1990-248898
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Recording Requested By: ) rê};l!~~Ç~:~-~~~;:::it~J
Thomas Fortney) . n MJ!- - [') . r
p.O. Box 793 ~ 9.¡"AY 7 rH 2.5J
Solana Beach, CA.92075 ) ,
When Recorded, Mail To: ), ~--. '"
t. IT Y E oJ C'd N E. E.R. ); -~ RF /
t I í Y 0 F E. N C. \ N I í À S ) AR h
5'l..1 E.Nc.INITA5 BLVD. ) MG
E.. r NITÞ.5 CA. C11.01.4 )
N~' , ) SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR TPM B8-3hO
Assessor's Parcel Project No.: T PM 'Õ8-3bO
No. 1..5B-370-11 W.O. No.: QI5c.3-N
Log No.: 41{..
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 I~Q~~_~~~~~~~Y~3~~~~~-
PE.P'INE. , BLAZE NE.WMAN (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;
and,
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WHEREAS, Developer is the owner of certa1n real property
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being subdivided and developed as "1 PM 88 - 360 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 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
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
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. , created in the subdivision and paid by the ot 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 ßor 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 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,
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! ~." ~e ~liqation t~çair and _~~2 the prlPte road eas~ent
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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 ~hat results from action taken or
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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 pa id 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.
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In performing his duties, the agent, as he an~ cipates the need
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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 fpr 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 behal f 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
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shall be responsible for and maintain his own insurance, if
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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 ~o indemnify the others from any and
all liability for injury to hi.self 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 acknowledgment of a responsibility for any
such matter, and City, City's engineer and its consultants, and
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each of its officials, directors, employees and
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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 ~nd every person who shall at anytime
own all or any portion of the p~operty 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.
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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 inval id 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 notwith-
standing, 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.
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J , (b) The provisions
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assessment liens in favor of the Association and enforcement
thereof shall supersede Paragraph 8 of the Agreement in its
~ntirety. No individual owners shall have the right to alter,
maintain or repair any of the Common Area (as defined in
California Civil Code sectáon 1351(b) in the Property except as
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may be allowed by the DeclaratiQn.
(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 6th day of April , 19 -1i,g.
Assessor's parcel No. 2~ß-370-1/
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T MAS L. Fa T:EY'
Developer
STATE OF CALIFORNIA
55
COUNTY OF San Diego
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On this ~ day of April in the year 19..8..9 before me, the
undersigned, a Notary Public in and for said state personally
appeared THOMAS L. FORTNEY, ROBERT PERINE anH BLAZE NEWMAN,
~x~axxKRxx~~xx(or proved to me on the basis of
satisfactory evidence) to :be the persorv'~hose name ~ESubscribed to
the within instrument and acknowledged to me thatthev executed
it.
WITNESS my hand and official seal OFFICIAL SEAL
1J ßARB/\RA L DENNIS
/). NOTARY PUBLIC - CALIFORNIA
/ø< t. SAN DIEGO COUNTY
:{) J.}t~J ~ .. \ 'J41./I.~ My comm. expires _N?V 12, 1990
Notary Public in and for said state (This area for official seal)
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EXHIBIT "A"
The Southerly 28.00 feet of the Southerly Four-fifths of the South
Half of the Northeast Quarter of the Southeast Quarter of the
Northeast Quarter of the Southeast Quarter of section 15, Township
13 South, Range 4 West, San Bernardino Meridian, in the City of
Encinitas, County of San Diego, State of California, according to
united States Government survey approved April 19, 1881.
EXCEPTING THEREFROM the Easterly 16.5 feet thereof.
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EXHIBIT "B"
The Southerly Four-fifths of the South Half of the Northeast
Quarter of the Southeast Quarter of the Northeast Quarter of the
Southeast Quarter of section 15, Township 13 South, Range 4 West,
San Bernardino Meridian, in the City of Encinitas, County of San
Diego, State of California, according to United States Government
survey approved April 19, 1881.
EXCEPTING THEREFROM the Easterly 16.5 feet thereof.