2001-197368
. DOC. 2001-0197368
APR 03. 2001- 10:13 Ai"¡
Recording Requested By: ) OfFICIAL f:ECORDS
) SAN DIEGO COUNTY RECOf:DER'S OFFICE
City of Encinitas ) GRfGOf:Y J. SMITH, COUNTY f:ECORDER
) FEES: 29.00
When Recorded Mail to: )
City Clerk )
City of Encinitas )
r£tì 505 South Vulcan Avenue )
~ Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
~\ (¡{ ¿¡¡II
~-)-O( PRIVATE DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
Assessor's Parcel No. t6"of - \1 1-05'S" Project No.: 6574 G
W.O. No.:
THIS AGREEMENT for the maintenance and repair of those private drainage facilities,
the legal description and/or plat of which is set forth in Exhibits~ attached hereto and made
a part hereof, is entered into by. Stephen M. and Kathv M. Hillan
ihereinafter referred to as "Developer") for the benefit of future lot owners who will use the
private drainage 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
WHEREAS, Developer is the owner of certain real property being developed as
6574 G that will use and enjoy the benefit of said drainage easement. A complete
legal description of said real property is attached, labeled Attachment A , 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 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 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 expressly bound hereby for the benefit of the
land.
2. The cost and expense of maintaining the private 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 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 maintenance work to adequately
maintain said private drainage facilities to permit conveyance of storm flows. Repairs and
maintenance under this Agreement shall include, but is not limited to, repairing and maintaining
drainage structures, removing debris, and other work reasonably necessary and proper to repair
and preserve the easement for purposes of conveyance of storm flows.
5. If there is a covenant, agreement, or other obligation imposed as a condition of
subdivision approval to make private drainage improvements to the private drainage easement,
the obligation to repair and maintain the private drainage easement as herein set forth shall
commence when the private drainage improvements have been completed and approved by the
City.
6. Any extraordinary repair required to correct damage to said 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 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 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 ITom 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 attorneys 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 ITom 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 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 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 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 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 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 perfonning 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 135l(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.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the /51 day of 1YJ'*7Li1 ,20QL.
D"'l_~.~.~
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
. .
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California }
'h ~ ss.
County of, ~
On '-1r!a;¡eic II j¡y:)/, before md-A.N()J4 ¡!,. ¡(¡ /u;JVUe, JJO79'1K'1 PUBLIc:.,
D", N.me ood H'e of 0IIi'" le"g"" "J,", Doe" No"~ Publl"')
personallyappeared~f!é/V /-1. cU1.d. 1r'11TI-!.':f)1. Y-I1,¿L4N
N,mel') of 5;90"1')
0 personally known to me
¡;:¡--¡nroved to me on the basis of satisfactory
-~~._--. - 1 (~dence
OFFICIAl SEAL
¡iJ N~~lIH~u~LI1;1~~\J~WN~A¡¡: to be the person(s) whose name(s) is€)
æ COMM. NO. 1204250 'i! subscribed to the within instrument and
SAN DIEGO CO~NTY ~
MY."C(). "';"! ,-ye.., '"A."N. 6, 2003 acknowledged to me that he/sh~xecuted
-. ,,-,," ,." " the same in his/h~ authorized
capacity(ies), and that by his/he¡1fliëìò
signature(s) on the instrument the person{Sf"Or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
~ÛúdßJ~ ~r
PI". No"~ 5.., AOo," oAt"" of No"" II,
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudutent removal and reaffaehment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
D Individual Top ~t thumb h"e
U Corporate Officer - Titie(s):
D Partner - D Limited iD General
D Attorney in Fact
D Trustee
D Guardian or Conservator
D Other:
Signer Is Representing:
@1997 N,"o",' Nol,~ """""00' 9350 De Solo Me" p.o" ." 2402' Ch">worth" CA 91313-2402 P'od No 5907 Reo,del C,II TolI-F", 1-800-876-6827
. .
ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. 6574-G
PARCEL "A":
PARCEL 2 OF PARCEL MAP NO. 856, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
ST ATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY. JUNE 14. 1972 AS FILE NO. 151758 OF OFFICIAL RECORDS.
-T-
IHI 1111 1111 ¡:;::X~ \ (3.\\ À
'~~i @
! ~I
. I ~
I PRO~T
"~
108.98 108.98
! -
i NBU PRIVATE 6' EAôEMENT
I LOT SS êBIJB'i! AND
RUN-OR' DRAINAa.E
3' EACH PROPERTY 6'
- - , I, TOTAL
i FER DOC. ~31
~ @ ';' ~ ~,= @
i
i
¡
I Iii
!
,
- 93.96 ¡ - 93.96 --
,
i
, EXI5TINCs 24' DRIVB.UAY
I
EXISTING 30' PRIVATE EA5EMENT
,
~ i FER DOC. 18-0<;5614
I & I 'I REG. FEEl. Il 1918
Q! ~
~ Ii I
!
" #'
I ~
IS. IS.O d'fJ<'~
93.96 93.96 0/
- --",
~'
>r"
of
5
Ï!!
T
= 30'