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Private Streets Maintenance Agreement 2008-0563615 ~ECORDING,REQUESTED BY: l.gndArnetica Commercial Services DOC tt 2008-0563615 111"11111111111111II1111111111I III" 1I111 ""I "'" "'" ""111" "" .~ ~p ~tI' RECORDING REQUESTED BY OCT 28, 2008 3:34 PM CITY OF POWAY UFFIlIi'.L F:ECORC'S '3.t.JJ [IIErl0COUr"JT'Y' RECOR[.IEFi'S OFFICE I~REGORYJ SI,IITH, COUNT\' REL'-IF:DER FEES 29.uO AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF POWAY POBOX 789 P.OWAY; CA 92074 PAGES: 7 111111111111111111111111111111111111I11111111111111I1111I111111111I1111111111111 7852 (THIS SPACE FOR RECORDER'S USE) APN: 277.080-09 s,71Jry! . , ' PRIVATE STREET MAINTENANCE AGREEMENT (THE HEIGHTS SUBDIVISION) THIS PRIVATE STREET MAINTENANCE AGREEMENT ("Agreement"), dated for reference purposes as the ~ "i day of Oc.--rbBe/Z , 2008, is entered into between BBA Partners, LLC, hereinafter referred to as "OWNER", and the CITY OF POWAY, a municipal corporation, hereinafter referred to as "CITY", WHEREAS, this Agreement is required as a condition of approval by CITY of TIM 02-02, pursuant to Sectiori 17.52.040 of the Poway Municipal Code, and Ordinances 303 and 304, relative to construction of the subdivision and construction of two private roads, Sunset Point Road and Sunset Ridge Court: and WHEREAS, OWNER wishes to provide for the maintenance and repair of those certain private streets described and shown on Exhibit A, attached hereto and made a part hereof, hereinafter referred to as "PRIVATE STREET"; and WHEREAS, OWNER is the owner of certain real property being developed as a residential subdivision containing two private roads, Sunset Point Road and Sunset Ridge Court, and a portion of Valleyview Road from Deer Valley Estates to the beginning of Sunset Point Road that will use and enjoy the benefit of such PRIVATE STREET. A comQlete legal description of said real property is included in Exhibit B, attached hereto and made a part hereof. Said real property is hereinafter referred to as "Property"; and WHEREAS, it is the mutual desire of the parties hereto that the PRIVATE STREET be maintained and repaired in a safe and usable condition; and WHEREAS, it is the mutual intention of the parties that this Agreement constitute a covenant running with the Property, binding upon each successive owner of the Property. NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS 1. The property benefited by this -Agreement is the Property, The present and successive OWNER of all or any portion of the Property is expressly bound hereby for the benefit of the Property, 1 O~-\(2\ 7853 2. The cost of maintaining the PRIVATE STREET shall be borne by OWNER, or his or her heirs, assigns, and successors in interest. Notwithstanding the foregoing, OWNER may seek contributions or recompense from and by all other owners, heirs, assigns and successors in interest who may be obligated under similar Private Street Maintenance Agreements with the City of PoWay relevant to this section of private roadway. 3. The repairs and maintenance to be performed under this Agreement by or on behalf of the OWNER shall be limited to the following: reasonable and normal road improvement maintenance work to adequately maintain the PRIVATE STREET, and any related drainage facilities, to permit normal access, ingress and egress to and from the Property. Repairs and maintenance under this Agreement shall include, but are not limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds, repairing and maintaining drainage structures, removing debris, maintaining signs, markers, striping and lighting, if any, and such other work as is reasonably necessary or proper to repair and preserve the PRIVATE STREET for normal access, ingress and egress purposes. 4, The obligation of OWNER as outlined heJein shall commence with the recordation of the City of Poway Final Map TM 02-02. 5. In the event OWNER retains a contractor to perform any maintenance and obligation with respect to the PRIVATE STREET, the OWNER shall require such contractor to maintain liability insurance to cover any liability arising as a result of its activities with regard to such maintenance activities. 6. OWNER shall defend and indemnify and hold harmless CITY, CITY's Engineer and their consultants and each of their officials, directors, officers, agents and employees from and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs of defense and attorney's fees, incurred by or payable to any other use of the PRIVATE STREET, or to any other third parties arising out of or in any way related to the use, repair or maintenance of the PRIVATE STREET. Nothing in this Agreement, the specifications, or other contract documents or CITY's approval of the plans and specifications for or inspection ,of the work regarding the PRIVATE STREET is intended to include 'a review, inspection, or acknowledgment of a responsibility for any such matter, and CITY, CITY's Engineer, and their consultants, and each of their officials, directors, officers, employees and agents, shall have absolutely no responsibility or liability therefore. 7. If, in the CITY'S sole judgment, the PRIVATE STREET is not being maintained to standards set forth in Paragraph 3 of this Agreement, the CITY may thereupon provide written notice to the OWNER to initiate repairs or construction within ninety (90) days. Upon failure to demonstrate good faith to make repairs or construction within ninety (90) days of receipt of such notice, the OWNER agrees that the CITY may make all needed repairs to the PRIVATE STREET to meet the standards set forth in Paragraph 3 and to then assess the costs thereof to the OWNER. OWNER shall reimburse CITY for all reasonable costs incurred by the CITY in connection with such maintenance activities. If the OWNER does not so reimburse the CITY 2 ~'"". 7,654 within thirty (30) days after the CITY's demand, then CITY may pursue all of its remedies at law or in equity. 8. If the CITY elects to make necessary repairs in accordance with Paragraph 7 above, said work shall be without warranty. Said repair shall be accepted "as is" by the OWNER and without any warranty of workmanship. 9. The foregoing covenants shall run with the land and shall be deemed to be for the benefit of the land of each and every person who shall at any time own all or any portion of the Property referred to herein, 10. It is understood and agreed that the covenants herein contained shall be binding on the heirs, executors, administrators, successors and assigns of the OWNER. 1'1, ,It is the purpose of the signatory hereto that this instrument be recorded to the end and intent that the obligations hereby created shall be and constitute a covenant running with the land, and any subsequent purchaser of all or any portion of the Property, by acceptance of delivery of a deed and/or conveyance, regardless of form, shall be deemed to have consented to and become bound by this Agreement. 12. This Agreement shall be governed by the laws of the State of California. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court, of competent jurisdiction, the validity and enforceability of the remaining provisions shall not be affected thereby. IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth he,e;,,"e,_ / / Alr/" P~l'nas.,,-c OWNER: gl-:~ Date: ~'-:::'IO~ S. Eric Ottesen CITY OF POWAY: ~~~/- ~ Date: lV'/J~<f" Attachments: 1) Notary Acknowledgement Approved As To Form Office of the City Attorney ~V-~ Date: ) 0 -2 -08 Lisa Foster, City Attorney M:\engserv\08Reports\TTM 02-02 The Heights\Private Streets Maintenance Agmt.docx 3 ; -~-~.., ~... 76.55 CA.LlfORNIA ALL,PURPOSE ACKNOWLEDGMENT C<'~~~~~..c<'..c<',..c(.>,Cc.c(.'.G<'..h(.',(5('...c<'..c<'...c<'~a'..,C('..c<>..c<>.ec-~,.c('~,('X>.c<'..c<'.-...cO"..c:<"...G<'..c<'A5<'y(:;('"..c<'~..d('....c<'..o<'..,C('~~ State of California County Of~-"r---~""" O~ CJ - /- 0 8 before me, VI Date personally appeared ~ <). h I ~ \::) -ff e.:s c:...... fJubl ~jl Narne(s) ofSlgner(s) I----~=----i ',_." 'Ccl=~#-:::3692 : I NalarY I'Id:iIlc . CaIIomIa I, Ian'DIBgD CounIy -, . __ _ ~~_~_~1~~ Place NolarySeal Above who proved to me on the basis of satisfactory evidence to be theperSbn~ whose nameO()@altl subscribed to the within instrument and acknowledged to me that ~'lxe/t~y executed the same in@~r/thle;r authorized capacity~), andthatb~ttkr/tMiir signaturetl(j on the instrument the person()l),' or the entity upon behalf of , which the person\1) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph' is true and correct. WITNESS mj ~and ~nd official seal. _ SignaturL "_-, ,O,~ S,gnatureol Notary ubllc OPTIONAL Though the information be/owls not required'by Jaw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this' form to another document. Description of Attached Document TitleOrTypeofDocument:-P~ 0;f;u.-j- /l{~COd1C''''', 9~ Docurnent Date; de- ~ IJ ~OO;f Number of Pages: ~ Signer(s) Other Than Named, Above: ~ ~ Capacity(ies) Claimed by Signer(s) Signer's Name--S .-E...r J'e.- ()-/fot::" o o ~ o o o o Individual Corporate ()fficer - Title(s): Partner -'fJ Limited 0 General, Attorney in Fact Trustee GLiardian or.Conservator , ' Other; s- ~ ner's Name: Din ual o Corpora fficer - Tille(s): o Partner - 0 ited 0 General o Attorney in Fact L1 Trustee . . Ci Guardian or Conservator j[." 0 Other: ~'S' , ~r; Igner Is Representing: ":~,,~~.' '- ........ Signer Is Re.\l\esenting: .B.B"tf rc.~-' -) ~~~~~~~~~~~~~~~~~~~-"UV~~~""V'<.=<V~~-y;;;.~"BV~~~~~~~~~~~~~~ @2007 National Notary Association' 9350 De S6to Ave, P.Q, Box 2402' ChalSWOrth. CA 91313:2402' WWw.NationaINotary.org Item #5907 Reorder: Call Toll-Free 1-800-876.6827 , -...:....::...''''.- -.... ""r" " EXHIBIT 'A' CITY OF POWAY TM 02-02 APN 277-080-09 7656 CONTINUATION OF VALLEYVIEW ROAD I PAGE 1 OF 2 9 A ~ PRIVATE ROAD TO BE MAINTAINED WITH PRIVATE STREET MAINTENANCE AGREEMENT OPEN SPACE 7 SUNSET POINT ROAD SUNSET RIDGE ~ COURT OPEN SPACE 4 SUNSET POINT ROAD \ \ EDGE OF PRIVATE ROAD - PAVING 3 6 2 OPEN SPACE CD EDGE- OF PRIVATE ROAD AND UTlUTY LOT G V ALLEYVIEW ROAD PRIVATE DRIVEWAY DEER VALLEY EST A TESI OLD COACH ROAD / (~ SCALE: 1"=500' ENGR\ W00320 \ RDMAI NTENANCE\ R D MAl NTENAN C E. DWG PLOTTED: 9/29/08 7651 EXHIBIT 'A' PAGE 2 OF 2 THE PRIV A TEROADS TO BE MAINT AlNED ARE CONTAINED WITHIN LOT 'B' OF ClTY OF POW A Y FINAL MAP TM 02-02 AND COUNTY OF SAN DIEGO MAP NO. 1S"12 >" ::. ' :r .', ~ .. ~ EXHIBIT 'B' LEGAL DESCRIPTION 7658 PARCEL 1 PARCEL A OF BOUNDARY ADJUSTMENT NO, BA05-07 RECORDED JUNE 1, 2006 AS INSTRUMENT NO. 387392, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: PARCEL 2 TOGETHER WITH A PORTION OF PARCEL 1 OF PARCEL MAP NO. 1648, IN THE CITY OF POWAY, COUNTY OF SANDIEGO, STATE OF CALIFORNIA, ACCORDThlG TO PARCEL MAP THEREOF FILED IN THE OFFfCE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 20,197:3 AS FILE NO. 73-169595 OF OFFICIAL RECORDS, PORTION OF PARCEL 1 DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID PARCEL 1; THENCE ALONG THE EAST LINE OF PARCEL 1, SOUTH 2059'04" WEST (SOUTH 3012'13" WEST PER P.M. 1648),670.89 FEET; THENCE NORTH 32057'09" WEST 570.93 FEET; THENCE NORTH 54003'32" WEST, 307:38 FEET TO A POINT ON THE NORTH LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTH LINE NORTH 88059'23" EAST (NORTH 89012'02" EAST PER p.M. 1648),594.44 FEET TO THE POINT OF BEGINNING,