2003-209912
. . DOC #.003-0209912
~ Recording Requested By: ) FEB 25. 2003 4:06 Pi"~
) OFFICIAL I\1:CORDS
~ City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE
"IJ ) GREGORY'], SMITH, COUNTY I\'[CORDER
IC When Recorded Mail to: ) FEES: 29,00
City Clerk )
City of Encinitas )
505 South Vulcan Avenue )
Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
f/1I/
,;; ,)S -d3 PRIVATE ROAD
J4 MAINTENANCE AGREEMENT
CASE 01-058 TPM/CDP
Assessor's Parcel No, 254-101-05 Project No,: 01-058 TPM
THIS AGREEMENT for the maintenance and repair of that certain private road easement, the
legitl description and/or plat of which is set forth in Exhibits "A", and "C" attached hereto
and made a part hereof, is entered into by KEWECO INCORPORATED, A CALIFORNIA
CORPORATION (hereinafter referred to as "Developer") for the benefit of future 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 interest in any lot or lots),
WHEREAS, Developer is the owner of certain real property being subdivided and developed as
CASE 01-058 TPM/CDP that will use and enjoy the benefit of said road easement.
A complete legal description of said real property is:
AS DESCRIBED IN EXHrBIT "A" ATTACHED HERETO AND MADE A PART HEREOF
Said real property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the Developer that said private road 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 property are expressly bound hereby for the benefit of the
land.
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 or 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
liabJe 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 Jot 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 to permit all-weather access and conveyance
of storm flows. Repairs and maintenance under this Agreement shall include, but is not limited
to, filling of chuckholes, repairing cracks, 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. If there is a covenant, agreement, or other 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 coaect 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 trom licensed contractors and shall accept the lowest of said three
/
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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 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 attorneys 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 injury or damage results fTom, 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 hannless
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, 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 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 ofthe 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 fonn, 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 tenns 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 tenns of this Agreement may be amended in writing upon majority approval
of the lot owners and consent ofthe 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 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 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 perfonning 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.
¿
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(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,
on the
(Print name:)
J------------~
~ VIVIAN T. HARRIS
. ,----- . Commission #1309009
~ 1- ~ 1:J./3,!ðf.,.; ~' NotaryPublic.Caiifomla ~
j San Diego County f
- - - _My.:':m~~~Ju:1:~
Signature of DEVELOPER must be notarized, Attach the appropriate acknowledgement.
,
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ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TPM 01-058
LEGAL DESCRIPTION
Real property in the City of Encinitas, County of San Diego, State of California, described as
follows;
PARCEL A:
ALL THOSE PORTIONS OF LOTS 1, 2, 3, 4, 9, 10, 11 AND 12 IN BLOCK 21, TOGETHER WITH
PORTION OF MONTEREY STREET AS VACATED AND CLOSED TO PUBUC USE ON NOVEI"I3ER 19,
1915 BY ORDER OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SAN DIEGO, A
CERTIFIED COpy OF WHICH SAID ORDER WAS RECORDED DECEMBER 26, 1916 IN BOOK SOO,
PAGE 343 OF DEEDS, ALL BEING IN NORTH LEUCADIA, IN THE ŒTY OF ENCINITAS, COUNTY
OF SAN DIEGO, STATE OF CAllFORNIA, ACCORDING TO MAP THEREOF NO, S24, FILED IN TH~
OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, APRIL 6, 1888, DESCRIBE!)
AS A WHOLE AS FOLLOWS;
COMMENONG AT A POINT ON THE NORTHWESTERLY PROLONGATION OF THE WESTERLY llN&:
OF BLOCK 20 OF SAID NORTH LEUCADIA, DISTANT 20 FEET FROM THE NORTHWESTERLY
CORNER OF SAID BLOCK 20; THENCE NORTHEASTERLY ALONG A llNE PARALLEL WITH AND
DISTANT 20 FEET AT RIGHT ANGlES NORTHWESTERLY FROM THE NORTHERLY UNE OF SAID
BLOCK 20 AND THE EASTERLY PROLONGATION THEREOF, AND CONTINUING PARALLEL WITH
THE NORTHERLY UNE OF SAID BLOCK 21, THE AFORESAID PARALLEL UNE BEING THE
SOUTHEASTERLY UNE OF MONTEREY STREET, AS SAID STREET IS SHOWN ON MAP NO. 763
OF NORTH LEUCADIA, FOR A TOTAL DISTANCE OF 494 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING NORTHEASTERLY ALONG THE ABOVE MENTIONED
PARALLEL UNE, BEING AlSO THE SOUTHEASTERLY llNE OF SAID MONTEREY STREET, A
DISTANCE OF 190 FEET; THENCE SOUTHEASTERLY PARALLEL WITH THE EASTERLY llNE OF
SAID BLOCK 21 A DISTANCE OF 460 FEET TO ITS POINT OF INTERSECTION WITH A llNE
DRAWN PARALLEL WITH AND DISTANT 480 FEET SOUTHEASTERLY FROM THE CENTER tiNE OIF
MONTEREY STREET; THENCE SOUTHWESTERLY ALONG SAID LAST MENTIONED PARAll.£L UNE
A DISTANCE OF 190 FEET TO A POINT ON A llNE DRAWN PARALLEL WITH AND DISTANT 494
FEET NORTHEASTERLY FROM THE WESTERLY UNE OF BLOCKS 20 AND 27 OF SAID NORTH
LEUCADIA; THENCE NORTHWESTERLY ALONG SAID POINT llNE A TOTAL DISTANCE OF 460
FEET TO THE TRUE POINT OF BEGINNING,
EXCEPTING FROM THE ABOVE DESCRIBED PROPERTY THE NORTHERLY HALF THEREOF. THE
SOUTHERLY UNE OF SAID NORTHERLY HALF BEING PARALLEL WITH THE NORTHERLY UNE OIF
THE ABOVE DESCRIBED PROPERTY:
CQYOI-O54
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- - - - PRCPERTY BOLNJARY L Il'£ CHORD BEARING ŒLTA RADIUS ARC
LOT LIJIE PER MAP C1 2 -œ'13. 213,5D' 7.~'
L1 N19 .16'0311 56,71'
~ =CA TES ŒSCRIæD C2 43"05 '59" 113,5D' 85.37'
C3 230 "56 20" 37,5D' 151,15'
C4 94 "02'18. 26,50' 43,5D'
~ ENmEEFIINB L2 N19 '16 '0311 5D,72'
21H1212
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CALIFORNIA ALL.PURPOSE l'éKNOWLEDGMENT No,5907
State of (!AI/"r=ø;e"v/¡f
County of S4N DftØf6
On I:;.!.J,,/ó,:¿., before me, /,{Vii4-A., r /~d
OATE NAME. TITLE OF OFFICER. EG, 'JANE OOE. NOTARY PUBLIC'
personally appeared L'::¡tA/!t(lNC6' AlIA-IV/)
NAMEIS) OF SIGNERiS)
0 personally known to me - OR - ~roved 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
-@ Co=i:~=09 f signature(s) on the instrument the person(s),
~' NotaryPublic,Califomla ~ or the entity upon behalf of which the
j Sin Diego County f Person(s) acted executed the instrument
MyComm. Eopil!!l Jon 15,2005 ' ,
----._~~~---
. WITNESS my hand and official seal.
~r~
SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuabie 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
TITLEiS)
0 PARTNER(S) D LIMITED
D GENERAL
0 ATTORNEY-iN-FACT NUMBER OF PAGES
0 TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSONIS) OR ENTITYi'ES)
SIGNER(S) OTHER THAN NAMED ABOVE
C1993 NAT)ONAL NOTARY ASSOCIATION' 8236 Remme' Ave.. P.O, 60,7184' Canoga Park, CA 91309'7184