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1997-539913 . Ie n 1997-0539913 Recording Requested by: ) OCT 28. 1997 12=54 pr! ) : 356 OFFICIAL RECOROS City of Encinitas ~( SAN DIEGO COUNTY RECQRDER'S OFFICE When Recorded Mail To: GREGORY J. SMITH, COUNTY RECORDER City Clerk ») , FEES: 44.00 I city of Encinitas ), I 1111111 IIIIIIIIIIIIIIIIIj~I~IIJII~ II111 1111111111 11111111 505 S. Vulcan Avenue ) SPACE ABOV Encinitas. CA 92024 } )Sìn ¿¡/t! PRJ:VATB ROAD AND DRAJ:NAGB PACJ:LJ:TJ:BS ~ "3~,',;i) MAJ:B'l'ENANCB AGRBBMBB'l' ~ f«, FOR Parcell and Remainder Parcel Assessor's Parcel Project No.: TPM 94-097 No. 264-~10 W.O. No.: 1TI 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 those private drainage facilities, the legal description and/or plat of which is set forth in Exhibits "A" attached hereto and made a part hereof, is entered into by BARRATT AMERICAN INCORPORATED. a Delaware Corporation. (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 of a subdivision project as defined in Section 21065 of the Public Resources code and pursuant to City of Encinitas Municipal Code Section 24.16.060 and Section 24.29.040; cov4173 1 . . 357 and, WHEREAS, Developer is the owner of certain real property being subdivided and developed as TPM 94-097 that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Exhibit"~ 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 easement and drainage facilities be maintàined 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 drainage facilities 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 benefitted by this Agreement, and present and successive lot owners of all or any portion of the property are cov4173 2 . . 358 expressly bound hereby for the benefit of the land. 2. The cost and expense of maintaining the private road easement and drainage facilities 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 and drainage facilities 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 cov4173 3 . . 359 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 or drainage facility 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 or drainage facility 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 and cov4173 4 . .60 drainage facilities 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 cov4l73 5 . . 361 disbursements of such action, including such sum or sums as the Court may fix as and for a reasonable attorney's 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 reGults 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 cov4173 6 . . 362 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 or drainage facilities. 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 cov4173 7 . . 363 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 cov4173 8 . . . 364 Code Section l35l(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 drainage facilities 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 l35l(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. cov4l73 9 . . 365 IN WITNESS WHEREOF, the parties have executed this Agreement on the 2nd day of October 19...2L. , Delaware Corporation By: L.øt David A. Jacinto, Vice President By: ary ~ -~ cov4173 10 . . 366 State of California County of San Diego On October 2,1997 before me, Lynn C, Hanson, Notary Public, personally appeared Donna Rowley and David A Jacinto, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons or the entity upon behaH of which the persons acted, executed the instrument. r. «.> -. C"N c......... 1 ~ -,' I«)q~R . I' L~'~J ~~~ (SEAL) IGNAT~Y) . . 36'1 EXHIBIT "A" PRlV A IE ROAD LEGAL DESCRIPTION THAT PORTION OF COLE RANCH ROAD, FORMERLY "E" STREET, ADJOINING PARCEL 2 & 4 OF PARCEL MAP NO. 15615 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MARCH 23, 1989 AS FILE NO. 89-148940, LYING WITHIN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, EXCEPTING THEREFROM THAT PORTION AS VACATED AND CLOSED TO THE PUBLIC USE BY RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO ON JUNE 11, 1986. .. . . 368 , . . EXHmIT "B" PROPERTY LEGAL DESCRIPTION ALL THAT PORTION OF LOTS 73 AND 74 OF COLONY OLIVENHAIN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 8, 1885, TOGETHER WITH THAT PORTION OF "F" STREET LYING BETWEEN SAID LOTS 73 AND 74 AS VACATED AND CLOSED TO PUBLIC USE BY RESOLUTION OF THE BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, A CERTIFIED COpy OF SAID RESOLUTION BEING RECORDED IN THE OFFICE OF THE COUNTY RECORDED ON AUGUST 29, 1924, IN BOOK 751, PAGE 423 OF DEEDS, AND THAT PORTION OF THE SOUTHERLY HALF OF 12TH STREET LYING NORTHERLY OF AND ADJOINING SAID LOTS 73 AND 74 AND SAID "F" STREET AND THAT PORTION OF THE EASTERLY HALF OF "E" STREET LYING WESTERLY OF LOT 73 AND ITS NORTHERLY PROLONGATION, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF THE WEST HALF OF SAID LOT 74; THENCE NORTH 15°06'12" EAST ALONG THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID WEST HALF OF LOT 74, A DISTANCE OF 40.00 FEET TO AN INTERSECTION WITH THE CENTER LINE OF SAID 12TH STREET; THENCE NORTH 73°26'35" WEST ALONG SAID CENTER LINE, A DISTANCE OF 573.75 FEET TO AN INTERSECTION WITH THE CENTER LINE OF "E" STREET; THENCE SOUTH 15°06'20" WEST ALONG SAID CENTER LINE OF "E" STREET, A DISTANCE OF 280.85 FEET; THENCE SOUTH 73°28'45" EAST, A DISTANCE OF 573.75 FEET TO THE EASTERLY LINE OF THE WESTERLY HALF OF SAID LOT 74; THENCE NORTH 15°06'12" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 240.46 FEET TO THE POINT OF BEGINNING.