1994-341767
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Recordin Requested By: )
CITY OF NCINITAS )
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When Reco ded, Mail To: )
City Cle k )
City of ncinitas )
)
505 Sout Vulcan Avenue )
Encinitas, CA 92024 SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR TPM 92-164
Assessor' Parcel Project No,:TPM 92-164
No, 261-191-12 W.O. No, :3607 PM
THIS AGREEMENT for the maintenance and repair of that certain
private r ad easement, the legal description and/or plat of which
is set fo th in Exhibit A attached hereto and made a part hereof,
is entere into by John D. Nommesen and Barbara L. Nommesen
(hereinafter referred to as
"Develope") for the benefit of future subdivision lot owners who
will use he 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).
WHER AS, this Agreement is required as a condition of approval
by the ci y of Encinitas of a subdivision project as def ined in
Section 2 065 of the Public Resources Code and pursuant to City of
Encinitas Municipal Code Section 24.16.060 and section 24,29.040;
and,
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WHE EAS, Developer is the owner of certain real property being
and developed as TPM 92-164 that will use and
enjoy benefit of said road easement. A complete legal
descripti real property is attached, labeled Exhibit B,
and incor orated by reference. Said real property is hereinafter
0 as the "property"; and
it is the desire of the Developer that said private
road maintained in a safe and usable condition by the
S, it is the desire of the Developer to establish a
method fo the maintenance and repair of said private road easement
and for t e apportionment of the expense of such maintenance and
repair am ng existing and future lot owners; and"
WHER S, it is the intention of the Developer that this
Agreement constitute a covenant running with the land, binding upon
each succ ssive lot owner of all or any portion of the property.
NOW THERE ORE, IT IS HEREBY AGREED AS FOLLOWS:
1, The property is benefited by this Agreement, and present
and succe sive lot owners of all or any portion of the property are
expressly bound hereby for the benefit of the land,
2. he cost and expense of maintaining the private road
easement hall be divided equally among the subdivided parcels
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created 'n the subdivision and paid by the lot owner of the heirs,
assigns nd successors in interest of each such owner.
3. In the event any of the herein described parcels of land
are subd ivided further, the lot owners, heirs, assigns and
interest of each such newly created parcel shall be
this Agreement for their then pro rata share of
expenses nd such pro rata shares of expenses shall be computed to
ch newly created parcels.
4. The repairs and maintenance to be performed under this
Agreement shall be limited to the following unless the consent for
additiona work is agreed to by a majority vote of the lot owners
owning 1 0% of the number of parcels, including subdivisions
thereof a described in Paragraph 3 above: reasonable and normal
road impr vement and maintenance work to adequately maintain said
private r ad easement and related drainage facilities to permit
Repairs and maintenance under this Agreement
shall but is not limited to, filling of chuckholes,
cracks, repairing and resurfacing of roadbeds, repairing
and maint drainage structures, removing debris, maintaining
kers, striping and lighting, if any, and other work
reasonabl necessary and proper to repair and preserve the easement
for all-w ather road purposes,
5. If there is a covenant, agreement, or other obligation
imposed a a condition of subdivision approval to make private road
improveme ts to the private road easement, the obligation to repair
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and maint in the private road easement as herein set forth shall
commence hen the private road improvements have been completed and
approved
6. Any extraordinary repair required to correct damage to
said road easement that results from action taken or contracted for
by lot ow ers or their successors in interest shall be paid for by
the party taking action or party contracting for work which caused
the neces ity for the extraordinary repair. The repair shall be
such as 0 restore the road easement to the condition existing
prior to aid damage.
7. It is agreed that Developer is initially the agent to
contract nd oversee and do all acts necessary to accomplish the
repairs nd maintenance required and/or authorized under this
Agreement Developer further agrees that the agent may at any time
be replac d at the direction of a majority of the lot owners.
Repair an 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 ontractors and shall accept the lowest of said three bids
and shall initiate the work. The agent shall be paid for all
costs inc including a reasonable compensation for the agent's
services, and such costs shall be added to and paid as a part of
the and maintenance costs; provided, however, that
for the agent's services shall in no event exceed an
amount to 10% of the actual cost of repairs and
maintenan e performed. In performing his duties, the agent, as he
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anticipa es the need for funds, shall notify the parties and each
11 within forty-five (45) days pay the agent, who shall
maintain account and also maintain accurate accounting
records hich are to be available for inspection by any party or
agent upon reasonable request. All such records shall
be retain ed 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 10 owner or owners shall be entitled without further notice
to instit te legal action for the collection of funds advanced on
behalf 0 such lot owner in accordance with the provisions of
Californi civil Code Section 845, and shall be entitled to recover
in such a tion in addition to the funds advanced, interest thereon
at the cu rent prime rate of interest, until paid, all costs and
disbursem nts 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 m intenance under this Agreement, or to third persons, as
well as 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 ari ing out of repairs and maintenance under this Agreement,
shall be orne, as between the lot owners in the same percentages
as they bear the costs and expenses of such repairs and
maintenan e. Each lot owner shall be responsible for and maintain
his own i surance, if any. By this Agreement, the Developer does
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not inte d to provide for the sharing of liability with respect to
personal injury or property damage other than that attributable to
the repa" rs and maintenance undertaken under this Agreement. Each
of the I t owners agrees to indemnify the others from any and all
for injury to himself or damage to his property when such
damage results from, arises out of, or is attributable
to any maintenance or repairs undertaken pursuant to this
Agreemen
10. Lot owners shall jointly and severally defend and
indemnify and hold harmless City, City's engineer and its
consultan each of its officials, directors, officers, agents
and empl yees from and against all liability, claims, damages,
penses, personal injury and other costs, including costs
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 relat d to the use of, repair or maintenance of, or the failure
to repair or maintain the private road easement.
Noth " ng in the Agreement, the specifications or other contract
documents or City's approval of the plans and specifications or
inspectio of the work is intended to include a review, inspection
acknowled ant of a responsibility for any such matter, and City,
City's en ineer and its consultants, and each of its officials,
directors officers, employees and agents, shall have no
responsib lity or liability therefore.
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11. The foregoing covenants shall run with the land and shall
be deeme to be for the benefit of the land of each of the lot
owners a d each and every person who shall at anytime own all or
any porti on 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,
successor , and assignees of each of the lot owners.
13. It is the purpose of the signatories hereto that this
instrumen be recorded to the end and intent that the obligation
hereby cr ated shall be and constitute a covenant running with the
land and any subsequent purchaser of all or any portion thereof,
by accept nce of delivery of a deed and/or conveyance regardless
of form, hall be deemed to have consented to and become bound by
these pr including without limitation, the right of any
person en itled to enforce the terms of this Agreement to institute
legal act on as provided in Paragraph 8 hereof, such remedy to be
cumulativ 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 majo ity approval of the lot owners and consent of the City.
15, This Agreement shall be governed by the laws of the state
of Califo nia. In the event that any of the provisions of this
Agreement are held to be unenforceable or invalid by any court of
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competent jurisdiction, the validity, and enforceability of the
remaining provisions shall not be affected thereby,
16. If the Property constitutes a "Common Interest
Developme t" as defined in California civil Code Section 1351(c)
which wil include membership in or ownership of an "Association"
as define in California civil Code Section 1351(a), anything in
this Agr ement to the contrary notwithstanding, the following
provision shall apply at and during such time as (i) the Property
is encumb red by a "Declaration" (as defined in California civil
Code Sect 'on 1351(h) , and (ii) the Common Area of the property
(includin the private road easement) is managed and controlled by
an Associ tion:
(a) The Association, through its Board of Directors, shall
repair an maintain the private road easement and shall be deemed
the "agen " as referred to in Paragraph 7 above, The Association,
which sha I not be replaced except by amendment to the Declaration,
shall rec ive no compensation for performing such duties. The
costs ch maintenance and repair shall be assessed against each
owner and is subdivision interest in the Property pursuant to the
Declarati The assessments shall be deposited in the
Associati n's corporate account.
(b) The provisions in the Declaration which provide for
assessmen liens in favor of the Association and enforcement
thereof saIl supersede Paragraph 8 of the Agreement in its
entirety, No individual owners shall have the right to alter,
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maintain 0 r repair any of the Common Area (as defined in California
civil Cod e Section 1351(b) in the Property except as may be allowed
by the De claration.
(c) This Agreement shall not be interpreted in any manner
which re uces or limits the Association's rights and duties
pursuant 0 its Bylaws and the Declaration.
IN WIT ~ŒSS WHEREOF, the parties have executed this Agreement on
the 1 G fi.. day of DC TO ß ¿;:-fè , 191").
Developer:
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I Sign ture of DEVELOPER must be notarized. Attach I
the ppropriate acknowledgement.
,
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)ss. 1801
San Diego ) On I~ , 19~, before me, SHARON A. MANSFIELD,
Notary pu llC, personally appeared Jø"w (),¡.}Cf/IJII..-se;.¡ If~ t.., No.......~--,J ,
personall known to me (or 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 acknowledged to me that
he/she/t ey executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrume t the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument,
",T, '55 my h"nd "nd offici"' dJ1~~tf.
Notary Pu llC
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EXHIBIT "A" 1802
PRIVATE ROAD MAINTENANCE AGREEMENT
PROJECT No. 92-164
LEGAL DESCRIPTION
That p rtion of Parcel 2, in the City of Encinitas, County of San Diego, State of
Caiifor ia, as shown on Page 11502 in Book of Parcel Maps, filed in the Office of
the Co nty Recorder of San Diego County, July 16, 1981, described as follows:
Beginn ng at the most Easterly corner of said Parcel 2 of Parcel Map No, 11502,
Ihence North 3°05'19" West 55,83 feet along the Easterly line of said Parcel 2;
thence orth 13°56'37" West 53,80 feet along the Easterly line of said Parcel 2 to
a point n a 150,00 foot radius curve, concave Northeasterly, to which a radial line
bears S uth 37°54'39" West, said point being also a point in the Southwesterly line
ofane sernent granted to the County of San Diego for Public Roadway purposes
by Do , No, 78-018812 of Offical Records filed January 16, 1978; thence
Northw sterly along the arc of said radial curve 39,37 feet through a central angle
of 15°0 '21" to a point on the arc of said curve to which a radial line bears South
52°57'0 " West, said point being also a corner of Parcel 1 of said Parcel Map
11502; hence South 13°56'37" East 85,69 feet; thence South 3°05'19" East 14,96
feet; th nce South 57°23'25" West 26,00 feet; thence South 32°36'35" East 10,00
feet; th nce North 82°01 '28" East 17,76 feet; thence South 3°05'19" East 34,32 feet
to a poi t on the Southeasterly line of said Parcel 2; thence North 49°24'27" East
along s id Southeasterly line 25,20' feet to the Point of Beginning,
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1803
EXlllBIT"8"
PRIVAlE ROAD MAINlENANCE AGREEMENT
FOR lPM 92-164
PROPERTY DESCRIPTION
PARCEL 2, IN E CITY OF ENONITAS, COUNTY OF SAN DIEGO, STAlE OF CALIFORNIA AS
SHOWN ON P GE 11502 IN BOOK OF PARCEL MAPS, FILED IN TIlE OFFICE OF TIlE COUNTY
RECORDER 0 SAND DIEGO COUNTY, JULY 16, 1981.