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2001-515538 . DOC . 2001-0515538 JUL 24, 2001 4:22 Pl"i Recording Requested By: ) OFFICIAL RECOfij)S ) SAN DIEGO COUNTY fHORDER'S OFFICE City Engineer ) GREGORY J. SMITH, COUNTY f:ECORDER ) FEES: 43.00 yb When Recorded Mail to: ) ~\) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 00-093 254-614-02-»0 t/m Assessor's Parcel No. 254-614-05 V"Lj(lJ r-IJ-è'! Project No.: TM 00-093 1<' W.O. No.: 6748 FM THIS AGREEMENT for the maintenance and repair of that certain private road easement, the legal description and/or plat of which is set forth in Exhibits attached hereto and those private drainage facilities, the legal description and/or plat of which is set forth in ExhibitsA&B attached hereto and made a part hereof, is entered into by LB/L-Concordia Encinitas Ranch LLC, A Delaware Limited Liability Companv (hereinafter referred to as "Developer") for the benefit of future subdivision lot 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, 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 En cinit as 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 TM 00-093 that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Attachment 6, , 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 and drainage facilities be maintained in a safe and usable condition by the lot owners; and I . . WHEREAS, it is the desire of the Developer to establish a method for the maintenance and repair of said private road easement and drainage facilities 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. 2. The cost and expense of maintaining the private road easement and drainage facilities 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 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 drainage facilities 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 correct damage to said road easement or 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 road easement or drainage facility 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 and drainage facilities 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 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 indemnity the others from any and all 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. I . . 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, 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 or drainage facilities. 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 becpme 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. . . 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 135 I (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 l351(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 drainage facilities 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 135l(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 Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the day of ,200l.~ Dovelop", ~ -------- --- Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. I . . LB/L-CONCORDIA ENCINITAS RANCH LLC, a Delaware limited liability company By: LB/L-Concordia Master LLC, a Delaware limited liability company Its: Initial Member By: LB/Lakeside Capital Partners LLC, a Delaware limited liability company Its: Managing Member By: ~' 7 æc:Le Name: I/¿II/ /': 1å"//"fu ~ 71-5-)/ Its: Authorized Signatory . . CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT State of California County of Los Angeles On July 5, 2001, before me, O. Arsenault, Notary Public Personally appeared Melvin T. Andrews ~ personally known to me 0 proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument 8~~ and acknowledged to me that he o......!III¡¡,..1aIGf executed in the same of his authorized NaIaIr NIle . CI:8Id8 capacity, and that by his signature on Iø ArI III8I CcuIIr ~--Q:t3II.8IM the instrument the person or the entity upon behalf of which the person acted, executed the instrument. P[,ce Notary Se,] Above ~;t: :10,] =l OPTIONAL Though the infomJation below is not required by law. it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Private Road and Drainage Facilities Maintenance Agreement for TM 00-093 Document Date: 7/5/01 Number of Pages: 12 . . ATTACHMENT "A" TO COVENANT REGARDING REAL PROPERTY PROJECT NO. TM 00-093 BEING A SUBDIVISION OF LOTS 3, 7, AND 18 OF CITY OF ENCINITAS TRACT NO. 99-137 IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 13998, RECORDED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY JULY 11, 2000; TOGETHER WITH PARCEL 2 OF LOT LINE ADJUSTMENT PER CERTIFICATE OF COMPLIANCE RECORDED 3-28-2001 AS FILE NO. 2001-0180959. EXHIBIT ~. ---- \J LOT B .MAP No. 1399B / r--l ( ~ LOT 24 :'<}~ ""~ .MAP No. 13998 h~ Î' T.P.o.D. "- S4MtÆZ COtIHT \::)--... "IQ.., ~ -7 ~ /') / c-= \ HILLS DRIVE ,,' l T.P.O.B. . 1ñ 2 ~ HERffAl!!- ~ - -f - ~ 3 \~ LOT 4 \\ 11 .MAP No. 1399B '" 10 LEGEND ~ 6. ~ INDfCATES PRIVATE STREETS 9 P.O.D. SCALE: 1" "" 200' ~GIE" LAHE ENCINITAS TRACT NO. oo-09,s SOUTH MESA - 6,000 SQ. n: LOTS PRIVA T£ STREET EXHI8IT I 6-14-01 56622X2o.0WG 57282.00 . . EXHIBIT "B" LEGAL DESCRIPTION PRIVATE ROADS ALL THAT PORTION OF LOTS 3,7, AND 18 OF ENCINITAS TRACT NO. 99-137, SOUTH MESA IN THE CITY OF ENCINITAS , COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF NO 13998 FILED IN THE OFFICE OF THE COUNTY RECORDER JULY 11, 2000 AS SHOWN ON EXHIBIT "A" ATIACHED HERETO AND MADE A PART HEREOF, DESCRIBED AS FOLLOWS: HERITAGE LANE BEING A 51 FOOT WIDE STRIP OF LAND LYING 28 FEET NORTHERLY AND LYING 23 FEET SOUTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 3, SAID POINT BEING ON THE SOUTHERLY LINE OF PASEO DE LAS VERDES AS SHOWN ON SAID MAP NO. 13998; THENCE ALONG SAID SOUTHERLY LINE NORTH 51 °07'01" EAST, 8.70 FEET; THENCE NORTH 54 ° 13'46" EAST, 44.64 FEET TO THE BEGINNING OF A TANGENT 372.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 12°14'49" A DISTANCE OF 79.51 FEET; THENCE NORTH 66°28'34" EAST, 485.33 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 94°14'30" A DISTANCE OF 32.90 FEET; THENCE SOUTH 19°16'55" EAST, 5.60 FEET TO THE BEGINNING OF A TANGENT 172.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2°27'32" A DISTANCE OF 7.38 FEET THENCE NORTH 72.28°12'" EAST, 28.00 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE ARC OF A 200.00 FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL TO SAID POINT BE ARS NORTH 73°04'41" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 7°53'58" A DISTANCE OF 27.57 FEET; THENCE SOUTH 9°01 '22" EAST, 47.40 FEET TO THE BEGINNING OF A TANGENT 48.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 79°17'21" A DISTANCE OF 66.43 FEET; THENCE SOUTH 70°15'59" WEST, 69.82 FEET TO THE BEGINNING OF A S8&0 ING. 1 of 4 South Mesa 6 000 SF Lots Job No. 5728200. June 14, 2001 D.\57282\LegalslPrivateRoad. wpd i I . . TANGENT 200.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 15°39'12" A DISTANCE OF 56.64 FEET; THENCE SOUTH 54 °36'47" WEST, 100.87 FEET TO THE BEGINNING OF A TANGENT 200.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28°44'06" A DISTANCE OF 100.30 FEET; THENCE SOUTH 83°20'53" WEST. 149.89 FEET; THENCE NORTH 6°39'07" WEST, 22.00 FEET TO THE CENTER OF A 50.00 FOOT RADIUS CUL-DE-SAC. THE SIDELINES OF SAID PRIVATE ROAD TO BE PROLONGED OR SHORTENED SO AS TO TERMINATE ON THE NORTH LINE OF SAID LOT 3. PALOMA COURT BEING A 51 FOOT WIDE STRIP OF LAND LYING 28 FEET WESTERLY AND LYING 23 FEET EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE MOST NORTHERLY CORNER OF SAID LOT 7; THENCE ALONG THE NORTH LINE OF SAID LOT 7 SOUTH 70°33'02" WEST, 27.77 FEET; THENCE SOUTH 39°36'57" WEST, 74.84 FEET; THENCE NORTH 62°17'47" WEST, 28.80 FEET; THENCE SOUTH 52 °52'59" WEST, 58.17 FEET; THENCE NORTH 72°48'31" WEST, 39.51 FEET; THENCE SOUTH 72°49'47" WEST, 41.95 FEET; THENCE SOUTH 78°31'46" WEST, 97.07 FEET; THENCE SOUTH 53°15'49" WEST, 63.76 FEET; THENCE SOUTH 75°34'48" WEST, 130.27 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING ON THE ARC OF A NON-TANGENT 500.00 FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL TO SAID POINT BEARS NORTH 62°34'59" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 12°05'36" A DISTANCE OF 105.53 FEET TO A POINT HEREINAFTER REFERRED TO AS "POINT A"; THENCE SOUTH 15°19'25" EAST, 33.63 FEET TO A POINT HEREINAFTER REFERRED TO AS "POINT B"; THENCE CONTINUING SOUTH 15°19'25" EAST, 109.58 FEET TO THE BEGINNING OF A TANGENT 500.00 FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3°09'28" A DISTANCE OF 27.56 FEET; THENCE SOUTH 18°28'53" EAST, 63.20 FEET TO THE BEGINNING OF A TANGENT 500.00 FOOT RADIUS CURVE CONCAVE WESTERLY; S8&0 INC. 2 of 4 South Mesa 6 000 SF LoIs Job No 5728200. June 14. 2001 D. \57282\LegalslPrivaleRoad. wpd ~ I . . THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3°09'28" A DISTANCE OF 27.56 FEET; THENCE SOUTH 15°19'25" EAST. 50.59 FEET TO A POINT HEREINAFTER REFERRED TO AS "POINT Coo; THENCE CONTINUING SOUTH 15°19'25" EAST, 86.91 FEET TO THE BEGINNING OF A TANGENT 1,000.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1 °29'58" A DISTANCE OF 26.17 FEET; THENCE SOUTH 13°49'28" EAST, 180.63 FEET TO THE BEGINNING OF A TANGENT 200.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23°21'19" A DISTANCE OF 81.53 FEET; THENCE NORTH 80°28'09" WEST, 22.00 FEET TO THE CENTER OF A 50.00 FOOT RADIUS CUL-DE-SAC. THE SIDELINES OF SAID PRIVATE ROAD TO BE PROLONGED OR SHORTENED SO AS TO TERMINATE ON THE NORTH LINE OF SAID LOT 7. CASCADIA LANE BEING A 51 FOOT WIDE STRIP OF LAND LYING 28 FEET SOUTHERLY AND LYING 23 FEET NORTHERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE AFOREMENTIONED "POINT B"; THENCE NORTH 75°34'48" EAST, 271.61 FEET TO THE BEGINNING OF A TANGENT 500.00 FOOT RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5°12'52" A DISTANCE OF 45.51 FEET; THENCE NORTH 70021'56" EAST, 174.52 FEET TO THE BEGINNING OF A TANGENT 500.00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 2°39'19" A DISTANCE OF 23.71 FEET TO THE POINT OF TERMINUS. THE SIDELINES OF SAID PRIVATE ROAD TO BE PROLONGED OR SHORTENED SO AS TO TERMINATE ON THE EAST LINE OF SAID LOT 7. VERBENA COURT BEING A 51 FOOT WIDE STRIP OF LAND LYING 28 FEET NORTHERLY AND EASTERLY AND LYING 23 FEET SOUTHERLY AND WESTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE AFOREMENTIONED "POINT C"; THENCE NORTH 74°40'35" EAST, 119.24 FEET TO THE BEGINNING OF A S8&0 ING. 3 of 4 Soulh Mesa 6000 SF Lois Job No. 5728200, June 14. 2001 Oc\57282\LegalsIPrivateRoad wpd . . TANGENT 205.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 103°42'17" A DISTANCE OF 371.05 FEET; THENCE SOUTH 1 °37'09" EAST, 130.99 FEET; THENCE NORTH 88°22'51" EAST, 10.91 FEET TO THE CENTER OF A 45.00 FOOT RADIUS CUL-DE-SAC. SAMUEL COURT BEING A 51 FOOT WIDE STRIP OF LAND LYING 28 FEET WESTERLY AND LYING 23 FEET EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT THE AFOREMENTIONED "POINT A"; THENCE SOUTH 74°40'35" WEST, 130.00 FEET; THENCE SOUTH 15°19'25" EAST, 24.04 FEET; THENCE SOUTH 74°40'35" WEST, 108 FEET; THENCE SOUTH 70°36'32" WEST, 28.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 15°19'25" EAST, 449.66 FEET; THENCE SOUTH 74°40'35" WEST, 22.00 FEET TO THE CENTER OF A 45.00 FOOT RADIUS CUL-DE-SAC. THE SIDELINES OF SAID PRIVATE ROAD TO BE PROLONGED OR SHORTENED SO AS TO TERMINATE ON THE NORTH LINE OF SAID LOT 3. S8&0 ING. 4 of 4 South Mesa 6 (){}{) SF Lots Job No. 5728200, June 14, 2001 D:\57282\LegalsIPrivateRoad. wpd.