1996-230508
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Recording Requested By: )
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When Recorded Mail To: )
)
City Clerk ) ¡!
City of Encinitas ) ,
505 S. Vulcan Avenue )
Encinitas, CA 92024 )
) SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR ARBOR COURT
Assessor's Parcel Project No.: 90-l55TM
No. 254-413-35 W.O. No.:
TillS AGREEMENT for the maintenance and repair ofthat 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) an on-site pedestrian easement, an off-site pedestrian easement and landscape
easement is entered into by GK PROPERTIES OF CALIFORNIA, LP., a California limited
partnership (hereinafter referred to as "Developer"), for the benefit of future subdivision lot
owners who will use the private road easement and other items described above (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 ofEncinitas
ofa subdivision project as defined in Section 21065 of the Public Resources Code and pursuant to
City ofEncinitas Municipal Code Section 24.16.060 and Section 24.29.040; and,
WHEREAS, Developer is the owner of certain real property being subdivided and
developed as single family residences 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, on-site and
off-site pedestrian easements, and landscaping easement be maintained in a safe and usable
condition by the lot owners; and
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WHEREAS, it is the desire of the Developer to establish a method for the maintenance
and repair of said private road easement, on-site and off-site easements, and landscaping 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, on-site and off-site
pedestrian easements and landscaping easement shall be divided equally among Lots 1-7 and 10-
14 of the subdivided parcels created in the subdivision and paid by the lot owner or the heirs,
assigns and successors in interest of each such owner.
3, In the event any of the herein described parcels ofland 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 on-site and off-site pedestrian easements 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, In addition, within
areas designated on Exhibit C, the slopes, landscaping, irrigation systems, plants, paving,
pedestrian walks, water, electricity and all other equipment associated therewith, without
limitation, are part of the maintenance responsibilities associated with the private road easement
and shall be maintained by the lot owners as a part of the repairs and expenses set forth herein.
Specific easements for the benefit of Lots 1-7 and Lots 10-14 which burden Lots 1-7 and 10-14,
respectively, shall be reserved from the grant of fee title to the purchasers of said Lots. The legal
description of such reserved easements is set forth on Exhibit C hereto.
5. If there is a covenant, agreement, or other obligation imposed as a condition of
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. 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
landscaping area that results ftom 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
and landscaping 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
landscaping shall be commenced when a majority of the lot owners agree in writing that such
work is needed. The agent shall obtain three bids ftom 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 Developer does not intend to provide
for the sharing of liability with respect to personal injury or property damage other than that
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. 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 hannless
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 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 this 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 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 held to be unenforceable or invalid by any
court of competent jurisdiction, the validity, and enforceability ofthe remaining provisions shall
not be affected thereby.
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. .
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 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/her 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 13 51 (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 lß day of
-reBFHa,¡;y, 1996.
MArL'"
DEVELOPER:
GKPROPERTŒSOFCALœORN~,
L.P., a California limited partnership
By: GALEY DEVELOPMENT GROUP, INc.,
a California corporation,
Its G neral partn~~ ,! (
By: X
MICHAEL H. GALEY
Its President
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ACKNOWLEDGMENT 276
STATE OF CALIFORNIA)
)
COUNT:DOF SAN DIEGO)
~p.- ¿It C tl- - c
JOn ~a-FY.l..l..-, 1996, before me, :Janrc.¿ /(. JweYlSoV\ ,
Notary Public, personally appeared MICHAEL H. GALEY 0 personally
known to me - or - Q(proved to me on the basis of satisfactory
evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in
his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
.. WITNESS my ~ an~ Of.t1;eal.
, ~ - - - - - - - - - - - Signature. 11(( / .~'-
~.ij'" "":'.:", JANICE K. SWENSON '1 ~ Signature of Notary
:< : '.~ ;; COMM. # 1030780 V
~ ! ~'t .: Notary Public - California ~
J " . SAN DIEGO COUNTY ~:
. . .., My Comm. Expires JUN 22, 99j
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EXHmIT "B"
Parcel 4 of Parcel Map No. 13497, in the City of Encinitas, County
of San Diego, State of California, filed in the Office of the
County Recorder of San Diego County on September 27, 1984 as File
No. 84-366752 of Official Records.
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