Loading...
1991-174737 .' . a U: 1991-0174737 18-APR-1991 08=42 AM 1900 SAN DIEGO COUNTY RECORDER'S OFFICE ANNETTE EVANS, COUNTY RECORDER Recording Requested by: ) PF: 15.00 FEES: 29,00 AF: 13.00 ) MF: 1. 00 City Engineer ) ) When Recorded Mail to: ) ) City Engineer ) City of Encinitas ) 527 Encinitas Blvd. ) Encinitas, Ca. 92024 ) For the Benefit of the City ) SPACE ABOVE FOR RECORDER'S USE PRIVATE ROAD AND UTILITY MAINTENANCE AGREEMENT FOR RESOLUTION NO. C-90-003 ASSESSOR'S PARCEL PROJECT NO. :TPM 89-244 NO. 260-083-31 W.O. NO.: 0584/11 LOG NO.: /ý/A THIS AGREEMENT for the maintenance and repair of that certain private road and utility easement, the legal description and/or plat of which is set forth in Exhibit A attached hereto and made a part hereof, is entered into by Daniel Samarin and Debbie A. Samarin (hereinafter referred to as "Developer") for the benefit of future subdivision lot owners who will use the private road and utility 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; BW/O5/BCl-26wp5 (6-12-89) 1 ?O;)g;- . . 1901 WHEREAS, Developer is the owner of certain real property being subdivided and developed as 1470 Rubenstein that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Exhibit B, 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 and utility easement 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 and utility 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 benefitted by the 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 and BW/05/BC1-26wpS (6-12-89) -2- . . 1902 utility 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 of 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 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 and utility easement and related drainage facilities and sewer main to permit all-weather access. 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, maintaining sewer main, 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. BW/OS/BC1-26wpS (6-12-89) -3- . . 1903 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 fort he 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 and utility 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 and utility 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 BW/O5/BCl-26wp5 -4- . . 1904 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 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 BW/05/BCl-26wp5 (6-12-89) -5- . . 1905 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 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. BW/OS/BCl-26wp5 (6-12-89) -6- . . 1906 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 acknowledgment 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 o~n 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 BW/O5/BCl-26wp5 (6-12-89) -7- . . 190,;, 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 1352 (h), and (ii) the Common Area of the property (including the private road easement) is managed and controlled by as 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, BW/05/BCI-26wp5 (6-12-89) -8- . . 1008 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 the Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the fv day of ,jl'h.l , 19..1l. ä , D £' " . W~ Debbie A, Samarin . Signature of DEVELOPER must be notarized. Attach . the appropriate acknowledqement. .' . . . 1909 -S'Hur I (}r Z E-V/lltflT "-4" EASEMENT DESCRIPTION THAT PORTION OF LOT 16 OF RIDGEWAY HEIGHTS, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO, 2163, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 3, 1929, AND AS SHOWN ON THE RECORD OF SURVEY OF SAID RIDGEWAY HEIGHTS, FILED FOR THE PURPOSE OF CORRECTING ERRORS IN THE ORIGINAL MAP, BEING RECORD OF SURVEY NO. 1193, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 20, 1945, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE NORTHERLY LINE OF SAID LOT 16, SAID POINT BEARING SOUTH 75'59'28" WEST ALONG SAID NORTHERLY LINE 5,01 FEET FROM THE NORTHEASTERLY CORNER OF SAID LOT; THENCE SOUTH 11" 24'34" EAST PARALLEL WITH THE EASTERLY LINE OF SAID LOT, 24.03 FEET; THENCE SOUTH 75"59'28" WEST, 271.90 FEET TO A POINT 9F TANGENCY OF A 20 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE 31,42 FEET THROUGH A CENTRAL ANGLE OF 90"00'00"; THENCE SOUTH 14° 00'32" EAST 43.36 FEET; THENCE SOUTH 78°05'52" WEST 24.02 FEET; THENCE NORTH 14. 00'32" WEST 42.48 FEET TO A POINT OF TANGENCY OF A 20 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 31,42 FEET THROUGH A CENTRAL ANGLE OF 90°00'00"; THENCE SOUTH 75°59'28" WEST 20.00 FEET; THENCE NORTH 14°00'32" WEST 9.00 FEET; THENCE SOUTH 75' 59'28" WEST 161.74 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 16; THENCE NORTH 23'00'23" WEST ALONG THE WESTERLY LINE OF SAID LOT, 15,19 FEET TO A POINT ON THE NORTHERLY LINE OF SAID LOT; THENCE NORTH 75°59'28" EAST 521,11 FEET TO THE POINT OF BEGINNING. Undividu./) - I t . k . % ~ . personally known to me or ~ proved to me on the basis of satisfaCtory evidene< to be j ~ the personL whos< names... a--r-f/ subs< ¡bed to the I witl1in inStrume", and acknowledged that s~~ "exe- OFFICIAL SEAL + euted the same. "-"-7 DANIEL LEVY WITNESS my- and and offici s<al. NOTARY PUBlIC-CALIFORMA SAN O:EGO COUNTY My Comm. E::p;m \Jet 2, 1992 Signature IThi, ar<a ror orfielal nolarial «a!) -----.- . . ~ t., . mo - I.. ~ ---R~ ~ b I;¡ ~ '<i >(. ~----f;-~!L_____~ON~__~ fò NI~J.SN:ilEJOH u c! Æ ~f¡ I , 0 0 ..... b <0 ~" . 0 . ~ ~ 'If) '""'~.~ u ~ ~I~ ~ 0 ~ II ~ ~ ,61 'ÇI Ai .f'ç,Oaa N .' . . 1911 EXHIBIT B THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO AND IS DESCRIBED AS FOLLOWS: PARCEL 1: THAT PORTION OF LOT 16 OF RIDGEWAY HEIGHTS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF NO. 2163, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 3, 1929, AND AS SHOWN ON THE RECORD OF SURVEY OF SAID RIDGEWAY HEIGHTS, FILED FOR THE PURPOSE OF CORRECTING ERRORS IN THE ORIGINAL MAP, BEING RECORD OF SURVEY NO. 1193, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 20,1945, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEASTERLY CORNER OF SAID LOT 16; THENCE SOUTH 11°17'50" EAST ALONG THE EASTERLY LINE OF SAID LOT, 97.92 FEET TO THE NORTHEAST CORNER OF PARCEL 1 OF PARCEL MAP 12550, FILED IN THE SAID COUNTY RECORDER'S OFFICE ON FEBRUARY 3, 1983, AS AMENDED BY RECORD OF SURVEY NO. 9985, FILED IN SAID COUNTY RECORDER'S OFFICE ON MARCH 28, 1985; THENCE SOUGHT 78°34'47" WEST, ALONG THE NORTH BOUNDARY OF SAID PARCEL 1, 158.37 FEET TO THE NORTHWEST CORNER THEREOF, THENCE SOUTH 11°15'13" EAST, ALONG THE WEST LINE OF SAID PARCEL 1, 1.65 FEET TO AN INTERSECTION WITH THE LINE BETWEEN THE TWO 2 1/2 INCH GALVANIZED IRON PIPES WITH DISCS STAMPED LS 4368 SHOWN ON RECORD OF SURVEY NO. 11124, FILED IN SAID COUNTY RECORDER'S OFFICE ON JULY 9, 1987; THENCE SOUTH 78°06'57" WEST, ALONG SAID LINE AND THE WESTERLY PROLONGATION THEREOF, 350.59 FEET TO THE WEST LINE OF SAID LOT 16; THENCE NORTH 23°15'15" WEST ALONG SAID WEST LINE 80.39 TO THE SOUTHWESTERLY CORNER OF CITY OF ENCINITAS TRACT NO. 4603, ACCORDING TO MAP THEREOF NO. 12049, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG THE SOUTHERLY LINE THEREOF AND ITS EASTERLY PROLONGATION NORTH 78°32'24" EAST (MAP 12049 = NORTH 75°59'28" EAST) 526.19 FEET TO THE POINT OF BEGINNING: PARCEL 2: AN EASEMENT FOR SEWER LINES AND INCIDENTAL PURPOSES AS GRANTED IN DOCUMENT ENTITLED "EASEMENT AGREEMENT" AND RECORDED APRIL 21,1988 AS FILE NO. 88-184695 OF OFFICIAL RECORDS, OVER, UNDER, ALONG AND ACROSS THE WESTERLY 10.00 FEET OF THAT PORTION OF THE FOLLOWING DESCRIBED REAL PROPERTY COMMENCING AT THE NORTHWESTERLY CORNER OF SAID REAL PROPERTY AND CONTINUING SOUTH FOR A DISTANCE OF TWELVE (12) FEET: THE SOUTHERLY HALF OF LOT 16 OF RIDGEWAY HEIGHTS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2163, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 3, 1929, AND AS SHOWN ON THE RECORD OF SURVEY OF SAID RIDGEWAY HEIGHTS, FILED FOR THE PURPOSE OF CORRECTING ERRORS IN THE ORIGINAL MAP, BEING RECORD OF SURVEY NO. 1193, FILED IN THE OFFICE OF THE .' . . 1912 EXHIBIT B CONTINUED COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 20, 1945. SAID EASEMENT AGREEMENT RECITES IN PART THAT THE EASEMENT GRANTED THEREIN SHALL BE DEDICATED TO THE CARDIFF SANITATION DISTRICT, AND THAT THE SAME THEREUPON BECOME A PUBLIC OR UTILITY EASEMENT, UPON ACCEPTANCE OF SAID DISTRICT.