Private Road Maintenance Agreement 1998-0761717
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DOC -'1998-0761717
.>.:-- -ReCORDING REQUESTED BY:
NOV 24.
1998
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CITY OF:POWAY
OFFICIAL RECORDS
SAN DIEGODOUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 34.00
CITY CLERK
CITY OF POW A Y
P.O. BOX 789
POWAY, CA 92074
1998-0761717
(This space for Recorder's Use)
PRIVATE ROAD MAINTENANCE AGREEMENT
THIS AGREEMENT for the maintenance and repair of thatceriain private road easement, the
plat of which is set forth in Exhibit A and the legal description in Exhibit B attached hereto and
made a part hereof, is entered into by David Homer Williams, L. P., Robert H. Williams, L. P.
and Julianne Williams Deen, (hereinafter referred to as "Developer") for the benefit of future
subdivision lot owners who will use the private road easel11ent (hereinafter referred to as "lot
owners"), which shall include the Developer to the extenHhe Developer retains any ownership
interest in any lot or lots).
WHEREAS, this Agreement is required as a condition o(approval by the City of Poway of a
subdivision project; and,
WHEREAS, Developer is the owner of certain real property being subdivided and developed as
City of Po way Tentative Map No, 89-09, a copy of which is attached as Exhibit A, that will use
and enjoy the benefit of said road.~asement. A complete legal description of said real property is
attached, labeled as Exhibit B, and incorporated by reference. Said.real property is hereinafter
referred to as the "property"; and,
WHEREAS, it is the mutUal desire of the parties hereto that said private road easement be
maintained in a safe and usable condition by the lot owners; 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 ofthe expense
of such maintenance arid repair among yxisting and.future lot owners; and,
WHEREAS, the City shall 'not be deemed a party hereto; but shall have the right (not the
obligation) to enforce full compliance with the terms'and conditions of this Agreement; and
WHEREA~; it is ihe mutual intention of the parties that this Agreement constitute a covenant
running with the land, binding upon each successive lot owner of all or any portion of the
property. NOW, THEREFORE,
IT IS HEREBY AGREED AS FOLLOWS:
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1. The property is benefiXe(rby this Agreement, and p'resentand successive lot owners of all or
any portionofthe propertyare:expressly bound hereby fortne benefit ofthe limd.
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2. The cost 'and expense of maintaining the private road easement shall be divided equally
among the' subdivided parcels created 'in the subdivision and paid by the lot owner or the heirs,
assigns, and successors in interest of each such owner.
3. In the event any of the herein described parcels ofland are subdivided further, the lot owners,
heirs, assigns and successors in interest of each such newly created parcel shall be liable under
this Agreement for their then 'pro .rata shares of expenses and such pro rata shares of expenses
shall be computed to reflect such newly created 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 a majority vote of the lot owners
owning 100% ofthe number of parcels, including subdivisions thereof as described in paragraph
3 above. Reasonable and normal road improvement and maintenance work to adequately
maintain said private road easement and related drainage facilities to permit all weather access.
Repair 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 structures, removing debris, maintaining signs, markers, striping and lighting, if any,
and other work reasonably necessary or proper to repair and preserve the easement for all
weather 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 road improvements'have been'completed and approved by the City.
6. Any extraordinary repair required to correct damage to, said road easement that results from
action taken or contracted for by parties hereto or their successors in interest shall be paid for by
the party taking action or party contracting for work wl1ich caused the necessity for the
extraordinary repair. The repair shaH be such as to restore the road easement to the condition
existing prior to said damage.
7. It is agreed that Developer is initially the agent to contract and oversee and do all acts
necessary to acc011lplish the repairs and maintenance required .and/or authorized under this
Agreement.,The parti,es further agree that the agentiiiay at,any time be replaced at the direction
ofa11laj()rity ofthe lot owners. Repair and iiiiiintenaticewbrk ontheprivate road easement shall
be commenced ,when a majority of the lot ownersagreein,wfiting,thatsuch work is needed. The
agent shall obtain three bids from licensed contractors and agent, using his best judgement, shall
seleCt the contractor and initiate the work. The agent shall 'be paid for all costs incurred
including a reasonable compensation fortheagent's,services, and such costs shall be added to
and paid as a part of the repair and maintenance cost; provided, however, that compensation for
the agent'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 anticipates the
need for funds, shall notify the parties and each party shall within forty-five (45) days pay the
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agent; who shalLmai.ntaina trustee account and also maintain accurate accounting records which
are to be available for in.~pection by any party or authorized agent upon reasonable request. All
such.records, shall ,be retained by the agent for a period offive'years.
8. Should any lot owner.;fail to pay the pro rata share of costs and expenses as provided in this
Agreel1)ent, then the agent or any lot owner or owners shall be entitled without further notice to
institute legal action for the collection of 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 at the current prime rate
of interest, until paid, all costs and disbursements of such action, including such sum or sums as
the Court may fix as and for a reasonable attorney's fees.
9. Any liability of the lot owners for personal injury to the agent hereunder; or to any worker
employed to make repairs or provide maintenance under this agreement, or to third persons, as
well as any liability of the lot owners for damage to thepropert)i of agent, or any such worker, or
of any third persons, as a result of or arising out of repairs and maintenance under this
Agreement, shall be borne, as'between the lot owners in the same':percentages as they bear the
costs and expenses of such repairs and maintenance. Each lot owner shall be responsible for and
maintain his own insurance, if any. By this Agreement, the parties do not intend to provide for
the sharing of liability with respect to personal injury or property damage other than that
attributable to the Tepairs and maintenance undertaken under this Agreement. Each of the lot
owners agrees to indemnify the others from any and all liability for injury to himself or damage
to his property when such injury or damage results from, 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 their offiCials, directors,. officers, agents and
employees from and.against alj liability, claims, damages, losses, expenses, personal injury and
other costs, including costs of defense and attorney's fees, to"the agent hereunder, or to any lot
owner, any contractor, any subcontractor, any user of the road easement, or to any other 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 documents or City's approval of
the plans and specifications' or inspection of the work is intended to include a review, inspection
acknowledgement of a responsibility for any such matter, an City, City's engineer, and their
consultants, and each of thdr officials, directors, officers, employees and agents, shall have
absolutely no responsibility or liability therefore.
II. If in the City's sole judgment said private road easement is not being maintained to
standards set forth in paragraph 4 of this Agreement, the City may thereupon provide written
notice to all lot owners to initiakrepairs or construction within ninety (90) days. Upon failure to
demonstrategoo"dfaith to make repairs or construction within ninety (90) days, the lot owners
agree thatthe City may make all needed repairs to said road easement and/or construct said road
easement to meet the standards set forth in paragraph 4 and to then assess costs to all lot owners
proportionately. The agent shall be responsible for collecting the assessments and ensuring
payment to the City. If the agent fails to collect the assessments for any reason, the City may
pursue the remedy provided for lot owners in Paragraph 8 hereof, or any other remedies at law or
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in 'equity.
12. If the C'ityefects to make necessary repairs inaccotd~mcewith paragraph II above, said
work sliaILbe'withoutwarranty. Said repairshaILbe,atcepted"as is"'by the lot owners without
any warranty of workmanship and be guaranteed and indemnified by them in accordance with
paragraph 9.
13. The foregoing covenants shall run with the land and shall be 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 ofthe property referred'to herein.
14. It is understood and agreed,that the covenants 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 signat6rs hereto that this instrument be recorded 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. Excepting paragraphs 10, 11 and 12 above, 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 ofthe 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.
18. If the Property constitutes a "Common Interest Development" as defined in California Civil
Code Section 1351 (c) which will include membership in or ownership of an "Association" as
defined in California Civil Code Section 1351 (a), anything in the Agreement to the contrary
notwithstanding, the following provisions shall apply at and during such 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 the private road easement) is managed and
controlled by an AssoCiation:
(a) The Association, through its Board of Directors, shalf repair and maintain the private road
easement and shall be deemed the "agent" as tefeftedto in Paragraph 7 above. The Association,
which shall not be replaced except by amendment to the Declaration, shall receive no
compensation for perfoITlling such duties. The costs of such maintenance and repair shall be
assessed against ..each owner and his subdivision interest in the Property pursuant to the
Declaration. The 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
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entirety. No.'individualowner shall have the right to altel~Znt~in orrepair any of the Common
Area (as definedinCalifornia Cjvil Code Section 1351 (b) in the Property except as may be
allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner which reduces or limits the
Association's rights and duties pursuant to its Bylaws and the Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day.of~ ,1998.
By: David Homer Williams;.L. P.
By:
(Y'rj.eed. Yt~ W'~t?.' ~. ,J
Eliz eth N. Williams ~
President of HEW, Inc:; its General Partner
By:
Robert H. Williams, L.P.
By:
oert H. Williams
President of BCSW, Inc., its General Partner
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APPROVED:
CITY OF POWAY:
By:
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CALIFOR,NIA ALL.PURPOSE ACKNOWLEDGMENT
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OPTIONAL
Though the information be/diN is fJouequirec! by' taw, it may prove,valua,9/e'~opersons relying on the document
and could prevent frauduient removal and reattachment of tnis'form, to another document.
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@1997.National.NotaryAssocia,tion;9350 De Soto"Ave. P,O, Box 2402 . Chatsworth. CA 91313-2402
Place Notary Seal Above
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Signer(s) Other Than Named Above:
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Prod. No. 5907
Reorder: Call To)I'Free 1-800-876-6827
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CALlFOFiNIA4LL.PURPOSE ACKNOWLEDGMENT
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to be the person(.sf whose name.(ar is/are
subscribed to" the' within .instrument and
acknowledged to me that':he/sl:lo/lnt::} executed
the same in his/~r authorized
capacity(ies), and that by his/h.Gfftheir
signature(.S)-on the instrument the perso$), or
the entity upon behalf of which the persorlfs)
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OPTIONAL
Though the information:Helo"Vf'isnotrequired'by law, it may prove valuable: to persons relying on the document
and could prevent.fraudulent removal-and reattachment ofthis form 'to another document.
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Description of Attached D~CL!ment p, I
Title or Type of Document: ,'va)P a
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TTm /1/0 89~Ol
Document Date:
Signer(s) Other Than Named Above:
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Capacity(ies) Claimed by Signer
Signer's Name:
o Individual
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Number of Pages:
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@ 1997 National Notary Association. 9.350 De Soto'Ave P.O, Box 2402 '. Chatsworth: CA 91313-2402
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Signer Is Representing:
Prod. No.S907
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CALIFORNIA ALL.PURPOSE ACKNOwLEDGMENT
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State of California
County of
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Date
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Name and ,Title,ol Officer (e.g.. "Jane Doe, NolaI)'
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, Name(s}ofSigner(s)
o personally'known to me
R'proved to me on the basis of satisfactory
evidence
. to be the, person.iB-) wh9se name(&) is/are-
subscribed to the, within instrument and
acknowledged to rue that~ executed
the same in ~/her/Il'teir authorized
capacity(.ies), and. .that by !:>is/her/their
signature(&l-on the instrument the personts), or
the entity upon .behalf of which the perso$)
acted, execute-d the instrument.
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OPTIONAL
Though the information,be/oL1(is nO('requiredby law, it,may prove' valu8ole.topersons,relying on the document
and could prevent.fraudulent removal and reattachment Qf this forril!o another document,
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RIGHT THUMBPRINT,
OF-SIGNER
Top ofthu'rTib'here"
@1997 National Nolary As~socjation~ 9350 De Solo Ave., P.O. Box 2402. Chatsworth, CA 91313-2402
Place Notary Seal Above
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Description of Attached D?,l!~
Title or Type of Document: (/~
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Document Date:
Signer(s) Other Than Named Above:
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Capacity(ies) Claimed by Signer
Signer:s Name:
o Individual
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o 'pariner ~D Limited 0 General
o Aitorney in Fact
o Trustee
o GLjardian or Gonservator
o Other:
Signer Is Representing:
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Prod. No. 5907
Reorder: Call To!I.Free 1-800-876;6827
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TTM 89-09
ON-SITE ROAD MAINTENANCE AGREEMENT
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EXHiBIT B
LEGAL DESCRIPTION
PARCELS 1 THROUGH 4 INCLUSIVE OF PARCEL MAP NO. 8082, IN THE COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 22, 1978 AS FILE NO. 78-506038 OF
OFFICIAL RECORDS,AS CORRECTED BY CERTIFICATE OF CORRECTION
RECORDED NOVEMBER 7, 1979 AS FILE NO. 79-470263 OF OFFICIAL RECORDS.
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