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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; cov4173 1 ~. Þ , . 1200 . .\., 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 cov4173 2 ~ . 1201 . 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 cov4173 3 . .. . 1202 . -"". 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 cov4173 4 . 1203 . 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 cov4173 5 ." . 1204 . 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 cov4173 6 . 12u5 . . ", 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 . 1206 . 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 cov4173 8 . 1207 . 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. cov4173 9 . 1208 . 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. cov4173 10 ----- 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. 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H Z 0 lD 01 lD 0 (Y1 0 I'- 0 CD C\J C\J Lr1 (Y1 lDO 0 01 lDOCD H U C\J 0 Lr1 '<1 Lr1 Lr1 0 - - -'<1 '<1'<1 (Y1 -0 0 Lr1 OC\J- Z «" w ..... I'- I'- '<1(Y1 I'- (Y1 '<1Lr1 CD Lr1 lD 01 '<10 CD 00 00 '<1 1'-1'-1'- ..J '<1 Lr1 (Y1 ::> '<1 ~ (Y1 (Y1 (Y1 ~ - :'T ::> ::> :"':'T :'T (Y1 ~:'T~ u. w 0 0 - lD C\J Lr1 01 0 00 - I'- C\J Lr1 '<1 I'- (Y1 '<1C\J C\J C\J lD-oo Lr1 '<1 (Y1 lD 0 01 (Y1 C\J Lr1 lD -C\J Lr1 lD (Y1- - (Y1 '<1Lr1C\J >- C\J ..... H U W -C\J (Y1 '<1 Lr1 lD I'- CD 01 0 -C\J (Y1 '<1Lr1 lD I'- CD 010- ZU U U U U U U U U - - - - - - - - - -C\JC\J H U U U U U uu u u uuu ..J cl ,oO~=,,~ 3l\f::JS '\. Z ~ . ~ . . EXHIBIT "E" FOR PRIVAT DRAINAGE IMPROVEMENTS SEE CITY OF ENCINITAS GRADING PLAN NO 5414_G ,. '. . 1~12 . . 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.