1994-341823
'1
" . DO~U 1994~O341823
1991
24-MAY-1994 03=45 PM
Recordin Requested By: )
City of ncinitas ) OFFICIAL RECORDS
505 Sout Vulcan Avenue ) SAN DIEGO COUNTY RECORDER'S OFFICE
Encinita , CA 92024 ) GREGOF:Y SMITH, COUNìY RECORDER
mail to: ~¿~. RF: 15.00 FEES: 41.00
When.rec AF: 25.00
MF: 1. 00
City of ncinitas );,-::.
505 Sout Vulcan'Avenue ) \ '\
Encinita , CA 92024 ). ¡
)
) SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD AND DRAINAGE MAINTENANCE AGREEMENT
FOR TPM 89-180
'Assessor's Parcel
NO. 261 010-10 and 261-200-01 Project No. TPM 89-180 TM/MUP
W.O. No. 3259 FM
AGREEMENT for the maintenance and repair of that certain
private road and drainage easement, hereinafter referred to as
private the legal description and/or plat of which is set
forth i Exhibi t A attached hereto and made a part hereof, is
entered into by Daniel T. Shelley, (hereinafter referred to as
the b~nefit of future subdivision lot owners who
will us the private easement (hereinafter referred to as "lot
owners", which shall include the Developer to the extent the
Develope retains any ownership interest in any lot or lots).
WHE EAS, 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 24.16.060 and section 24.29.040; and,
.. . . 1992
S, Developer is the owner of certain real property being
subdivide and developed as 89-180TM/MUP that will use and enjoy
the benefi of said private easement. A complete legal description
of said property is attached, labeled Exhibit B, and
d by reference. Said real property is hereinafter
referred t as the "property"; and
S, it is the desire of the Developer that said private
easement maintained in a safe and usable condition by the lot
S, it is the desire of the Developer to establish a
method for the maintenance and repair of said private easement and
for the ap ortionment of the expense of such maintenance and repair
among exis ing and future lot owners;
and
WHERE S, it is the intention of the Developer that this
Agreement onstitute a covenant running with the land, binding upon
each succe sive lot owner of all or any portion of the property.
NOW THEREF RE, IT IS HEREBY AGREED AS FOLLOWS:
1. T e property is benefited by this Agreement, and present
and succes ive lot owners of all or any portion of the property are
expressly ound hereby for the benefit of the land
2. T e cost and expense of maintaining the private easement
shall be d vided equally amount the subdivided parcels created in
the subdiv sion and paid by the lot owner of the heirs, assigns and
successors in interest of each such owner.
. . 1993
3. In the event any of the herein described parcels of land
are sub ivided further, the lot owners, heirs, assigns and
successo interest of each such newly created parcel shall be
this Agreement for their then pro rata share of
such pro rata shares of expenses shall be computed to
reflect uch newly created parcels.
4. The repairs and maintenance to be performed under this
Agreemen shall be limited to the following unless the consent for
addition 1 work is agreed to by a majority vote of the lot owners
owning 100% of the number of parcels, including subdivisions
thereof s described in Paragraph 3 above: reasonable and normal
road ma ntenance work to adequately maintain said private
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, epairing and resurfacing of roadbeds, repairing and
maintain' ng drainage structures, periodic cleaning of brow ditches
and desi ting basin, removing debris, maintaining signs, markers,
striping and
lighting, if any, and other work reasonably necessary and proper to
repair ad preserve the private easement for all-weather road
purposes.
5. If there is a covenant, agreement, or other obligation
imposed s a condition of subdivision approval to make private
. . 1994
road planning improvements to the private easement, the
obligati n to repair and maintain the private easement as herein
shall commence when the private road, and drainage
improvements have been completed and approved by the city.
6. Any extraordinary repair required to correct damage to
said pri ate easement that results from action taken or contracted
for by 1 owners or their successors in interest shall be paid for
by the p rty taking action or party contracting for work which
caused t e necessity for the extraordinary repair. The repair
shall be such as to restore the road easement to the condition
existing prior to said damage.
7. It is agreed that Developer is initially the agent to
contract and oversee and do all acts necessary to accomplish the
repairs nd maintenance required and/or authorized under this
Developer further agrees that the agent may at any time
ed at the direction of a majority of the lot owners.
maintenance work on the private easement and/or drainage
hall be commenced when a majority of the lot owners agree
in writi that such work is needed. The agent shall obtain three
licensed contractors and shall accept the lowest of said
three bi s and shall then initiate the work. The agent shall be
paid for 11 costs incurred including a reasonable compensation for
the agent's services, and such costs shall be added to and paid as
. . 1995
part of t e repair and maintenance costs; provided, however, that
compensat on for the agent's services shall in no event exceed an
ivalent to 10% of the actual cost of repairs and
maintenan e performed. In performing his duties, the agent, as he
anticipat s the need for funds, shall notify the parties and each
party sha forty-five (45) days pay the agent, who shall
maintain trustee account and also maintain accurate accounting
ich are to be available for inspection by any party or
authorize agent upon reasonable request. All such records shall
be retain d by the agent for a period of five years.
8. hould any lot owner fail to pay the pro rata share of
xpenses as provided in the Agreement, then the agent or
any lot ower 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
California Civil Code Section 845, and shall be
entitled 0 recover in such action in addition to the funds
advanced, 'nterest thereon at the current prime rate of interest,
until paid, all costs and disbursements of such action, including
such sum r sums as the Court may fix as and for a reasonable
attorney's fees.
9. y liability of the lot owners for personal injury to the
agent here nder, or to any worker employed to make repairs or
. . 1996
intenance under this agreement, or to third persons, as
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 arising out of repairs and maintenance under this Agreement,
shall be as between the lot owners in the same percentages
as they the costs and expenses of such repairs and
Each lot owner shall be responsible for and maintain
his own i if any. By this Agreement, the Developer does
to provide for the sharing of liability with respect to
personal i jury or property damage other than that attributable to
and maintenance undertaken under this Agreement. Each
owners agrees to indemnify the others from any and all
or injury to himself or damage to his property when such
injury or amage results from, arises out of, or is attributable to
any maint or repairs undertaken pursuant to this Agreement.
10. Lot owners shall jointly and severally defend and
indemnify hold harmless city, city's engineer and its
consultan each of its officials, directors, officers, agents
and emplo ees from and against all liability, claims, damages,
enses, personal injury and other costs, including costs
and attorney's fees, to the agent hereunder or to any
any contractor, any subcontractor, any user of the
ement, or to any other third persons arising out of
. . 1997
or in any way related to the use of, repair or maintenance of, or
e to repair or maintain the private easement.
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
ent of a responsibility for any such matter, and City,
ineer and its consultants, and each of its officials,
directors, officers, employees and agents, shall have no
responsibility or liability therefore.
11. he 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 portio of the property referred to herein.
12. It is understood and agreed that the covenants herein
contained hall be binding on the heirs, executors, administrators,
successors, and assignees of each of the lot owners.
13. It is the purpose of the signatories hereto that this
instrument be recorded to the end and intent that the obligation
hereby cre ted shall be and constitute a covenant running with the
land and a y subsequent purchaser of all or any portion
thereof, y acceptance of delivery of a deed and/or conveyance
regardless of form, shall be deemed to have consented to and become
bound by t ese presents, including without limitation, the
,. . .
1998
right of a y person entitled to enforce the terms of this Agreement
to instit te legal action as provided in Paragraph 8 hereof, such
remedy to e cumulative and in addition to other remedies provided
in this A eement and to all other remedies at law or in equity.
14. The terms of this Agreement may be amended in writing
upon majority approval of the lot'owners and consent of the city.
15. his Agreement shall be governed by the laws of the state
In the event that any of the provisions of this
Agreement re held to be unenforceable or invalid by any court of
competent jurisdiction, the validity, and enforceability of the
remaining rovisions shall not be affected thereby.
16. If the Property constitutes a "Common Interest
Developmen " as defined in California Civil Code Section 1351 (c)
which will include membership in or ownership of an "Association"
as defined in California Civil Code Section 1351(a), anything in
this Agre ment to the contrary notwithstanding, the following
provisions shall apply at and during such time as (i) the Property
is encumbe ed by a "Declaration" (as defined in California Civil
Code Secti n 1351(h), and (ii) the Common Area of the property
(including the private easement) is managed and controlled by an
Associatio:
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; . 1999
(a) The Association, through its Board of Directors, shall
repair an maintain the private easement and/or drainage and sewer
facility nd 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 Associations 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
Civil Cod Section 1351 (b) in the Property except as may be
allowed b the Declaration.
(c) his Agreement shall not be interpreted in any manner
which re ces or limits the Association's rights and duties
pursuant 0 its Bylaws and the Declaration.
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. 2000
IN WITNESS WHEREOF, the parties have executed this Agreement on the
~da Ap~r :J
of , 199}'.
Assessor's Parcel No. 260-10-10 & 261-200-01
DANIEL T. SHELLEY, as owner
. . 2001
)
STATE OF ALIFORNIA )
COUNTY OF SAN DIEGO ) SS.
ON (BEFORE ME, THE UNDERSIGNED,
A NOTARY UBL IN AND FOR SAID STATE, PERSONALLY
APPEARED Daniel T. Shelle (PERSONALLY
KNOWN TO ME) (PROVED TO ME ON THE BASIS OF
SATISFACT RY EVIDENCE) TO BE THE PERSONfS) WHOSE
NAME(~ I /ARB SUBSCRIBED TO THE WITHIN INSTRUMENT
AND ACKNO LEDGED TO ME THAT HE/3HI!:/TH~'l EXECUTED
THE SAME N HIS/IIER/THE-IR AUTHORIZED CAPACITY (rBS) ,
AND THAT BY HIS/BERfTIfE'ER SIGNATURE (s-) ON THE
INSTRUMEN THE PERSON(~), OR THE ENTITY UPON BEHALF
OF WHICH THE PERSON(S:¡ ACTED, EXECUTED THE
INSTRUMEN.
WITNESS EREOF I HAVE SET MY HAND THIS ¿r71
DAY OF UG-uS¡ , 1993.
SIGNATURE ~ ~J~
NAME: ,( ~
PRINCIPAL P E OF BUSIN SS:
MY COMMIS ION EXPIRES: