1998-643623
~ ' '. . DOC. 1998-0643623
,;
.-"'" . 1199
OCT 06. 1998 3:19 PM
Recording Requested by: (ffICIIl REcœDS
city of E cinitas 8M DIEro O1.KfV RECImR'S (fflCE
GRE1D1V J. gUTH. CIllffi' RECImR
ded Mail To: FEES: 47.00
ff; SPACE Ai IIIIIIIIII~III~III~IIII~~III~II~IIIIIIIIIII~IIII
¡q¡J 1998.0643623
~vi~ PRrvATB ROAD A!ID DRAINAGB I'ACILITIBS
MAINTENANCB AGRBBMBNT
FOR TM9~-185
Assessor' Parcel Project No.: TM 96 -185
No. 262-06 -11 W.O. No.: '5414-Gi
THIS AGREEMENT for the maintenance and repair of that certain
private r ad easement, the legal description and/or plat of which
h in Exhibits ~ attached hereto and those private
drainage acilities, the legal description and/or plat of which is
in Exhibits B attached hereto and made a part
hereof, i entered into by DANIEL T. SHELLEY
(hereinafter referred to as
"Develope ") for the benefit of future subdivision lot owners who
will use e 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).
WHE , 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;
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.\.,
and,
, Developer is the owner of certain real property being
TM,96+1s5 that will use and
benefit of said road easement. A complete legal
n of said 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
WHE S, 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
WHE , it is the intention of the Developer that this
Agreement constitute a covenant running with the land, binding upon
ssive lot owner of all or any portion of the property.
1. The property is benefitted by this Agreement, and present
or any portion of the property are
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expressly 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
subdivide parcels created in the subdivision and paid by the lot
owner of he 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
repairing cracks, repairing and resurfacing of
roadbeds, repairing and maintaining drainage structures, removing
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debris, m intaining ~iqns, markers, striping and lighting, if any,
C-"
and othe work reasonably necessary and proper to repair and
preserve he 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 maint in the private road easement as herein set forth shall
commence hen the private road improvements have been completed and
appt-oved y the city.
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 9 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 nd 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.
d maintenance work on the private road easement and
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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
lowest 0 said three bids and shall then initiate the work. The
agent sha I be paid for all costs incurred including a reasonable
compensat'on 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 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
parties d each party shall within forty-five (45) days pay the
0 shall maintain a trustee account and also maintain
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
er or owners shall be entitled without further notice to
action for the collection of funds advanced on
behalf 0 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
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disbursem nts of such action, including such sum or sums as the
Court may 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 lo 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 enses, personal injury and other costs, including costs
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e and attorney's fees, to the agent hereunder or to any
, any contractor, any subcontractor, any user of the road
or to any other third persons arising out of or in any
the use of, repair or maintenance of, or the failure
or maintain the private road easement or drainage
ing in the Agreement, the specifications or other contract
or City's approval of the plans and specifications or
of the work is intended to include a review, inspection
ement of a responsibility for any such matter, and city,
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
to be for the benefit of the land of each of the lot
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
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ated shall be and constitute a covenant running with the
ny subsequent purchaser of all or any portion thereof, by
e of delivery of a deed and/or conveyance regardless of
form, 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
cumulati 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 Calif nia. 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 ement 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
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Code Sec ion 1351(h), and (H) the Common Area of the property
(includin the private road easement) is managed and controlled by
an Associ tion:
(a) The Association, through its Board of Directors, shall
repair a d maintain the private road easement and drainage
facilitie and shall be deemed the "agent" as referred to in
Paragraph 7 above. The Association, which shall not be replaced
except b amendment to the Declaration, shall receive no
compensat on for performing such duties. The costs of such
maintenan e and repair shall be assessed against each owner and his
subdivisi n interest in the Property pursuant to the Declaration.
The asses 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.
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IN W TNESS WHEREOF, the parties have executed this Agreement
on the !f!-- day of 5£ ?r- , 1921L.
Signature of DEVELOPER must be nota Attach
the appropriate acknowledgement.
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1209
CALIFORNIA LL.PURPO.CKNOWLEDGMENT. No, 5907
State of At-lrO(?,¡Vt,A
County of >1/'" 'þ,"'Þè>
On 7 6<1n-I'1"18 before me, 7<>o",e;,p be ¡Jv(' r /foTflf'! t( P.;i?ac
DATE NAME, TITLE OF OFFICER. E.G" "JANE DOE, NOTARY PUBLIC"
personally ppeared VA-tV fE'£. T 5HE"¿i5"t" . ,
~ NAMEIS) OF SIGNERIS)
D persona Iy known to me . OR . roved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
OFRCIAL SEAL WITNESS my hand and official seal.
ROGER DE PUY
NOTARY PlJlLIC-CALIFOANIAj ¿ )-
COMM.NQ,IIðQ646 -
SAN DIEGO COUN1Y
MY COMM. EXP, 1¥:1'i.23,:øl1 ~TUREOFN07ARY
OPTIONAL
Though the dat below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reat! chment of this form.
CAPA ITV CLAIMED BV SIGNER DESCRIPTION OF ATTACHED DOCUMENT
D INDIVIDU
D CORPOR E OFFICER
TITLE OR TYPE OF DOCUMENT
TlTLEIS)
D PARTNER S) D LIMITED
D GENERAL
D ATTORNE -IN-FACT NUMBER OF PAGES
D TRUSTEE)
D GUARDIA ¡CONSERVATOR
D OTHER:
DATE OF DOCUMENT
SIGNER IS RE RESENTING:
NAME OF PERSONIS) OR ENTI7YIIES)
SIGNER(S) OTHER THAN NAMED ABOVE
<1:>1993 NATIONAL NOTARY ASSOCIATION. 8236 Remme' Ave" P,O, Box 7184' Canoga Park, CA 91309-7184
1210
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EXHIBIT "E"
FOR PRIVAT DRAINAGE IMPROVEMENTS SEE CITY OF ENCINITAS GRADING PLAN
NO 5414_G
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EXHIBIT ncn
LEGAL DESCRIPTION
THE NORTH 0 E HALF OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER, AND THE
SOUTHWEST Q ARTER OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 24, TOWNSHIP 13 SOUTH, RANGE 4 WEST. SAN BERNARDINO MERIDIAN,
ACCORDING T UNITED STATES GOVERNMENT SURVEY APPROVED APRIL 19, 1881.