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2002-475366 r"-I'- it '00'-' t\ /,'""1 ULJL: .'0' L-UŸ ¡ JUN .0<'+, :~!OO2 ¿~: ~;::' (" Pi'"] Recording Requested By: ) OFFICIAL RECOF:DS ) SAN DIEGO COUNTY F:EGOFDER'S iJFFICF City Engineer ) GREGORY J. SMITH, CiJUNTY RECOF~lH: ) FEE!3;, 3UJO When Recorded Mail to: ) City Clerk ) \) City of Encinitas ) 505 South Vulcan Avenue ) q{ Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY "'/' IV:' 'J PRIVATE ROAD \~ {,-. MAINTENANCE AGREEMENT CASE 01-143 DRIEIA //./V Assessor's Parcel No. 264-151-36,38.39.40.41 Project No.: 01-143 DR/EIA THIS AGREEMENT for the maintenance and repair of that certain private road easement, the legal description and/or plat of which is set forth in Exhibits "B" and "C" attached hereto and made a part hereof, is entered into by Olivenhain Colony VIII, LId, A California Limited Partnership (hereinafter referred to as "Developer") for the benefit of future owners who will use the 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). WHEREAS, Developer is the owner of certain real property being subdivided and developed as CASE 01-143 DR/EIA that will use and enjoy the benefit of said road easement. A complete legal description of said real property is: See Exhibil "A " allached hereto and made a part hereof Said real property is hereinafter referred to as the "property"; and WHEREAS, it is the desire of the Developer that said private road be maintained in a safe and usable condition by the lot owners; and WHEREAS, it is the desire of the Developer to establish a method for the maintenance and repair of said private road easement and for the apportionment of the expense of such maintenance and repair among existing and future lot owners; and EXHIBIT A Parcels I through 4, inclusive, of Parcel Map No, 8228, filed in the Office of the San Diego County Recorder on December 29, 1978, along with the Southwesterly 165.00 feet of the Southeasterly 295.00 feet of that portion of Lot 18 of the Subdivision of Rancho Las Encinitas, in the City of Encinitas, County of San Diego, State of California, according to the Map thereof No. 848, filed in the Office ofthe San Diego County Recorder on June 27,1898, described in the deed to Fred Reva and Doris Reva, husband and wife as joint tenants, recorded November 20, 1969 as File No. 212922 of Official records, EXHIBIT B THOSE PORTIONS OF PARCELS 1, 2 AND 3 OF PARCEL MAP NO. 8228 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER DECEMBER 29, 1978 AS FILE NO. 78-560616 OF OFFICIAL RECORDS, CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL MAP BEING ALSO THE NORTH- WESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID MAP, NORTH 81'17'31" EAST 386,05 FEET TO THE NORTHEASTERLY CORNER OF SAID MAP AND THE NORTHEASTERLY CORNER OF SAID PARCEL 2; THENCE SOUTH 33'03'48" EAST, ALONG THE EASTERLY BOUNDARY OF SAID MAP, 243.77 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL 3; THENCE DEPARTING. SAID BOUNDARY, SOUTH 26'04'04" EAST 32.84 FEET TO THE BEGINNING OF A NON-TANGENT 42.00 FOOT RADIUS CURVE CONCAVE NORTHERLY AND BEARING NORTH 56'56'12" EAST FROM SAID CURVE RADIUS; THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 254'10'24", A DISTANCE OF 186.32 FEET TO THE BEGIN- ING OF A TANGENT 24.00 FOOT RADUIS REVERSE CURVE CONCAVE WESTERLY; THENCE NORTH- ERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 74'10'24" A DISTANCE OF 31.07 FEET TO A POINT 40.00 FEET WESTERLY OF MEASURED PERPENDICULAR TO SAID EASTERLY BOUNDARY OF SAID MAP; THENCE NORTH 33'03'48" WEST, PARALLEL WITH SAID BOUNDARY, 171.18 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 28'17'13". 31.60 FEET TO A POINT 30.00 FEET SOUTHERLY OF MEASURED PERPENDICULAR TO SAID NORTHERLY BOUNDARY OF SAID MAP; THENCE SOUTH 81'17'31" WEST, PARALLEL WITH SAID BOUNDARY, 334.24 FEET TO THE WESTERLY BOUNDARY OF SAID MAP; THENCE ALONG SAID BOUNDARY. NORTH 32'17'07" WEST, 32.73 FEET TO THE POINT OF BEGINNING. FILE NAME: 8228-LG2.DWG PLOT DATE: 04-24-02 WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant running with the land, binding upon each successive lot owner of all or any portion of the property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: I. The property is benefited by this Agreement, and present and successive lot owners of all or any portion of the property are expressly 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 created in the subdivision and paid by the lot owner of the heirs, assigns and successors in interest or each such owner. 3. In the event any of the herein described parcels of land are subdivided further, the lot owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable under this Agreement for their then pro rata share of expenses and such pro rata shares of expenses shall be computed to reflect such newly created parcels. 4, The repairs and maintenance to be performed under this Agreement shall be limited to the following unless the consent for additional work is agreed to by a majority vote of the lot owners owning 100% of the number of parcels, including subdivisions thereof as described in Paragraph 3 above: reasonable and normal road improvement and maintenance work to adequately maintain said private road easement 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 cracks, repairing and resurfacing of roadbeds, repairing and maintaining drainage structures, removing debris, maintaining signs, markers, striping and lighting, if any, and other work reasonably necessary and proper to repair and preserve the easement for all-weather road purposes. 5, If there is a covenant, agreement, or other obligation imposed as a condition of subdivision approval to make private road improvements to the private road easement, the obligation to repair and maintain the private road easement as herein set forth shall commence when the private road improvements have been completed and approved by the City. 6. Any extraordinary repair required to correct damage to said road easement that results from action taken or contracted for by lot owners or their successors in interest shall be paid for by the party taking action or party contracting for work which caused the necessity for the extraordinary repair. The repair shall be such as to 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 and maintenance required and/or authorized under this Agreement. Developer further agrees that the agent may at any time be replaced at the direction of a majority of the lot owners, Repair and 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 contractors and shall accept the lowest of said three bids and shall then initiate the work. The agent shall be paid for all costs incurred including 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 for 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 agent, who shall maintain a trustee account and also maintain accurate accounting records which are to be available for inspection by any party or authorized agent upon reasonable request. All such 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 this Agreement, then the agent or any lot owner or owners shall be entitled without further notice to institute legal action for the collection of funds advanced on behalf of such lot owner in accordance with the provisions of California Civil Code Section 845, and shall be entitled to recover in such action in addition to the funds advanced, interest thereon at the current prime rate of interest, 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 employed to make repairs or provide maintenance under this Agreement, or to third persons, as well as any 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 arising 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 maintenance. Each lot owner shall be responsible for and maintain his own insurance, if any, By this Agreement, the Developer does not intend to provide for the sharing of liability with respect to personal injury or property damage other than that attributable to the repairs and maintenance undertaken under this Agreement. Each of the lot owners agrees to indemnify the others from any and all liability for injury to himself or damage to his property when such injury or damage results from, arises out of, or is attributable to any maintenance or repairs undertaken pursuant to this Agreement. 10. Lot owners shall jointly and severally defend and indemnify and hold harmless City, City's engineer and its consultants and each of its officials, directors, officers, agents and employees from and against all liability, claims, damages, losses, expenses, personal injury and other costs, including costs of defense 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 related to the use of, repair or maintenance of, or the failure to repair or maintain the private road easement. Nothing in the Agreement, the specifications or other contract documents or City's approval of the plans and specifications or inspection of the work is intended to include a review, inspection acknowledgement of a responsibility for any such matter, and City, City's engineer and its consultants, and each of its officials, directors, officers, employees and agents, shall have no responsibility or liability therefore, II. 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 each and every person who shall at anytime own all or any portion 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, 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 any subsequent purchaser of all or any portion thereof, by acceptance of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become bound by these presents, including without limitation, the right of any person entitled to enforce the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such remedy to be cumulative 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 majority approval of the lot owners and consent of the City, 15, 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 competent jurisdiction, the validity, and enforceability of the remaining provisions shall not be affected thereby. 16. If the Property constitutes a "Common Interest Development" as defined in California Civil Code Section 1351(c) which will include membership in or ownership of an "Association" as defined in California Civil Code Section 1351(a), anything in this Agreement to the contrary notwithstanding, the following provisions shall apply at and during such time as (i) the Property is encumbered by a "Declaration" (as defined in California Civil Code Section 1351(h), and (ii) the Common Area of the property (including the private road easement) is managed and controlled by an Association: (a) The Association, through its Board of Directors, shall repair and maintain the private road easement and shall be deemed the "agent" as referred to in Paragraph 7 above, The Association, which shall not be replaced except by amendment to the Declaration, shall receive no compensation for performing such duties. The costs of such maintenance and repair shall be assessed against each owner and his subdivision interest in the Property pursuant to the Declaration. The assessments shall be deposited in the Association's corporate account. (b) The provisions in the Declaration which provide for assessment liens in favor of the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its entirety, No individual owners shall have the right to alter, maintain or repair any of the Common Area (as defined in California Civil Code Section 1351(b) in the Property except as may be allowed by the Declaration, (c) This Agreement shall not be interpreted in any manner which reduces or limits the Association's rights and duties pursuant to its Bylaws and Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the ;:).:.~ I'-'?- day of M~ ,2002, <0- - ~~~~~ (Print name:) MO:~9LT A: ~~:o~ - bG,.,\lâV"\ prR""';'>E'I? t/¿:/t/é/?A;9//,? útJ/O/7,Y W"/j ¿:7X:> . (Print name:) Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT ~,&<: = «&<' .L'£ .çf'&s:&£« = «= «&<'.£L d &'£&' R!: = = &: Q:&£.'X =- .ç;<o =:&<' &'£&' &<' ~ &<' Æß!f: oQ Y , State of California } [I ,- , ss, County of - <)I~nJ)1 CL'f'--_- -- -- On YYlllif n -ÅCú). ,before me, --.J)~ 5\Cl()¿-~9\-(À)-(~-~, - D'" p.. ,N";e"'OT,"eCIOfflc",,eg, Je"eDceNo'yPoblIC'1 personally appeared / ìo\:JC>C~--(joo~-::-<'-.("'-------- --, Nemel" ,'S'gee'I" N personally known to me proved to me on the basis of satisfactory evidence jij;~~1 to be the person(}\.) whose namet,!;) is/are subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/hefItheír" authorized i__-~~~~t capacity(í:eS.), and that by his / h 8ffIfteif signature(j() on the instrument the person~), or the entity upon behalf of which the person($) acted, executed the instrument. WITNESS my hand and official seal. ~i.z-_¡J!l~/- :L/--- Piece Nole~ See' Ac"", 'g,,"occcf NcI"y Pobll, OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fcaudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: ~- - Document Date: -- Number of Pages, Signer(s) Other Than Named Above' -- -- Capacity(ies) Claimed by Signer Signer's Name: ---- - --- ~- . Individual Corporate Officer - Title(s) Partner - I limited General Attorney in Fact I I Trustee I Guardian or Conservator , I Other: Signer Is Representing: 'O""N""","",""A,"","""",,"OoS,""AIO PO P", "0, ,c""",o"",o",,"""OI"www"'-"""""'"""'I NOTES EXHIBIT C 0 r / / / / / /,. AREA DESCRIBED IN EXHIBIT A. @ PRIVATE ROAD EASEMENT PER RECORD. BEARINGS & DISTANCES PER PARCEL MAP 8228 OR CALCULATED THEREFROM. ~ ~ .;.. ~ ø ~ '\ ~ ~ ... .,'),.... ~ \ ,'i§:.>/ 1- ~ / ~"J~Y <.... ~, ~ 1-- ~ ~ ~. ~ 'f. a.,/ A C(,. . .;r. ~ ~ ~ ~ ~ ~ ~. ~ ~ ~ ~ ~ ~ ~ ~ .~. ..-:-:cS>. ~ , ~ ~~ ~ ~ ---\ \ ~ . """ ~ ~ ~ '),0 ~. ~ -:,c) ~ '\ t, ~.' \\ ~> ~ \.Y ... ~. , \ b \' ~ ~ " . B" SCALE: 1" = 100' \ ~"" / '----, \; \ fJ ' ,,~ -.. '0 ~", \ 0>. '0' , DA TAT ABLE \ "=>~\~<6~0 . ~~ NO. DELTA/BEARING LENGTH RADIUS \ :/.? -~ CD S 26'04'04" E 32.84' - \ /'. ~ \ /' .~~ (;) I:::. = 254'10'24" 186.32' 42.00' /'/' §\ 0 I:::. = 74'10'24" 31.07' 24.00' ;.Y ~~ ~ CD 1:::.= 28'17'13" 31,60' 64.00' ..~.\'\ .?~ FILE NAME: 8228-LG2.DWG PLOT DATE: 04-24-02