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1999-582089 IIIIII\I\I\IIIIIIIIIIIIIIIIIIII:::~II\IIIIIIIIIIIIIII.I1II111111111 DOC 1# 1999-0582089 . 1999-0582089 AUG 23.. 1999 4:45 PM Recording Requested by: ) IFFIClii. IIIDIOO !WI DIEOO IIUITY lmIIŒR's IFtICE ) 8372 fi£IDð' J, IIIITH. IDJITY REIIRDER ) FEES: 44.00 ) When Reco ded Mail To: ) ~ city Cler ) city of E cinitas ) IW 505 S, Vu can Avenue ) SPACE ABOVE FOR RECORDER'S USE Encin't s CA 92 (if" PRIVATB ROAD AND DRAINAGB PACXLITIBS MAINTBNANCB AGRBBHBNT FOR 'l'PM 'JR-26S Assessor's Parcel Project No.: TPM "I6>.-,zh.) No, 15 - SJ. - IS" w.o. No.: THIS GREEMENT for the maintenance and repair of that certain private ro d easement, the legal description and/or plat of which is set fo h in Exhibits ~ attached hereto and those private drainage f cilities, the legal description and/or plat of which is set forth in Exhibits attached hereto and made a part hereof, is entered into by HERMES AVENUE LLC (hereinafter referred to as "Developer) for the benefit of future subdivision lot owners who e private road easement (hereinafter referred to as "lot owners", ich shall include the Developer to the extent the Developer ownership interest in any lot or lots), , this Agreement is required as a condition of approval by the Cit of Encinitas of a subdivision project as defined in Section 21065 of the Public Resources code and pursuant to City of Encinitas unicipal Code Section 24,16,060 and Section 24,29.040; cov4173 1 8373 and, owner of certain real property being and developed as TPM 98-265 that will use and benefit of said road easement. A complete legal of said real property is attached,. labeled Exhibit"~ rated by reference. said real property is hereinafter referred t as the "property"; and s, it is the desire of the Developer that said private road easem nt and drainage facilities be maintained in a safe and usable con ition by the lot owners; and WHE it is the desire of the Developer to establish a he maintenance and repair of said private road easement e facilities and for the apportionment of the expense of such nance and repair among existing and future lot owners; and WHE it is the intention of the Developer that this nstitute a covenant running with the land, binding upon ive lot owner of all or any portion of the property. , IT IS HEREBY AGREED AS FOLLOWS: 1. T e property is benefitted by this Agreement, and present and success ve lot owners of all or any portion of the property are cov4l73 2 8374 expressly bound hereby for the benefit of the land. 2, The cost and expense of maintaining the private road easement a d drainage facilities shall be divided equally among the subdivide parcels created in the subdivision and paid by the lot owner of t e heirs, assigns and successors in interest or each such owner. 3. n the event any of the herein described parcels of land are subdi ided further, the lot owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable un er this Agreement for their then pro rata share of expenses a d such pro rata shares of expenses shall be computed to reflect su h newly created parcels. 4. he repairs and maintenance to be performed under this Agreement hall be limited to the following unless the consent for additional work is agreed to by a majority vote of the lot owners of the number of parcels, including subdivisions thereof as in Paragraph 3 above: reasonable and normal road impro maintenance work to adequately maintain said easement and drainage facilities to permit all-weather conveyance of storm flows, Repairs and maintenance under this greement shall include, but is not limited to, filling repairing cracks, repairing and resurfacing of roadbeds, epairing and maintaining drainage structures, removing cov4173 3 83'75 debris, m intaining signs, markers, striping and lighting, if any, and other work reasonably necessary and proper to repair and preserve he 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 improvemen s to the private road easement, the obligation to repair and mainta in the private road easement as herein set forth shall commence w en the private road improvements have been completed and approved b the City. 6. Y extraordinary repair required to correct damage to said road asement or drainage facility that results from action taken or ontracted for by lot owners or their successors in all be paid for by the party taking action or party contract in for work which caused the necessity for the extraordin The repair shall be such as to restore the drainage facility to the condition existing prior 7. is agreed that Developer is initially the agent to contract all acts necessary to accomplish the repairs an maintenance required and/or authorized under this Agreement. Developer further agrees that the agent may at any time be replace at the direction of a majority of the lot owners. Repair and maintenance work on the private road easement and cov4173 4 8376 drainage acilities shall be commenced when a majority of the lot owners ag ee in writing that such work is needed, The agent shall obtain th ee bids from licensed contractors and shall accept the lowest of said three bids and shall then initiate the work, The agent sha I be paid for all costs incurred including a reasonable compensat'on for the agent's services, and such costs shall be added to nd paid as a part of the repair and maintenance costs; provided, that compensation for the agent's services shall t exceed an amount equivalent to 10\ of the actual cost of repair and maintenance performed. In performing his duties, anticipates the need for funds, shall notify the each party shall within forty-five (45) days pay the shall maintain a trustee account and also maintain accurate ccounting records which are to be available for inspection by any party or authorized agent upon reasonable request. 11 such records shall be retained by the agent for a period of ive years. 8, hould any lot owner fail to pay the pro rata share of costs and enses as provided in this Agreement, then the agent or owners shall be entitled without further notice to institute action for the collection of funds advanced on behalf of uch lot owner in accordance with the provisions of California ivil Code Section 845, and shall be entitled to recover in the funds advanced, interest thereon interest, until paid, all costs and cov4173 5 8377 disburse e nts of such action, including such sum or sums as the Court ma 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 m intenance under this Agreement, or to third persons, as well as a y 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 ari ing out of repairs and maintenance under this Agreement, shall be orne, as between the lot owners in the same percentages as they bear the costs and expenses of such repairs and maintenan e. Each lot owner shall be responsible for and maintain his own i if any. By this Agreement, the Developer does to provide for the sharing of liability with respect to personal i njury or property damage other than that attributable to the repai and maintenance undertaken under this Agreement. Each of the lot owners agrees to indemnify the others from any and all liability or injury to himself or damage to his property when such injury or amage results from, arises out of, or is attributable to any mainte ance or repairs undertaken pursuant to this Agreement. 10. owners shall jointly and severally defend and indemnify hold harmless City, City's engineer and its consultant of its officials, directors, officers, agents and employ es from and against all liability, claims, damages, losses, ex enses, personal injury and other costs, including costs cov4173 6 8378 of defens 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 relat the use of, repair or maintenance of, or the failure to repair or maintain the private road easement or drainage the specifications or other contract documents or City's approval of the plans and specifications or of the work is intended to include a review, inspection responsibility for any such matter, and City, City's eng ' neer and its consultants, and each of its officials, directors, officers, employees and agents, shall have no responsibi ity or liability therefore. 11. he foregoing covenants shall run with the land and shall be deemed 0 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 portio of the property referred to herein. 12. t is understood and agreed that the covenants herein contained s all be binding on the heirs, executors, administrators, successors, and assignees of each of the lot owners, 13. I is the purpose of the signatories hereto that this instrument e recorded to the end and intent that the obligation cov4173 7 8379 hereby cr ated shall be and constitute a covenant running with the land and ny subsequent purchaser of all or any portion thereof, by acceptanc of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become bound by these pre sents, including without limitation, the right of any person en itled to enforce the terms of this Agreement to institute legal act on as provided in Paragraph 8 hereof, such remedy to be cumulativ 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 ity approval of the lot owners and consent of the City. 15. his Agreement shall be governed by the laws of the state In the event that any of the provisions of this Agreement re held to be unenforceable or invalid by any court of competent jurisdiction, the validity, and enforceability of the remaining rovisions shall not be affected thereby. 16. f the Property constitutes a "Common Interest Developmen " 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 Agree ent to the contrary notwithstanding, the following provisions shall apply at and during such time as (i) the Property is encumbe ed by a "Declaration" (as defined in California civil cov4173 8 8380 Code Sec ion 1351(h), and (ii) the Common Area of the property (includin the private road easement) is managed and controlled by an Associ tiOn: (a) The Association, through its Board of Directors, shall repair ad maintain the private road easement and drainage facilitie and shall be deemed the "agent" as referred to in Paragraph 7 above. The Association, which shall not be replaced except b amendment to the Declaration, shall receive no compensat' on for performing such duties. The costs of such maintenan e and repair shall be assessed against each owner and his interest in the Property pursuant to the Declaration. The asses ments 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 saIl supersede Paragraph 8 of the Agreement in its entirety. No individual owners shall have the right to alter, maintain 0 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 Dec aration. (c) is Agreement shall not be interpreted in any manner which or limits the Association's rights and duties pursuant t its Bylaws and Declaration. cov4173 9 8381 IN ITNESS ies have executed this Agreement on the , 19~. ;~:~;~~ Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. cov4173 10 CALIFORNIA A L.PURPOSE ACKNOWLEDGMENT 8382 State of before me, Karen L, Falette DOlo """"'-..OIIIco.-I'""""'"",,.-......., Joshua Addison _01"- own to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) isl- subscribed to the within instrument and acknowledged to me that helshelthey executed the OFFICIAL SEAL same in hislherNleir authorized capacity(ies). and that by hislherltheir signature(s) on the instrument the person(s), ~)~Ii\I~L~~I~ or the entity upon behalf of which the person(s) acted, COMM. NO, 1129599 - executed the instrument SAN DIEGO COUNTY YCOMM.EXP.MAR. 12,3»1 WITNESS my hand and ofIicjaJ seal. ~~~ -""-'- OPOONAL IfDn below is not required by law; it may ptr1tIfI valuable /0 -- tWytng DII the -.unent ami could prevenl frauduIenl rømavaI - -- 01 fhis fDnn to - '*'aIment Description f Attached Document Private Road and Drainage Facilities Maintenance Aqreement for TPM 98-265 Number of Pages: Capacity{les Claimed by Signer{s) Signer's Name: Signer's Name: 0 Individual 0 Individual 0 Corporate a Icer 0 Corporate Officer Tltle(s): Tttle(s): 0 Partner - 0 Limited 0 General 0 Partner - 0 limited 0 General 0 Attomey-ín-F ct 0 Attomey-in-Fact 0 Trustee 0 Trustee 0 Guardian or onservator 0 Guardian or Conservator , 0 Other. 0 Other: Top of lI1umb here Signer fs Repre enting: Signer Is Representing: .. 1994 Na"",,' No",'""""~" '92 Remm"'w.. PO, e" 71'" C.~.a P."" C"'3D9."" P"d. No. 5907 R.O<de' C" T~",.. 1.800.876-6827 EXHIBIT "A" 8383 to PRIVATE ROAD MAINTENANCE AGREEMENT PROJECT No. TPM 98.265 PROPERTY DESCRIPTION THOSE POR IONS OF LOTS 8 AND 9, IN BLOCK 5, OF SOUTH COAST PARK, IN THE CITY OF ENCINITAS, ( OUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF No. 1776 FILE D IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY ON JANUARY 11, 1924, DESCRIBED AS FOLLOWS: ALL OF LOT 8 TOGETHER WITH THE SOUTHERLY 25.00 FEET OF LOT 9. SAID PROPE TY BEING DESCRIBED AS PARCEL "C" IN CERTIFICATE OF COMPLIANCE RECORDED ( N NOVEMBER 30, 1998 AS FILE No. 1998-0771226 OF OFFICIAL RECORDS OF SAID SAN DIE GO COUNTY. EXHIBIT 'B" 10 PRIVATE ROAD MAINTENANCE AGREEMENT PROJECT No. TPM 98-265 ~ !REA 10 11£ MAIHTAIIiED BY PRlVAl[ ROm MAMEHANŒ AGI1£OOf 8384 LO~r ~J5 ~ Lo~r ~J4 N 15'04'41' IVI 165.00' I ~~" ~ T .~ I r-'-,¡"'~' -n~~ '""' -~ - I I MAP INo -Jt76 I I ~ PA"CELO , 1 1 r) 1 í' 1< Þ 1P86 SG FT ~ ' I 1 D~ - uf ~ 1 I ~ I I I q-;-. 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