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;
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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
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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
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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
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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
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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
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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
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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.
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8381
IN ITNESS ies have executed this Agreement
on the , 19~.
;~:~;~~
Signature of DEVELOPER must be notarized. Attach
the appropriate acknowledgement.
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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
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