46 FEET: THENCE SOUTH 88" 51' 00" WEST, 403.30 FEET; THENCE SOUTH 85"41'00" WEST, 293.11 FEET'; THENCE SOUTH 74"55'00" WEST, 646.84 FEET; THENCE SOUTH 51" 15" 60'" I'JEST.; 193.75 FEET; THENCE SOUTH 33"43"00" 'WEST, 357.50 FEET; THENCE SOUTH 25"10'00" WEST, 375.00 FEET, 'MORE OR LESS, TO THE S0UTHERLY LINE OF SAID LOT 4 . TOGETHER WITH THAT PORTION OF THE. SOUTHWEST NORTHWEST QUARTER OF SECTION 4, TOWNSHIP 14 QUARTER OF THE SOUTH, RANGE 1 J ,~ .' . 2113 . WEST, SAN BERNARDINO BASE AND ME,HI-DI"AN, IN THE COUNTY OF SAN DIEGO, STA:T.E OF CAt IFO RN lA., ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED AUGUST 29, 189.0, BEING DESCRIBED 'AS FOLLOWS: BEGINNING AT A POINT ON THE 'NORTH LINE OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 4 DISTANT THEREON SOUTH 880'44'57" EAST 264.62 FEET FROM THE NORTHWEST CORNER THEREOF; THENCE SOUTH 42019'52" WEST 389.26 FEET,TO THE WEST LINE OF SAID NORTHWEST QUARTER; THENCE ALONG SAID WEST LINE SOUTH 0' 28' 25" EAST 497.20 FEET; THENCE LEAVING SAI-D WEST LINE SOUTH 36'40'00" EAST 212.32 FEET TO THE BEGINNING OF A TANGENT 56.00 FOOT RADIUS CURVE CONCAVE NORTHERLY AND WESTERLY; THENCE EASTERLY, NORTHERLY AND WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 246042' 44" A DISTANCE OF 241.13 FEET TO THE BEGINNING OF A REVERSE 30.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 66'42'44" A DISTANCE OF 34.93 FEET; THENCE TANGENT TO SAID CURVE NORTH 36'40'00" WEST 113.72 FEET; THENCE' NORTH 0'28'25" WEST 454.08 FEET; THENCE NORTH 42'19'52" EAST 338.45 FEET; THENCE SOUTH 88'44'57" EAST 412.38 FEET; THENCE JIf,ORTH 0028'25", WEST 60.03 FEET TO A .POINT O~ SAID NORTH LINE QF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER; THENCE ALONG SAID NORTH LINE NORTH 88044'57" WEST 437.87 FEET TO THE POINT OF BEGINNING. 'i :f.~ , . . 211;J EXHIBIT "B" THE SOUTHWEST QUARTER OF THE NORTWJEST QUARTER AND THE NORTWJESTQUARTER OF THE SOUTHWEST QUARTER OF SECTION 4, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFO~~IA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED AUGUST 29, 1890. ~ ~ 1< . . EXHIBIT 'Ef NODES PROPERTY TPM 91-11 WE.5TY/~ ~ ~ o 2115 '-.. Z, l".:u>oo' -P o YJ/J y ,..-;. ~ EXHIE>IT 'A' PRIVATE ROAD EASEMENT /;,v / ,{</T / /~ !Ii II SITE: g :z :z ::J ^'IIN4 0:: ~~ ORO -.....:- '" ~- "0 W6HWA!' "'7 '1<:) ./~ I LLUSTRATIVE PLAT POWAY TPM 91-11 PRIVATE ROAD MA/tJTENA~CEAGREEMEt-JT (l), r-- ") z. ,--- NO sCAL~ WESiVIEW RD. VICINITY MAP , ENGINEERING & SURVEYING 152!,EXondldo Blvd., SUit. A, EJCondido. CA 92025 /,191741"-0533 FAX..16191 74t:S794