2002-879395
. .
.. - DOC # ]002-0879395
. ¡ . 10419
Recórciing requested, by
First A".erican nile OCT 10, 2002 12:56 PM
(ffICIAl. REŒRDS
FREE RECORDING REQUESTED SAN DIEGO COltfTV RECliDER'S CfFICE
PURSUANT TO GOY. CODE SECTION GrmJRY J. SMITH, ClDITY REcœŒR
27383 FEES: 31.00
Recording Requested By And When Recorded
Mail To:
fl2 City of Encinitas 1111111111111111111
Community Development
qf 505 S. Vulcan Avenue
Encoinitas, CA 92024 2002-0879395
FOR THE BENEFIT OF THE CITY OF ENCINITAS SPACE ABOVE FOR RECORDER'S USE ONL Y
Order No. 1276219-8 Escrow Noo,01-2146CM
PRIV ATE DRIVEWAY
MAINTENANCE AGREEMENT
FOR 891 & 897 LA MIRADA
..".,
Assessor's Parcel No. 256-162-44
256-162 -45 v
THIS AGREEMENT for the maintenance and repair of that certain private road easement, the
legal description and/or plat of which is set forth in Exhibits attached hereto and made a part
hereof, is entered into by The City of Encinitas (hereinafter referred to as "Developer") for the
benefit of future subdivision lot owners who will use the private road easement (hereinafter
referred to as "lot owners", which shall include the Developer to the extent the Developer retains
any ownership interest in any lot or lots).
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas;
and
WHEREAS, Developer is the owner of certain real property being developed as 891 & 897
La Mirada that will use and enjoy the benefit of said road easement. A complete legal
description of said real property is attached, labelled Exhibit A and incorporated by reference.
Said real property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the Developer that said private road be maintained in a safe
and usable condition by the lot owners; and
WHEREAS, it is the desire of the Developer to establish a method for the maintenance and
repair of said private road easement and fo!' the apportionment of the expense of such
maintenance and repair among existing and future lot owners; and
I-I
,
- -
. , 10420
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running with the land, binding upon each successive lot owner of all or any portion of the
property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
.1. The property is benefited by this Agreement, and present and successive lot
owners of all or any portion of the property are expressly bound hereby for the benefit of the
land.
2. The cost and expense of maintaining the private road easement shall be divided
equally among the subdivided parcels created in the subdivision and paid by the lot owner of the
heirs, assigns and successors in interest or each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
lot owners, heirs, assigns and successors in interest of each such newly created parcel shall be
liable under this Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall be computed to reflect such newly created parcels.
4. The repairs and maintenance to be performed under this Agreement. shall be
limited to the following unless the consent for additional work is agreed to by a majority vote of
the lot owners owning 100% of the number of parcels, including subdivisions thereof as
described in Paragraph 3 above: reasonable and normal road improvement and maintenance
work to adequately maintain said private road easement to permit all-weather access and
conveyance of storm flows. Repairs and maintenance under this Agreement shall include, but is
not limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds,
repairing and maintaining drainage structures, removing debris, maintaining signs, markers,
striping and lighting, if any, and other work reasonably necessary and proper to repair and
preserve the easement for all-weather road purposes.
5. If there is a covenant, agreement, or other obligation imposed as a condition of
subdivision approval to make private road improvements to the private road easement, the
obligation to repair and maintain the private road easement as herein set forth shall commence
when the private road improvements have been completed and approved by the City.
6. Any extraordinary repair required to correct damage to said road easement that
results from action taken or contracted for by lot owners or their successors in interest shall be
paid for 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 road easement to the condition
existing prior to said damage.
7. It is agreed that Developer is initially the agent to contract and oversee and do all
acts necessary to accomplish the repairs and maintenance required and/or authorized under this
Agreement. Developer further agrees that the agent may at any time be replaced at the direction
of a majority of the lot owners. Repair and maintenance work on the private road easement shall
be commenced when a majority of the lot owners agree in writing that such work is needed. The
,
- ~
.
10421
agent shall obtain three bids from licensed contractors and shall accept the lowest of said three
bids and shall then initiate the work. The agent shall be paid for all costs incurred including a
reasonable compensation for the agent's services, and such costs shall be added to and paid as a
part of the repair and maintenance costs; provided, however, that compensation for the agent's
services shall in no event exceed an amount equivalent to 10% of the actual cost of repairs and
maintenance performed. In performing his duties, the agent, as he anticipates the need for funds,
shall notify the parties and each party shall within forty-five (45) days pay the agent, who shall
maintain a trustee account and also maintain accurate accounting records which are to be
available for inspection by any party or authorized agent upon reasonable request. All such
records shall be retained by the agent for a period of five years.
8. Should any lot owner fail to pay the pro rata share of costs and expenses as
provided in this Agreement, then the agent or any lot owner or owners shall be entitled without
further notice to institute legal action for the collection of funds advanced on behalf of such lot
owner in accordance with the provisions of California Civil Code Section 845, and shall be
entitled to recover in such action in addition to the funds advanced, interest thereon at the current
prime rate of interest, until paid, all costs and disbursements of such action, including such sum
or sums as the Court may fix as and for a reasonable attorneys fees.
9. Any liability of the lot owners for personal injury to the agent hereunder, or to any
worker employed to make repairs or provide maintenance under this Agreement, or to third
persons, as well as any liability of the lot owners for damage to the property of agent, or any such
worker, or of any third persons, as a result of or arising out of repairs and maintenance under this
Agreement, shall be borne, as between the lot owners in the same percentages as they bear the
costs and expenses of such repairs and maintenance. Each lot owner shall be responsible for and
maintain his own insurance, if any. By this Agreement, the Developer does not intend to provide
for the sharing of liability with respect to personal injury or property damage other than that
attributable to the repairs and maintenance undertaken under this Agreement. Each of the lot
owners agrees to indemnify the others from any and all liability for injury to himself or damage
to his property when such injury or damage results from, arises out of, or is attributable to any
maintenance or repairs undertaken pursuant to this Agreement.
10. Lot owners shall jointly and severally defend and indemnify and hold harmless
City, City's engineer and its consultants and each of its officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury and
other costs, including costs of defense and attorney's fees, to the agent hereunder or to any lot
owner, any contractor, any subcontractor, any user of the road easement, or to any other 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 easement.
Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection of the work is intended to include a review,
inspection acknowledgement of a responsibility for any such matter, and City, City's engineer
and its consultants, and each of its officials, directors, officers, employees and agents, shall have
no responsibility or liability therefore.
.
- --
10422
11. The foregoing covenants shall run with the land and shall be deemed to 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.
12. It is understood and agreed that the covenants herein contained shall be binding
on the heirs, executors, administrators, successors, and assignees of each of the lot owners.
13. 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, including without limitation, the right of any person entitled to enforce
the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be cumulative and in addition to other remedies provided in this Agreement and to all
other remedies at law or in equity.
14. The terms of this Agreement may be amended in writing upon majority approval
of the lot owners and consent of the City.
15. This Agreement shall be governed by the laws of the State of California. 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.
16. If the Property constitutes a "Common Interest Development" as defined in
California Civil Code Section 1351(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section 1351(a), anything in this Agreement to
the contrary notwithstanding, the following provisions shall apply at and during such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351(h), and (ii) the Common Area of the property (including the private road easement) is
managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private road easement and shall be deemed the "agent" as referred to in Paragraph 7 above. The
Association, which shall not be replaced except by amendment to the Declaration, shall receive
no compensation for performing such duties. The costs of such maintenance and repair shall be
assessed against each owner and his subdivision interest in the Property pursuant to the
Declaration. The assessments shall be deposited in the Association's corporate account.
(b) The provisions in the Declaration which provide for assessment liens in favor of
the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No individual owners shall have the right to alter, maintain or repair any of the
.
-
.
10423
Common Area (as defined in California Civil Code Section 1351(b) in the Property except as
may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner which reduces or limits the
Association's rights and duties pursuant to its Bylaws and Declaration.
IN WITN~SS WHEREOF, the parties have executed this Agreement
on the 2 if of day of .J vL- y , 2002.
Developer:
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
. 10424
ALL-PURPOSE ACKNOWLEDGEMENT
State of California )
) SSe
County of San Diego )
On July 24, 2002, before me, Patricia Drew, Notary Public, appeared
K. L. Miller, personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his
signature on the instrument, or the entity upon behalf of which the
person acted, executed the instrument.
.
WITNESS my hand and official seal r-uuu _U~;F~~~~uUl
-8 PATRICIA DREW
&~ À-~ i NOTARY PUBlIC-CAlIFORNIA!
COMM. NO. 1306678 -
l . SAN DIEGO COUNTY J
--- ~Y~~~JUNE~_~
Patricia Drew, Notary Public
My Commission Expires June 22, 2006 SEAL
Misc. ack.KLM
I-I
,
: \ ,: "f ~
,,\ ' ,', ~ ¡ / ("
.... \' ' /j -
" ,} 10425 ORDER NO. 1274023-8
EXHIBIT ~'A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: ~
g~ l LA M~u.\)A (2l3"(p- 1&2-4:5
THAT PORTION OF LOT 2 IN BLOCK E OF AVOCADO ACRES NO.4, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 2118, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 28, 1928, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE SOUTH
LINE THEREOF SOUTH 89°14'17" EAST 70.40 FEET; THENCE LEAVING SAID SOUTH LINE,
NORTH 02°36'20" EAST, 62051 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF
LEUCADIA BOULEVARD PER IMPROVEMENT PLAN DRAWING NO. 0012-SI; THENCE
ALONG SAID SOUTHERLY LINE, NORTH 89°14'13" WEST, 70.41 FEET TO THE NORTHWEST
CORNER OF SAID LOT 2; THENCE ALONG THE WEST LINE OF SAID LOT 2, SOUTH 02°36'08"
WEST, 62051 FEET TO THE POINT OF BEGINNINGo
SAID PROPERTY BEING DESCRIBED AS PARCEL A IN A CERTIFICATE OF COMPLIANCE
RECORDED ON WLY 31,2001 AS FILE NO. 2001-0536778 OF OFFICIAL RECORDS OF SAID
SAN DIEGO COUNTY.
AUGUST 22, 2001 9:06 AM MC
PAGE 4
.
.
10426 ORDER NO. «TitleOrderNumber»
EXHIBIT ~'L4 Uo
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: ~
PARCEL A: gq7 lA M \ ~ bA (2fiú,- I {,~w 44
THAT PORTION OF LOT 2 OF AVOCADO ACRES NO.4, IN THE CITY OF ENCINITAS,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2118,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 28, 1928,
DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE SOUTH
LINE THEREOF SOUTH 89°14'17" EAST 70.40 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID SOUTH LINE, SOUTH 89°14' 17" EAST, 71.97 FEET TO
THE SOUTHEAST CORNER OF SAID LOT 2; THENCE ALONG THE EASTERLY LINE
THEREOF, NORTH 02°35'44" EAST, 62.51 FEET TO SAID SOUTHERLY RIGHT OF WAY LINE
OF LEUCADIA BOULEVARD PER IMPROVEMENT PLAN DRAWING NOo 0012-SI; THENCE
ALONG SAID SOUTHERLY LINE, NORTH 89°14'13" WEST, 71.95 FEET; THENCE LEAVING
SAID RIGHT OF WAY, SOUTH 02°36'20" WEST, 62051 FEET TO THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIDED AS PARCEL B IN A CERTIFICATE OF COMPLIANCE
RECORDED ON JULY 31,2001 AS FILE NO. 2001-0536778 OF OFFICIAL RECORDS OF SAID
SAN DIEGO COUNTY.
PARCEL B:
AN EASEMENT FOR ACCESS AND UTILITIES OVER THE SOUTHERLY 16.00 FEET OF THAT
PORTION OF LOT 2 OF AVOCADO ACRES NO.4, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2118, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 28, 1928, SAID PORTION MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 2 IN BLOCK E OF AVOCADO ACRES NO.4, IN THE CITY OF
ENCINIT AS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 2118, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 28, 1928, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2, THENCE ALONG THE SOUTH
LINE THEREOF SOUTH 89°14'17" EAST 70.40 FEET; THENCE LEAVING SAID SOUTH LINE,
NORTH 02°36'20" EAST, 62051 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF
LEUCADIA BOULEVARD PER IMPROVEMENT PLAN DRAWING NO. 0012-SI; THENCE
ALONG SAID SOUTHERLY LINE, NORTH 89°14'13" WEST, 70.41 FEET TO THE NORTHWEST
CORNER OF SAID LOT 2; THENCE ALONG THE WEST LINE OF SAID LOT 2, SOUTH 02°36'08"
WEST, 62051 FEET TO THE POINT OF BEGINNING.
PAGE 5
1
. , ' \ ,\ ~1 r.' II ¡
" - c'
~í
,1 ORDER NO. «TitleOrderNumber»
10427
SAID PROPERTY BEING DESCRIBED AS PARCEL A IN A CERTIFICATE OF COMPLIANCE
RECORDED ON JULY 31, 2001 AS FILE NO. 2001-0536778 OF OFFICIAL RECORDS OF SAID
SAN DIEGO COUNTY.
OCTOBER 03,2001 8:39 AM OM
PAGE 6
Il