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1993-878627 . . .' 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, ~ ~'!< 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, BW/04/BC -nOwp5 (2/26/91) 1 , . . 6üG 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 BW/O4/BC -110wp5 (2/26/91) 2 . . 607 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 BW/04/BC2-11Owp5 (2/26/91) 3 '. . . 6u8 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 BW/04/BC -1l0WPS (2/26/91) 4 . . 6u9 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 BW/04/BC -1l0wp5 (2/26/91) 5 '. . . 6.ì.0 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. BW/04/BC2-110wpS (2/26/91) 6 o. . . 6d 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 BW/04/BC -110wp5 (2/26/91) 7 .. . . 6 L.'3 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, BW/04/BC -110wp5 (2/26/91) 8 . . 613 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: ~. Pt. J4, I~,-< ð-- . ~ fi. 8 <4v,,-- /'~.,. w T ",6:"77 ., 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" . . ,'. . " .' 6[5 1 - '1"" "I 'I'M r",;1 eRnM "1 ,', 7",'1 "I: ,. .. . . 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).