2003-695453 DOC :11: 003-0695453
JUN 12, 2003 11:48
Recording Requested By: ) OFFICIO.
) ~ DI~ ~ ~R'8 ~FI~
Ci~ Engine~ ) ~ J. ~ITH, ~ ~R
) ~: ~1.~
~en Recorded M~I to: )
City Clerk )
City of Enci~tas )
505 South Vulc~ Avenue )
Enci~tas, CA 92024 ) SPACE ~OVE FOR ~CO~ER'S USE O~Y
P~VATE ROAD
MMNTEN~CE AG~EMENT
CASE 02-013 TPM/CDP
Assessor's Pmcel No. 2~ 6-052-03 Project No.: 02-0~ 3 TM
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 ATTACHMENT "B" attached hereto and
made a part hereof, is entered into by 101 Investors LLC, a California limited liability company.
(hereinafter referred to as "Developer") for the benefit of future 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, Developer is the owner of certain real property being subdivided and developed as
CASE 02-013 that will use and enjoy the benefit of said road easement.
A complete legal description of said real property is:
AS DESCRIBED IN ATTACHMENT "A" ATTACHED HERETO AND MADE A PART
HEREOF
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 for the apportionment of the expense of such
maintenance and repair among existing and future lot owners; and
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
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 pementages 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.
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 pumhaser 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
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.~_, __ .-WITNESS WHEREOF._ the D~t~ :s have executed this Agreement
onthe ~>4.~c~ dayof r._~/~ ~'2~.~ ._2,003.
(Print name
(Printnamel) ~-'¢~l~t~.~'~ [o[ {,.~v~'rt. Mz~ eL-(-.-
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
of California
~:r~'-nally known to me
~ proved to me on the basis of satisfactory
evidence
to be the perso~,) whose name{e) is'~re-
subscribed to the within instrument and
_.,.,~ A -- ~OI~I--F(~LI.~.R---I': acknowledged to me that he~,~:~./.1~y executed
.,, ~ DE the same in his/~.~h.~h' authorized
] ~ C~mmi~,ion # 1349786 ~ capacity(~e), and that by
~ ~L'~-~ Not~i'~ Public- California ~ signatum~) on the instrument the person(s), or
~ ~-'~ San Diego ~unty [ the entity upon behalf of which the person(~)-.-
~ ~ My Comm. Expim,~ Apr S, 2008 ~ acted, executed the instrument.
OPTIONAL
Though the information bek)w is not required by law, it may prove valuable to persons reiying on the document and could prevent
fraudulent remove] and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
[] Individual Top ot thumb here
[] Corporate Officer -- Title(s):
~ Partner-- [] Limited [] General
[] Attorney-in-Fact
[] Trustee
[~ Guardian or Conservator
[] Other:
Signer Is Representing:.
Exhibit ,,A,,
All that certain real property situated in the County of San Diego, State of
California, described a~ follows:
That-portion of the South half of Section 33, Township 12 South, Range.4 West,
San Bernardino ~leridian, in the City of Encinitas, County of San Diego, State of
California, according to Official Plat.thereof, described as follows:.
Commencing ara point on the South line of that road known'as County Road
Survey No. 346, distant from the Northwesterly comer of Lot 8 Avocado Acres
No. 3, according to MaP thereof No. 2063, Records of said S~n DiegO County,. the
followirlg courses and distance:
. (A) South 89°5!'45~' West (Record South 89°59~30'' West) 596.75 feet t?
the beginning of a curve;
(B) Along the arc of said curve concave to the Southeast having a ra'diu~ of
475 feet central angle of 35°24'3b'', (Record 35°25') and a lerigth of '.
293.53 feet [Record 293.61 feet);
(C) South 54°27'15~' West (Record 54°'28'30'' West) 174.68 feet to 'the '
True Point of Beginning; being thee Northwest corner of land d~scribed .'
in Deed from South Coast Land Company to Willis H. Gundrum, da~ed~
March 4, 1936, recorded in Book 476, Page 496 of Official Records;.
thence continuing along said 'Southerly line of County Road South
54-27'15" West a distance of 259.:~7 feet more or tess, tO the Northeast
corner of land described in Deed from South Coast Land Company to
R.J. Pringle, dated April 23, 1934, recorded in Book 3:~0, Page 416 of
Official-Records; thence South 35°3:L-~30'' J~ast al0ng the Ea.sterly line of
sa~d Pringle land, 305.17 feet,'more or less, to a point on the Northerly
line of land described in Deed from the South Coast Land Company to
Morris Conrad and Margaretha Conrad dated September 16, :~930,
recorded in Book 1814, Page 325 of Deeds; thence North 67°39'' East
along the Northerly line of said Conrad land and along the No..rtherly
line o.f land described in Deed from .South Coast Land Company.to T.W.
Means and Hinnie Means, dated ]une 6, 1934, recorded in Book 297,
'Page 305 of Official Records, 266.08 feet, .more or less, to the
Southwest co~:ner of said Gundrum land; thence North 35'31' West
along the Westerly tine of said Gundrum land 365.91 feet to the True
Point of Beginning.
Exhibit "A" Continued
EXCEPTING THEREFROM the Southwesterly 110 feet.
The Northeasterly line Of said Southwesterly 110 feet being measured parallel
with and distant 110 feet at right angles Northeasterly from the Southwesterly
line of the described parcel of land.
Assessor's Pa:~cel Number: 216-052-03
~ z ?AECEL 2
21,027 SI] FT GROSS
P~oPos[o P~IVATE ~0~ EAS[~NT ~4. ~05 SQ FT NET
PUBLIC UTILITY AND SEWER R~OI~ = 37.00'
EASEMENT GRANTED HEREON ~ENGTH - 7t. ~7'
~ 8410
~ ~ FAFCEL
~ ~ ~4.537 SO FT
X