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1991-87352 " . .,:F::~:-' ~;!o: ~ 1740 Recordin Requested By: ) ) Kti"1 WILj) ;^kw/lrJ: LV<,f( I ) ) ) When Rec rded, Mail To: ) CII! L/(, NÒÄ! ) CII I reF /cN'CI817/)J' ) 521 [/iCI //';4, /JU,J, ) [IJCt/IJllli.Jj cA. ijÙ¿4 ) 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, BW/05/B 1-26wp5 (6-12-89) 1 - . 1741 . 0,°, " 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 BW/O5/BC -26wp5 (6-12-89) 2 . 1742 . ,\ 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 BW/05/BC -26wp5 (6-12-89) 3 4t 1743 ' 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 BW/O5/BC -26wp5 (6-12-89) 4 . 1744 . 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 BW/05/BC -26wp5 (6-12-89) 5 . 1745 . 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. BW/05/B 1-26wp5 (6-12-89) 6 . il 7 4 6 . 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 BW/05/BCl-26w p5 (6-12-89) 7 . í1747 . 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, BWj05/B 1-26wp5 (6-12-89) 8 , . 1748 . .. . 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. . BW/05/BCl 26wp5 (6-12-89) 9 .,' " . 1749 . " 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*** -- - - 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} I . , . i '. .1, . 1750 . ~. I ' ' . 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. .