1988-301078
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When recorded, please ma~l to: I MY". '
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Pasco Engineering ---
535 No. Highwy 101, Suite A ~,.'....,'-.
Solana Beach, CA 92075 R~
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", ,-p:~d i':":,,~, PRIVATE ROAD MAIN'rENANCE AGREEMENT TPM 18494 .-'
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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 Exhibit A attached hereto and made a
part hereof, is entered into by CHARLES G. DUVTVTF.R AN )
KATHRYN S. DUVIVIER
(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 a subdivision project as defined in
section 21065 of the Public Resources Code and pursuant to City
of Encini tas Municipal Code, section 24.16.060 ay¡p- section
24.29.040; and,
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WHEREAS, Developer is the owner of certain real property
being subdivided and developed as TPM 18494 RPL 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 mutual desire of the parties hereto that
said private road easement be maintained in a safe and usable
condition by the lot owners; and
WHEREAS, it it the mutual desire of the parties hereto 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 mutual intention of the parties that this
Agreement constitute a covenant running with the land, binding
upon each success~ve lot owner of all or any portion of the
property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
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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 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 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 related
drainage facilities 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, removing debris, maintaining signs, markers,
striping and lighting, if any, and other work reasonably
necessary of 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 parties hereto 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. The parties further agree 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
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~hall 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
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
parties do not intend to provide for the sharing of liabil i ty
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 their
consultants and each of their officials, directors, officers,
agents and employees from and against all liability, claims,
damages, losses, expenses, personal injury and other costs,
ir¡cluding costs of defense and attorney's fees, to the agent
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'hereunder or to any lot owner, any contractor, any subcontractor,
àny 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 acknowledgment of a responsibility for any
such matter, and City, city's engineer, and their consultants,
and each of their officials, directors, officers, employees and
agents, shall have absolutely 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 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 LaId 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
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: of the property (including the private road is managed
easement)
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 replaèed 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 the Declaration.
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EXHIBIT "A"
LEGAL DESCRIPTION
ROAD EASEMENT
TPM 18494
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER, UNDER,
ALONG AND ACROSS THAT PORTION OF BLOCK 26 OF THE COLONY OF OLIVENHAIN,
TOGETHER WITH THE WESTERLY 12.00 FEET OF "E" STREET ADJACENT
TO SAID BLOCK ON THE EAST, AS VACATED BY THE CITY COUNCIL ON
June 8, 1987 , IN THE CITY OF ENCINITAS, 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
ON JULY 8, 1885 DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHERLY 289.00 FEET
OF SAID BLOCK 26, THENCE SOUTH 73°11'00" EAST ALONG THE EASTERLY
PROJECTION OF THE SOUTHERLY LINE OF SAID NORTHERLY 289.00 FEET,
12.01 FEET TO THE EASTERLY LINE OF THE WESTERLY 12.00 FEET OF
"E" STREET; THENCE ALONG SAID EASTERLY LINE OF THE WESTERLY
12.00 FEET OF "E" STREET SOUTH 15°32'47" WEST 110.12 FEET TO
THE TRUE POINT OF BEGINNING, SAID POINT BEING THE BEGINNING OF
A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE
SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE
OF 90°00'00" A DISTANCE OF 31.42 FEET; THENCE TANGENT TO SAID
CURVE NORTH 74°27'13" WEST 111.72 FEET TO THE BEGINNING OF A
TANGENT 20.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE
OF 42°12'20" A DISTANCE OF 14.73 FEET TO THE BEGINNING OF A
REVERSE 34.00 FOOT RADIUS CURVE CONCAVE EASTERLY, A RADIAL LI""
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EXHIBIT "A" (cont.) TPM 18494
TO SAID POINT BEARS SOUTH 57°45'07" WEST; THENCE COUNTERCLOCKWISE
ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 264°24'40"
A DISTANCE OF 156.92 FEET TO THE BEGINNING OF A REVERSE 20.00
FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID
POINT BEARS NORTH 26°39'32" WEST; THENCE NORTHEASTERLY ALONG
THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 42°12'20" A
DISTANCE OF 14.73 FEET; THENCE TANGENT TO SAID CURVE SOUTH 74° 27'13"
EAST 111.72 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS
CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC
OF SAID CURVE THRU A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF
31.42 FEET TO A POINT IN THE EASTERLY LINE OF THE WESTERLY 12.00
FEET OF "E" STREET; THENCE ALONG SAID EASTERLY LINE NORTH
15°32'47" EAST 80.00 FEET TO THE TRUE POINT OF BEGINNING.
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EXHIBIT "B" TPM 18494
LEGAL DESCRIPTION
THE EASTERLY 156 FEET OF BLOCK 26 OF THE COLONY OF OLIVENHAIN,
If;! THE CITY OF ENCINITAS, 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.
EXCEPTING THEREFROM THE NORTHERLY 289 FEET THEREOF.
TOGETHER WITH THAT PORTION OF THE NORTH HALF OF FIFTH STREET
ADJACENT TO SAID LOT ON THE SOUTH, AS VACATED BY THE CITY COUNCIL
OF THE CITY OF ENCINITAS ON JUNE 8, 1987 AND RECORDED DECEMBER 7,
1987 AS FILE NO. 87-674382 OF OFFICIAL RECORDS.
TOGETHER WITH THAT PORTION OF THE WEST 12 FEET OF "E" STREET
ADJACENT TO SAID PARCEL AS VACATED BY THE CITY COUNCIL OF THE CITY
OF ENCINITAS ON JUNE 8, 1987 AND RECORDED DECEMBER 7, 1987 AS FILE
NO. 87-674382 OF OFFICIAL RECORDS.
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