1991-87352
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Recordin Requested By: )
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Kti"1 WILj) ;^kw/lrJ: LV<,f( I )
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When Rec rded, Mail To: )
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SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR TPM 89-251
Assessor's Parcel Project No.:TPM 89-251
No. 254-222-45 W.O. No.: 04l9N
Log No.: N/A
THI AGREEMENT for the maintenance and repair of that certain
private oad easement, the legal description and/or plat of which
in Exhibit A attached hereto and made a part hereof,
is e into by Romuald Nowakowski and
Kare Nowakowski (hereinafter referred to as
for the benefit of future subdivision lot owners who
the private road easement (hereinafter referred to as "lot
owners", which shall include the Developer to the extent the
retains any ownership interest in any lot or lots).
WHE EAS, this Agreement is required as a condition of approval
by the ity of Encinitas of a subdivision project as defined in
Section 1065 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 89-251 that will use and
enjoy benefit of said road easement. A complete legal
descript' on of said real property is attached, labeled Exhibit B,
and inco reference. Said real property is hereinafter
referred to as the "property"; and
it is the desire of the Developer that said private
road be maintained in a safe and usable condition by the
lot owne
WHE EAS, it is the desire of the Developer to establish a
method f r the maintenance and repair of said private road easement
and for he apportionment of the expense of such maintenance and
repair a ong existing and future lot owners; and
WHE EAS, it is the intention of the Deyeloper that this
Agreemen constitute a covenant running with the land, binding upon
each suc essive lot owner of all or any portion of the property.
NOW THER FORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The property is benefited by this Agreement, and present
and succ ssive lot owners of all or any portion of the property are
expressl 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
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created i the subdivision and paid by the lot owner of the heirs,
assigns nd successors in interest of each such owner.
3. In the eyent any of the herein described parcels of land
are subd ivided further, the lot owners, heirs, assigns and
successo s in interest of each such newly created parcel shall be
liable u der this. Agreement for their then pro rata share of
expenses and such pro rata shares of expenses shall be computed to
reflect uch newly created parcels.
4. The repairs and maintenance to be performed under this
Agreemen shall be limited to the following unless the consent for
addition 1 work is agreed to by a majority ycte of the lot owners
owning 100% of the number of parcels, including subdivisions
thereof s described in Paragraph 3 above: reasonable and normal
road imp ovement and maintenance work to adequately maintain said
private oad easement and related drainage facilities to permit
all-weat er access. Repairs and maintenance under this Agreement
shall but is not limited to, filling of chuckholes,
cracks, repairing and resurfacing of roadbeds, repairing
aining drainage structures, removing debris, maintaining
signs, striping and lighting, if any, and other work
reasonab y necessary and proper to repair and preserve the easement
for all- eather road purposes.
5. If there is a covenant, agreement, or other obligation
imposed s a condition of subdivision approval to make private road
improvem nts to the private road easement, the obligation to repair
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and main ain the private road easement as herein set forth shall
commence when the private road improyements have been completed and
approved by the City.
6. Any extraordinary repair required to correct damage to
said roa easement that results from action taken or contracted for
their successors in interest shall be paid for by
taking action or party contracting for work which caused
sity for the extraordinary repair. The repair shall be
such as 0 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 nd maintenance required and/or authorized under this
Agreemen Developer further agrees that the agent may at any time
ed at the direction of a majority of the lot owners.
d maintenance work on the private road easement shall be
when a majority of the lot owners agree in writing that
such wor is needed. The agent shall obtain three bids from
contractors and shall accept the lowest of said three bids
and shal then initiate the work. The agent shall be paid for all
costs in including a reasonable compensation for the agent's
services and such costs shall be added to and paid as a part of
the rep ir and maintenance costs; provided, however, that
compensa ion for the agent's services shall in no event exceed an
amount quivalent to 10% of the actual cost of repairs and
maintena ce 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
party sh 11 within forty-five (45) days pay the agent, who shall
maintain a trustee account and also maintain accurate accounting
records hich are to be available for inspection by any party or
authoriz d agent upon reasonable request. All such records shall
be retai ed by the agent for a period of fiye years.
8. Should any lot owner fail to pay the pro rata share of
costs an expenses as provided in this Agreement, then the agent
or any 1 t owner or owners shall be entitled without further notice
to insti ute legal action for the collection of funds advanced on
such lot owner in accordance with the provisions of
Californ a civil Code section 845, and shall be entitled to recover
in such ction in addition to the funds advanced, interest thereon
at the c rrent prime rate of interest, until paid, all costs and
disburse ents of such action, including such sum or sums as the
Court ma fix as and for a reasonable attorney's fees.
9. Any liability of the lot owners for personal injury to
the agen hereunder, or to any worker employed to make repairs or
provide aintenance under this Agreement, or to third persons, as
well as ny 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 ar' sing 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
maintena ceo Each lot owner shall be responsible for and maintain
his own nsurance, 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 1 t owners agrees to indemnify the others from any and all
liabUit for injury to himself or damage to his property when such
injury 0 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
indemnif and hold harmless City, city's engineer and its
consulta ts and each of its officials, directors, officers, agents
and empl oyees from and against all liability, claims, damages,
losses, xpenses, personal injury and other costs, including costs
of defen e and attorney's fees, to the agent hereunder or to any
lot owne , any contractor, any subcontractor, any user of the road
easement, or to any other third persons arising out of or in any
way rela ed to the use of, repair or maintenance of, or the failure
to repai or maintain the private road easement.
in the Agreement, the specifications or other contract
document or City's approyal of the plans and specifications or
inspecti on of the work is intended to include a review, inspection
acknowle dgment of a responsibility for any such matter, and City,
City's ngineer and its consultants, and each of its officials,
officers, employees and agents, shall have no
respons' bility or liability therefore.
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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 e ch and every person who shall at anytime own all or
any portion f the property referred to herein.
12. It is understood and agreed that the covenants herein
contained she 11 be binding on the heirs, executors, administrators,
successors, nd assignees of each of the lot owners.
13. It is the purpose of the signatories hereto that this
instrument b recorded to the end and intent that the obligation
hereby creatE d shall be and constitute a covenant running with the
land and any subsequent purchaser of all or any portion thereof,
byacceptanc of delivery of a deed and/or conveyance regardless
of form, sha 1 be deemed to have consented to and become bound by
these presen s, including without limitation, the right of any
person entitl ed to enforce the terms of this Agreement to institute
legal action as provided in Paragraph 8 hereof, such remedy to be
cumulative a d in addition to other remedies provided in this
Agreement anc to all other remedies at law or in equity.
14. Th terms of this Ag~eement may be amended in writing
upon majority approval of the lot owners and consent of the City.
15. Thi Agreement shall be governed by the laws of the State
of CalifornÜ. 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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competen jurisdiction, the yalidity, and enforceability of the
remainin provisions shall not be affected thereby.
16. If the property constitutes a "Common Interest
Developm nt" as defined in California civil Code section 1351 (c)
which wi 1 include membership in or ownership of an "Association"
as defin d in California civil Code section 1351 (a), anything in
this Ag eement to the contrary notwithstanding, the following
s shall apply at and during such time as (i) the Property
ered by a "Declaration" (as defined in California civil
Code Sec ion 13 51 (h), and (ii) the Common Area of the property
(includi g the private road easement) is managed and controlled by
an Assoc °ation:
(a) The Association, through its Board of Directors, shall
d maintain the private road easement and shall be deemed
as referred to in Paragraph 7 above. The Association,
11 not be replaced except by amendment to the Declaration,
shall r ceive no compensation for performing such duties. The
costs of such maintenance and repair shall be assessed against each
his subdivision interest in the Property pursuant to the
The assessments shall be deposited in the
Associa ion's corporate account.
The provisions in the Declaration which provide for
assessm nt liens in favor of the Association and enforcement
thereof shall supersede Paragraph 8 of the Agreement in its
entiret No individual owners shall have the right to alter,
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. maintain or repair any of the Common Area (as defined in California
ciyil Co e Section 1351(b) in the Property except as may be allowed
by the D claration.
(c) This Agreement shall not be interpreted in any manner
which r duces or limits the Association's rights and duties
pursuant to its Bylaws and the Declaration.
IN WI NESS WHEREOF, the parties haye executed this Agreement on
the r;,1 day of F£ðÚIl¡¿Ý , 19.2L.
Developer:
Q->--= ~~
Romuald Nowakowski
cV~ ~ 0 N\ \\J~~~
Kar n Nowakowski
l Sigr ature of DEVELOPER must be notarized. Attach I
the appropriate acknowledgement.
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EXHIBIT "A"
A TACHMENT TO PRIVATE ROAD MAINTENANCE AGREEMENT
FOR TPM 89-251
EASEMENT AN RIGHT-OF-WAY FOR ROAD, SEWER, WATER, GAS, POWER AND
TELEPHONE LINES AND APPURTENANCES THERETO OVER, UNDER, ALONG AND
ACROSS THAT CERTAIN 20.00 FOOT STRIP m' LAND LYING WITHIN PARCEL 1
OF PARCEL M NO. 5983, IN THE CITY OF ENCINITAS, COUNTY OF SAN
DIEGO, STAT OF CALIFORNIA, ACCORDING TO MAP THEREOF ON FILE IN THE
OFFICE OF T E COUNTY RECORDER OF SAN DIEGO COUNTY. BEING DELINEATED
AND DESIGNA ED ON SAID PARCEL MAP NO. 5988 AS "PROPOSED 20 FOOT
PRIVATE ROA EASEMENT".
STATE OF CALIFORNIA )
l COUNTY OF ) ss.
)
On_Febr -, before me, the undersigned, a Notary Public in and for
said State, personally app ared ***Romuald and Karen Nowakowski***
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personally known to me (0 proved to me on the basis of ~..................~..++...
satisfactory evidence) to b the person(s) whose name(s) + +
% OffICIA~ SEAL i
I islare subscribed to the with n instrument and acknowledged t ANNETTE MORAN +
to me that he/shMhey exe uted the same. : NOTARY PUBLIC-CALIfORNIA i
. pr!.'~C.FAL OfFiCE IN
i . SAN CiEGO COUNTY :
My CommisSIon Expires Mar. 13. 1991.
m07CiL1\ .............. ....... .... .+++..
- (This area for official notarial seal)
SF4234 (REV A 7182) (CA) I'NOI 10UAL}
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EXHIBIT "Bi'
Parcel 2 f Parcel Map No. 5988, in the City of Encinitas, County
of San D i go, State of California, filed in the Office of the
County R ecorder of San Diego County.
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