Road Construction and Maintenance Agreement 1998-0702057
t ~',~'~:: i'- RECORDING REQUESTED B. ) DOG .199.8~0702057
)
CITY OF pdWily ) OCT 29" '1998 8:'~B AM
)
AND 'WHEN RECO~DEp .MAIL TO:) 15;5 , OFFICIAL I RECORDS' ,
) SAN DIEGO COUHTY'RECORDER'S OFFICE
CITY CLERK ) GREGORY J.SIIITH. COUNTY'REcliRDER
C U{ OF POWAy ) FEES: 34:00"- '
P .9, BOX ~89 ) (Thi s soace' for. Rec: 1IIIIIII11111JI'IIIIIII 11111111 ~
PowAy, CA '92074 )
t~ )
)
, 1998-0702057
\ ROAD CONSTRUCTION, AND
MAiNTENANCE AGREEMENT
The purpose,of this Agreement is to provide adequate, roadways within the City
of Po way and ma:intenancE; of same, Ihis Agreement is executed by the parties
herein as acond,ition of approva,l by the Ci ty of Poway, to a development
project as de,f,i,ned in ,Section 21065 of the Public, Resources Code and willr;un
~i th the' land in per;pe,t:,CIi,tyas a covenant upon ~he ;propfrty described herei h.
The standard for ,improyement \<i,ill be thatstanda,rd, set' forth by the PowayCity
Council,' If no standard ,isspecHicallY ,set forth ,by sa.id Counci,l as a
condition of appro,val of the, proj~ct, said standard"will be those set forth by
the regul aIor)' ord i nances, of'the City 'of P(jway. The cohstructi on descri bed
'herein 'shall be accomplished prior to final approval of the project herein by
the City of Poway. "
WHEREFORE, the undersigned agree as follows:
L PARTIES AND PROPERTY. The parties here'to are those property owners
'who ,have e,xec,utea thi:s Agreement and their heirs"executors, administrators,
assigns; ard sU,ccesso[S .in, interest, upon all of whom this, Agreement shall be
bi nding: The City oJ PClVlay:slia 11 not be deemed a party hereto, bu~ sha 1,1 be
deemed a benefi ci,ary. The rea Hy held by each party 'is i dent Hied ,by tax
parcel number adJacent to the signature of said party, The legai descripbon
of the parcel upon wh'i,chthe pr..oject is ,located is set forth in Exhibit "A,"
attached hereto and incorporated, herein, The ,status of' property for all
purposes (i.e. improv,ed, 'un}mproyed, etc,) 'shall be determi'hed as of the first
Monday in March of each year.
2. ROAD. The roadwa'y shall be that roadway establirshed by,.the City of
P,oway as thE; rO;1dwaY best suited to prov ide access fo'rthe C iti 'emergency
vehi,:cles and/or City projects (water, sewer, e,tl::')' The locat)mi,of said'
roadway shall be with,i n the sole di scret ion of the City (jf Poway as a
c,ondit ion of approval o,f the deve,lopment project. The descri p\J on of the road
whi ch i:'s"the subject of th is Agreement is attached here,to, as Exhib"it "B"a~d
made a part hereoL
3. GONSTRUCT.ION ,AND ROUTINEMi\INTENANGE., The cost of construction,
capital impro,y;elllertS arid/or rout'ine m'aih~enance resu-ltfng from ordinary .wear
and tear shall be ,borne by the parties Fn' accordance with the foll owing
formula:
a,. A, private road hotprovjding access ,top,util i~ roads in both
lii rections i,s analogous to any road terminaHng in a cul-de-sac,
Under such con,d i't i oHs,,-,, prope'rty owners n'earest, 'the s.o 1 e pub 1 i c
access road Win ,not 'Dave (jccasion, fo use 'the fun course ofsa,id' .
private road, G,i,ven sychcircumstances, 'fa,irnes: dicCites that onTy
.----.., ------
f' . '. 156
those propertY owners commonly traversi rig a port'; on of the pri vate
road ,sh~ll be made to bear the cost oJ maintaining that portion of
the "';0 ad . lher.ef.ore, construct,i on, i mpl(ovemen~, and ma i nten,ance
costs of portions ,of the road used onlY be certa,inperson's, because
si tljated further from the road entraric:'e and beyond" the p.r,operty
perimeter's or boundaries of other pa'rties, shall be borne onlY by
those, parties.
b. Constructi on imp,rovement and/or maintenance of the road by all
part i es ' who ',use the road in common shall be allocated in accordance
, with the followi ng poi nt system: -,
(1) Each party automatically is allocated 10. points by vi.rtue of
ownership of any size of undeveloped lapd'to which 'access is
provided by the roa~. For each icre of land (rounded to the
n'earestacre) 1 point shall be allocated.
(2) For each: acre (rounded to the near~st ~cre) of land developed
for grove ljse,an additional point sh~ll be allocated.
(3) For a residential structure or recreational, structure ~hich is
used not more than 30.% of the time, 10 additional points.
(Housing for ,agricultural workers shall not be deemed a
"residential. structure," A manager',s or foreman's residence
shall be deemed a "residential structure.")
(4) For a residential structure which is 'used more than 30% of the
time, 40 additional points shall be ~llocated.
(5) For any v~hi cle one tone or over, regi'stered to the owner of any
parcel and ljsed by same over any portion of said roa:dfor any
period of' time, 5 points.
c. Example 1 of the formula: Assume that the road from starting point
to owner A's farthest boundary ,of land from said starting point is
65% of its 1 engt,h; from there to Band C' s, farthest boundary is 35%
of its length; fr.om that point, the end of the road, D's property
begins. Aha's io ,acres of unimproved land. B has 40 acres of
unimproved land. C has a 20 acre grove with a full-'time residence,
D has 10. acres of :uni mproved 1 and, Cost ,of construction (or repair)
of the enti.re road for the year in questions is $10,000;: repair of
the gate is $2,000.
B 40 acres
ROAD D 10 acres
C 20' acres
A 20 acres T
SoluUon. to Example: (see graph)
Cost of the gate and 65% of the road is shared bY all. Thirty-five
percent of the road cost is shared ~nly by B, C, and D, Ratio of
shari ng is determi ned by the foll OWing poi nt of allocat i on:
-2-
. . 15'7
II ,OWNER I ALL I ACRES I GROVE I RES I TOTALS 11
A 10 20 '30
B 10 40 50
C 10 20 20 40 90
D 10 10 20
TOTAL POINTS 190
-
As to $8,500 of the cost: (65% of road and gate)
. $ 1,342.10
A pays 30/190ths or
B pays5,oj190ths or $ 2,236,84
C pays 90jl90ths or $ 4,026.31
D pays 20j190ths or $ 894.75
As to $3,500 additional cost: (35% of road)
B pays 50!160ths or $ 1,094.00
C pays.9011'60ths or $,1,969.20
D pays 20/160ths or $ 437.60
d. Example ~ of the f6rmula: Assume the road is a through road, That
is, it may be traversed in both d,i rections by any abutti ng property
owner" Assume the same status of the property for point purposes as
in Example l.
I B 40 acres I D 10 acres I
ROAD
I A 20 acres I C 20 acres I
Solution to Exampje: (see graph)
~ OWNER I ALL I ACRES I GROVE I RES I TOTALS ~
A 10 20 30
B 10 40 50
C 10 20 20 40 90
D 10 10 20
TOTAL POINTS 190
As to the $12,000 cost:
A pays 30/190ths or $ 1,894.73
B pays 50/190ths or $ 3,158.00
C pays 90/190ths or $ 5,684.40
D pays 20/190ths or $ 1,263.20
-3-
; . . 158
4. EXTRAORDINARY DAMAGE. It shall be the abf,igatian .of each party
hereta ta make and<payfar all repa i rs ta raad, and ta an related structures
(drains, ,gutters, gates, fences, etc,) when the sal11ehave been damaged by the
extraardinary use of such party .or his agents .or el11playees. Examples .of
extraardinary uS,e are damage caused by tractar type vehicles and damage caused
by heavy equi pment (I tan .or aver) such, as' 'mi ght be used durtng cansfructi an
.of ares,idence. O'rdinaryuse .of said road will be far passenger veh'icle's and
. - , . . .
llght truck (3j4 tan .or less) traffic. Ordi~ary wear and tear .or ar.dinary use
shall be that gradual and, aver a periad wearing cau$ed by such .ordinary use.
Extr'aardinary use is caus,ing immediate damage with any vehicle a!, any damage
caused by a~ehicle nat defined within ordinary use tr.affic.
5. INITIATION AND MANAGEMENT OF REPAIRS.
a. Any system far achievement .of repairs' and 'payment .of casts which, in
the year i n,quesUan, is agreeable ta the majarity .of part i es, shall
be the system ,utilized.
b. "Majarity" is any graup .of landawners halding 51% .or mare .of the
"paints" as calculated in paragraph ~. They may i.nitiate and manage
a pragram .of raad main~enance, .or maintenance and repair .of related
facilities; such as gutters, gates, etc. The time and effart
expended by parties hereta in such management shall nat be
campensated. A llather casts incurred' shall be 'shared in accardance
with the abave farmula,
c. Achievement .of the minimum 51% cansensus respecting maintenance shall
be evidenced by a written statement, signed by parties purparting ta
canstftute such representatian. A capy .of the written statement
shall be sent to the address of each party, a's shawn an the 1 atest
tax assessar's rall; at least twa weeks priar ta the cammencement of
any wark .or thei~curring .of any maintenance casts,
6. ADMINISTRATION OF COSTS. The praperty .owner .or .owners initiating
repairs or capital improvements shall be in charge .of making the payments
requi red far the wark .of impravement. It shall be i~cumbent upan all praperty
.owners ta cantribute ta the general fund ta be used far maintenance .or capital
impravement in accaraante with the paint camputat,ians referenced abave. After
the actual expenditure of funds by any .owner .or graup .of .owners such parties
sha 11 be ent itl ed ta assess all ather parti es tathi s Agreement in accardance
with the formula set farth, above. Said assessment noti'ce shall clearly
specify the expend i tures, the, purpase far same, and the' met had .of ca 1 cul at i an.
Upanreceipt .of any such natice .of assessment, the assessed praperty .owner
shall have ten days in which ta dispute the ,assessment. Failure ta resalve
the, di'spute, shan be remedied by arbitration ,as set farth hereunder, Omissian
by any assessed praperty .owner ta giv,e naUce in writing within 'the ten days
.of his di:spute .of the assessment shall canclus,ively be deemed h,is cansent ta
- ,-
same. When any:assessmerit shall have became final, it shall be due within 20
days .of that date. It shall be an abligat,ian callectible by law thraugh all
1 ega 1 pracess,
7., ARB ITRA TI ON, Any dispute amang any .of the parties ta this Agreement
respect i ng the, i nterpretat i an .of the Agreement .or the app 1 i cat i an .of any .of
its terms .or the act i an taken by any party in accardance therewith, shall be
settled by arbitratian pursuant ta the Civil ,Cade.
8. FiNDING, The City .of Paway finds that failure ta m~intain private
raad ta standards prescribed by law adv,ersely ,imjJ'acts upan the health, safety,
-4-
,
;: . . 158
and welfare of all residents thereof. The City further finds that inadequately ma,i ntai ned private roads presen.t potent i a 1 hazargs to emergency'
veh i cl es and other vehi c 1 es in the course of C itybiis iness and as such are a
public nuisance.
a. Thel'efore, i f i~ the Ci ty' s sole jlidgement sa.id pri vate road has not
been ma i nta i ned, to speci fi cat ions set forth pursuant to City
Ord i nancesor other standards app 1 i cabl eAo thi s Agl'eement, 'the City
will thereupon p,rovide written notice to all parties to this '
, ,
Agre,ement to initiate repairs or construc,tion within thtrty (30)
days. Should said parties fail to demonstrat~e good faith to make
repairs or cons,truction at the expiration of the thirty (30) days,
the City is further empowered by th is Agreement to make all needed
repairs to ,said road and/or construct said ro~d to meet ~urrei1t, City
standards for the herein-described road, and to, then assess costs to
all property owners to thi s AgreemenLS'uch assessment wi 11 be '
established in conformance with the point system contained herein.
b. Any property owner failing to make payment to the, City for costs
incurred pursuant to Section (a) within sixty (60) days of receipt of
a bi 11 i ng from the City shall be deemed ,in materi a 1 breach of the
agreement. The City shall thereupon be entitled to,commence
1 itigat,ionin any co'urt of competent jur'i~diction for the recovery of
all of said costs. In the event of s~ch litigation, the City shall
be further ent itl e,d, to the recovery of its attorney fees and 1 eg~ 1
costs reasonably incurred therein.
c. Property owner(s) shall indemnify and hold harmless City, City's
Engineer, and the~r consultants, and each bf their officials,
directors, officers, agents, and employees from and against all
1 i abi 1 ity, c la ims, damages, losses, expenses ,and other costs,
including costs of defense and attorney's fees, arising ,out of or
resu1ti,ng from or in connection with the performance of the work,
both on and off the job-site, and during and after completion,
provided that any of the foregoing~ I) is attributable to bodily
injury,sickness, di,sease or death, or toinjiJry to or destruction of
property including the loss of use resulf,ing therefrom, and 2) is
caused in 'who le or in part by any act or omi ss i on of property owner,
any contractor.', any subcontractor, any suppl ier, anyone directly or
indirectly employed by any of them, or anyone for whose acts or
omissions any of them may be liable. Nothing in the ,Agreem~nt, the
spec Hi cat ions or other contract documents or City's approval of the,
plans and specjfication acknowledgment of a responsibility for any
such matter', 'and City, City's Engi neer, and their con'sultants, and
each if their officials, directors, offi~ers, employees, and agents,
sha 11 have abso,l ute ly no respons ibi 1 ity or 1 i abil i ty therefor.
d, If City is required to make necessary road repairs inaccordarice with
suoparagraph (a) above,. said work shall be without warranty to
propertY owner', his agents, or' assigns. ' Sat'd repair' shall be
accepted "as is" by said owners without any warranty of workmanship,
Sa i d repair sha 11 be guaranteed and i ndemn Hi ed by property owneri n
accordance with subparagraph (c),
9, COVENANT RUNNING WITH LAND, ThiS Agreement shall be deemed and is
intended to run with the land and be, a restriction upon said property, shall
be binding upon and inure to the benefit,'of the undersigned, his/her/their
heirs, personal representatives, successors and assigns, forever or until such
-5-
, . . . 160
be binding upon and inure to the benefit of the undersigned, his/her/their
heirs, personalr:epresentatives, successors and assigns, forever or until such
time as the silid private road shall be dedicated to and accepted for use as a
public,streetor fhoroughfare .by municipal government lawfully exercising
jurisdiction over said private road.
10. RECORDING OF AGREEMENT. It is the purpose of the signators hereto
that this instr'ument be recorded to the end and, Jntent 'that the obl igation
hereby created shall' be a restriction upon ~nd shall be secured by th'e said
property'and any subsequent transferee thereof, by acceptance of del ivery of a
deed and/or conveyance of the said property shall b~ deemed to have consented
to and become bound by these presents, including wi,thout 1 imitation, the right
of any person entitled to ,enforce the terms of this Agreement to enforce the
restriction therein created. such remedy to be cumul~tive and in additlonto
all other remedies at law or' in equity,
It. SUBSEQUENT USERS. In the event that a party (parcel) not originally
cgntemplated by this Agreement gains access to said private road, that, party
(parcel) shall be required to subscribe to thisAgr;eement. Should any 'parcel
contemplated by this Agreement be split into multip.le parcels (two or more)
each newly created parcel shall thereupon be obli,ged under this Agreement and
incur its portion of maintenance costs as set forth by the point system
herein.
IN WITNE~S WHEREOF, the parties hereto have executed this Agreement on the
dates set forth hereinafter:
Tax Assessor's Number o??7~/30-/P-ClU Date /CJ.- /3 -7'1'
OWNERS )?OA/,4/4? F. S.4WZ/1/-c ~~ *
Type or Print 19nature
i/r' t/I /J"v' /1, SAW z,4 (, -?L a~~ *
Type or Print Signature
(Notary Acknowledgment attached) (Each owner shown on Grant Deed must sign)
Tax Assessor's Number Date
OWNERS
Type or Print Si gnature
Type or Print Signature
(Notar,y Acknowl edgment attached) (Each owner shown on Grant Deed must sign)
,ACCEPTED :
,
>4- ~ (, ~- T -6-
'-' ;';cL /U A'T- . KlLo./: s.'~.....,.I f</z,7/"r
/ /J,- ~.lFO
; . . 1.61
Acknowledgement
STATE OF } ss:
c...tj,-l(---rz,- belo,e pe<sonally appea'edR~-l ~ ~
r I personally known to me -OR. I ] prove me .on the basis of satisfactory evidence to be the person(sl whose namelsl..is/are
'subscribed to the within instrument and acknowleaged to me that he/she/they executed'the same in 'his/her/their authorized capacity(iesl.
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon. behalf of which the person(s) ac~ed. e~ecut~d the
instrument. NOTARY SEAL STAMP
WITNESS my hand and official seal.
1--~---:"_-----(
;; , .""" GLEN JACKSON 11
W ~ ,'- Comm, , 1104585 ~
.. :" NOTAllY PUBLk: - CAllFORNA D
~ k San Oiqo Colnl,t
X ~. '. I ~~ - ~'~~~:"-'~1
Notary Public
Managemel1l Syslems Oevelop~eru. Inc. (800J984.6060 Title.One (!nergizer,TM ICA_ASSN !9(12/97) Copyright leI 1994
-
:'.TY OF POW
DON HIGGINSON, Mayor
JAY GOLD BY, Deputy Mayor 16 2
MICKEY CAFAGNA,Councilmember
BOB EME~Y, 'C?imciJrn~mbeD
BETIl' REXFORD; Councilmember
April27, 1998
Mr. Ron F, Sawzak
14008 Arbolitos Drive
Poway, CA 92064
Subject: 'MORA 95~65. Item No, 8C
Dear Mr. Sawzak:
This letter confirms the results of our meeting on April 27, 1998 with Jim Bowersox,
Mark Weston, and yourself to resolve compliance with Condition No, 8C of your MORA,
The City ullderstands that3 other property owners share:theuse of your roadway, The
City agrees that you will be,responsible to maintain the roadwayfrom the driveway at
the south property iine of Parcel 2 to the driveway for your residence which extends
approximately 240 feet to the south,
The limits of your road maintenance agreement will extend as, described above and will
be incorporated into the recorded'TOad maintenance agreement
If you have any question, please contact me at 679-435,1,
Sincerely,
??J~A/~
iviark S, 'vVeslorl
Director of -Engineering Services
MSW:mh
xc: Javid Siminou
Gene logan
APN File (277-130-18)
G IC2--? ~ "t7
-t R. ~(./,-s "0."'/" "I/.:<.71f'?
.. City Hall Located at 13325 Civic Center Drive
fr\ Mail,ingAddress: P.O, Box 789, Poway, California 92074-07890(619) 748'6600, 695-1400
W"-"""'''''''''''''''!i'''''''' FAX (619) 748'1455
.
~ . .
EXHIBIT A 163
ROAD CONSTRUCTION AND MAINTENANCE AGREEMENT
APN 277-130-18
LEGAL DESCRIPTION:
PARCEL I OF PARCEL MAP 5920,rN THE CITY OF POWAY~ COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA. APN:<277-130-18
",
.
\, ' " . .
EXHffilTB' 164
. ROAD CONSTRUCTION AND MAINTENANCE AGREEMENT
, . ,','
, APN 277-130-18
Acce;s from Old Coach'Rd. ~
-:- --
Ih
N
NOT TO SCALE
Parcell
Parcel Map 5920
~ !
I
-1
N ~7
p -<.,,<t-
'r~E:
- - ----;-- -
VICINITY MAP
NOT TO SCALE
'"