Covenants of Acknowledgements of Drainage Interceptor Ditches Maintenance Agreement 1988-265141y V
RECORDING REQUESTED BY CONTINENTAL LAND TIRE
Recording Requested By:
City of Poway
When Recorded Return To:
City Clerk
City of Poway
P.O. Box 789
Poway, California 92054
265141
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NO FEE
For Recorder's Use Only a
COVENANTS OF ACKNOWLEDGEMENTS OF
DRAINAGE INTERCEPTOR DITCHES MAINTENANCE AGREEMENT
THIS COVENANT AND AGREEMENT is entered into as of the 11.-Cr
day of _ 1988, between SYCAMORE CREEK ASSOCIATES,
a California mited partnership ( "DEVELOPER ") , and the CITY OF
POWAY ( "CITY "), for the benefit of:
Lots 63 through 94, inclusive, and Lots 112
through 166, inclusive, of CITY OF POWAY TRACT
NO. 83 -02 according to Map thareof No. 11(&
filed in the Office of the County Recorder of
San Diego County, California, on b /�k.P,
19
1. Underlying Facts.
1.1 This Agreement is entered into between CITY
and DEVELOPER for the benefit of CITY and all future
owners ( "Lot Owners ") of those subdivision lots ( "Lots"
or "Property ") described above. Lot Owners shall include
DEVELOPER to the extent it retains any ownership interest
in any Lot or Lots.
1.2 This Agreement is required as a condition of
approval by CITY of a subdivision project as defined in
the California Public Resources Code §21065, and will
run with the Lots in perpetuity as a covenant upon such
real property.
1.3 The parties desire that the Drainage Interceptor
Ditches, as shown on the.approved" Improvement and Grading
Plan for CITY OF POWAY TRACT NO. 83 -02 and related facil-
ities, be maintained in a safe, usable and first -class
condition by the Lot Owners and the -t a method be estab-
me
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lished for maintenance and repair of the Drainage Inter-
ceptor Ditches and for apportionment of the maintenance
and repair expenses among existing and future Lot Owners.
1.4 CITY shall be deemed a party to this Agreement
with the right but not the obligation to enforce full
compliance with the terms and conditions of this Agree-
ment.
1.5 The parties intend that this Agreement consti-
tute a covenant running with the land comprising the
Property, binding upon and inuring to the benefit of each
successive Lot Owner.
2. Apportionment, of Cost. The cost and expense of maintain-
ing the Drainage Interceptor Ditches and related facilities shall
be divided equally among the Lots and paid by the Lot Owners or the
heirs, beneficiaries, legal representatives, successors and assigns
of each Lot Owner. Each Lot Owner shall have the right to enforce
this Agreement, including all rights under California Civil Code
§845 or any successor provision and applicable contract law.
3. Repairs and Maintenance. The repairs and maintenance to
be performed on the Drainage Interceptor Ditches shall be limited
to the following unless a majority of the Lot Owners approve such
additional work: reasonable and normal improvement and maintenance
work to maintain the Drainage Interceptor Ditches; repairing of
cracks, relining, and repairing and maintaining drainage structures;
removing debris; maintaining signs and markers if any; and other
work reasonably necessary or proper to repair and preserve the
Drainage Interceptor Ditches and related facilities.
4. Extraordinary Repairs. Any extraordinary repair required
to correct damage to the Drainage Interceptor Ditches or related
facilities that result from action taken or contracted for by a Lot
Owner or their successors -in- interest, shall be paid for by the
party taking or contracting for such action.
5. Agent. DEVELOPER shall initially serve as the agent to
contract and oversee and do or cause to be done all acts necessary
to accomplish the repairs and maintenance required or authorized
under this Agreement. The agent may at any time be replaced by the
affirmative vote of a majority of the Lot Owners. Any Lot Owner,
professional management company or other person or entity may serve
as the agent for the Lot Owners. The agent shall be entitled to
reasonable compensation not to exceed ten percent (10 %) of the
actual cost of repairs and maintenance.
6. Initiation and Approval of Repairs. Repair and mainte-
nance work shall be commenced upon the approval of a majority of
the Lot Owners, and a majority of Lot Owners may adopt a program
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for maintenance of the Drainage Interceptor Ditches and related
facilities'. The majority vote shall be evidenced by a written
statement signed by the approving Lot Owners. A copy of the written
statement shall be sent to the address of each Lot Owner shown on
the latest tax assessor's roll, at least two (2) weeks prior to
commencement of any work, incurring of any maintenance costs or
adoption of a program. Each Lot Owner.shall pay his or her share
of the cost and expense of all approved work which shall be due and
payable within thirty (30) days after written request from the agent
designated under Paragraph 5 above.
7. Failure to Pay Share of Maintenance Costs. If any Lot
Owner who is a party to this Agreement refuses to perform or fails
after demand in writing to pay the Lot Owner's proportion of the
cost, an action for specific performance or contribution may be
brought against that Lot Owner in a court of competent jurisdiction
by the other Lot Owners, either jointly or severally.
8. Liability and Insurance. Any liability of the Lot Owners
for personal injury or property damage to the agent, or to any
person employed or retained to make repairs or provide maintenance
under this Agreement, or to any third person, shall be borne equally
between the Lot Owners. Each Lot Owner shall be responsible for
and maintain his own share of liability for personal injury or
property damage other than that attributable to the repair and
maintenance of the Drainage Interceptor Ditches and related facili-
ties under this Agreement. Each of the Lot Owners shall indemnify
and hold the other Lot Owners harmless from any and all loss or
liability for injury to himself or damage to his property when such
injury or damage results from, arises out of or is attributable to
the repair or maintenance of the Drainage Interceptor Ditches and
related facilities under this Agreement.
9. Indemnification of CITY. The Lot Owners shall jointly
and severally indemnify and hold harmless CITY and its agents and
employees from and against all claims, demands, liabilities, losses,
costs and expenses, including attorney's fees, arising out of or
in connection with the use of, repair and /or maintenance of, or the
failure to repair and maintain, the Drainage Interceptor Ditches
and related facilities. Nothing .in this Agreement, the specifi-
cations or other contract documents or CITY's approval of the plans
and specifications or inspection of the work is intended to consti-
tute an acknowledgement of responsibility for any such matter, and
neither CITY nor any of its agents and employees shall have any
liability or responsibility therefor.
10. Enforcement by CITY. If in CITY'S sole judgment' the
Drainage Interceptor Ditches and related facilities are not being
maintained to applicable CITY standards or the standards set forth
in this Agreement, CITY may take the following actions:
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331
10.1 CITY may provide written notice to the Lot
Owners to initiate repair or maintenance within ninety
(90) days after such notice. Upon failure to demonstrate
good faith to make such repairs or maintenance within such
ninety (90) day period, the Lot Owners agree that CITY
may make all needed repairs and maintenance to the
Drainage Interceptor Ditches and related facilities, and
may then assess all costs for such repairs and mainte-
nance to the Lot Owners proportionately. The agent shall
be responsible for collecting the assessments and making
payment to CITY. If the agent fails to collect the
assessments for any reason, CITY may pursue the remedy,
provided for Lot Owners herein, to make any repairs in
accordance with this Paragraph 10, the work shall be
without warranty. The repair work shall be accepted "as
is" by the Lot Owners without any warranty of workman-
ship.
10.2 An alternative action available to CITY, in
its sole discretion, may be the use of the Nuisance
Abatement Procedure established by Chapter 8.72 of the
Poway Municipal Code.
11. Enforcement by an Association. If the Property is or
becomes part of a "common interest development" as defined in
California Civil Code §1351(c) , which includes membership in and
ownership of an "association" as defined in California Civil Code
§13.51(a), then the following provisions shall apply for so long as
the Property is encumbered by a "declaration ", as defined in
California Civil Code §1351(h), and the common area of the Property
is managed and controlled by an association:
11.1 The association shall repair and maintain the
Drainage Interceptor Ditches and facilities and shall be
deemed the "agent" referred to in Paragraph 5 above. The
association, which shall not be replaced except by amend-
ment to the declaration, shall receive no compensation
for performing such duties. The costs of such mainte-
nance and repair shall be assessed against each Lot Owner
and his Lot pursuant to the declaration. The assessments
shall be deposited in the association's corporate account.
11.2 The provisions of the declaration which provide
for assessment liens in favor of the association and
enforcement of such liens shall supersede the provisions
of California Civil Code §845. 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.
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12,. General.
12.1 Binding Nature. The covenants and obliga-
tions contained in this Agreement shall be binding upon
and for the benefit of, and shall be appurtenant to,
the Lots. The covenants and obligations contained in
this Agreement shall run with the land and shall be
binding upon and inure to the benefit of the Lot Owners
and their heirs., beneficiaries, legal representatives,
successors and assigns now or hereafter owning or
holding any interest in the Lots. This Agreement shall
be recorded and any subsequent purchaser or transferee
of all or any portion of a Lot, by acceptance of
delivery of a. deed and /or conveyance regardless of
form, shall be: deemed to have consented to and become
bound by this Agreement.
12.2 Amendment. This Agreement may be amended in
writing upon a majority vote of the Lot Owners and
approval of CITY.
12.3 GovetrAng Law; Severabilitv. This Agreement
shall be governed by the laws of the State of Cali-
fornia. If any provision of this Agreement is held to
be unenforceable or invalid by any court of competent
jurisdiction; the remainder of this Agreement shall not
be impaired or 'affected and shall remain in full force
and effect.
12.4 Attorney's Fees. If any person institutes
an action or proceeding to enforce or interpret this
Agreement, or obtain a declaration of rights under this
Agreement, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable
costs and attorney's fees incurred in such action, or
any appeal or enforcement of a judgment obtained in
such action or proceeding.
12,.5 Waiver. waiver of any provision of this
Agreement shall not be deemed a waiver of any other
provision of this Agreement, nor shall it constitute a
continuing waiver.
CITY OF POWAY
Dated: ('-I -yy By
RO MRT'C. EMERY yor
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Dated: N!* 19, gig$
APPROVED AS TO FORM:
42
STEP i M. ECKIS, Attorney for
CITY OF POWAY
/-q- Gam,_
CHA LES R.'GILL, Attorney for
SYCAMORE CREEK
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SYCAMORE CREEK ASSOCIATES, a
California limited partnership
BY: OCEANVIEW E LO_ INTT,COMPANY,
INC., a 4= corporation,
General Partner
'm
By C9!
JW4ES GARRO, President
4/22/88
334
STATE OF CALIFORNIA )
ss.
.COUNTY OF SAN DIEGO )
On this day of , 19 , before me
a Notary Public in and fo id
state, personally appea ROBERT C. EMERY, personal own to me
(or proved to me on the basi satisfactor once) to be the
Mayor of the CITY OF POWAY, the mu a rporation that executed
the within instrument, known to o the person who executed
the within instrument on b of the municip corporation therein
named, and acknow ed to me that such munici corporation
executed the in instrument pursuant to its bylaws o resolu-
tion s board of directors.
WITNESS my hand and official seal.
STATE',OF CALIFORNIA
STATE OF CALIFORNIA l
COUNTY OF_ SAN DIEGO Y SS.
Ma 19 1988 111
E. a On Y , before me, the undersigned,
n✓. a Notary Public in and for said County and State, personally
i appeared * ** James Garro * * * ** known to me to
`o
he the — President, X4LXXXXXXXXXXXXXXXXX8$Xt&YAX
tuYXXr} 1 rXXXXXXX}{XitYXXXtZy of—O-Ceamvie-w
0
-Development- o.,.Inc. the corporation that
e executed the within instrument and known to are to be the persons
awho e,e,uted the within instrument on hehalf of said corporation,
"o said corporation being known to me to be one of the partners of
P4 -SyCamore Creek AsBc i es_ , the
o partnership that executed the within instrument, and acknowledged
U
to me that snob corporation executed the same as such partner
aand that such partnership executed the same.
NOTARY PUBLIC
SAFECO
FOR NOTARY SEAL OR STAMP
NOTARY PUBLIC
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OFFICIAL SEAL
LINDA 1. CHRISTIANSEN
�.,.
NOTARY PUBLIC - CALIFORNIA
° o
PRINCIPAL OFFICE IN
RIVERSIDE COUNTY
My Commission Exp. July 4, 1989
NOTARY PUBLIC
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