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Private Road Maintenance Agreement 1998-0761717 ..,~ '.-: . -.-~, ,.. .' '\ . .' \. *~ \'(0 . DOC -'1998-0761717 .>.:-- -ReCORDING REQUESTED BY: NOV 24. 1998 AM 8:29 ) ) ) ) AND WHEN RECORDED MAIL TO: ) ) ) ) ) ) ) 133" 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: Page 1 on , " . 134 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. . 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 Page 2 of7 . . 135 - . 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 Page 3 of7 , . . 136. 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 Page 4 on ,'.;;.' . . 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 CL- APPROVED: CITY OF POWAY: By: . - Approved as By: r4 \\~c~() S9i- oW C~ NJe~ L \"\,~Olt~ ~CWr Page 5 on .... '. . 138 .. CALIFOR,NIA ALL.PURPOSE ACKNOWLEDGMENT State of California County of ~, JlI~f) On )};I/ L;~ /99;:;, beiore me, 6ate personally appeared E Ii Z~ 11/ I I I IC , >4' .. . a-.e-il ~~~.,.. R j".. ,.. IMRGAnETM.COO:CSoN '~,..,.,.~..'-.. OMM 1'0';2857, ,~ . .' c.,. '\ .. .<F. :( ~''::~,':.if~... NotorV Public _"Colli..:.lfl'InI.. ~ 2 : .-'t-&; ". SAN DIEGO COUf\fN .......n 11 J, _. 'UN22.1m ~ J,,~:\: ~~c~,m:'-:;,S~, ... ,~.. IV',. . __' ~~~ } ss. m ~h U) 1'Ili/:l;?1", Name(s) of Si~ner(s) D personally known to me ~proved to me on the basis of satisfactory evidence to be the persorWlr whose name{s) is/are subscribed to the, within instrument and acknowledged to methat.betshe/tI:leyexecuted the same in .Ais!her/.tReir authorized capacity(jes), ancl that by hia/her/their sighature(.e1on the. instrument the person(s}; or the entity upoh behalf of. which the person.(s) acted, executed the instrument. 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. f2J rfblNfl Ar.Tf!/I/v g9 ~Cf( Number of Pages: , Top oithunlo)lsre @1997.National.NotaryAssocia,tion;9350 De Soto"Ave. P,O, Box 2402 . Chatsworth. CA 91313-2402 Place Notary Seal Above I " , " " , Description of Attached Documentp, I. Title or Type of Document> (J VM Document Date: Signer(s) Other Than Named Above: I' Capacity(ies) Claimed by Signer Signer,~s Name: o Individual O' Corporate Officer~,Title(s): o Partner - 0 Limiied 0 General .0 Attorney in,Fact 0' Trustee D Guardian or Conservator pOther: I I I' Signer Is Representing: Prod. No. 5907 Reorder: Call To)I'Free 1-800-876-6827 ,1 , " I ,I I , , I I " , " ,I " , , I I 1 1 I I I , I , I , I I CALlFOFiNIA4LL.PURPOSE ACKNOWLEDGMENT r'^*'..c<''''''''''''~'''''~~~~''''''''''='''''''='~=~~''- , State of California } 1< C ~ "", 5$. : County of ~n -~(~,Q : On lVov 4/ Me; g Date : -. . personally appeared , before me, RnhRJ-J . 139 fI (, CcnUC!)) ame and Title of Officer (e,g., ,"Jane Doe. Notary Publi . U ) i IItO(r6 Name(s) ofSigner(s) 1 I, , , , , " , , " " I' " P cJ!rc Place Notary Seal Above o personally known to me ~proved to me on the basis of satisfactory evidence to be the person(.sf whose name.(ar is/are subscribed to" the' within .instrument and acknowledged to me that':he/sl:lo/lnt::} executed the same in his/~r authorized capacity(ies), and that by his/h.Gfftheir signature(.S)-on the instrument the perso$), or the entity upon behalf of which the persorlfs) acted, executed the instrument. 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. I , I " Description of Attached D~CL!ment p, I Title or Type of Document: ,'va)P a 1fbt'1I-!<<,1. Ilyrrr! TTm /1/0 89~Ol Document Date: Signer(s) Other Than Named Above: I, Capacity(ies) Claimed by Signer Signer's Name: o Individual o Corporate Officer - Title(s): o Partner - 0 Limited 0 General o Attorney in Fact o Trustee D Guardian or Conser\iati::ir o Other: Number of Pages: . Top of thulTlb'here @ 1997 National Notary Association. 9.350 De Soto'Ave P.O, Box 2402 '. Chatsworth: CA 91313-2402 , , , " I , " I' Signer Is Representing: Prod. No.S907 Reorder: Call Toll-Free 1-800-876.6827 OJ 1 " I 1 I " '1 , , 1 1 ,1 1 ,1 " 1 -, . '. . . 140 CALIFORNIA ALL.PURPOSE ACKNOwLEDGMENT ." - ,-- ' . I I I State of California County of S/Jn olPqo } ss. (lbk ( I' I' , I' On ;UOV L/j /918 ,before me; Date Ju I )QIJ!Ie Name and ,Title,ol Officer (e.g.. "Jane Doe, NolaI)' U),lIiiJ!h" ,~ , 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. I I " , 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, R d m(J/(lc.e. ~ TT /f7 /lIo gC; -nq personally appeared I' I I 1 1 1 , , I I Number of Pages: 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 (, Description of Attached D?,l!~ Title or Type of Document: (/~ " " I Document Date: Signer(s) Other Than Named Above: 1 I I ( Capacity(ies) Claimed by Signer Signer:s Name: o Individual o CorporaJ;, Officer ~Title(s): o 'pariner ~D Limited 0 General o Aitorney in Fact o Trustee o GLjardian or Gonservator o Other: Signer Is Representing: (, Prod. No. 5907 Reorder: Call To!I.Free 1-800-876;6827 '1 I '1 ,1 'I '( ,( , '1 , 1 ,( "1 'I " 1 , , '1 ,1 I 1 " ,) ,1 I 1 '1 , , ,1 I ) ,( ,) " . . 141 TTM 89-09 ON-SITE ROAD MAINTENANCE AGREEMENT N 9 7 5 3 2 DEL P(WIENTI: 6 NOT TO SCALE PRIVATE ROAD ~ N 1'0 ^!l!~'NI'/: ( 6 '" / R()^Ll SITE ~ " ::: " T\\'I~ I'I~I\K;'; " .~. ~~\I) VICINITY MAP NOT. TOSCALE EXIIIBIT ^ , ; ~.'.. :::..../'. ." . . 142 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. Page 7 on