2003-344249
. 18346 DOC # .003-0344249
MAR 27. 2003 11:08 AM
Recording Requested By: ) IfFIClft. RECIJIDS
) SIf DIE~ I)]JnY RECIJ/DER'S (fFICE
City Engineer ) GImF{ J. !itITH. ]JJffiI REImER
) FEES: 32.00
When Recorded Mail to: )
City Clerk ) Ilmlllllllllllllllllllllllllllll~IIIIII~~IIIIIIIIIIIIII~I~111II
City of Encinitas )
505 South Vulcan Avenue ) 20113iC:1<1424111
16 Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
9P -$¡P1
~ ~~./ ",30 - 03 PRIVATE ROAD
.1- MAINTENANCE AGREEMENT
CASE 99-220 DRIEIA
,/ y
Assessor's Parcel No. 260-084-10&11 Project No.: 99-220 TM
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 ATTACHMENT "B" attached hereto and
made a part hereof, is entered into by THE HEIRS AND DEVISEES OF MILDRED L. RUSCH
DECEASED. SUBJECT TO THE ADMINISTRATION OF THE ESTATE OF SAID
DECEDENT: EVELYN HAULDREN BEING DULY APPOINTED AND OUALIFIED
EXECUTOR. SAN DIEGO COUNTY SUPERIOR COURT CASE NO. PN 23488
(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 99-220 that will use and enjoy the benefit of said road easement.
A complete legal description of said real property is:
AS DESCRIBED IN ATTACHMENT "A" ATTACHED 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
. 18347 .
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
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:
1. 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.
,
. 18348 .
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.
,
. .
18349
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.
11. The foregoing covenants shall run with the land and shall be deemed to be for the
benefit ofthe 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 135l(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section 135l(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
135l(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.
.
. 18350 .
(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 135l(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, , parties have executed this Agreement
on the I;; daYOf~, 2003.
Developer:~ ~ ~ ~
. ~>"-/ - ~
(Pnntname:) /¡'~..,v ExtEc.dTt?!¿
£"" V ¿;::- ¿ ý' A/ '4 é/ é..M
'"ff/ê;" ¡./êie.., ,4-Np 1>/IJI:be5 oF J-l1l.Pi!éb .L. 4~l!!ft!
(Print name:)
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
,
. .
18351
¡
ATTACHMENT "A"
PROJECT NO. TM99-220
LEGAL DESCRIPTION
TIIE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF LOT 13 OF RIDGEWAY HEIGHTS, IN THE COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2163, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 3, 192<), AND AS SHOWN ON RECORD OF
SURVEY MAP NO. 1193, FILED IN THE OFFICE OF THE COUNrY RECORDER OF SAN DIEGo
COUNTY, SEPTEMBER 20, 1945, FOR THE PURPOSE OF CORRECTING ERRORS IN THE
ORIGINAL MAP, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 13, TIiENCE ALONG THE
WESTERLY LINE OF SAID LOT, SOUTH 17°38'40" WEST 67.16 FEET, AND SOUTH 22°56' WEST
15.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE,
NORTH 87°50'02" EAST TO AN INTERSECTION wrrn A LINE BEARING SOUTH 7°13' EAST
FROM A POINT IN TIIE NORTHERLY LINE OF SAID LOT 13, DISTANT THEREÖN NORTH
87°50'02" EAST 150 FEET FROM THE NORTHWESTERLY CORNER OF SAID LOT; TIlENCE
NORTH 7'13' WEST TO SAID POINT IN THE NORTHERLY LINE OF LOT 13, SAID POINT BEING
HEREIN IDENTIFIED AS POINT "Aft; THENCE ALONG SAID NORTHERLY LINE, NORTH
87'50'02" EAST 154.79 FEET TO THE NORTHEASTERLY CORNER OF SAID LOT; THENCE soum
7'13' EAST ALONG THE EASTERLY LINE OF SAID LOT 180.58 FEET TO THE SOUTHEASTERLY
CORNER THEREOF; THENCE SOUTH 89°34' WEST ALONG THE SOUTHERLY LINE OF SAID
LOT, 154.79 FEET, MORE OR LESS, TO AN INTERSECTION WITH A LINE BEARING SOUTH 7~13'
EAST FROM ABOVE MENTIONED POINT "A"; TIIENCE NORTH 7°13' WEST TO AN
INTERSECTION WITH A LINE DRAWN PARALLEL WITH AND DISTANT 12 FEET SOUTHERLY,
MEASURED AT RIGHT ANGLES, FROM A LINE BEARING NORTH 37°50'02" EAST FROM THE
TRUE POINT OF BEGINNING; THENCE SOlJIH 87°50'02" WEST ALONG SAID PARALLEL LINE
TO A POINT IN THE WESTERLY LINE OF SAID LOT 13; THENCE NORTH 22'56' EAST ALONG
SAID WESTERLY LINE TO THE TRUE POINT OF BEGINNING.
PARCELB:
THAT PORTION OF LOT 13 OF RIDGEWAY HEIGHTS, IN THE COUNTY OF SAN DIEGO, STATE
OF CALIFORNrA, ACCORDING TO MAP THEREOF NO. 2163, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 3, 1929 AND AS SHOWN ON THE RECORD
OF SURVEY OF SAID RIDGEWAY HEIGHTS, FILED FOR THE PURPOSE OF CORRECTING
ERRORS IN THE ORIGINAL MAP, BEING RECORD OF SURVEY MAP NO. 1193, FILED IN THE
OFFICE OF THE COUNTY RECORDER ON SEPTEMBER 20, 1945, DESCRIBED AS FOLLOWS:
. ;18852 .
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 13; THENCE ALONG THE
WESTERLY LINE OF SAID LOT, SOUTH 17°38'40" WEST, (RECORD SOUTH 18°13'20" WEST)
67.16 FEET AND SOUTH 22°56'00" WEST 15.78 FE;ET TO THE SOUlliWEST CORNER OF A
PARCEL OF LAND DESCRIBED IN'DEED TO PETER J. ROMBAtrr AND WIFE, RECORDED
MARCH 5, 1953, AS DOCUMENT NUMBER 30123, IN BOOK 4771, PAGE 112 OF OFFICIAL
RECORDS; SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 87°50'02"
EAST ALONG THE SOUTIŒRL Y LINE OF SAID LAND TO THE SOUTHEASTERLY CORNER
THEREOF, SAID CORNER BEARING SOUTH 07°13'00" EAST FROM A POINT IN THE
NORTIIERLY LINE OF SAID LOT 13, DISTANT THEREON NORTH 87°50'02" EAST (RECORD
NORTH 89°34'00" EAST) 150.00 FEET FROM THE NORTHWEST CORNER THEREOF; THENCE
ALONG THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID ROMBAtrr
LAND, SOUTH 07°13'00" EAST TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 13; THENCE
ALONG THE SOtrrHERL Y LINE OF SAID LOT, SOUTH 89°34'00" WEST 238.04 FEET, MORE OR
LESS. TO THE SOUTIIWEST CORNER THEREOF; THENCE ALONG TIIE WESTERLY LINE OF
SAID LOT, NORTH 22°56'00" EAST 100.00 FEET, MORE OR LESS, TO THE TRUE POINT OF
BEGINNING.
EXCEPTING THEREFROM THE NORTHERLY 12.00 FEET THEREOF, SAID 12.00 FEET
MEASURED AT RIGHT ANGLES FROM THE NORTHERLY LINE TIIEREOF.
ATTACHMENT ':H~~J53'
LIMITS OF PRIVATE ROAD
EASEMENT MAINTENANCE AREA , ~ 353
LOT 5
LOT 4
LOT 1 LOT 2 LOT 3
g¡ SCALE: 1" = 60'
r""""'- ,
0 60 120
~ SAN DlEGUITO ENGINEERIm, INC.
4407 MANCHESTER, SUITE 105
ENCINITAS, CA 92024 1/ ", i i / I INDICATES PRIVATE ROAD
PHONE: (760) 753-5525
CIVIL ENGINEERING' PLANNING i / I / I EASEMENT MAINTENANCE AREA
LAND SURVEYING
U,\lda ta \surveys\4578surv\dwg \PIa ts\4578_PRIV A TE_RD_MAINT,dwg I/20/2003 SDE 4578
. 18354 .
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California }
I, Lo ~ \., .t. ss
1 County of ~/,\L...I J::.Lll-hO .
1
1 On f~ I ~ I L.Cð3 , before me, U:!.U? Pr. C1:>ntll.I<1-JÆ ^J ~ POþ"UL...,
0", N,m, "d TItI'ofOffiœ' I','. , œOœ,Nob"y "~I,')
personally appeared SJ'ft>.1 Ü ~~I!i(.k)
N,m'I') ofSI,o"I')
D personally known to me
. ~proved to me on the basis of satisfactory
evidence
¡ - - - - - - - - ..:. - - - to be the person(,&f whose name(Gj- is/life
1 fj lfSUEACOTHRAN J subscribed to the within instrument and
: j , ' Commission II 12186~;r acknowledged to me that t;¡e/she/tÞey executed
I, z - NotolYPublic-CofifanlQ ~ the same in his/her/tReir authorized
! MyC~~~D=;:vm;,2XX!f capacity(i~), and that by bi&lher/t~r
... - - - - - - - - - - - signature(.&j on the instrument the person(~), or
the entity upon behalf of which the person(at
acted, executed the instrument.
I' PI,œ No"", S,,'Abo," ]
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: OPTIONAL ]
Though the information below is not required by law. it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reaffachment of this form to another document.
Description of Attached ~cument
TitieorTypeofDocument: tZtVA-í? 12Oþ,.1IJ.A~ Jí~~-r,
Document Date: ~ lib, ?.DO? Number of Pages: Eð + f\-e..tL- ':
]
Signer(s) Other Than Named Above:
Capacity(ies) Clai~ed by s~ner \
Signer's Name: V ¡1:u.¡ ~II:LJL ££ -j
0 Individual Top ~f thumb he,e
0 Corporate Officer - Titie(s):
0 Partner - 0 limited 0 General
0 Attorney in Fact
[J Trustee
0 Guardian or Conservator
IjlLOther: {it.f.c..v-rn12-
Signer Is Representing: MLL..~ L.Ieû:Sa\-¡ ))~
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