1992-640751
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." JL H 17.L-vuqVIJl
0 -OCT-1992 09:49 AM
Recordin Requested By: ) OFFICIAL RECORDS
City of ncinitas ) SAN DIEGO COUNTY mORDER'S OFFICE
527 Enci itas Boulevard ) ANNETTE COUNTY RECORDEF.
Encinita , CA 92024 ) F:F: GO "IS: 47.00
) Q AF: 29.00
When rec rded, mail to: )¿, MF: 1. 00
City of ncinitas ¡\/
527 Enci itas Boulevard
Encinita , CA 92024 )
)
) SPACE ABOVE FOR RECORDER'S USE
PRIVATE SEWER AND ROAD MAINTENANCE AGREEMENT
FOR TPM 91-042
Assessor 's Parcel
NO. 298- 81-36, 37, 38 Project No. TPM 91-042
W.O. No. 2984 PM
THI AGREEMENT for the maintenance and repair of that certain
sewer an private road easement, hereinafter referred to as private
road eas ment, 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 Kenneth Dean Smith and Christine Anne Smith,
(hereina ter referred to as "Developer") for the benefit of future
subdivis 'on lot owners who will use the private easement
(hereina ter referred to as "lot owners", which shall include the
Develope to the extent the Developer retains any ownership
interest in any lot or lots).
WHE EAS, this Agreement is required as a condition of approval
by the C 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,
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~ EAS, Developer is the owner of certain real property being
SUbdivt d and developed as TPM 91-042 that will use and enjoy the
benefi¡ of said road and sewer easement. A complete legal
descri t'on of said real property is attached, lableled Exhibit B,
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and in~o porated by reference. Said real property is hereinafter
referr¡e to as the "property"; and
~E EAS, it is the desire of the Developer that said private
road ar sewer easement be maintained in a safe and usable
condi~'O by the lot owners; and
E EAS, it is the desire of the Developer to establish a
method f r the maintenance and repair of said private road and
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sewer 1a ement and for the apportionment of the expense of such
mainte~a ce and repair among existing and future lot owners;
and
it is the intention of the Developer that this
Agreemen constitute a covenant running with the land, binding upon
essive lot owner of all or any portion of the property.
NOW THE~ FORE, IT IS HEREBY AGREED AS FOLLOWS:
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1.1 he property is benefited by this Agreement, and present
and sucJe sive lot owners of all or any portion of the property are
express~y bound hereby for the benefit of the land
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2'~ he cost and expense of maintaining the private road and
sewer e ement shall be divided equally amount the subdivided
parcels c eated in the subdivision and paid by the lot owner of the
heirs, ~s igns and successors in interest of each such owner.
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3 In the event any of the herein described parcels of land
are further, the lot owners, heirs, assigns and
interest of each such newly created parcel shall be
under this Agreement for their then pro rata share of
pro rata shares of expenses shall be computed
created parcels.
The repairs and maintenance to be performed under this
Agree be 11mi ted to the following unless the consent
for a ditional work is agreed to by a majority vote of the lot
owner owning lOOt of the number of parcels, including
subdi i ions thereof as described in Paragraph 3 above:
reaso and normal road improvement and maintenance work to
maintain said pr i vate road easement, and sewer
facil t es and related drainage facilities to permit all-weather
acces Repairs and maintenance under this Agreement shall
but is not limited to, filling of chuckholes, repairing
cracks, repairing and resurfacing of roadbeds, repairing and
maintai ing drainage structures, periodic cleaning of brow
ditche s and desilting basin, removing debris, maintaining signs,
marker striping and
, if any, and other work reasonably necessary and proper
to and preserve the easement for all-weather road
If there is a covenant, agreement, or other obligation
impose 5 a condition of subdivision approval to make private
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planning improvements to the private road easement, the
to repair and maintain the private easement as herein
set shall commence when the private road and drainage
improvements have been completed and approved by the City.
Any extraordinary repair required to correct damage to
road easement that results from action taken or
t d for by lot owners or their successors in interest shall
for by the party taking action or party contracting for
the necessity for the extraordinary repair. The
such as to restore the road easement to the
existing prior to said damage.
It is agreed that Developer is initially the agent to
and oversee and do all acts necessary to accomplish the
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.
Repair maintenance work on the private road and sewer easement
and/or r inage facility shall be commenced when a majority of
the lot 0 ners agree in writing that such work is needed. The
1 obtain three bids from licensed contractors and shall
accept lowest of said three bids and shall then initiate the
work. agent shall be paid for all costs incurred including a
compensation for the agent's services, and such costs
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road planning improvements to the private road easement, the
to repair and maintain the private easement as herein
set shall commence when the private road and drainage
improvements have been completed and approved by the City.
Any extraordinary repair required to correct damage to
said road easement that results from action taken or
contra or their successors in interest shall
for by the party taking action or party contracting for
the necessity for the extraordinary repair. The
such as to restore the road easement to the
existing prior to said damage.
It is agreed that Developer is initially the agent to
and oversee and do all acts necessary to accomplish the
required and/or authorized under this
Developer further agrees that the agent may at any time
of a majority of the lot owners.
d maintenance work on the private road and sewer easement
ainage facility shall be commenced when a majority of
wners agree in writing that such work is needed. The
II obtain three bids from licensed contractors and shall
e lowest of said three bids and shall then initiate the
work. agent shall be paid for all costs incurred including a
reasona 1 compensation for the agent's services, and such costs
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shal be added to and paid as a part of the repair and
mainte ance costs; provided, however, that compensation for the
agent' services shall in no event exceed an amount equivalent to
lOt of the actual cost of repairs and maintenance performed. In
ing his duties, the agent, as he anticipates the need for
shall notify the parties and each party shall within
ive (45) days pay the agent, who shall maintain a trustee
and also maintain accurate accounting records which are
vailable for inspection by any party or authorized agent
upon request. All such records shall be retained by
t for a period of five years.
Should any lot owner fail to pay the pro rata share of
costs a d expenses as provided in the Agreement, then the agent
or a y lot owner or owners shall be entitled without further
notic to institute legal action for the collection of funds
advan on behalf of such lot owner in accordance with the
provi ins of California Civil Code Section 845, and shall be
to recover in such action in addition to the funds
interest thereon at the current prime rate of interest,
id, all costs and disbursements of such action, including
such as the Court may fix as and for a reasonable
's fees.
Any liability of the lot owners for personal injury to
thereunder, or to any worker employed to make repairs or
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maintenance under this agreement, or to third persons, as
well liability of the lot owners for damage to the
agent, or any such worker, or of any third persons,
as a of or arising out of repairs and maintenance under
this shall be borne, as between the lot owners in the
same they bear the costs and expenses of such
Each lot owner shall be responsible for
and i tain his own insurance, if any. By this Agreement, the
to provide for the sharing of liability
to personal injury or property damage other than
t ributable to the repairs and maintenance undertaken under
Each of the lot owners agrees to indemnify the
rom any and all liability for injury to himself or damage
roperty when such injury or damage results from, arises
out or is attributable to any maintenance or repairs
en pursuant to this Agreement.
Lot owners shall jointly and severally defend and
and hold harmless City, City's engineer and its
and each of its officials, directors, officers,
and employees from and against all liability, claims,
, losses, expenses, personal injury and other costs,
of defense and attorney's fees, to the agent
hereun er or to any lot owner, any contractor, any subcontractor,
any us r of the private easement, or to any other third persons
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of or in any way related to the use of, repair or
or the failure to repair or maintain the private
in the Agreement, the specifications or other
documents or City's approval of the plans and
ications or inspection of the work is intended to include a
revie , inspection acknowledgment of a responsibility for any
such City, City's engineer and its consultants, and
each f its officials, directors, officers, employees and agents,
shall h ve no responsibility or liability therefore.
1. The foregoing covenants shall run with the land and
shall b deemed to be for the benefit of the land of each of the
lot 0 n rs and each and every person who shall at anytime own all
or an ortion of the property referred to herein.
2 It is understood and agreed that the covenants herein
contai n d shall be binding on the heirs, executors,
admini s rators, successors, and assignees of each of the lot
owners.
l3 It is the purpose of the signatories hereto that this
nt be recorded to the end and intent that the obligation
reated shall be and constitute a covenant running with
and any subsequent purchaser of all or any portion
acceptance of delivery of a deed and/or conveyance
of form, shall be deemed to have consented to and
become b und by these presents, including without limitation, the
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right of any person entitled to enforce the terms of this
institute legal action as provided in Paragraph 8
remedy to be cumulative and in addition to other
s provided in this Agreement and to all other remedies at
in equity.
The terms of this Agreement may be amended in writing
upon approval of the lot owners and consent of the City.
5. This Agreement shall be governed by the laws of the
State of California. In the event that any of the provisions of
this g eement are held to be unenforceable or invalid by any
court 0 competent jurisdiction, the validity, and enforceability
of th emaining provisions shall not be affected thereby.
6. If the Property constitutes a "Common Interest
Devel as defined in California Civil Code Section l35l(c)
which wll include membership in or ownership of an "Association"
- as d f ned in California Civil Code Section l35l(a), anything in
this A reement to the contrary notwithstanding, the following
provis i ns shall apply at and during such time as (i) the
Propert is encumbered by a "Declaration" (as defined in
Civil Code Section l35l(h), and (ii) the Common Area
roperty (including the private road easement) is managed
rolled by an Association:
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( ) The Association, through its Board of Directors, shall
repair and maintain the private road easement and/or drainage
facili y and shall be deemed the "agent" as referred to in
above. The Association, which shall not be replaced
by amendment to the Declaration, shall receive no
for performing such duties. The costs of such
ance and repair shall be assessed against each owner and
his interest in the Property pursuant to the
The assessments shall be deposited in the
ion's corporate account.
The provisions in the Declaration which provide for
asses m nt liens in favor of the Associations and enforcement
there f shall supersede Paragraph 8 of the Agreement in its
No individual owners shall have the right to alter,
or repair any of the Common Area (as defined in
ia Civil Code Section l35l (b) in the Property except as
llowed by the Declaration.
(c This Agreement shall not be interpreted in any manner
which educes or limits the Association's rights and duties
pursuan to its Bylaws and the Declaration.
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the parties have executed this Agreement on
SEtJT£I11f?lJ<-, 1992.
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264-l60-3l
CHRISTINE ANNE SMITH, as owner
~~'v\Q A~ ~
Christine Anne Smith
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J STATE 0 CALIFORNIA )
COUNTY F SAN DIEGO ) SS.
ON / '1~ BEFORE ME, THE UNDERSIGNED, A NOTARY
PUBLIC NAN FOR SAID STATE, PERSONALLY APPEARED KENNETH DEAN
SMITH, ( ERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF
SATISFA TORY EVIDENCE) TO BE THE PERSON(S) WHOSE NAME(S) IS/ARE
SUBSCRI ED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT
HE/SHE/ HEY EXECUTED THE SAME IN HIS/HER/THEIR AUTHORIZED
CAPACIT (rES), AND THAT BY HIS/HER/THEIR SIGNATURE(S) ON THE
INSTRUM NT THE PERSON(S), OR THE ENTITY (IES) UPON BEHALF OF
WHICH IT E PERSON(S) ACTED, EXECUTED THE iNSTRUMENT.
WITNESS WHERE OF I HAVE SET MY HAND THIS )51 DAY OF
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~~:~TU E~~/~. SW£7V5:01V omCIAL SEAL
JANICE K. SWENSON
PRINCIP PLACE OF BUSINESS: ,..,ihv OìEISrD CðUN7'( NOTARY POOlIe, CAl'ORN~
SAN mEGa COUNtY
MY COMMISSION EXPIRES: MA y ¡, I It¡ q~ My c,""""....., ',I'"
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STAT F CALIFORNIA )
COUNTY OF SAN DIEGO ) SS.
Fr. "1c:l- BEFORE ME, THE UNDERSIGNED, A NOTARY
I AND OR SAID STATE, PERSONALLY APPEARED CHRISTINE ANNE
(PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF
CTORY EVIDENCE) TO BE THE PERSON(S) WHOSE NAME(S) IS/ARE
IBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT
/THEY EXECUTED THE SAME IN HIS/HER/THEIR AUTHORIZED
TY(IES), AND THAT BY HIS/HER/THEIR SIGNATURE(S) ON THE
M NT THE PERSON(S), OR THE ENTITY (rES) UPON BEHALF OF
T E PERSON(S) ACTED, EXECUTED THE iNSTRUMENT.
WITNE S WHERE OF I HAVE SET MY HAND THIS /5/ DAY OF
, 1992
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PLACE OF BUSINESS: .
SSION EXPIRES: /144y to ) 9'1/
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EXHIBIT "B"
THAT PO TION OF LOT 18 OF THE SUBDIVISION OF THE RANCHO LAS
ENCINIT S, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE
OF CALI ORNIA, ACCORDING TO MAP THEREOF NO. 848, FILED IN THE
OFFICE F THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898,
DESCRIB D AS FOLLOWS:
COMMENC NG AT THE INTERSECTION OF THE CENTERLINE OF l2TH STREET,
IF EXTE DED, WITH THE CENTERLINE OF "JII STREET AS SAID STREETS
ARE SHO N ON THE MAP OF THE COLONY OF OLIVENHAIN, IN THE CITY OF
ENCINIT S, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO
MAP THE EOF NO. 326, FILED IN SAID COUNTY RECORDER'S OFFICE, JULY
8, l885
l) TH NCE N l5° l3'53" (RECORD N 14°l8'OO" E), PARALLEL
WI H AND DISTANT 40.00 FEET WESTERLY FROM THE WESTERLY
LI E OF LOTS 83 AND 87 OF SAID MAP NO. 326, l,58l.70
FE T TO THE CENTERLINE OF l4TH STREET AS SHOWN ON SAID
MA NO. 326, SAID POINT BEING ON THE SOUTHWESTERLY LINE
OF PARCEL 1 OF LAND DESCRIBED IN DEED TO THOMAS B.
CL MMONS, ET UX, BY DEED RECORDED NOVEMBER 24, 1964 AS
FI E NO. 213763 OF OFFICIAL RECORDS.
2) TH NCE N 74°46'l3" W (RECORD N 75°38'00" W), ALONG THE
SO THWESTERLY LINE OF SAID CLEMMON'S LAND, 60.00 FEET
TO THE MOST SOUTHERLY CORNER OF LAND CONVEYED TO
RA MOND C. APPEL, ET UX, BY DEED RECORDED MAY 20, 1964
AS FILE NO. 90768 OF OFFICIAL RECORDS.
3) TH NCE N l5°l3'53" E (RECORD N l4°18'OO" E), ALONG THE
SO THEASTERLY LINE OF SAID APPEL'S LAND, 300.00 FEET TO
TH TRUE POINT OF BEGINNING.
4) TH NCE CONTINUING ALONG SAID SOUTHEASTERLY LINE N l5
13 '53" E (RECORD N l4°l8'OO" E), 239.30 FEET TO THE
MOS NORTHWESTERLY CORNER OF SAID APPEL'S LAND.
5) TH E CE N 59°35'l4" E, 425.8l FEET (RECORD N 58° 45" E
42 8.8) TO THE EAST LINE OF SAID LOT l8. BEING ALSO THE
MOS NORTHERLY CORNER OF SAID APPEL'S LAND.
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6) TH N CE ALONG SAID EAST LINE, S 02°25'35" E 426.08 FEET
(R C ORD S 03°15' E).
7) TH N CE N 74°48'35" W, 264.59 FEET (RECORD S 75°20'35" E
25 . 12 FEET).
8) 3l.99 FEET TO A POINT HEREINAFTER
9) TH N CE S llol8'49" E, l87.06 FEET TO THE SOUTHEASTERLY
LI E OF PARCEL 1 OF SAID CLEMMON'S LAND.
lO) TH N CE S 02° 23'l3" E (RECORD S 03°l5'OO" E), ALONG THE
SO HEASTERLY LINE OF SAID LAND, 260.91 FEET TO THE
MOS SOUTHERLY CORNER OF SAID CLEMMONS' LAND.
11) THE CE ALONG THE SOUTHERLY LINE OF SAID CLEMMONS' LAND
N 4°46'l3" W, 31.48 FEET (RECORD N 75 °38" W) TO A
POI T WHICH IS 30.00 FEET WESTERLY OF MEASURED AT RIGHT
ANG ES TO SAID SOUTHEASTERLY LINE.
12) THE CE N 0~23'l3" ~ 249.04 FEET.
l4) THE CE N ll°l8'49" W, 6.l6 FEET TO A POINT WHICH BEARS
S 6 °45'27" W FROM POINT "A".
l5) THE CE S 6~45'27" W, l40.62 FEET.
16) THE CE N 7~ 46'07" W, 30.00 FEET TO THE TRUE POINT OF
BEG NNING.