2000-160593
: .,. ; DOC. 2000-0160593
" . 373û
.
Recording Req\ ested By: ) MAR 30. 2000 8:19 AI"',
) OFFICIAL RECORDS
City ofEncini as ) SAN DIEGO COUNTY RECORDER'S OFFlCF
) GREGORY J. SMITH, COUNTY RECORDER
When Recorde( Mail to: ) FEES: 32,00
City Clerk ) 11111111111111111111111111111111111111111111111 II¡II I¡III 11111 11111111
City of Encinit! )
505 South Vule 1m Avenue )
Encinitas CA 2024 ) SPACE ABOVE FOI 2000-0160593
/
(f) cAli
qf Ifl;> PRIVATE ROAD AND DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
rLO() 't\ b FOR TPM 98-139
Assessor's Parc I No. 264-091-58 Project No.: TPM 98-139
W.O. No.: 6062 PM
THIS A( REEMENT for the maintenance and repair of that certain private road easement,
the legal descri tion and/or plat of which is set forth in Exhibits attached hereto and those private
drainage facilit es, the legal description and/or plat of which is set forth in Exhibits attached
hereto and ma e a part hereof, is entered into by, Jesse R. Oaklev
as to an undivided 67.2232% interest and Kevin K. Takabavashi and
Suzanne M. akabavashi as communitv orouertv as to an undivided 32.7768% interest.
(hereinafter refi rred 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 It extent the Developer retains any ownership interest in any lot OF tots).
WHERE S, this Agreement is requ:red as a condition of approval by the City of Encinitas
of a subdivisio project as defined in Section 21065 of the Public Resources code and pursuant
to City of Enci itas Municipal Code Section 24.16.060 and Section 24.29.040; and
WHERE S, Developer is the owner of certain real property being subdivided and
developed as TPM 98-139 that will use and enjoy the benefit of said road easement. A
complete legal description of said real property is attached, labeled Attachment A , and
incorporated b reference. Said real property is hereinafter referred to as the "property"; and
WHERE S, it is the desire of the Developer that said private road easement and drainage
facilities be ma ntained in a safe and usable condition by the lot owners; and
. . 3731
WHERE S, it is the desire of the Developer to establish a method for the maintenance and
repair of said rivate road easement and drainage facilities and for the apportionment of the
expense of suc maintenance and repair among existing and future lot owners; and
WHERE S, it is the intention of the Developer that this Agreement constitute a covenant
running with t e land, binding upon each successive lot owner of all or any portion of the
property. NO THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
.1. he property is benefitted by this Agreement, and present and successive lot
owners of all r 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 easemept and drainage
facilities shall e divided equally among the subdivided parcels created in the subdivision and
paid by the lot wner ofthe heirs, assigns and successors in interest or each such owner.
3. n the event any of the herein described parcels ofland are subdivided further, the
lot owners, hei s, assigns and successors in interest of each such newly created parcel shall be
liable under thi Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall e computed to reflect such newly created parcels.
4. he repairs and maintenance to be performed under this Agreement shall be
limited to the llowing unless the consent for additional work is agreed to by a majority vote of
the lot owner owning 100% of the number of parcels, including subdivisions thereof as
described in P agraph 3 above: reasonable and normal road improvement and maintenance
work to adequ tely 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 crack~, repairing and
resurfacing 0 roadbeds, repairing and maintaining drainage structures, removing debris,
maintaining si ns, markers, striping and lighting, if any, and other work reasonably necessary
and proper to r pair and preserve the easement for all-weather road purposes.
5. f there is a covenant, agreement, or other obligation imposed as a condition of
subdivision ap roval to make private road improvements to the private road easement, the
obligation to r pair and maintain the private road easement as herein set forth shall commence
when the priva e road improvements have been completed and approved by the City.
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6, y extraordinary repair required to correct damage to said road easement or
drainage facilit that results from action taken or contracted for by lot owners or their successors
in interest shal be paid for by the party taking action or party contracting for wo,rk which caused
the necessity fì r the extraordinary repair. The repair shall be such as to restore me road easement
or drainage fac lity to the condition existing prior to said damage.
7. t is agreed that Developer is initially the agent to contract and oversee and do all
acts necessary 0 accomplish the repairs and maintenance required and/or authorized under this
Agreement. D veloper further agrees that the agent may at any time be replaced at the direction
of a majority 0 the lot owners. Repair and maintenance work on the private road easement and
drainage facili ies shall be commenced when a majority of the lot owners agree in writing that
such work is n eded. The agent shall obtain three bids from licensed contractors and shall accept
the lowest of s id three bids and shall then initiate the work. The agent shall be paid for all costs
incurred inclu ing 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 or 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 a ent, who shall maintain a trustee account and also maintain accurate accounting
records which e to be available for inspection by any party or authorized agent upon reasonable
request. All s ch 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 th's Agreement, then the agent or any lot owner or owners shall be entitled without
further notice 0 institute legal action for the collection of funds advanced on behalf of such lot
owner in acc dance with the provisions of California Civil Code Section 845, and shall be
entitled to rec ver in such action in addition to the funds advanced, interest thereon at the current
prime rate of i terest, 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 e¡nplo ed to make repairs or provide maintenance under this Agreement, or to third
persons, as we 1 as any liability of the lot owners for damage to the property of agent, or any such
worker, or of ny third persons, as a result of or arising out of repairs and maintenance under this
Agreement, s 11 be borne, as between the lot owners in the same percentages as they bear the
costs and expe ses of such repairs and maintenance. Each lot owner shall be responsible for and
maintain his 0 insurance, if any. By this Agreement, the Developer does not intend to provide
for the sharin of liability with respect to personal injury or property damagE¡ other than that
attributable to the repairs and maintenance und~rtaken under this Agreement Each of the lot
owners agrees to indemnify the others ITom any and all liability for injury to himself or damage
to his propert when such injury or damage results from, arises out of, or is attributable to any
maintenance 0 repairs undertaken pursuant to this Agreement.
,
. . 3'133
10. ot owners shall jointly and severally defend and indemnify and hold harmless
City, City's en ineer and its consultants and each of its officials, directors, officers, agents and
employees fro and against all liability, claims, damages, losses, expenses, personal injury and
other costs, in luding costs of defense and attorney's fees, to the agent hereunder or to any lot
owner, any co tractor, any subcontractor, any user of the road easement, or to any other third
persons arisin out of or in any way related to the use of, repair or maintenance of, or the failure
to repair or ma ntain the private road easement or drainage facilities.
Nothing in the Agreement, the specifications or other contract documents or City's
approvalofth plans and specifications or inspection of the work is intended to include a review,
inspection ac owledgement of a responsibility for any such matter, and City" City's engineer
and its consult ts, and each of its officials, directors, officers, employees and agents, shall have
no responsibili y or liability therefore.
II. The foregoing covenants shall run with the land and shall be deemed to be for the
benefit of the I d of each of the lot owners and each and every person who shall at anytime own
all or any porti n of the property referred to herein.
12. It is understood and agreed that the covenants herein contained shall be binding
on the heirs, e ecutors, 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 a y subsequent purchaser of all or any portion thereof, by acceptance of delivery of
a deed and/or onveyance regardless of form, shall be deemed to have consented to and become
bound by thes presents, including without limitation, the right of any person entitled to enforce
the terms of t is Agreement to institute legal action as provided in Paragrapik 8 hereof, such
remedy to be umulative and in addition to other remedies provided in this Agreement and to all
other remedie at law or in equity.
14. The terms of this Agreement may be amended in writing upon majority approval
of the lot own rs and consent of the City.
IS. 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 comp tent jurisdiction, the validity, and enforceability of the remaining provisions shall
not be affecte thereby.
. . 3(34
16. f the Property constitutes a "Common Interest Development" as defined in
California Civ'J Code Section 1351(c) which will include membership in or ownership of an
"Association" s defined in California Civil Code Section 1351(a), anything in t1J.is Agreement to
the contrary n withstanding, the following provisions shall apply at and durin~ such time as (i)
the Property i encumbered by a "Declaration" (as defined in California Ci\\il Code Section
1351(h), and ( i) the Common Area of the property (including the private road easement) is
managed and c ntrolled by an Association:
(a) he Association, through its Board of Directors, shall repair and maintain the
private road e sement and drainage facilities and shall be deemed the "agent" as referred to in
Paragraph 7 a ove. The Association, which shall not be replaced except by amendment to the
Declaration, s all receive no compensation for performing such duties. The costs of such
maintenance a d repair shall be assessed against each owner and his subdivision interest in the
Property purs t to the Declaration. The assessments shall be deposited in the Association's
corporate acco nt.
(b) he provisions in the Declaration which provide for assessment liens in favor of
the Associatio and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No 'ndividual owners shall have the right to alter, maintain or r~pair any of the
Common Are (as defined in California Civil Code Section 1351(b) in the Property except as
may be allowe by the Declaration.
(c) This Agreement shall not be interpreted in any manner which reduces or limits the
Association's ights and duties pursuant to its Bylaws and Declaration.
ESS WHEREOF, the parties have executed this Agreement
on the 6.,- day of (Jf!.-TlJPht- , 19!fL.
Developer:~ ~
.~
. . 3135
ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TPM 98-139
THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 8, TOWNSHIP 13 SOUTH, RANGE 3
WEST, SAN BE NARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE
OF CALI FORNI ,ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING T THE NORTHWESTERLY CORNER OF THE SOUTHERLY 624.00 FEET (MEASURED
ALONG THE ESTERLY LINE) OF THE WESTERLY 838.00 FEET (MEASURED ALONG THE
SOUTHERLY LI E) OF SAID SOUTHEAST QUARTER; THENCE ALONG THE NORTHERLY LINE
THEREOF SOU H 84"05'09" EAST; 524.35 FEET TO THE TRUE. POINT OF BEGINNING; THENCE
LEAVING SAID INE NORTH 4"26'14" EAST, 328.94 FEET; THENCE NORTH 84"31'11" EAST, 211.33
FEET; THENCE NORTH 18"03'22" EAST, 500.43 FEET TO THE SOUTHERLY LINE OF CITY OF
ENCINITAS TRA T NO. 88-183 ACCORDING TO MAP THEREOF NO. 12882, FILED IN THE OFFICE OF
THE COUNTY R CORDER OF SAN DIEGO COUNTY, OCTOBER 23, 1991; THENCE ALONG SAID LINE
SOUTH 71"07'3 " EAST, 263.33 FEET TO THE BEGINNING OF A TANGENT 1949.00 FOOT RADIUS
CURVE CONC E NORTHEASTERLY; THENCE ALONG THE ARC OF SAID CURVE 30.10 FEET
THROUGH A C NTRAL ANGLE OF 0"53'06" TO THE CENTERLINE OF WILDFLOWER DRIVE AS SAID
CENTERLINE IS HOWN ON SAID MAP NO. 12882, SAID POINT LYING ON THE ARC OF A 350.00 FOOT
RADIUS CURV CONCAVE WESTERLY, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH
78"26'42" EAST; THENCE ALONG THE SOUTHERLY PROLONGATION OF SAID CURVE 38.56 FEET
THROUGH A C NTRAL ANGLE OF 6"18'44"; THENCE SOUTH 17"52'02" WEST. 16.24 FEET; THENCE
SOUTH 72"07'5 " EAST, 144.98 FEET TO THE BEGINNING OF A TANGENT 400.00 FOOT RADIUS
CURVE CONCA E NORTHERLY; THENCE ALONG THE ARC OF SAID CURVE 53.16 FEET THROUGH
A CENTRAL AN LE OF 7"36'54"; THENCE RADIALLY TO SAID CURVE SOUTH 10"15'09" WEST, 61.16
FEET; THENCE OUTH 4"38'28" WEST, 178.72 FEET; THENCE SOUTH 33"16'30" EAST, 260.16 FEET;
THENCE SOUT 54"34'36" WEST, 263.59 FEET; THENCE NORTH 34"58'38" WEST, 78.97 FEET;
THENCE SOUT 74"32'31" WEST, 403.33 FEET TO THE NORTHEASTERLY CORNER OF SAID
SOUTHERLY 62 .00 FEET OF THE WESTERLY 838.00 FEET THE SOUTHEAST QUARTER; THENCE
ALONG THE NO THERLY LINE THEREOF NORTH 84"05'09" WEST, 313.65 FEET TO THE TRUE POINT
OF BEGINNING.
File u F;]e u,lld,taI446 survlattach-a,wpd
. . EXHIBIT' A' CFT'.
3'136
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PARCEL 3
ROo I 39
PROPOSED PRIVATE
ROAD AND UTILITY
EASEMENT
PARCEL 2
PA CEL 1
PROPOSED PRIVATE
ORAINAGE EASEMENT
I
RO:3 j ,,\039
PROJECT. CITY OF ENCINITAS T.P.M. 98-139
~ PLAT SCALE. 1"" 160'
PRIVATE ROAD AIÐ tJRAI!/A(JE
FACLfT'Y MANTENANCE AaREEMENT
SAN DEGUTO ENØI&IIIIØ, INC. JOB. NO. 44IJ()
CIVL EN8I&IItG . PLANNIIG DATE OCTOBER t8. -
LAN) 8lIWEYItG
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CALIFORNIA AL .PURPOSE ACKNOWLEDGMENT
Slate of
On q before meJ')~...LI!!:Ñe; ¡,j. R/~E!J1~, tJ orn~ {)¡j;ý¿
- ~ ~5~e _..._..otIico'lo.,-."JonoDoo._PubIòc'J
personally appe red R. ()p¡Jc./~
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~ersonallY kn wn to me - OR - 0 proved to me 00 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 helshe/they executed the
same In hislherllheir aulhoñzed capacity(les), and that by
hislherllheir signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
ARLENE H. RINEHAR
OMMISSION #1114637 WITNESS my hand and official seal.
Notary Public - Cali/omia ลก:
ORANGE COUNTY 0 ~.#..:-~~
My Commission Expires ~
OCT 26,2000
OPTIONAL
lion below is not required by law. it may prove valuable /0 - relying on /lie - and could pnlverrt
fraudulent removal and ..allachmenl at this frmn /0 another ---
Description f Attached Document
Title or Type of acumen!: PRI ¡"'TE" /(ORD ç' DRQI~ F'l9C-iL/t,&c H~;:;T'~
Document Date -- Number of Pages: ---
an Named Above: K ~ V) ~ lCo TAtAba.~N¡' ~,)UJ,Jt.)e H. TA 't;~Y~/ '
Capacity(ies Claimed by Signer(s)
Signer's Name: Signer's Name:
0 Individual 0 Individual
0 Corporate 0 jcer 0 Corporate OffICer
Tllle(s): Title(s):
0 Partner- 0 Limited 0 General 0 Partner - 0 Limited 0 General
0 Allomey-in- act 0 Attorney-In-Fact
0 Trustee 0 Trustee
0 Guardian or onservator 0 0 Guardian or Conservator
0 Other: Top of Ihumb here 0 Other. Top of Ihumb here
Signer Is Repre enling: Signer Is Representing:
"'99' No'oool N"'nA..."",", 8 ".'mmolAw. po eo< 7"', Co"",o p"". CA91309-7'" p"", No- "07 .,""" c," Tal"", '800-876-"'7
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.. . . 3738
CALIFORNIA AL .PURPOSE ACKNOWLEDGMENT
State of
On before me,'"DGl2iFfitf f/, f3¡je;¡/JR:r; ¡Jom~ fÐkJ¡¿
Dolo , -"'-"CIIicorlo,g,,'JanoDoe._Pub..,
red /é:E.VI~ ¡L. T~IC~Jl5J1}¡' (, ,"V~/JNtJG /Y1. TJ4JC4:>bIJ/IIJ6AJ/ ,
I'tamo(o¡"-'¡ /
0 personally kn wn to me - OR - 0 proved to me on the basis 0/ satisfactory evidence to be the person(s)
whose name(s) is/are subscribed to the within instrument
and acknowledged to me that helsheJlhey executed the
same in hislherltheir authorized capacity(ies), and that by
hislherltheir signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
DARLENE H. RINEHAR
COMMISSION #1114637 WITNESS my hand and official sea/.
Not~;jA~~b~cëo~~!!'vmia ~ ~
My Commissicn Expires ~ ~~ bd .
OCT 26, 2000 ~ '
-"""-or"""
OPTIONAL
lion below is noI requiÆd by law. it may pIOVØ va/uabI8 /0 PØfSO'IS ÆIying an I/rø - and could piØvent
lraudv/ent rømoval and røaftachmsnl 01 fI>is fonn ro anoll>er døcuorHInI.
Description f Attached Document
nle or Type of ocument:{1¡'IJ~re: ~ ~I 'Del1~ ð L. f.w-~ mal;';ílioV~,:x;¡; Afje¡fieI»GIJ'f'
Number of Pages: --
Signer(s) Other Than Named Above: ::r ES-S6" fè r OAJd fEY
Signer's Name:
0 Individual 0 Individual
0 Corporate 0 Corporate Officer
Tl1Ie(s): Title(s):
0 Partner - 0 Partner - 0 Limited 0 General
0 Attomey-in- 0 Attorney-in-Fact
0 Trustee 0 Trustee
0 Guardian or onservator ° 0 Guardian or Conservator
0 Other: Top of Ihumb here 0 Other. Top of thumb here
Signer Is Representing:
0 "'4 N4I"",'N"",."oa.","" 36 R'mmelA~. p,o, eox 7184' Ca~,a Pa"'. CA 91309-1164 P"d. No, S90' R.""" Call '.'.F". '.'00-'7.-,,",'