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1994-341767 . . a,~ c .. 2.~~....n,.",\'-- pt' Recordin Requested By: ) CITY OF NCINITAS ) ) 1792 ,,' ) ) 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, BW/04/BC2 1l0wp5 (2/26/91) 1 . . 1793 . 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 BW/04/BC2 llOwp5 (2/26/91) 2 . . 1794 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 BW/04/BC2 llOwp5 (2/26/91) 3 . . 1795 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 BW/04/BC2 1l0wp5 (2/26/91) 4 1796 . . 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 BW/O4/BC2 1l0wp5 (2/26/91) 5 . . 1797 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. BW/04/BC2 1l0wp5 (2/26/91) 6 . . 1798 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 BW/04/BC2 110wp5 (2/26/91) 7 . . 1'799 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, BW/04/BC2 -1l0wp5 (2/26/91) 8 . . 1300 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: ' . ~DÞ~ , ~ j /Ú~ I Sign ture of DEVELOPER must be notarized. Attach I the ppropriate acknowledgement. , BW/O4/BC2 110wp5 (2/26/91) 9 . . ) )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 " . . . , 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, . ,. . . 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.