1996-389704
, ~' .
- n 1996-0389704
. 01-AUG-1996 01:16 PM
~ecorãing Requested By: ) OFFICIAL RECORDS
)
CITY OF ENCINITAS ) SAN DIEGO COUNTY RECDRDER'S OFFICE
) GREGORY SMITH, COUNTY RECORDER
When Recorded, Mail To: ) 105 RF: 13. 00 FEES: 31. 00
CITY CLERK ) AF: 17.00
505 S. Vulcan Avenue ) MF: 1. 00
Encinitas, CA 92024 )
)
) SPACE ABOVE FOR RECORDER'S USE
PRIVATE DRAINAGE FACILITY MAINTENANCE AGREEMENT
FOR TM 90-209. Lots 16,17,18,21,22,23,24
Assessor's Parcel Project No.: ~M Qn-?n9
No. 258-130-01 W.O. No.: 147~FM
THIS AGREEMENT for the maintenance and repair of that certain
private drainage facility, the legal description and/or plat of
which is set forth in Exhibit A attached hereto and made a part
hereof, is entered into between Mivuki Ita. Trustee of the Ita
Family Trust dated October 3, 1989 (hereinafter referred to as
"Developer") for the benefit of future subdivision lot owners,
(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
subdivided and developed as 24 lots. 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
drainage facility 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 drainage
facility and for the apportionment of the expense of such
maintenance and repair among existing and future lot owners; and
bp4060 1
. . 106
, 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
facility shall be divided equally among the subdivided parcels
created in the subdivision and paid by the lot owner or 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 and normal
drainage facility improvement and maintenance work to adequately
maintain said private drainage facility,
-
This shall also include any other work reasonably necessary and
proper to repair and preserve the ability to meet drainage and
- - flood control needs.
5. If there is a covenant, agreement, or other obligation
imposed as a condition of subdivision approval to make improvements
to the private drainage facility, the obligation to repair and
maintain the private drainage facility as herein set forth shall
commence when the improvements have been completed and approved by
the city.
6. Any extraordinary repair required to correct damage to
said 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
bp4060 2
\ . .
t07
existing wen the improvements were completed and approved by the
City.
7. t is agreed that Developer is initially the agent to
contract a d oversee and do all acts necessary to accomplish the
repairs a d 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 drainage facility shall
be commenc d when a majority of the lot owners agree in writing
that such ork is needed. The agent shall obtain three bids from
licensed c ntractors and shall accept the lowest of said three bids
and shall hen initiate the work. The agent shall be paid for all
costs incu red including a reasonable compensation for the agent's
services, nd such costs shall be added to and paid as a part of
the repai and maintenance costs; provided, however, that
compensati n for the agent's services shall in no event exceed an
amount e ivalent to 10% of the actual cost of repairs and
maintenanc performed. In performing his duties, the agent, as he
anticipate the need for funds, shall notify the parties and each
party shal within forty-five (45) days pay the agent, who shall
maintain a trustee account and also maintain accurate accounting
records wh ch are to be available for inspection by any party or
authorized agent upon reasonable request. All such records shall
be retaine by the agent for a period of five years.
8. hould any lot owner fail to pay the pro rata share of
costs and e penses as provided in this Agreement, then the agent or
any lot ower or owners shall be entitled without further notice to
institute egal action for the collection of funds advanced on
behalf of uch lot owner and shall be entitled to recover in such
action in ddition to the funds advanced, interest thereon at the
- current p ime rate of interest, until paid, all costs and
disburseme ts of such action, including such sum or sums as the
Court may ix as and for a reasonable attorney's fees.
9. ny liability of the lot owners for personal injury to
the agent ereunder, or to any worker employed to make repairs or
provide ma'ntenance under this Agreement, or to third persons, as
well as an liability of the lot owners for damage to the property
of agent, r any such worker, or of any third persons, as a result
of or arising out of repairs and maintenance under this Agreement,
shall be b rne, as between the lot owners in the same percentages
as they ear the costs and expenses of such repairs and
maintenanc Each lot owner shall be responsible for and maintain
his own in urance, if any. By this Agreement, the Developer does
not intend 0 provide for the sharing of liability with respect to
personal i jury 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
liability f r injury to himself or damage to his property when such
bp4060 3
. . 108
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, 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 facility.
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 unenforceabl~ or invalid by any court of
competent jurisdiction, the validity, and enforceability of the
remaining provisions shall not be affected thereby.
bp4060 4
\ . . .
109
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 drainage facility) is managed and controlled
by an Association:
(a) The Association, through its Board of Directors, shall
repair and maintain the private drainage facility 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 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 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
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.
'~the IN WITNfSS WHEREOF, t~~art~es have ex~ted this Agreement on
.'-') \ (. day of (;.. k'- , 19 f .
~;eloper: ' Q¿;-,
JJ7~~ .-hJ.
MIYUKr 0 TRUSTEE
Signature of DEVELOPER must be notarized. Attach
the appropriate acknowledgement.
bp4060 5
, ~~LlFORNIA ALL.PURPc8 ACKNOWLEDGMENT . 110
No. 5907
State of California
County of San Diego
On June 3,1994 before me, Mary V Lauderdale, Notary Public
DATE NAME, TITCE OF OFFICER - E.G, "JANE DOE, NOTARY PUBLIC"
personally appeared Miyuki Ito
NAMEIS) OF SIGNERIS)
ŒI personally known to me . OR - 0 proved to me on 1he basis of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s),
or the entity upon behalf of which the
r:'~':i;~;~'." '";;-,:~~' .-; C ~UDERDA~Ê=l person(s) acted, executed the instrument.
~¡;£ ,,--, '--"".-:"1_#1007163 ~
("\,:,-...,,.-c .:\ 'f.: (ê.-W PU8UC-CALIFORNIA
" ¡ ^'.<' -,. -, $:,," DiEr;O cnUNfV
L~:~L~!!~:~~~~~~~~~~,Ei;~~ES T
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form-
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
0 INDIVIDUAL
0 CORPORATE OFFICER
I
TITLE OR TYPE OF DOCUMENT
TITLEIS)
0 PARTNER(S) 0 LIMITED
0 GENERAL
0 ATTORNEY-IN,FACT NUMBER OF PAGES
0 TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON!S) OR ENTITYIIES)
SIGNER(S) OTHER THAN NAMED ABOVE
@1993 NATIONAL NOTARV ASSOCIATION. 8236 Remmel Ave., P_O. Box 7184' Canoga Pa,k, CA 91309-7184
i ~" I
<II
P ~ ~~>
!Ie ¡; " ="
~ ~ f;, ~ ~§¡; J 1
"'- "r -.,¡ ,,~'" 1
~w ~, ' ,I'
V) IZ U1'" 0 m
I.., c> ¡... ;;;1;,
:"i Ù1'" "m
10 .,¡ , œr
" ,-,,' .:,m
¡ " . :;
;:. "" O~J ~ m
~ ~ ':ù "."", ........
'!!~\? C"Þ, \.L
, ~' \ 1-1
'" "'95;---~ Þ-3
N5"5')
l' (TIE ,,5~~ 57.'3' .....4
'6 ON", ~
148.21'
N04'31'01'E (R) 0
ø ~ ~
U1b ~ ~~~"~
~~ -::~eF'w¡-¡ Io.C
'" z _."œ ~;i L.A.J
'" '" ".'~:;; ~ ~.
V) ~ .d'!::. ~
¡ ~ -'4 o,,~e
c> 1V¡?i?¡.¡S' .. 01 ",' ~ n
~ i?¡'1? -; C :1"C!~ ÞCOC-<I
",r E: : :' ~".."
~g ;~i2 ~
c> ~ ~'~B ÞCOC-<I
';: V) :¡~~~ ~
"r œe I'"""":::J
0 ~o :>:
"'~ ~"o
~~ 112,80' '~.Þ1a
::i N02'25'19'E:: g ~ ~ fJ:J.
V c> ~~œ
,,0; \. 1-<;'~ ru ~ ~ !:: ~ ~
, <;,þ1-' ~r !:';¡ œ.~ I'"""":::J
t-['> 0 '" " " 0 ~ ÞO.oI
~¡;: ~ 'c"!:'-"w
~- ~ ~~~~ >
~ ~~~~ n
H~" Þ-3
~~~ fI1 ~
èn:;1iJ X ~
B ~~8 :c P
þ 8:= - (0
. 0 'I' DI C
0 c- ~6 1,' ,- I
" 2 . . ,.'
~ 2 ."" N
2: n V> r.n," :;: 0
). Þ. \>!)N\,€iJ'c;,~~ ~
~ ¡;¡ ..0" ..... CO
"'... ,.
~ .
t;I œ
m
.:I ~
"'
~ iT1
-'~"17"E
QUAIL
N """7"E DRIVE'69"'."
169&29'
~~;, ---
. . 112
EXHIBIT "B"
PROJECT NO. 'I'M qn-?nq
PROPERTY DESCRIPTION
CONTINUED
EXCEPTING THAT PO ,TION OF SAID PROPERTY INCLUDED WITHIN AND COMPRISING A PART OF T~~T
CERTAIN STRIP OF Œm CONVEYED BY A, VAN AMERSFOORT TO THE COUNTY OF SÞE DIEGO FOR
ROAD PURPOSES, BY DEED DATED NOVEI1BER 21, 1921 A}ID RECORDED DECEpillER 28, 1921, IN BOOK
1038, PAGE 333 OF DEEDS, DESCRIBED AS FOLLOWS.:
BEGI"mING AT A PO "IT ON THE EAST AND WEST CORNER OF SECTION 10, TO~mSHIP 13 SOUTH,
Rfu'lGE 1 \;EST, SAN BERNARDINO MERIDIAN, SAID POINT BEING SOUTH 89° 01' SO" EÞ.ST 389.93
FEET FROM THE CE~ ER OF SAID. SECTION 10 AND RUNNING THENCE FROM SAID POINT OF
BEGINNING SOUTH 1 ° 10' 35" EAST 121.97 FEET TO THE BEGINNING ai'.1\ CURVE TO THE RIGHT
HAVING A RADIUS 0 1100 FEET; THENCE ALONG SAID CURVE THROUGH AN ANGLE OF 15° 10' FOR A
DISTANCE OF 300.7 FEET; THENCE SOUTH 2° 13' 10" WEST 1695.55 FEET TO THE BEGINNING OF
A CURVE TO THE RI HT HAVING A RADIUS OF 600 FEET; THENCE ALONG SAID CURVE THROUGH JU'I
.~GLE OF 27° 03' 0" FOR A DISTANCE OF 283.35 FEET; THENCE SOUTH 29° 16' 10" \;EST 89.91
FEET TO THE BEGI~ ING OF A CURVE TO THE LEFT HAVING A RADIUS OF 200 FEET; THENCE ALONG
SAID CURVE THROUG AN ANGLE OF 30. 30' FOR A DISTANCE OF 106.16 FEET; THENCE SOUTH 1°
13' 20" EAST 211.07 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT R1\VING A RADIUS OF
180 FEET; THENCE ONG SAID CURVE THROUGH AN ANGLE OF 49. 08' FOR A DISTANCE OF 154.1
FEET, HORE OR LES , TO A POINT IN THE COUNTY ROAD KNO\'m AS OLD SURVEY NO. '10.
TF/02/COV2 288Wp~1 4(7/11//91-1) 10e15,,- 1 JAN 90
. .
113
EXHIBIT "B"
PROJECT NO. 'I'M Qn-?nQ
PROPERTY DESCRIPTION
PARCEL 1:
THE NORTHERLY 266.52 FEET OF THE FOLLm1ING DESCRIBED PARCEL OF L.l\ND:
TriAT PORTION OF THE WEST HALF OF THE NORTHlfflST QUARTER OF THE NORTHRr~T QU~~TER OF
SECTION 15, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SlW BERNARDINO BASE AND HERIDIlW, IN THE
CITY OF ENCINITAS, COUNTY OF SlW DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL
PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE ¡fflST LINE OF SAID NORTHymST QUARTER OF THE NORTHEAST
QUARTER Y1HICH IS DISTANT THEREON NORTH 1° 10' 50" RAST 400.00 FEE'!' FROio! THE SOUTH1'/EST
CORNER OF SAID NORTHWEST QUARTER OF THE NORTHEAST QUARTER; THENCE ALONG SAID ¡'mST
LINE, NORTH 1° 10' 50" RAST, 592.39 FEET, HORE OR LESS, TO A POINT ¡\'HICH IS SOUTH 1" 10'
5,0" vmST 260.07 FEET FROB THE NORTH QUARTER CORNER OF SAID SECTION 15; THENCE SOUTH 00°
50' 29" RAST, 651.21 FEET; THENCE SOUTH 2° 44' 10" WEST 266.60 FEET; THENCE SOUTH 00°
SO' 29" EAST TO THE EASTERLY LINE OF SAID 1'1EST HALF OF THE NORTHWEST QUARTER OF THE
NORTHEAST QU~"TER; THENCE SOUTHERLY ALONG SAID EASTERLY LINE TO A LINE ¡ruICH BEARS
SOUTH 00° 50' 29". EAST FROB THE POINT OF BEGINNING; THENCE NORTH oao 50' 29" WEST TO THE
POINT OF BEGINNING.
EXCEPTING THEREFROH THAT PORTION LYING EASTERLY OF THE WESTERLY LINE OF COUNTY ROAD
SURVEY NO. 373 A PLAT OF ,1HICH IS ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR OF SAID
COUNTY.
PARCEL 2:
ALL Tfu,T PORTION OF THE WEST HALF OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF
SECTION 15, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SlW BERNARDINO BASE AND MERIDIÞ~, IN THE
CITY OF ENCINITAS, CO~TY OF SlW DIEGO, STATE OF CALIFO~~IA, ACCORDING TO THE OFFICIÞ~
PLAT THEREOF, DESCRIBED AS FOLLOI'/S:
BEGINNING AT THE NORTHY1EST CORNER OF SAID NORTHEAST QUARTER OF SECTION 15; THENCE
SOUTH 1" 10' 50" NEST ALONG THE NEST LINE OF SAID NORTHEAST QUARTER, 260.07 FEET;
THENCE SOUTH 00° 50' 29" EAST 651.21 FEET; THENCE NORTH 2° 44' 10" EAST 257.02 FEET TO
THE NORTHEAST CORNER OF SAID NEST }rnLF OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SAID SECTION; THENCE NORTH 07° 53' 16" ¡.mST ALONG TI.IE NORTH LINE OF SAID
SECTION 664.62 FEET TO' THE POINT OF BEGINNING.
TF/02/COV2-288wp51 4 (7/11/ /91-1) 1001Sa 1 JAN 90