1998-66579
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Recording Requested by: )
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City of Encinitas ) fŒC!J:DEF:
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When Recorded Mail To: )
City Clerk ) 11"111111111I111111111I11111~~mllllllllllllllll"lllllllllI
City of Encinitas )
505 S. Vulcan Avenue ) SPACE ];
Encinitas. CA 92024 )\
PRIVATE ROAD AND DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
FOR CAMBRIA - LOT 4l
Assessor's Parcel Project No.: TM 96-007
No. 257-,501-18 W.O. No.: 5280GR (Fee)
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 A attached hereto and those private
drainage facilities, the legal description and/or plat of which is
set forth in Exhibits A attached hereto and made a part
hereof, is entered into by Green Valley Associates II. LLC
(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;
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and,
WHEREAS, Developer is the owner of certain real property being
subdivided and developed as a single family that will use and
subdivision
enjoy the benefit of said road easement. A complete legal
description of said real property is attached, labeled Exhibit ~
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 and drainage facilities 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 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:
1. The property is benefitted by this Agreement, and present
and successive lot owners of all or any portion of the property are
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" . .484
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 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 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 chuckholes, repairing cracks, repairing and resurfacing of
roadbeds, repairing and maintaining drainage structures, removing
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.' . . 1485
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.
6. Any extraordinary repair required to correct damage to
said road easement or drainage facility 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 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 replaced at the direction of a majority of the lot owners.
Repair and maintenance work on the private road easement and
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. . 1486
drainage facilities 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 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
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. 14.
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 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
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. .88
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 approval 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 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
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. . 1489
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 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
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. . 1490
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 drainage
facilities 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.
(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 Declaration.
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IN WITNESS WHEREOF, the parties have executed this Agreement
~"" day of jð*"""'1 ' 19 ~ .
on the
Signature of DEVELOPER must be notarized. Attach
the appropriate acknowledgement.
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. 1492 .
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On I.. .4-/l/. d & , 1998, befor~ me, A. Nicole Mazar, a Notary Public, personally
appeared , ~ £ \ h#/$Yt/ , personally known to me (or proven to me
on the basis of satisfactory evidence) to be the person( s) whose name( s) is/are subscribed to the
within instrument and acknowledged to me that he/she executed the same in hislher/their
authorized capacity(ies), and that by hislher/their signature on the instrument, the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
. 1493 .
EXHIBIT "A"
Private Road and Drainage Easements as shown on Lot 41 of Map No. 13333 as defined by
TM 96-007.
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EXHIBIT "B"
Lot 41 of Amended Map of the City of Encinitas Map No. 13258 City of Encinitas Tract No.
94-066, Units I, II and III in the City of Encinitas, County of San Diego, State of California.
According to map thereof No. 13333 filed in the Office of the County Recorder of San Diego,
June 3, 1996.