Loading...
1996-389703 . 8: ~, # 1996-0389703 01-AUG-1996 01:16 PM Rècording Requested By: ) OFFICIAL RECORDS ) SAH DIEGO COUHTY RECORDER'S OFFICE CITY OF ENCINITAS ) 96 GREGORY SMITH, COUHTY RECOROER ) RF: 13.00 FEES: 31. 00 When Recorded, Mail To: ) AF: í 7.00 CITY CLERK ) MF: 1. 00 505 S. Vulcan Avenue ) Encinitas, CA 92024 ) ) ) SPACE ABOVE FOR RECORDER'S USE PRIVATE DRAINAGE FACILITY MAINTENANCE AGREEMENT FOR TM 90-209, Lots 4,5,7,8 Assessor's Parcel Project No.: TM 90 709 No. 258-130-55 W.O. No.: i47~F'M 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 Miyuki Ttn 'T'r11<:tpp nf tnp I.t.a...- 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 ~ . . 97 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 . . 98 existing when the improvements were completed and approved by the city. 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 facility 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 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 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. 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 from any and all liability for injury to himself or damage to his property when such bp4060 3 ., . . 99 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 (or 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. bp4060 4 ~ . . 100 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 13 51 (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. IN WITNESS WHEREOF, have ex~cuted this Agreement on --the 3,ict day of (I"v.., 19.:12.. eveloper: . ~ »i7fià ~ ~ MIYUKI 0 TRUSTEE - Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. bp4060 5 .. CALlFO~NIA ALL.PURPOtt ACKNOWLEDGMENT . JOI No. 5907 State of California County of San Diego On June 3. 1994 before me, Mary V Lauderdale. Notary Public DATE NAME. TITLE OF OFFICEA . EG.. ..JANE DOE. NOTAAY PUBLIC.. personally appeared Miyuki Ito NAME(S) OF SIGNEA(S) IX] personally known to me - OR - 0 proved to me on the 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 ins1rument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 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 TITLE OR TYPE OF DOCUMENT TITLE(S) 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 PEASON(S) OA ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE @1993NATIONALNOTARY ASSOCIATION. 8236 Remme! Ave., P.O. Box 7184' Canoga Park, CA 91309.7184 r -0 "--' 'e- JOe- " , - ¥--------" 3u¿'L ,<:s.~ ~ 3,,¿L,<:S.<:N 0) 0 ~,p c:"-I (t, <I '4 . ~\ ~,p. 0 ~<>\.<I ~~\~~ 0) 't 'ð'\ .;) tj, «'\ .:. Ó ~ 'b' "(-.1\ Z v,p,~,,- \- 1-\ Z ~ ~ - 1JJ (~) 1'\, H,9£.00N ~ ¿ ~ ,1L'021 ~~ - « ~ ~UJ '" <1'1 I.u ~ w l.U \J a::: 1- « If)U ,S r.n 1-<[ « Z D 8 u- ~ ...10 - « I' 't C3 ~ C\.! ~ ~Q ÞOOOO4 0 Z. ~ ÞOOOO4~ ~ U\ ""oz,U:oLON ('\ Z\P ,\C08 .~ ~~ ~ '" w 0 a::: I'U I: 1-<[ \ D ~« ~ ,-t<\ ...II' oJ) ~ "t<'. C\.! ~ \{1.-' ÞOOOO4 <I' \i 0 I- «'I...) \'54,'37' U,:.~ - '4\'( IQ .ö $\'2.00'3 '" - w :r: a::: roU Cu ~ >( 1-<[ a D r-: (Y) U1 ..J(Y) (]\ 0 ;;. . . 103 EXHIBIT "B" PROJECT NO. 'I'M qn-?nq PROPERTY DESCRIPTION PARCEL 1: THE NORTHERLY 266.52. FEET OF THE FOLLmlING DESCRIBED PARCEL OF L.1;NJ): THAT PORTION OF THE 'fiST HALF OF THE NORTHtiEST QUARTER OF THE NORTHEAST QUA.~TER OF SECTION 1.5, TOWNSHIP 1.3 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND HERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE I'fiST LINE OF SAID NORTIiI'lEST QUARTER OF THE NORTHEAST QUARTER 'lHICH IS DISTANT THEREON NORTH 1.° 1.0' 50" EAST 400.00 FEET FROH THE SOUTH\'IEST CORNER OF SAID NORTm~EST QUARTER OF THE NORTHEAST QUARTER; THENCE ALONG SAID l1EST LINE, NORTH 1." 1.0' 50" EAST, 5~2.39 FEET, MORE OR LESS, TO A POINT hlUCH IS SÒUTH 1." 1.0' 5.B" ,lEST 26B.07 FEET FRO!1 THE NORTH QUARTER CORNER OF SAID SECTION 1.5; THENCE SOUTH BOo SO' 29" EAST, 651..21. FEET; THENCE SOUTH 2° 44' 1.0" I'lEST 266.60 FEET; THENCE SOUTH BOo SO' 29" EAST TO THE EASTERLY LINE OF SAID I~EST HALF OF THE NORTHWEST QUARTER OF THE NORTHEAST QUA.~TER; THENCE SOUTHERLY ALONG SAID EASTERLY LINE TO A LINE IrHICH BEARS SOUTH Bao SO' 29". EAST FRO!1 THE POINT OF BEGINNING; THENCE NORTH aDo SO' 29" HEST TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING EASTERLY OF THE WESTERLY LINE OF COUNTy ROAD SURVEY NO. 373 A PLAT OF rlHICH IS ON FILE IN THE OFFICE OF THE COUNTY SURVEYOR OF SAID COUNTy. PARCEL 2: ALL THAT PORTION OF THE I'/EST HALF OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 1.5, TOI'INSHIP 1.3 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF ENCINITAS, CO~~y OF SAN DIEGO, STATE OF CALIFO~~IA, ACCORDING TO TIiE OFFICIÞ~ PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID NORTHEAST QUARTER OF SECTION 1.5; THENCE SOUTH 1." 1.0' 50" I~EST ALONG THE HEST LINE OF SAID NORTHEAST QUARTER, 268.07 FEET; THENCE SOUTH 00° 50' 29" EAST 651..21. FEET; THENCE NORTH 2° 44' 1.0" EAST 257.02 FEET TO THE NORTHEAST CORNER OF SAID HEST HALF OF TIiE NORTH'/EST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION; THENCE NORTH 07° 53' 1.6" I./EST ALONG TI-IE NORTH LINE OF SAID SECTION 661.62 FEET TO. THE POI~IT OF BEGINNING. TF/O2/COV2-288wp51 4(7/11//91-1) 10015,. 1 JAN 90 . . t04 EXHIBIT "B" PROJECT NO. 'I'M qn-?nq PROPERTY DESCRIPTION CONTINUED EXCEPTING THAT PORi ION OF SAID PROPERTY INCLUDED ¡nUIIN AND COMPRISING A PART OF THAT CERTAIN STRIP OF >lID CONVEYED BY A. VAN Al-ffiRSFOORT TO THE COUNTY OF SÞ.N DIEGO FOR ROAD PURPOSES, BY EED DATED NOVE!1BER 21, 1921 Þ~ID RECORDED DECEvIDER 20, 1921, IN BOOK 1030, PAGE 333 OF EEDS, DESCRInED AS FOLLONS.: BEGI~mING AT A POI IT ON THE EAST AND NEST COllliER OF SECTION 10, TO\'mSHIP 13 SOUTH, Rlu'!GE 1 NEST, SAN ERNARDINO ~ŒRIDIAl~, SAID POINT BEING SOUTH 09° 01' 50" EÞ.ST 309.93 FEET FROM THE CE~ ER OF SAID. SECTION 10 AND RUNNING THENCE FROM SAID POINT OF BEGINNING SOUTH 17° 10' 35" EAST 121.97 FEET TO THE BEGINNING OF .'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 300.70 FEET; THENCE SOUTH 2° 13' 10" ~1EST 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'! .'lNGLE OF 27° 03' 0" FOR A DISTANCE OF 203.35 FEET; THENCE SOUTH 29° 16' 10" NEST 09.91 FEET TO THE BEGIh ING OF A CURVE TO THE LEFT HAVING A RADIUS OF 200 FEET; THENCE ALONG 5AID CURVE THROUG AN ANGLE OF 30° 30' FOR A DISTANCE OF 106.16 FEET; THENCE SOUTH 1° 13' 20" EAST 211. 7 FEET TO THE BEGINNING OF A CURVE TO THE RIGHT WIVING A RADIUS OF "-... 190 FEET; THENCE ONG SAID CURVE TIiROUGH AN ANGLE OF 19° 00' FOR A DISTANCE OF 151.1 FEET, HORE OR LES , TO A POINT IN THE COUNTY ROAD KNOI'ffi AS OLD SURVEY NO. '10. 'l'F /02 /COV2 288wp51 4(7/11//91-1) 10a15a 1 JAN 90