Private Road Maintenance Agreement 1994-0459337
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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{-;
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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,
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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.
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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
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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.
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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.
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(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:
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321-110-18
Tax Assessors Number 321-111-01
Date h.(? Z /'rf'f"
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~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)
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ACCEPTED:
CITY OF POlo/A Y
By 'YYl~. ~
Date
7~/14-
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Approved as to form:
ney
Date 7-/f'- ~y
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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)
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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
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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.
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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.
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VICINITY MAP
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152!,EXondldo Blvd., SUit. A, EJCondido. CA 92025
/,191741"-0533 FAX..16191 74t:S794