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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: -, . ; . 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. -, . . 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: