2001-477955
. DOC. "" r1'-' -;
LUv.L
JUL l~, 200l ¡:,:: ::,..:::, F)t"í
Recording Re uested By: )
) RECORDS
City Engine r ) SAN DIEGD RECORDEr;' S DEFIer
. ,REGOO:Y SMITH. COmi! PECOEDE;:
) FEES: 'cCJ .~n
f~ When Record d Mail to: )
City Clerk )
~i City of Encini as )
505 South Vu can Avenue )
r{' Encinitas CA 92024 SPACE ABOVE FOR RECORDER'S USE ONLY
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PRIVATE ROAD
MAINTENANCE AGREEMENT
FOR TM 00-086
,/
eINo.254-614-01 ,02 & 05 ProjectNo,: TM 00-086
W.O,No.: 6689-FM
THIS AGRE MENT for the maintenance and repair of that certain private road easement, the
legal descripfon and/or plat of which is set forth in Exhibits attached hereto and made a part
hereof, is ent red into by D,R. Horton, San Diego Holding Company, Inc, , a California
Co oration (hereinafter referred to as "Developer") for the benefit of
future subdivi ion 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 int rest in any lot or lots).
WHE AS, this Agreement is required as a condition of approval by the City of Encinitas
of a subdivisi n project as defined in Section 21065 of the Public Resources code and pursuant
to City ofEnc nitas Municipal Code Section 24.16.060 and Section 24,29,040; and
WHE AS, Developer is the owner of certain real property being subdivided and
developed as M 00-086 that will use and enjoy the benefit of said road easement(s), A
complete leg I description of said real property is attached, labelled Exhibit~, and
incorporated y reference, Said real property is hereinafter referred to as the "property"; and
WHER AS, it is the desire of the Developer that said private road be maintained in a safe
and usable co dition by the lot owners; and
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WHE AS, it is the desire of the Developer to establish a method for the maintenance and
repair of sai private road easement and for the apportionment of the expense of such
maintenance nd repair among existing and future lot owners; and
WHE AS, 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, NO THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
,I. 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 Qf the
land.
2. The cost and expense of maintaining the private road easement shall be divided
equally amon the subdivided parcels created in the subdivision and paid by the lot owner of the
heirs, assigns d 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, h irs, assigns and successors in interest of each such newly created parcel shall be
liable under t is Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shal 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 owne s owning 100% of the number of parcels, including subdivisions thereof as
described in aragraph 3 above: reasonable and normal road improvement and maintenance
work to ade uately maintain said private road easement to permit all-weather access and
conveyance 0 storm flows. Repairs and maintenance under this Agreement shall include, but is
not limited t , filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds,
repairing and maintaining drainage structures, removing debris, maintaining signs, markers,
striping and ighting, if any, and other work reasonably necessary and proper to repair and
preserve the e sement for all-weather road purposes,
5, If there is a covenant, agreement, or other obligation imposed as a condition of
subdivision a proval to make private road improvements to the private road easement, the
obligation to epair and maintain the private road easement as herein set forth shall commence
when the priv te 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 tion taken or contracted for by lot owners or their successors in interest shall be
paid for by th party taking action or party contracting for work which caused the necessity for
the extraordin repair. The repair shall be such as to restore the road easement to the condition
existing prior 0 said damage,
7, It is agreed that Developer is initially the agent to contract and oversee and do all
acts necess to accomplish the repairs and maintenance required and/or authorized under this
Agreement. eveloper further agrees that the agent may at any time be replaced at the direction
of a majority fthe lot owners. Repair and maintenance work on the private road easement shall
be commence when a majority of the lot owners agree in writing that such work is needed. The
agent shall 0 tain three bids from licensed contractors and shall accept the lowest of said three
bids and shal then initiate the work, The agent shall be paid for all costs incurred including a
reasonable co pensation for the agent's services, and such costs shall be added to and paid as a
part of the re air 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 erformed, In performing his duties, the agent, as he anticipates the need for funds,
shall notify t e parties and each party shall within forty-five (45) days pay the agent, who shall
maintain a t stee 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 e 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 t is 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 acc rdance with the provisions of California Civil Code Section 845, and shall be
entitled to rec ver 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 swn
or sums as th 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 empl yed to make repairs or provide maintenance under this Agreement, or to third
persons, as w II as any liability of the lot owners for damage to the property of agent, or any such
worker, or of y third persons, as a result of or arising out of repairs and maintenance under this
Agreement, s all be borne, as between the lot owners in the same percentages as they bear the
costs and exp nses of such repairs and maintenance. Each lot owner shall be responsible for and
maintain his wn insurance, if any. By this Agreement, the Developer does not intend to provide
for the shari g of liability with respect to personal injury or property damage other than that
attributable t the repairs and maintenance undertaken under this Agreement. Each of the lot
owners agree to indemnify the others from any and all liability for injury to himself or damage
to his propert when such injury or damage results from, arises out of, or is attributable to any
maintenance r repairs undertaken pursuant to this Agreement.
. .
10, Lot owners shall jointly and severally defend and indemnify and hold harmless
City, City's e gineer and its consultants and each of its officials, directors, officers, agents and
employees fr m and against all liability, claims, damages, losses, expenses, personal injury and
other costs, i cluding costs of defense and attorney's fees, to the agent hereunder or to any lot
owner, any c ntractor, any subcontractor, any user of the road easement, or to any other third
persons arisin out of or in any way related to the use of, repair or maintenance of, or the failure
to repair or m intain the private road easement,
Nothing in the Agreement, the specifications or other contract documents or City's
approval of th plans and specifications or inspection of the work is intended to include a review,
inspection ac owledgement of a responsibility for any such matter, and City, City's engineer
and its consul ants, and each of its officials, directors, officers, employees and agents, shall have
no responsibil 'ty or liability therefore,
II. The foregoing covenants shall run with the land and shall be deemed to be for the
benefit of the and of each of the lot owners and each and every person who shall at anytime own
all or any port ' on of the property referred to herein,
12. It is understood and agreed that the covenants herein contained shall be binding
on the heirs, e ecutors, 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 inten that the obligation hereby created shall be and constitute a covenant running with
the land and ny 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 the e presents, including without limitation, the right of any person entitled to enforce
the terms of his Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be umulative and in addition to other remedies provided in this Agreement and to all
other remedie at law or in equity.
14, The terms of this Agreement may be amended in writing upon majority approval
of the lot own rs and consent of the City.
IS, This Agreement shall be governed by the laws of the State of California, In the
event that an of the provisions of this Agreement are held to be unenforceable or invalid by any
court of com etentjurisdiction, the validity, and enforceability of the remaining provisions shall
not be affecte thereby.
16. If the Property constitutes a "Common Interest Development" as defined in
California Ci il 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 n twithstanding, the following provisions shall apply at and during such time as (i)
the Property s 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 ontrolled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private road e sement and shall be deemed the "agent" as referred to in Paragraph 7 above, The
Association, hich shall not be replaced except by amendment to the Declaration, shall receive
no compensat on for performing such duties. The costs of such maintenance and repair shall be
assessed agai ~st each owner and his subdivision interest in the Property pursuant to the
Declaration, he 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 Associati n 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 Are (as defined in California Civil Code Section 135l(b) in the Property except as
may be allow d 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,
lNWI TNESS WHEREOF, the parties have executed this Agreement
on the I ,-+L-- day of rv\c~ ,2001.
Developer:
(Print name:)
~\)< LL~
(Print name:) JOHN D. KERR, JR.
Signature of EVELOPER must be notarized. Attach the appropriate acknowledgement
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STATE OF ALIFORNIA )
." ~ ) ss
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COUNTY 0-:"'<""- ¿'f.::>
On ~ before me, ¿;'(ct\e K£/I,u-vu:)~ personally appeared
,,-,hif' D L:.ev1r 1/' personally'known to me (or
proved to me on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed
to the within ent and acknowledged to me that he/she/they executed the same in hislher/their
authorized pacity, and that by hislher/their signature(s) on the instrument the person(s), or the
entity upon ehalf of which the person(s) acted, executed the instrument.
SS my hand and official seal.
ture c::::.,,~. ~<UJ~)
COLETTE KAVANAGH
Commission # 1153133
Notory PubFc - Col'lornia
--:ounty
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EXHIBIT 'A'
TM 00-086
LEGAL DESCRIPTION
L ts 6, 23, and 24 of City of Encinitas Tract No. 99-137 in the
C ty of Encinitas, County of San Diego, State of California,
a cording to the Map thereof No. 13998, filed in the Office of
the County Recorder of San Diego County July 11, 2000;
t gether with Parcel 1 of lot line adjustment per Certificate of
C mpliance rec. March 28, 2001as file No, 200-01809