Private Road, Drainage & Landscape Maintenance Agreement 2009-0397981
,
,
CITY OF POW A Y
~'
9
\cA
DOC # 2009-0397981
1111111111111111111111111111111111111111111111111111111111111111111111
i'
".'
~
""'-:;-:--:--.
\ RECORDING REQUESTED BY
JUL 20, 2009
8:12 AM
WHEN RE<;:ORDED, PLEASE MAIL TO:
OFFICIAL RECORDS
SNI DIEGO COUI'IT'r' RECORDER'S OFFICE
DAVID L, BUTLER. COUNTY FHORDER
FEES' 0,00
PAGES:
8
City of.Poway
13325 Civic Center Drive
Poway, California 92064
7:343
11111111111111111111111111111111111111111111111111111111111111111111111111111111
APNs: 321clOO-Ol, 08
PRIV A TE ROAD, DRAINAGE AND LANDSCAPE MAINTENANCE AGREEMENT
No Documentary Transfer Tax Due
This Agreement is for the maintenance and repair of that certain cul,de,sac, drainage and
landscaping, the description of which is, set forth in Exhibit "A" attached hereto and incorporated
herein by this reference, is entered into by VIEWPOINT PDV, LLC, A California Limited Liability
Corporation ("Developer") and the CITY OF POW A Y ("City") for the benefit of future subdivision lot
owners who will use the cul,de,sac, drainage and landscaping ("lot owners"), which snail include the
'Developer to the extent the Developer retains any ownership interest in any lot or lots.
'WJj~REAS, tllis Agreement is required as a condition of approval by the City o'fa,suhdivision
project as defined in section 21065 of the Public Resources Code and pursuant to the City of Poway
Municipal Code, Section 12.20.060; and,
WHEREAS, Developer is'the owner of certain real property being subdivided,and developed
as Tentative Map No, 03-02 that will use and enjoy the benefit of said cul,de,sac, drainage and
landscaping. A complete legal description of said real property is attached hereto, labeled Exhibit "8"
and incorporated herein by this reference ("Property"); and,
WHEREAS, it is the mutual desire of the parties hereto that said cul-de,sac, drainage and
landscaping be maintained in a safe and usable,condition by the lot owners; and,
WHEREAS, it is the mutual desite .of the p~rties hereto tQ. establish a method for the
mai'nte','-ance and repair of said cu I-de,sac, drainage ancF-iandscaping' for the apportionment of the
expense:of such maintenance and repair among existing and future lot owners; and,
WHEREAS, the City shall be deemed a party hereto with the right, but not the obligation, to
enforce full compliance with the terms and conditions of this Agreement; and,
WHEREAS, it is the,mutual intention of the parties that this Agreement constitute a covenant
running with the land, binding upon each successive lot Dwner of all or any portion of the Property.
'",
"
l '
" .
Oy,-03Q
7344
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The Property'\:Jehefitef! by this Agreement, and present and successive lot owners of all
or any portion"ofthe Property are expressly bound hereby for the benefit oithe land.
2~ The cost and expense of maintaining the cul-de-sac, drainage and landscaping shall be
divided equally among the subdivided lots created in the subdivision and paid by the lot owner
orthe'heirs, assigns and successors in,interest of each such owner.
3. The repairs and maintenance to be performed under this Agreement shall beJimited to
tJ:Ie'fcillowmg unless'.consent for,additional work is agreed to by a majority vote of the lot owners
owning 100% of the lots, Reasonable and normal improvement and maintenance work to
adequately maintain said cul-de-sac, drainage, and landScaping. Related drainage facilities to
permit all weather access; and, all private storm drain facilities and!appurtenances within the right,
of way and required to maintain the private cuI7de-sacstreet. Private storm drains and
,!ppurtenances outside of the private streets and located on individual lots are the responsibility of
the'owner of the lot where the facilities,ateJocated.
Cul-decsaciand Road repairs and maintenance undetthis Agreement shall inchfde;,but
is not limited to, filliri.g of chuckholes, repairing cracks, repairing, and resurfaciilg of roadbeds,
including brick pavers, repairing and maintaining drainage structures, removing debris,
main"taining:,signs;,ffi;)rkers, striping, lighting, an~ ()ther ~or~r,easona!Jly ,necessary '()rpr,oper to
repair and preserve the cul-de,sac easement for all weather access purposes.
Landscape maintenance shall include, but is not limited to, planting, cultivating,
'Weeding, fertilizing, Watering, 'replacing, pruning and other work reasonably necessary and/or
proper to repair arid inaintain the ctil-de-sac and the easementfodandscape purposes.
4. If 'there is acovenarit" agreement, or other obligation imposed as a condition of
subdivision approval to make clI1,d~s,!lc, drainage and landscaping improvements to thecul-de-
sac, drainage an~f landscaping easement, the obligation to 'repair and maintain the cul-de-sac,
drainage,and;landscaping improvements as herein set forth shall commence when the cul-de-sac,
drainag~;and landscaping improvements have been completed and approved by the City,
,5., AnY'exfraordlriary repair;requiredto corrfft dainage,.t()said:cUl-d~7sac, drainage arid
landscaping that results from action takeh or contracted for by parties hereto or their successors-in
interest shall be paidJor by the party taking action or party contracting for work which caused the
necessity for the extraordinary repair. The repair shall be such as to restore the cul,de-sac,
drainage and laridscaping to the condition existing prior to said damage. Notwithstanding the
foregoing, the.City o{Poway shall have no obligation or responsibility to replace or repair brick
pavers to the cul~decsac, drainage and landscilping. The City of Po way shall use its best effort as to
not damage or create excessive repair to anywcirk it may perform.
6. It is agreed that Developeris initially the agent to contract and oversee and do all acts
Viewpoint Estates Page 2 of 8
Private Road, Drainage and Landscape Maintenance Agreement
2/28/2008
7345
necessary to accomplish the repairs and maintenance required and/or authorized under this
Agreement. The parties further agree that the agent may at any time be repmced by a written vote ofa
majority .of the ,lot .oWnerS:. Repah-and maintenance work on the cul,de-sac, drainage and landscaping
shall be mrnmencedwhen a majority of the lot .owners agree in W1iting.that suchwark is needed. The agent
shall abtam three (3) bids fram licensed cantractors and shall accept the lawest .of said three (3) bids and
shall' then initiate the wark. The agent shall be paid for all costs mcurred including a reasonable
campensation far the agent's services, and' such costs shall be added to'and paid as a part .of the repair and
maintenance cost; provided hawever, that compensatian far the agent;s services shall in.na event exceed
an,'ainaunt equivalent ta ten percent (10"10) .of the actual mst .of repairs and maintenance performed. In
perfarming his duties, the agent, as he anticipates the need far funds, shall in writing natify:the ;parties~
arid, each ,party shall within farty-five (45) days after the date .of such written natice ta pay the agerit, who
shall maintain a trUstee accaunt and also maintain accurate accaunting records which are ta be available
far inspectian by any party or autharized agent upan reasonable request. All such recards shall be
retained by the agent far, a period .of five (5) years.
7. Should any Jat .owner fail to timely pay the pro-rata share .of casts and expenses as
.provided in this AgreeIllent, then the agent .or any lat .owner .or .owners shall be entitled withaut,further
notice ta institute legal actian for the callection of funds advanced an behalf of such lot owner, and
shali be. entitled to'reCi:>ver'in such actian in.additian to the funds advanced, interest thereol}atthe <.:urrent
prime rate .of interest"until paid, all costs and disbursements of such actian, including such SUIIlar,sumsas
i:!1eCa1J1t may fix and .for a reasonable attarneys' fees.
^8: ' Any liability of the lat .owners far personal injury ta the agent hereunder, or ta any
worker emplayed to make repairs .or provide maintenance under this Agreement, .or to third persons, as well
as any liability .of thelat .owners fur damage to the property .of agent, .or any suchwarker, .or .of any third
perSons, as a resultaf ar;arisiilg out.ofrepairs and maintenanceunder't!lisAgreement, shall be borne, as
betWeen the lat,oWneIs'in thesafue percentages as they bear the costs and expenses of such.: repairs and
maintenance: Eachlat .owner shall be responsible far and maintain his awn insurance, if any; required
by this Agreement. The parties da nat intend ta provide for'the sharing .of liability with respect ta
personal' i~juryar praperty damage other than that attributable ta the repairs and maintenance
undertakenurtder"this Agreement. Each .of the lat .owners agreesta indemnify the .others fram aily and
all liability fol'"iI)jIifY ta himself .or damage ta his property when such injury .or darn~results from,
arising aut af".or is attributable to any maintenance .or repairs undertaken pursuant ta this Agreement.
:9: wt .owners shall jointly and severally defend and indemnify and hold harmless City,City's
engineer, and their cansultants and each .of their .officials, directors, officers, agents and emplayees from
and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs .of
defense and attorney fees, to the agent hereunder, .or to any lat .owner, any contractor, any subcontractor, any
user .of the'road/landscape easement, or ta any ather 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, drainage and
landscaping.
Viewpoint Estates Page3 of 8
Private Road, Drainage and Landscape Maintenance Agreement
2/28/2008
7346
Nothing in the Agreement, the specifications or other contract;dpcuments or City's approval
of the plans and specificatiOns or inspection of the work is intended to include a review, inspection
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.
10. If in the City's sole judgment said cul-de-sac, dramage and landscaping are not being
maintained to standards set forth in paragraph 4 of this Agreement, the City may thereupon provide
~i:ten notice to all lot owners to initiate repairs or construction within ninety (90) days, Upon faiIure.,to
dernpnstrate,good faith to make repairs or construction within ninety (90) days the]ofoWners'agree.that
the City may make' all needed repairs to said cul-de-sac, drainage and landscaping and/or construct said
improvements 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
proviaed for lot owners in paragraph 8 hereof, or any other remedies at law or in equity.
11. If the City elects to make:necessary repairs in accordance with paragraph 10 above,said
work shall be without warranty, Said repair shall be accepted "as is" by the lot owners without any
warranty of workmariship and be guaranteed andindemnilied by themin accordance with paragraph
9.
12 The foregoing covenants shall run with the' land and shall be deemed fo 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 of the Property referred to herein.
13. It is understood ari~ agreed that the covenants herein contained shall be binding on the
heirs, executors, administrators, successors, and assigns of each of the lot owners.
14. It is the purpose of the signatories 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, inf=Jy.~g without. limitation, the right of any personenj:itled to enforce the terms of this
Agreem~no' inSti1:uti:degal action. as'provideci in _ paragraph 8 hereof, such: rerriedyti')be' cUn\Ulative
and-in addition to other remedies provided in this Agreement and to all other remedies atlaw orin equity.
15. The tenns of this Agreement may be amended in writing upon majority approval of the lot
owners and consent of the City.
16. This Agreement shall be governed by the laws of the State of CaliforrUa.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.
Viewpoint'Estates Page40f8
Private Road, Drainage and Landscape Maintenance Agreement
2/28/2008
7347
IN WITNESS WHEREOF, lhe parties have executed this Agreement on "Z.c\
day of
frk>t---Y'J~~1 ,2008.
DEVEWPER:
VIEWPOINTPDV, LLC
By: MICJ-IAELA. LAYMAN. Managing Partner
Bjc f'v'kJJ\(XV\Ql r7 t
By:
Its:
Director, Department of Development Services
Approved as to Form:
Qffice;ofthe,~ity Attorney-
~~~
Lisa Foster, City Attorney
Viewpoint Estates Page 5 of8
Private Road, Drainage and Landscape Maintenance Agreement
2/28/2008
I:
ATTACHED TO PRIVATE ROAD, DRAINAGE AND LANDSCAPE MAINTENANCE AGREEMENT
7348
STATE OF CALIFORNIA
SS.
COUNTY OF
San Diego
On January 29. 2008 before me,
Susie Orr. Notarv Public
personally appeared
MICHAEL A. LAYMAN 111111111111111111111111111111111111111111111111111111I
Illjllllllllllllllllllllllllllllllllllllllllll//////////////////////////////
///////////////////////////////////////////I////II!///////I//!I/!!II//II!//I
who proved'lo me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that hejshe/they executed the same in his/her/their authorized
capacity{ies), and that by his/her/their signature(s) on the instrument the person(s). or the entity upon behalf of which
the person(s), 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 my hand and official seal.
.~~/. ~
Signature of Notary
~.'~--:~~i~gC i
'NDT_~.~!I
, 'SAN DIEGO COUNTY ~
Comm. EXp. APRIL ,1, 2011
COUNTY OF
)
) SS.
)
STATE OF CALIFORNIA
On
before me,
personally appeared
who proved'to me on the basis of satisfactory evidence to be the person(s) whose name(s) Is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her jtheir authorized
capacity(ies), and that by hls/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s), 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 my hand and official seal.
Signature of Notary
EXTNOTl --12/03/07 AA
,
EXHIBIT "A"
DESCRIPTION
7349
The following private road, in the City of Poway, County of San Diego, State of
California, as shown on the City of Poway Tract 03-02:
Tooth Rock Road, from the easterly line of said tract03-02southerly and westerly
to the cul-de-sac. This, private road shall be maintained by the owners of Lots 1
through 4 of Map No. 15683 recorded in the Office of the San Diego County Recorder
April 16, 2008 as File No, 2008-0202593 in san Diego county, California.
'.'
EXHIBIT "B"
Legal description
7350
That certain real property located in the City of Poway', California more particularly
described as follows:
Lots 1 through 4 of Map No. 1.5683 recorded in the office of the San Diego County
Recorder dated April 16, 2008 as File No. 2008-0202593 in San Diego County,
California,