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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 '"