1997-539858
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'122 ØØt " 1997-0539858
OCT 28.1997 12=41 PM
OFFICIAL RECORDS
SAN OIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECOROER
FEES: 41. 00
111I1111111111I1111I111Il~ 11111111111111111111111
SPACE ABOVE FOR ~CUKUL~ ~ ~--
Recording Requested By:
City of Encinitas
When Recorded, Mail To:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR TPM 94-142
Assessor's Parcel
No. 264-143-54
project No.:
W.O. No.:
TPM 94-142
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
DENNIS
J HAUSWIRTH AND LORI
LEE
HAUSWIRTH
(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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1(e
WHEREAS, Developer is the owner of certain real property being
subdivided and developed as
TPM 1+-\4'2
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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.
çreated 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 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
1.00%
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, the obligation to repair
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"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 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 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
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.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
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.
127
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,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
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 each of its officials,
directors,
officers,
employees
and
agents,
shall
have
no
responsibility or liability therefore.
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.
12.
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
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128
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 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.
(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,
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! '18
.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.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the
:J..}J D
day of
tPeíO~
, 19 9'7 .
Developer:
@d~ØL
~d~.u >Æ~dU.A~
Signature of DEVELOPER must be notarized.
the appropriate acknowledgement.
Attach
CT/hz/BC2-110wp51
(08/11/94-1) 9
131
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF San Diego
)SS
)
On October 2, 1997 before me, Joanne Marzo, Notary Public
personally appeared H AND LORI LEE HAU¡;WIKlli""""
:;~~nn~~~tr~n~:~ :~;:c~~:;;~::ge~o t~~~n tt:, b~&:/:~:~f:~:O:Jt:~idt~:ce:a~ebei~h~¡¡;~~~~r w:~t~:~::el~~~::i~~I~~~sc;~~e~~~t t~~
J1i1!Jt'!r/their signaturels! on the instrument the personls) or the entity upon behalf of whic~.}~~..~,;r:i'rw. ,ac,tr1. . ~~e,c,u,t;d , :~~ ,i,n~;rument,
WITNESS y h d and officia ea ,Jfl,':'" '. JOANNE MARZO f
. ' - " , Comm, #1062B68 "
Signature;-. NOTARY PUBUC CAUFORNIA ":
i SAN DIEGO COUNTY f
; . .".., Mvcomm.Exp,JUne22,1.:j
'~"I1ì!f~l?f'l8"l'tffIel%!~bI~~~I'J¡'¡'!'"
OPTIONAL SECTION
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons
relying on the document.
I INDIVIDUAL
] CORPORATE OFFtCERIS)
TITLEIS)
] PARTNERISI
!lIMITED
] GENERAL
] A TTORNEY.IN-FACT
I TRUSTEEISI
I GUARDIAN/CONSERVATOR
] OTHER
SIGNER IS REPRESENTING:
Name of Person or Entity
Name of Person or Entity
OPTIONAL SECTION
Though the date requested here is not required by law, it could prevent fraudulent reattachment of this form.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW
TITLE OR TYPE OF DOCUMENT:
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
.
132
.
EXHIBIT A
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PARCEL 2
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0.55 ACRES NET
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FOUND MONUMENT LE
W21 2" IRON PIPE WITH DISC "LS 587t" P
IlJ 3/4" IRON PIPE WITH DISC "LS 4813'
NO. 16452. REPLACED PER LEGEND.
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133
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EXHIBIT B
PROPERTY DESCRIPTION
THAT PORTION OF LOTS 81 AND 8 IA OF THE COLONY OF OLIVENHAIN, IN THE
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, TOGETHER WITH THOSE PORTIONS OF "B" AND "C" AND
13 TH STREETS, ACCORDING TO MAP NO. 326, DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE CENTER LINES OF SAID "C" STREET,
AND 13TH STREET; THENCE NORTHWESTERLY ALONG THE CENTER LINE OF SAID
13TH STREET, A DISTANCE OF 440,00 FEET; THENCE SOUTH 14° 29' WEST,
PARALLEL WITH THE CENTER LINE OF SAID "C" STREET, A DISTANCE OF 170,00
FEET: THENCE SOUTHEASTERLY AND PARALLEL WITH THE CENTER LINE OF A
COUNTY ROAD, AS DESCRIBED IN DEED TO THE COUNTY OF SAN DIEGO,
RECORDED OCTOBER 29,1930 IN BOOK 1817, PAGE 328 OF DEEDS (RANCHO SANTA
FE ROAD), A DISTANCE OF 290.00FEET, MORE OR LESS, TO THE SOUTHEASTERLY
LINE OF THE LAND DESCRIBED IN DEED TO ROBERT S. GALLS, ET UX, RECORDED
AUGUST 22, 1957 IN BOOK 6718, PAGE 481 OF OFFICIAL RECORDS; THENCE
NORTHEASTERL Y ALONG SAID SOUTHEASTERLY LINE TO AN INTERSECTION
WITH THE CENTER LINE OF SAID "C" STREET; THENCE NORTH 14° 29' EAST,
ALONG THE CENTER LINE OF SAID "C" STREET, TO THE POINT OF BEGINNING.