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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 ._._e_.� ' t � .iI4�L aJ;TiJS R JUIN -3 FF1 1: 45 I 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 6/2/88 ),J� 329 0 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 -2- 6/2/88 hf y] 0 - 330 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: -3- 6/2/88 331 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. -4- 6/2/88 0 -V 332 0 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 -5- 4/22/88 1 •� 0 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 333 0 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 -7 6/2/88 OFFICIAL SEAL LINDA 1. CHRISTIANSEN �.,. NOTARY PUBLIC - CALIFORNIA ° o PRINCIPAL OFFICE IN RIVERSIDE COUNTY My Commission Exp. July 4, 1989 NOTARY PUBLIC -7 6/2/88