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1988-538824 ~ .. 53BB24 '. i,.'i, '",eco,rding R,;,que:wr By: )0 0719 . . .Clty of Enclnlta:s ) , 527 Encinitas Boqlevard ) Encinitas, CA 92024 ) ~, ' ) When recorded, mail to: ) OCf2/ "'11: 16 A,' -,' ) Be \ [: ~ ) .c, ) - ) , " ) SPÞ.CF l\B::WE FOi,' ¡ŒC:':,~)rC ~ ¿ -'(ccl - I,M" ' PRIVATE ROAD MAINTENANCE AGREEMENT FOR rp/I-? /t!&9'7 THIS AGREEMENT for the maintenance and repair of that certain private road easement, the legal description c:-¡d/or plat of which is set forth in Exhibit A attached heret:J and made a part hereof, is entered into by rh"OMA's G" KFRA/ A'Nb A?A?RY #ECtF,v "K"&;eA/ (hereinafter referred ::0 as "Developer") for the benefit of future subdivision lot c'-mers who will use the private road easement (hereinafter refer~ed to as "lot owners", which shall include the Developer tc the extent the Developer retains any ownership interest in a~i lot or lots) , WHEREAS, this Agreement is required as a conditicn of approval by the City of Encinitas of a subdivision project as defined in section 21065 of the Public Resources Coèe and r";";'~~'" '~", ',.LL, DC Lr!C in'ltas, I1Uilic.lpc'-l Lo.J.c Scc~l(jn 2.:, ~ci',LJóo' and Section 24.29,040; and, WHEREAS, Developer is the owner of certain real prc?erty being subdivided and developed as 7PA-?/ß!J'J7 thac: will use and enjoy the benefit of said road easement, A co~?lete legal description of said real property is attached, lcbeled 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 road easement 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 road easement 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 benefited by this Agreement, and present and successive lot owners of all or any portion of the BW/O4/BCl-26wp 1(7-12-88) '( ,J e 0 0720 . 2, The cost and expense of maintaining the private road easement 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 of each such owner, 3, In the event~ any of the herein described parcels of land are subdivided further, the lot O',i;1ers, heirs, asslgns and successors in interest of each such ne',.;ly 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 road improvement and maintenance work to adequately maintain said private road easement and related drainage facilities to permit all-weather access, Repairs and maintenance under this Agreement shall include, but is not limited to, filling of chuckholes, repairing cracksr repairing and resurfacing of roadbeds, repairing and maintaining drainage structures, removing debris, maintaining signs, markers, striping and lighting, if any, and other work reasonably necessary and proper to repair and preserve the easement for all-weather road purposes, 5, Tf "herE' ,i", co""'~'\n" :":'~""'mËT't, c': "t-n",~ obligation imposed as a condition of subdivision approval to make private road improvements to the private road easement, the obligation to repair and maintain the private road easement as herein set forth shall commence when the private 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 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 road easement 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 road easement 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 cos"Cs 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 BW/04/bpl-26wp 2 (7-11-88) costs shall be ~ed to and 0 0721 pa.f ,. paid as a 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 provlded in this Agreement, then t.he 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, 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 Agrp.ement, 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 t'Ürd persons, as a rcsu~t of or ar.::" in-::- ou', of cQpe, i.r:~ ."",, u,... 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 liabil i ty with respect to personal lnJury 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 inj ury 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 1 iabi1 i ty, 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 road 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 road easement, Nothing in the Agreement, the specifications or other contract documents or City's approval of the plans and BWjO4jbpl-26wp (7-11-88) " o_nspection o~ t~? ~~rk is.tended to '.. specifications include a review, inspection acknowledgment 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, ,,4, 1'1", terms ui '-hi", Agreemenl ma1 :"'L ","end,,~ ':'n ,,".J t. .:.¡-¡; 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 notwith- standing, 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 road easement 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 BW/04/bpl-26wp (7-11-88) 0 0723 , propeTty pursuan~o the Declaration, The 4IÞessments shall be 't deposited in the ssociation'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 individuaJ. 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, the parties have executed this Agreement o~ the ,-/C¡r.j day of SøPr-- , 19JJ:=, Assessor's parcel No, 2"(,3- ()(,()- 7¿'/77 fJ~ £¡GZLJ ~~~ 7Ã/~4S ill". .t:'£Æ"-'V' ,~RY 'i:LtH Kio Developer -, STATE OF CALIFORNIA }s COUNTY OF San Diego On this ?qth day of C;"pt..mh..r , ' in the year 1988-, belore me, the undersigned, a Notary Public In and for said State, personally appeared OFFICIAL SEAL ~~~::: - ~- - ~ ::: _: ~~ =~~ ~~ = ~~~ ~~= ~~~~== = ~=p~~s~;a~;~;o:~ ~o=~; KELLY LYNN RANDLE Notary Pubflc-callfornla (0; ~r~:e~~; ~~ ~~ ;h~ -b~~S of satisfactory evidence) to be the person.£. whose name£.. SAN DIEGO COUNTY My Comm, Exp Juno 6, 1992 "" '""oo",,". ..," '"'~.", '.',"~""I". ~'"'t "'"-II executed it. -\ , WITNESS my hand and offici I seal. I , ' Nota Pu c in and lor said State, ACKNOWlEDGMENT-Goo".I-Woloo", Fo,m 233OA-"" 5,82 @1982WOlCOTTS,INC ",," "," " " - BW/04/bpl-26wp (7-11-88) 0 0724 " e 8 '" , EXHIBIT "A" A 40.00 FOOT WIDE EASEMENT FOR If'.K3RESS, EGRESS, ROADNAY AND PUBLIC UTILITIES TOGETHER WITH THE RIGHT TO EXTEND ROADNAY SLOPES BEYOND ITS LIMITS OVER, UNDER, ALONG AND ACROSS ALL THAT PORTION . OF FRACTIONAL SECTION 24, IN TOtvNSH I P 13 SOU11-l, RAN3E 4 WEST, SAN BERNARD I NO MERIDIAN IN THE axJNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDIf'.K3 TO THE OFFICIAL PLAT THEREOF; THE CENTER- LINE OF SAID STRIP BEING MORE FULLY DESCRIBED AS FOLLOWS; BEGINNIf'.K3 AT A POINT ON THE SOUTHNESTERLY BOUNDARY OF LOT 26 OF axJNTY OF SAN D I EGO TRACT NO.42S4 ACCORD I NG TO THE Mð.P THEREOF NO.11055 FILED IN 11-IE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 9, 1984, SAID POINT BEING THE NORTHERLY END OF A TANGENT 5233 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY AS SHOWN ON SAID Mð.P 11055; A RADIAL LINE BEARS THROUGH SAID POINT NORTH 55°10'38" WEST; THENCE SOUTHNESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5°48'28" AN ARC DISTANCE OF 530.44 FEET TO THE TRUE POINT OF BEG I NNIf'.K3; THENCE LEAVING SAID SOUTH- WESTERLY BOUNDARY OF SAID LOT 26 NOR11-I 53°30'29" WEST 155.35 FEET TO THE BEGINNING OF A TANGENT 900 FOOT RADIUS CURVE CONCAVE f\úRTHEASTERLY; 11-IENCE NORTHNESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18°29'16" AN ARC DI STANCE OF 290.40 FEET; THENCE NORTH 35°01'13" WEST 226.49 FEET MORE OR LESS TO ITS POINT OF TERMINUS ON THE CENTERLINE OF MANCHESTER AVENUE AS S~~ ON RECORD OF SURVEY Mð.P ND.9416 FILED IN THE OFFICE OF THE COUNTY JULY 21, 1983. THE SIDELINES OF SAID 40.00 FOOT WIDE STRIP SHALL BE EXTENDED OR SHORTENED TO TERMINATE IN 11-IE SOUTHNESTERLY BOUNDARY OF SAID LOT 26 OF Mð.P ND.11055 AND TERMINATE AT THE EASTERLY RIGHT OF WAY LINE AT Ml\NŒJESTER AVENUE AS SHCMN ON SAID RECORD OF SURVEY NO. 9416. I " 0 0725 . ',' "'\.rf\.. ~~ :::!o !% f' , 'r\ VJ ::; :b .r, :; V bv ~ ~ .C \.... ~ . ~ . r¡, !tt ~ ,.. -' ~ '~~ \ P \ (J)~ ,~1Q U\ rt¡ rtj '"" V ....tP ~~ VI\ ~ 0\ . ..... ~~ ~~ ;u À r> "!¡ )' to - 'Q ~ r ~ ~ ~ ,(/35. 11 1/ - .~ -;¡¡¡o- Z9' ,"'-- <,c- ~~~9¡" --U'l~ Co. -' - R:::900'L:é'9Õ~ ~-... 0, U\ ç---=~ - O~(JJ . . -- "-0... I\) I ! - '{,sJ ~O °...,. ' ,{ (JI ':-i 0' I ~ :0 ... ~ P .I. " !Þ r\,\" I\lI\i U o\t\ .c: "f,1. \ ~ !'3<$' / .:::0 -0 \ J 'i~b'" I{i)~ ;Þ oft)' ~ ;J:1 :1'1 'r) C .., 7 1'"> t'" v /\ '\ \ :..; I't ,,' .^.;)))O() IT1 r ""'- .., . " (\) Y'.6 :::0 if, ~ t'1 0 >< i:I: H tI:1 fTl H >,3 » = I ~ (f) - fT1 "'U ~ > ~ :::u ~\Jo fT1 n !\)~ Z rn OI~ r '-1-0 -; -' 'f\\ " I\) \J n\ r ~ " . 0 0726 - '~'. , " , EXHIBIT "B" Lot 26 of County of San Diego Tract Map No. 4254 in the City of Encinitas, County of San Diego, State of California according to Map thereof No. 11055, filed in the office of the County Recorder of San Diego County, October 9, 1984.