2001-747333
08/22/2001 11: 15 FAX 7604364199 ENCINITAS RANCH 1lJ002
,",.. .... . DOC # .001-0747333
,~v
l 6353 OCT 16, 2001 11:13 AM
p Recorcling Requested By: ) !fFICIri. REIæS
) 8M DIE60 IIDfTV R£tmIR'S !fFlCE
rJ City Engineer ) IM!m' J. IIIITH. C!OOV R£CœIIR
I ,4,b ) FEES: 29.00
When Recorded Mail to: ) IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIII I!II III!
City Clerk )
City ofEncinitas )
505 South Vulcan Avenue ) 2001-0747333
Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONI.. Y
;Jj Iß ~ I/1J! PRIVATE ROAD
m~ -tÞ MAINTENANCE AGREEMENT
FOR TM 00-094
Assessor's Parcel No. Projec:tNo.: TM 00-094
W.O.No.: 6777-FM
TIllS AGREEMENT for the maintenance and repair of that certain private road easement, the
legal description and/or plat of which is set forth in Exhibits attached hereto and made a part
hereof, is entered into by StratelZÎc Capital Resources. Inc. A Delaware Comoration: as to
lots 1 and 2. Encinitas Ranch LLC. a California Limited- Liabilitv Companv. as to lot 8
(hereinafter referred to as "Developer") for the benefit of future subdivision lot owners who will
use the private road easement (hereinafter refened to as "lot owners", which shall include the
Developer to the extent the Developer retains any ownership interest ín any lot or lots).
WHEREAS, this Agteement is required as a condition of approval by the City of Encinitas
of a subliivision project as defined ín Section 21065 of thc Public Resources code and pursuant
to City of'Encinitas Municipal Code Section 24.16.060 and Section 24.29.040; and
WHEREAS, Developer is the owner of certain rea] property being subdivided and
developed as TM 00-094 that will use and enjoy the benefit of said road easement(s). A
complete legal description of said real property is attached, labelled ExhibitÂ, and
incorporated by reference. Said real property is hereinafter referred to as the "property"; and
WHEREAS, it is the desire of the Developer that said private road be maintained in a safe i
and usable condition by the lot owners; and
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6354
WHEREAS, it is the desire of the Developer to establish a method for the maintanance and
repair of said private: road easement and for the apportionment of the expense of such
maintenance and repair among existing and future lot owners; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
!'UI1I1íng with the land, binding upon each successive lot owner of all or any portion of the
property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
.1. The property is benefited by this A&reement, and present and successive lot
owners of all or any portion of the property are expressly bound hereby for the benefit of the
land.
2. The cost and expense of maintaining the private road easement shall be divided
equally among the subdivided parcels created in the subdivision and paid by the lot owner of the
heirs, assigns and successors ín ínterest or each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
lot owners, heirs, assigns and successors in interest of each such newly created parcel shall be.
liable under this Agreement for their then pro rata share of expenses and such pro rata shares of
expenses shall be computed to reflect such newly ereated parcels.
4. The repairs and maintenance to be performed under this Agreement shall be
limited to the following unless the consent for additional work is 8g1'CCd to by a majority vote of
the lot owners owning 100% of the number of parcels, including subØivisions thereof as
described ín Paragriiph 3 above: reasonable and normal road improvement and maintanance
work to adequately maintain said private road easement to permit all-weather access and
conveyance of storm flows. Repairs and maintenance under this Agreement shall include, but is '
not !itnited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds,
repairing and maintaining drainage structures, removing debris, maintaining signs, markers,
stripíng and lighting, if any, and other work reasonably necessary and proper to repair and
preserve the easement for all-weather road purposes.
5. If there is a covenant, agreement, or other obligation imposed as a condition of
subdivision approval to make private road improvements to the private road easement, the
obligation to repair and maintain the private road easement as herein set forth $hall commence
when the private road improvements have been completed and approved by the City.
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6355
6. Any extraordinaIy repair required to cOrrect damage to said road easement that
results from action taken or contracted for by lot owners or their successors in ínterest shall be
paid for by the party taking action or party contracting for work which caused the 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 oversec and do all
acts necessaIy to ,accomplish the repairs and maintenance required and/or authorized under this
Agreement. Developer further ag:teeS that the agent may at any time be replaced at the direction
of a majority of the lot owners. Repair and maintenance work on the private road ellSClIlent shall
be commenced when a majority of the lot owners agree in writing that such work is needed. The
agent shall obtain three bids from licensed conttactors and shall accept the lowest of said three
bids and shall then initiate the work. The agent shall be paid for all eosts incurred including a
reasonable compensation for the agent's services, and such costs shall be added to IU!d paid as a
part of the repair and maintenance costs; provided, however, that compensation for the agent's
services shall in no event exceed an amount equivalent to 10% of the actual cost ofrepairs and
maintenance performed. In performing his duties, the agent, as he anticipates the need for funds,
shall notify the parties and each party shall within forty-five (45) days pay the agent., who shall
maintain a trustee account and also maintain accurate accounting records which are to be
available for inspection 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 any lot owner 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 to recover ín such actio.n ín addition to the funds advanced. interest thereon at tþe current
prime rate of ínterest, until paid, all costs and disbursements of such action, including'such sum
or sums as the Court may fix as IU!d for a reasonable attorneys 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 maintenance under this Agreement, or to third
persons, as well as any 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 borne, as between the lot owners in the same percentages as they bear the
costs and eJqlenses of such repairs and maintenance. Each lot owner shall be responsible for and
maintain his own insurance, if any. By this Agreement, the Developer does not íntend to provide
for the sharing of liability with respect to personal injury or property damage other than that
attributable to the repairs and maintenance undertaken under this Agreement. Each of the lot
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
maintenance or repairs undertaken pursuant to this Agreement.
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6356
10. Lot owners shall jointly and severally defend and índemnify and hold harmless
City, City's engineer and its consultants and each of its officials, ditectors, officers, agents and
employees from and agaínst all liability, claims, damages, losses, expenses, personal ínjury and
other costs, including costs of defense and attorney's fees, to the agent hereunder or to any lot
owner, any contractor, any subcontractor, any user of the road easement, or to any other third
persons arising out of or ín any way related to the use of, repair or maintenance of, or the failure
to repair or maintain the private: road easement.
Nothing ín the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection of the work is íntended to ínclude a review,
inspection acknowledgement of a reSponsibility for any such matter, and City, City's engineer
and its consultants. and each of its officials, directors, officers, employees and agents, shall have
no responsibility or liability therefore.
11. The foregoíng covenants shall run with the land and shall be deemed to be for the
benefit of the land of eaeh of the lot owners and each and every person who shall at anytime own
all or any portion of the property referred to herein.
12. It is understood and agteed that the covenants herein contained shall 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 íntent that the obligation hereby created shall be and constitute a CoVenant running with
the land and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of
a deed and/or conveyance regardless of form, shall be deemed to have consented to and become
bound by these presents, ineludíng withqut limitation, the right of any person entitled to enforc~:
the terms of this Agreement to ínstitute"legal action as provided in Paragraph 8 hereof. such"
remedy to be cUUlulative 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 majority approval
of the lot owners and eonsent of the City.
15. This Agreement shall be governed by the laws of the State of California. 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 Development" as defined in
California Civil Code Section 1351(c) which will include membership in or ownership of an
08(,22/2001 11: 17 FAX 7604364199 ENCINITAS RANCH 1lJ006
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6351 "Association" as defined in California Civil Code Section 135l(a), anything ín this Agreement to
the contrazy notwithstanding, the following provisions shall apply at and duríng such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
135l(h), and (ii) the Common Area of the property (including the private road easement) is
managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and maintain the
private road easement and shall be deemed the "agent" as refeIred to in Paragtaph 7 above. The
Assoeiation, which shall not be replaced except by amendment to the Declaration, shall receive
no compensation for pc:rformíng such duties. The costs of such maintenance and repair shall be
assessed against each owner and his subdivision interest in the Property pursuant to the
Declaration. The assessments shall be deposited in the Association's corporate account.
(b) The provisions in the Declaration whieh provide for assessment liens in favor of
the Association and enforcement thereof shall supersede Paragraph 8 of the Agreement in its
entirety. No individual owners shall have the right to alter, maintain or repair any of the
Common Area (as defined in California Civil Code Section l351(b) ín the Property except as
may be allowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner which reduces or limits the
Association's rights and duties pursuant to its Bylaws and Declaration.
IN WI~JjS WHEREOF, the parties have executed this Agreement
on the .z 'i - day of ¡:¡ 1/ t: V $ r .2001. :
" ~/lri!6-/c cIlIlT¡lJ. 1l/!S'D"'¡f<:'.I!~,t~('1
Deve~: S T
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Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
. .' . .
STATE OF FLORIDA ) 6358
)SS
COUNTY OF PALM BEACH )
On August 24, 200 I before me 'R-1.<Îo- kw UU;IfVv-J , a Notary Public in and for
said County and State, personally appeared David Miller Chairman of Strategic Capital
Resources, Inc., personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity and that
by his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal:
~~c<. '!{f lKrt!Cv,J ""..,...
Notary Pu hc III and for said state ' :;,~, AISA KELLERMAN -"
,a>:¡ MY COMMISSION' 00020357
',;<-jf/ EXPIAES:ApriI24 2005
: :':::' """'TOw N,.. p"". """"'"""
{SEAL}
. 6359 .
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California }ss.
County of ~lJ\L3D
On Ct5-0\ . before me, U.~S
D'I. l)(L < .
personally appeared
N,m",) olS'g",",)
~erSOnallY known to me
0 proved to me on the basis of satisfactory
evidence
to be the person$1"'whose nameíø} is/-
subscribed to the within instrument and
acknowledged to me that he/sImI~ executed
the same in his/~~ authorized
capacity(j!¡;J-, and that by his/I:*/tiwlif-
I ~ - - - -(;~RL~M~~;S - ~ signature¡¿ron the instrument the person(c¡-..,or
the entity upon behalf of which the person(4--
-@ ComrniMIonl1312437 acted. executed the instrument
I Natary Puþllç . C.lifomia I
j 58" Diego County f
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P",. No,"" See' Ab". 1
1
Though the information below is not required by law, it may prove valuable 10 persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached Document 'I
Title or Type of Document: 'I
I,
1 Document Date: Number of Pages:
I'
1 Signer(s) Other Than Named Above:
I,
1 Capacity(ies) Claimed by Signer
Signer's Name:
0 Individuai .
Top of th"mb he,e
0 Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
- - ,",
@1997N,"",'Not",A"OO"',00'9350D.SotoA", P,O. B" 2402' Ch"'worth, CA 91313-2402 Pcod, No. 5907 ."'d" C,II ToII-F,.. I-BOO-""""
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EXHIBIT j4 m
ENClNffAS RANC~ESA - 8,000 s.F. LOTS &0
PINVA TE ROAD 'E AGREEMENT EXHIBIT