1999-817916
w; ~"'-> . DOC. 1999-0817916
2673
.Recording Requested By: ) DEC 17. 1999 8:45 At-'¡
) OFFICIAL RECORDS
City ofEncinitas ) SAN DIEGO ~TY Iì.'ECORDER'S OFFICE
) GIì.'EGORY J. SHITH, ~TV RECORDER
~~~~:i:::sMilll to: 1 111111 1IIIfllili 11111 1111 111111 11111 11111 11111 11111 III II 11111 1111 III! FEES: 29.00
~- 505 South VuIcan Avenue 1999.0817916
\: C(; Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONL Y
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I' IJ ¡y.o-o PRIVATE ROAD AND DRAINAGE FACILITIES
I - MAINTENANCE AGREEMENT
-¡' FOR TPM 97-267
Assessor's Parcel No, 265-025-12 ProjectNo,: TPM 97-267
W,O,No,: 6052 PM
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 Iegal description and/or plat of which is set forth in Exhibits attached
hereto and made a part hereof, is entered into by, Jack A. Christianson and Beverlv L.
Christianson, Trustees U/D/T dated November 130 1989, a,k.a. Jack A. Christianson and Beverly
L. Christianson, as Trustees of the Jack A. Christianson Familv Trust dated November 130 1989:
(hereinafter referred to a~ "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 ofEncinitas MunicipaI Code Section 24,16,060 and Section 24.29.040; and
WHEREAS, DeveIoper is the owner of certain reaI property being subdivided and
developed as TPM 97-267 that will use and enjoy the benefit of silld road easement. A
complete legaI description of silld real property is attached, labeIed Attachment A , and
incorporated by reference, Said real property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the DeveIoper that said private road easement and drainage
facilities be maintained in a safe and usable condition by the lot owners; and
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2674
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:
,I. The property is benefitted by this Agreement, and present and successive Iot
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 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 shalI 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 m:ÿority vote of
the lot owners owning 100% of the number of parcels, including subdivisions thereof as
described in Paragraph 3 above: reasonabIe and normaI 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 chuckhoIes, 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,
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2675
6, Any extraordinary repair required to correct damage to said road easement or
drainage facility that results,fÌom 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 repIaced at the direction
of a majority of the lot owners, Repair and maintenance work on the private road easement and
drainage faciIities 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 actuaI 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 avaiIabIe 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 Iot owner fail to pay the pro rata share of costs and expenses as
provided in this Agreement, then the agent or any Iot owner or owners shall be entitled without
further notice to institute legal action for the collection of funds advanced on behaIf 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, untiI 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 Iot 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 DeveIoper 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 fÌom any and all liability for injury to himself or damage
to his property when such injury or damage results fÌom, arises out of' or is attributable to any
maintenance or repairs undertaken pursuant to this Agreement.
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2676
10, Lot owners shalI 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 ITom 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 or drainage facilities,
Nothing in the Agreement, the specifications or other contract documents or City's
approvaI 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 officiaIs, directors, officers, employees and agents, shall have
no responsibiIity or Iiability therefore,
II. The foregoing covenants shall run with the Iand 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 shalI 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 regardIess of foITll, 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 teITllS of this Agreement to institute Iegal 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 Iaws 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,
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2677
.16, If the Property constitutes a "Common Interest DeveIopment" as defined in
CaIifornia Civil Code Section 135l(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section 135 I (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
135 I (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 repIaced except by amendment to the
Declaration, shalI 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 135l(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 WI~S WHEREOF, the parties have executed this Agreement
on the -2-0 day of ð>=ß-u\¡L, 19 "\,,\,
D'~,~
11 cl "
,
Signature of DEVELOPER must be notarized. Attach the appropriate acknowIedgement.
. . .
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of CA-t..-iF'tJ~NIA 2678
County of SAN D i EG, 0
On 0 cì, if ðf, jc¡c¡e¡ before me, :;&'111 ìc~ t. Sweruò" IVdTlt!?';!. ftf6L/'c
... -"'_""""OO/(o,...'J...Ooo,- ..."
personally appeared cTI'rC/:: 11, CftÆisrìA,VSOft} ¥- P,EJl£IjL'-1 L - CIfRis-ri t4IT1S ON ,
Nomo(""'_" /
0 personally known to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person(s)
~ whose name(sHWare subscribed to the within instrument
and acknowledged to me tha~ey executed the
same in- :li8/her(their authorized capacity(ies), and that by
C - - - ~ l' - - - - ~ltheir signature(s) on the instrument the person(s),
8' Mcn, ~ 1 or the entity upon behalf of which the person(s) acted,
CommIIIIon. ,~ executed the instrument.
t I NoIay PublIc: - ~
~, M\I-~~~~~l WITNESS my hand a:d official seal.
9#h~l/hM
, -.....-",......- '
OPTIONAL
'Though /he Infonnal/on below is not required by law. It may /HOve tialuab/e to pet5Ons relying on /he document ancI could ""'-
fraudulent removal and 18attachmenl ollhis fonn to anottrer document
Description of Attached Document
Number of Pages: 7
Signer(s) Other Than Named Above: ~
Capaclty(les) Claimed by Signer(s)
Signer's Name: Signer's Name:
~ndividual 0 Individual
Corporate Officer 0 Corporale Officer
TIlle(s): TItte(s):
0 Partner - 0 Limited 0 General 0 Partner - 0 Limited 0 General
0 Attorney-in-Fact 0 Attomey-in-Fact
ø Trustee 0 Trustee
/0 'Guardian or Conservator . 0 Guardian or Conservator .
0 Other: Top of thumb h... 0 Other. Top of thumb here
Signer Is Representing: Signer Is Representing:
" 19.. ""'00,1 NOI,. Au"""'" 82'0 -mol A"", P,O, ." 710. . C,no" P"", CA 91309-"'. Pmd, No, 590' """"" CoI' T"'-'". ',BOO-B'O.""
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ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TPM 97-267
2679
LEGAL DESCRIPTION
THAT PORTION OF THE COLONY OF OLIVENHAIN, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NOo 326, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, JULY 8,1885, DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF A LINE WHICH IS 40000 FEET
SOUTHERLY OF MEASURED AT RIGHT ANGLES TO THE CENTERLINE OF
SAID 8TH STREET WITH A LINE THAT IS 383030 FEET EASTERLY OF
MEASURED AT RIGHT ANGLES TO THE CENTERLINE OF "F" STREET OF SAID
MAP 326. BEING ALSO THE NORTHWEST CORNER OF THAT LAND
DESCRIBED IN A DEED TO JACK A CHRISTIANSON AND BEVERLY L.
CHRISTIANSON, TRUSTEES, PER DOCUMENT RECORDED DECEMBER 27,
1983, AS FILE PAGE NO. 89-700426; THENCE ALONG THE NORTHERLY LINE
THEREOF SOUTH 72°48'09" EAST A DISTANCE OF 268.42 FEET TO A POINT
OF CUSP ON A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF
20,00 FEET AND A CENTRAL ANGLE OF 86°33'53", A RADIAL LINE TO SAID
POINT BEARS NORTH 17°11 '51 "EAST; THENCE LEAVING SAID LINE
WESTERLY, SOUTHWESTERLY AND SOUTHERLY A DISTANCE OF 30,22 FEET
ALONG THE ARC OF SAID CURVE, TO A REVERSE CURVE CONCAVE TO THE
NORTHWEST HAVING A RADIUS OF 312.00 FEET AND A CENTRAL ANGLE OF
33°02'22"; THENCE SOUTHERLY AND SOUTHWESTERLY A DISTANCE OF
179091 FEET ALONG THE ARC OF SAID CURVE TO THE BEGINNING OF A
REVERSE CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF
288000 FEET AND A CENTRAL ANGLE OF 20°12'58"; THENCE
-
.t. .', '. . 2.
. ~OJJTHWESTERL Y A DISTANCE OF 10 1.62 FEET ALONG THE ARC OF SAID
CURVE TO THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE
EAST HAVING A RADIUS OF 24.00 FEET AND A CENTRAL ANGLE OF
89°40'28"; THENCE SOUTHWESTERLY. SOUTHERLY AND SOUTHEASTERLY A
DISTANCE OF 37.56 FEET ALONG THE ARC OF SAID CURVE TO A REVERSE
CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 40.00 FEET
AND A CENTRAL ANGLE OF 180°22'22"; THENCE SOUTHEASTERLY.
SOUTHERLY, WESTERLY A DISTANCE OF 125092 FEET ALONG THE ARC OF
SAID CURVE TO A POINT OF CUSP, A RADIAL LINE TO SAID POINT BEARS
SOUTH 34°09'16" WEST; THENCE SOUTH 15°32'27" WEST, A DISTANCE OF
226.77 FEET TO A POINT ON THE NORTH LINE OF A SEWER EASEMENT PER
DOC. REC. 11-2-77 AS FIP 77-454583; THENCE NORTH 67°49'55" WEST, A
DISTANCE OF 125083 FEET TO A POINT ON THE SOUTHERLY PROLONGATION
OF THE WESTERLY LINE OF SAID CHRISTIANSON LAND; THENCE ALONG
SAID PROLONGATION AND WESTERLY LINE THEREOF NORTH 15°32'27"
EAST, A DISTANCE OF 598050 FEET TO THE POINT OF BEGINNINGo
PE 704