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1999-483635 '. "! . 2795 DOC 81999-0483635 JUL 13. 1999 9:12 AM Recording Requested by: ) IJFICIrt. REcœœ ) Sit! DIEoo C!OOY REcœDER' S OFFICE City of E cinitas ) GmlIRV J. SMITH. roJffi' RECIJOO ) ms: 47.00 When Reco ded Mail To: ) ~ city Cler ) 1IIIIIIIIIillll~~III~~I~1 City of E cinitas ) 505 S. Vu can Avenue ) SPACE J II~ nc'n t C 1999-0483635 PRJ:VATB ROAD AND DUJ:NAGB FACJ:LJ:TJ:BS MAJ:NTBNAIITCB AGRBBKBNT FOa Alexandra Lane & H~ton Court Assessor' Parcel Project No.: TM 98-110 No. 254-63-03 W.O. No.: 5722-IR THIS AGREEMENT for the maintenance and repair of that certain private r ad easement, the legal description and/or plat of which is set fo h in Exhibits ~ attached hereto and those private drainage acilities, the legal description and/or plat of which is set forth in Exhibits N/A attached hereto and made a part hereof, i entered into by Shea Homes Limited Partnership, a Califor ia limited (hereinafter referred to as "Develope ") for the benefit of future subdivision lot owners who will use he private road easement (hereinafter referred to as "lot owners", hich shall include the Developer to the extent the retains any ownership interest ~n any lot or lots). WE AS, this Agreement is required as a condition of approval by the ci y of Encinitas of a subdivision project as defined in section 2 065 of the Public Resources code and pursuant to city of Encinitas Municipal Code Section 24.16.060 and section 24.29.040: cov4173 1 -, . 2796 . and, , Developer is the owner of certain real property being and developed as TM 98-110 that will use and of said road easement. A complete legal real property is attached, labeled Exhibit ~ orated by reference. Said real property is hereinafter 0 as the "property"; and , it is the desire of the Developer that said private road ease ent and drainage facilities be maintained in a safe and usable co dition by the lot owners; and WE , it is the desire of the Developer to establish a method fo the maintenance and repair of said private road easement and drain ge facilities and for the apportionment of the expense of such main enance and repair among existing and future lot owners: and WE AS, it is the intention of the Developer that this Agreement constitute a covenant running with the land, binding upon each succ ssive lot owner of all or any portion of the property. NOW THERE ORE, IT IS HEREBY AGREED AS FOLLOWS: 1. The property is benefitted by this Agreement, and present and succe sive lot owners of all or any portion of the property are cov4173 2 . . 2797 . " express 1 bound hereby for the benefit of the land. 2. The cost and expense of maintaining the private road easement nd drainage facilities shall be divided equally among the subdivid parcels created in the subdivision and paid by the lot owner of e heirs, assigns and successors in interest or each such owner. 3. In the event any of the herein described parcels of land are subd'vided further, the lot owners, heirs, assigns and successor in interest of each such newly created parcel shall be liable u der this Agreement for their then pro rata share of expenses nd such pro rata shares of expenses shall be computed to reflect s ch newly created parcels. 4. The repairs and maintenance to be performed under this Agreement shall be limited to the following unless the consent for additiona work is agreed to by a majority vote of the lot owners owning 1 0% of the number of parcels, including subdivisions thereof a described in Paragraph 3 above: reasonable and normal road impr vement and maintenance work to adequately maintain said private r ad easement and drainage facilities to permit all-weather conveyance of storm flows. Repairs and maintenance Agreement shall include, but is not limited to, filling of chuc repairing cracks, repairing and resurfacing of roadbeds, repairing and maintaining drainage structures, removing cov4173 3 . 2798 . debris, intaining signs, markers, striping and lighting, if any, and othe 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 a a condition of subdivision approval to make private road improveme ts to the private road easement, the obligation to repair and main in the private road easement as herein set forth shall commence hen the private road improvements have been completed and approved 6. Any extraordinary repair required to correct damage to said road easement or drainage facility that results from action taken or contracted for by lot owners or their successors in interest hall be paid for by the party taking action or party contracti g for work which caused the necessity for the extraordi ary repair. The repair shall be such as to restore the road ease ent or drainage facility to the condition existing prior to said d mage. 7. It is agreed that Developer is initially the agent to contract nd oversee and do all acts necessary to accomplish the repairs d maintenance required and/or authorized under this Agreement Developer further agrees that the agent may at any time be replac d at the direction of a majority of the lot owners. Repair an maintenance work on the private road easement and cov4173 4 . ,. .. 2799 drainage facilities shall be commenced when a majority of the lot owners ag ee in writing that such work is needed. The agent shall obtain ree bids from licensed contractors and shall accept the said three bids and shall then initiate the work. The 1 be paid for all costs incurred including a reasonable for the agent's services, and such costs shall be as a part of the repair and maintenance costs; that compensation for the agent's services shall in no eve t exceed an amount equivalent to 10% of the actual cost and maintenance performed. In performing his duties, as he anticipates the need for funds, shall notify the each party shall within forty-five (45) days pay the shall maintain a trustee account and also maintain accurate accounting records which are to be available for inspectio 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 0 er 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 Californi Civil Code Section 845, and shall be entitled to recover , in such a tion in addition to the funds advanced, interest thereon at the cu rent prime rate of interest, until paid, all costs and cov4173 5 . 28Ø0 . disburse nts 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 agent hereunder, or to any worker employed to make repairs or provide m intenance under this Agreement, or to third persons, as well as a y 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 ari ing out of repairs and maintenance under this Agreement, shall be orne, as between the lot owners in the same percentages as they bear the costs and expenses of such repairs and maintenan e. Each lot owner shall be responsible for and maintain his own i surance, if any. By this Agreement, the Developer does not inten to provide for the sharing of liability with respect to personal njury or property damage other than that attributable to the repai s and maintenance undertaken under this Agreement. Each of the 10 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 maint nance 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 consultan s and each of its officials, directors, officers, agents and emplo ees from and against all liability, claims, damages, losses, e penses, personal injury and other costs, including costs cov4173 6 . æt)¡j. . of de fen e 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 relat d to the use of, repair or maintenance of, or the failure to repai or maintain the private road easement or drainage facilitie . Noth "ng in the Agreement, the specifications or other contract documents or city's approval of the plans and specifications or inspectio of the work is intended to include a review, inspection acknowled ement of a responsibility for any such matter, and City, City's en ineer and its consultants, and each of its officials, directors officers, employees and agents, shall have no responsib lity or liability therefore. 11. 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 an 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, executors, administrators, successor, and assignees of each of the lot owners. 13. It is the purpose of the signatories hereto that this instrumen be recorded to the end and intent that the obligation cov4173 7 . 2802 . hereby c eated shall be and constitute a covenant running with the land and ny subsequent purchaser of all or any portion thereof, by acceptan e of delivery of a deed and/or conveyance regardless of form, to have consented to and become bound by these pr sents, including without limitation, the right of any person en itled to enforce the terms of this Agreement to institute provided in Paragraph 8 hereof, such remedy to be cumulativ 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 majo ity approval of the lot owners and consent of the city. 15. This Agreement shall be governed by the laws of the state of Califo ia. 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 Developme t" as defined in California Civil Code Section 1351 (c) which wil include membership in or ownership of an "Association" as define in California Civil Code Section 1351(a), anything in this Agr ment to the contrary notwithstanding, the following provision shall apply at and during such time as (i) the Property is encumb red by a "Declaration" (as defined in California Civil cov4173 8 . . 2803 . Code Sec ion 1351(h), and (11) the Common Area of the property (includi g the private road easement) is managed and controlled by (a) The Association, through its Board of Directors, shall repair maintain the private road easement and drainage faciliti s and shall be deemed the "agent" as referred to in 7 above. The Association, which shall not be replaced except amendment to the Declaration, shall receive no compensation for performing such duties. The costs of such e and repair shall be assessed against each owner and his n interest in the Property pursuant to the Declaration. ments shall be deposited in the Association's corporate account. (b) The provisions in the Declaration which provide for assessmen liens in favor of the Association and enforcement thereof supersede Paragraph 8 of the Agreement in its entirety. No individual owners shall have the right to alter, maintain r repair any of the Common Area (as defined in California section 1351(b) in the Property except as may be allowed by the De laration. (c) This Agreement shall not be interpreted in any manner which re uces or limits the Association's rights and duties pursuant 0 its Bylaws and Declaration. cov4173 9 " . . ZgO4 IN ITNESS WHEREOF, the parties have executed this Agreement on the :2'-1-1-1-, day of Ma.r ' 19<1<'1 . Developer: Shea Homes Limited Partnership, a California limited partnership By: J. F. Shea Co., Inc., a Nevada corporation, General Partner By: By: Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. cov4173 10 . 2805. ) ) 8.8. ) On May 24, 999, before me, 8usan 1. Trimingham, Notary Public, personally appeared Richard Gustafson d Dale Holbrook personally known to me to be the persons whose names are subscribed to the within instnunent and acknowledged to me that they executed the same in their authorized c acities, and that by their signatures on the instnunent the persons, or the entity upon behalf of will h the persons acted, executed the instnunent. t-~"-~~~~~~f - @ ~, 1126478 Notary FUbIc - ~ San DIego CCU1Iy - co 1- - - ~Y:':" ~~_26.~ I 06 EXHIBIT -A- mWUVNW -- . ~ - " - ~ Ii) æ 13 14 15 16 17 18 Ctjl I 5 33 9 8 7 6 .J4 :J5 36 ~ ~ 72' WIDE PUBLIC RQAO AND PUBLIC VI /JT1UTY EASEMENT ro THE CRY OF ENCINITAS PER MAP NO, 1JJ56 I I 'RIVA TE ROAD PiA T FOR S ~ ENCINITAS RANCH SJ¡ ONIA EAST ~ DEVONSHIRE & 5-25-99 5(.{)()2X21.0WG 5(.{)()2.10 . 2807 . EXHIBIT B PRIVATE ROAD LEGAL DESCRIPTION ALL THAT ORTION OF LOT 56 OF CITY OF ENCINITAS TRACT NO. 94-066 IN THE CITY OF E CINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE M P THEREOF NO. 13356 RECORDED IN THE OFFICE OF THE RECORDER OF SAID S N DIEGO COUNTY SEPTEMBER 4, 1996, BEING A 60 FOOT WIDE STRIP OF LAND 3 FEET EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: BEGINNIN AT THE NORTHEAST CORNER OF SAID LOT 56; THENCE A ONG THE EASTERLY LINE OF SAID LOT 56 SOUTH 5°09'47" WEST, 172.90 FEE TO THE BEGINNING OF A TANGENT 550 FOOT RADIUS CURVE, CONCAVE ORTHWESTERL Y; THENCE S UTHWESTERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL NGLE OF 44°37'13", A DISTANCE OF 428,32 FEET; THENCE S UTH 49°47'00" WEST, 258.72 FEET; THENCE LAVING SAID EASTERLY LINE NORTH 40° 13'00" WEST, 36.00 FEET TO THE TRUE OINT OF BEGINNING' THENCE C NTINUING NORTH 40°13'00" WEST, 51.14 FEET TO THE BEGINNING OF A TANGEN 210 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE N RTHERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5°08'36", A DISTANCE OF 165.46 FEET; THENCE N RTH 4°55'36" EAST, 61.41 FEET TO A POINT HEREINAFTER REFERRED TO AS "POI TAu; THENCE C NTINUING NORTH 4°55'36" EAST, 199,96 FEET TO THE BEGINNING OF A TANGEN 50 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE E STERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 7°22'23", A DISTANCE OF 67,52 FEET; THENCE N RTH 82°17'59" EAST, 86.50 FEET; TO THE TO THE BEGINNING OF A TANGENT 00 FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE E STERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF °07'06", A DISTANCE OF 74.75 FEET; THENCE N RTH 88°25'05" EAST, 100.64 FEET TO THE CENTER OF A 45.00 FOOT RADIUS C L-DE-SAC, TOGETHE WITH TO 60 FOOT WIDE STRIP OF LAND 30 FEET EACH SIDE OF THE FOLLOWIN DESCRIBED CENTERLINE: BEGINNIN AT THE POINT PREVIOUSLY DESCRIBED AS "POINT A"; THENCE N RTH 88°07'52" EAST, 274.20 FEET; THENCE S UTH 1 °52'08" EAST, 20.00 FEET TO THE CENTER OF A 45.00 FOOT RADIUS C L-DE-SAC. S8&0. INC. E"ci"it", Ranch - Sid..ia E",' Jab Na, 54002.00, '" 25, 1999 D,15400211.gaIs154002JD . 2808 . EXHIBIT "C" PROJECT NO 98-110 PROPERTY DESCRIPTION LOT 56 OF ITY OF ENCINITAS TRACT NO. 94-066 IN THE CITY OF ENCINITAS, COUNTY 0 SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO THE MAP THEREOF 0,13356 RECORDED IN THE OFFICE OF THE RECORDER OF SAID SAN DIEG COUNTY SEPTEMBER 4, 1996. 1 OF 1