1993-878627
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Recordi g Requested By: ) 6uJ
)
City of )
)
)
When Re orded, Mail To: )
City Cle k )
City of ncinitas )
505 Sout Vulcan Avenue )
Encinita , CA 92024 )
SPACE ABOVE FOR RECORDER'S USE
ACCOMMOD nON flLlN8
PRIVATE ROAD MAINTENANCE AGREEMENT
FOR Parcel 3, PM No. 15669
Assesso 's Parcel Project No.:---------
No. 260 292-13 W.O. No. :377111
TH S AGREEMENT for the maintenance and repair of that certain
private road easement, the legal description and/or plat of which
is set orth in Exhibit A attached hereto and made a part hereof,
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is ente ed into by Herbert R. Schulzte, Trustee of Eli$abeth
A. Barne Trust (hereinafter referred 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 the extent the
Develope retains any ownership interest ~.n any lot or lots).
WHE BAS, 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
Encinita Municipal Code Section 24.16.060 and Section 24.29.040;
and,
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WH REAS, Developer is the owner of certain real property being
one parcel that will use and
enjoy benefit of said road easement. A complete legal
real property is attached, labeled Exhibit B,
reference. Said real property is hereinafter
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
desire of the Developer to establish a
r the maintenance and repair of said private road easement
and for the apportionment of the expense of such maintenance and
repair a ong existing and future lot owners; and'"
it is the intention of the Developer that this
constitute a covenant running with the land, binding upon
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
express I 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 in the subdivision and paid by the lot owner of the heirs,
assigns and successors in interest of 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 ratê. 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 and related drainage facilities to permit
all-weather access. 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
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and mai tain the private road easement as herein set forth shall
commenc when the private road improvements have been completed and
approve by the City.
6. Any extraordinary repair required to correct damage to
said ro d easement that results from action taken or contracted for
by lot their successors in interest shall be paid for by
action or party contracting for work which caused
ssity for the extraordinary repair. The repair shall be
to restore the road easement to the condition existing
said damage.
7. It is agreed that Developer is initially the agent to
and oversee and do all acts necessary to accomplish the
and maintenance required and/or authorized under this
Developer further agrees that the agent may at any time
be repl ced 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 wo k is needed. The agent shall obtain three bids from
licensed 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 urred 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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ànticip tes the need for funds, shall notify the parties and each
party s all within forty-five (45) days pay the agent, who shall
maintai a trustee account and also maintain accurate accounting
which are.to be available for inspection by any party or
authori ed agent upon reasonable request. All such records shall
be retaOned by the agent for a period of five years.
8. Should any lot owner fail to pay the pro rata share of
expenses as provided in this Agreement, then the agent
owners shall be entitled without further notice
the collection of funds advanced on
behalf f such lot owner in accordance with the provisions of
civil Code Section 845, and shall be entitled to recover
ction in addition to the funds advanced, interest thereon
at the urrent prime rate of interest, until paid, all costs and
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 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
acknowledgment 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.
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11. The foregoing covenants shall run with the land and shall
be for the benefit of the land of each of the lot
owners nd each and every person who shall at anytime own all or
ion of the property referred to herein.
).2. It is understood and agreed that the covenants herein
shall be binding on the heirs, executors, administrators,
successo s, and assignees of each of the lot owners.
13. It is the purpose of the signatories hereto that this
instrume t be recorded to the end and intent that the obligation
hereby c eated shall be and constitute a covenant running with the
land and any subsequent purchaser of all or any portion thereof,
by accep ance 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 e titled to enforce the terms of this Agreement to institute
legal ac ion as provided in Paragraph 8 hereof, such remedy to be
cumulati e and in addition to other remedies provided in this
Agreemen and to all other remedies at law or in equity.
14. The terms of this Agreement may be amended in writing
upon maj rity approval of the lot owners and consent of the City.
15. This Agreement shall be governed by the laws of the state
of Calif rnia. In the event that any of the provisions of this
Agreemen are held to be unenforceable or invalid by any court of
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jurisdiction, the validity, and enforceability of the
provisions shall not be affected thereby.
If the Property constitutes a "Common Interest
defined in California civil Code section 1351(c)
include membership in or ownership of an "Association"
in California civil Code Section 1351(a), anything in
this Ag eement to the contrary notwithstanding, the following
provisio s shall apply at and during such time as (i) the Property
be red by a "Declaration" (as defined in California civil
tion 1351 (h), and (ii) the Common Area of the property
(includi g the private road easement) is managed and controlled by
an AssocOation:
(a) The Association, through its Board of Directors, shall
repair a d maintain the private road easement and shall be deemed
the "age t" as referred to in Paragraph 7 above. The Association,
which sh II not be replaced except by amendment to the Declaration,
shall re eive no compensation for performing such duties. The
costs of such maintenance and repair shall be assessed against each
owner an his subdivision interest in the Property pursuant to the
Declarat on. The assessments shall be deposited in the
Associat on's corporate account.
(b) The provisions in the Declaration which provide for
assessme t 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,
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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 the Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the :2 S- f2 day of b Eel:' /'1 ßc,¿ , 19 73 .
Developer:
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., I Signature of DEVELOPER mus Attach
. the appropriate ackn~wledge
STATE OF CALIFORNIA Iss.
COUNTY OF.. Siill Di.fègO - --- 6 L 4-
. t On_..J)e,,~be.!:._.2 7 L_t9 9:1.-- - befme me, the undecsigned, a Nota", Public in and foe
ro . DOUGLAS HARWOOD
~ sa,d State, pecsonally appeaced- pecsonally
'õ; known to me (m proved to me on the basis of the oath of-
;: acrediblewitnesswho is pecsonally known 10 me) 10 bethe person whose name is subscribed lathe within inslcumenl, as
. iJ a witness thereto, who being by me duly swam. deposed and sai",
~ That helshe cesides in __.lìnciQi t1!h CA_- -
'. ~ -- -- - -- , thaI he/sRI'< OmCiiAL SEAl"
~ was present and saw_HERI\F;RT R. SCHULZE SUZETTE LAU
~ NOI:Þ.RY PUBlIC-CMR)RNIA
S -, personally NOfARY BOND FILED IN
;¡: known 10 '-hecla be thesame pecson(£) desccibed in and who SAN DIEGO COUNTY
T executed the within inslcumenl, as a partYlies) theceto,1§¡'¡,n, seat My CommÌ8lOl1 Expires Apn; 27, 1994
N and deliver the same and that said party(ies) duly acknowledged
'" in the peesence 5If§åid affiant, thaI he/she/th~ executed the
'£ same, and IhaVaid affiant, theceupon I the Party'sl,es') request,
§ Subsccibe9-"1. Œ§¡ asawitn IheceI1&~ -. Mrin his authorized capacity
'" WITNESS~7 a , V'/"ý...-- ~ .
Signalur'?~_e ,j¿ - ----- -- --- -- (This acea foe official nolanal seal)
" EXHIBIT "A" .
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EXHIBIT "B" 6iG
Parcel, in the City of Encinitas, County of San Diego, State of
Califor ia, according to Parcel Map No. 15669, recorded in the
Office f the San Diego County Recorder on May 11, 1989 as
Instrum nt No. 89-250983 of Official Records (formerly Known as
Lot 1, lock 94, CARDIFF VISTA, According to Map No. 1547,
recorde May 18, 1913).