1997-180461
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18-APR-1997 02=52 PM
. Recording Requested By: ) ';Ati DIEGO OFFICE
) ,REGORY COUNT'! RECORDEF'
City of Encinitas ) 1750 RF: 17.00 FEES: ~4. 00
) . ~;:: 25.00
When Recorded, Mail To: ) N;:' 1. 00
City Clerk ) cr: 1. 00
City of Encinitas )
505 South Vulcan Avenue )
Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE
PRIVATE SEWER MAINTENANCE AGREEMENT
FOR A.P.N. No's. 258-172-03
& 258-172-04
Assessor's Parcel Project No.:EN96-141
No. Same as above W.O. No.: DES228
THIS AGREEMENT for the maintenance and repair of that certain
private sewer, 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 Cynthia L. Hughes
(hereinafter referred to as
"Developer") for the benefit of future subdivision lot owners who
will use the private sewer (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 md5c ~ ~¡tXg:t~z= ~~~ð~~ ~ ~ m
~ ~ :of Jti:Dex~~ JbmI!)HX~I¡!:2t ~ aœà: ~ XbOC ~xoŒ
~ Municipal Code Section 18.04.080 and Section 18.04.090 ;
and,
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WHEREAS, a Developer is the owner of certain real property
being ~ ~ developed as EN96-141 that will use and
enjoy the benefit of said sewer. 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
sewer 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 sewer 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.
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. 2. The cost and expense of maintaining the private sewer
shall be divided equally among the subdiviçied parcels created in
the subdivision and paid by the lot owner of 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 100% of the number of parcels, including subdivisions
thereof as described in Paragraph 3 above:
Reasonable sewer improvements and maintenance work to
adequately maintain the sewer facility and related structures.
Such repairs and maintenance shall include, without
limitation, repairing cracks, leaks, stoppage, damage caused
to sewer easement landscaping and any structures allowed in
said easement such as driveways, walls, water lines, etc., and
other work reasonably necessary and proper to repair and
preserve the sewer system and related easements;
5. Any extraordinary repair required to correct damage to
said sewer 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
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necessity for the extraordinary repair"" The repair shall be such
as to restore the sewer to the condition existing prior to said
damage.
6. 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 sewer 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 equivalence 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.
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1754
. 7. 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.
8. 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 from any and all
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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.
9. 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, 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
sewer.
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.
10. The foregoing covenants shall run with the land and
shall be deemed to be for the benefit of the land of each of the
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. lot owners and each and every person who shall at anytime own all
or any portion of the property referred to herein.
.
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11. 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.
12. 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 7 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.
13. The terms of this Agreement may be amended in writing
upon majority approval of the lot owners and consent of the City.
14. 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.
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. 15. 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 l:he property
(including the private sewer easement) is managed and controlled by
an Association:
(a) The Association, through its Board of Directors, shall
repair and maintain the private sewer and shall be deemed the
. "agent" as referred to in Paragraph 6 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 7 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
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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
-.1§..~ day of September , 199~.
Developer/Owner:
,'/
Signature of DEVELOPER must be notarized. Attach the appropriate
acknowledgement.
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. 1760.
STATE OF CALIFORNIA)
) SS
COUNTY OF SAN DIEGO)
On September 26, 1996, before me, Leona V. Kauflin, Notary Public, appeared Cynthia L.
Hughes, proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that she executed the same in
her authorized capacity, and that by her signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
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~ . -.. NOTARYPIJ8loc.cN.F"- ~~Y.~)
. _DIEGO cOUNtY
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iY-"""","",,,",...j Leona V. Kauflin, Notary Pu
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EXHIBIT "Bit
Property Legal Description:
In the City of Encinitas, County of San Diego, State of California:
Lot 3, Block 33 of Encinitas, in the City of Encinitas, County of
San Diego, according to Map thereof No 148, filed in the Office
of the County Recorderof San Diego County on June 12, 1883.
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