2005-350700
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RE<;:ORDED REQUEST OF .
First American Title
SUBDIVISJON MAPPING DEPT
DOC #.2005-0350700
1 11111111 III 11111 11111 IIlmllll 11111 11111111111111111111111111111 III I
APR 27, 2005 11 :25 AM
Recording Requested By: )
)
City Engineer )
)
When Recorded Mail to: )
City Clerk )
City of Encinitas 'a 'b ~ )
505 South Vulcan Avenue~ )
Encinitas, CA 92024 )
I to'?'305'1- 11
OFFICIAL RECORDS
"'<\N DIEGO COUNT" FiECORDER" OFFICE
GFiEGDR'( J SMITH__ COUNT'~( RECORDER
FEES: 28.00
PAGES. 8
11111~lllllllllml
2005-0350700
SPACE ABOVE FOR RECORDER'S USE ONLY
PRIVATE DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
FOR TPM 03-029
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Assessor's Parcel No.258-214-12, -13
Project No.: TPM 03-029
W.O. No.: 9253 PM
THIS AGREEMENT for the maintenance and repair of those private drainage facilities, the
plat of which is set forth in Attachment ----'L- attached hereto and made a part hereof, is entered
into by Beachtown Bungalows, LLC (hereinafter referred to as "Developer") for the benefit of
future subdivision lot owners who will use the private drainage facilities (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).
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas
of a subdivision project as defined in Section 21065 of the 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 real property being subdivided and
developed as TPM 03-029 that will use and enjoy the benefit of said private drainage facilities.
A complete legal description of said real property is attached, labeled Attachment A , 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 drainage facilities be
maintained in a safe and usable condition by the lot owners; and
WHEREAS, it is the desire ofthe Developer to establish a method for the maintenance and
repair of said private drainage facilities and for the apportionment of the expense of such
maintenance and repair among existing and future lot owners; and
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9836
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WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant
running 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 benefitted by this Agreement, 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 drainage facilities shall be
divided equally among the subdivided parcels created in the subdivision and paid by the lot
owner ofthe heirs, assigns and successors in interest 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 created parcels.
4. The repairs and maintenance to be performed nnder this Agreement shall be
limited to the following unless the consent for additional work is agreed to by a majority vote of
the lot owners owning 100% of the number of parcels, including subdivisions thereof as
described in Paragraph 3 above: reasonable and normal drainage improvement and maintenance
work to adequately maintain said private drainage facilities. Repairs and maintenance under this
Agreement shall include, but is not limited to, repairing and maintaining drainage structures,
removing debris, and other work reasonably necessary and proper to repair and preserve the
private drainage facilities in good working order.
5. The obligation to repair and maintain the private drainage facilities as herein set
forth shall commence when the private storm drain improvements have been completed and
approved by the City.
6. Any extraordinary repair required to correct damage to said drainage facilities that
results from action taken or contracted for by lot owners or their successors in interest 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 drainage facility to the
condition existing prior to said damage.
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9837
7. It is agreed that Developer is initially the agent to contract and oversee and do all
acts necessary to accomplish the repairs and maintenance required and/or authorized under this
Agreement. Developer further agrees 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 and drainage
facilities 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 contractors and shall accept the lowest
of said three bids and shall then initiate the work. The agent shall be paid for all costs incurred
including a reasonable compensation 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 event exceed an amount equivalent to 10% of the actual cost of
repairs 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 in such action in addition to the funds advanced, interest thereon at the current
prime rate of interest, until paid, all costs and disbursements of such action, including such sum
or sums as the Court may fix as and 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 expenses 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 intend 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.
10. Lot owners shall jointly and severally defend and indemnify and hold harmless
City, City's engineer and its consultants and each of its officials, directors, officers, agents and
employees from and against all liability, claims, damages, losses, expenses, personal injury 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
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9838
persons arising out of or in any way related to the use of, repair or maintenance of, or the failure
to repair or maintain the private drainage facilities.
Nothing in the Agreement, the specifications or other contract documents or City's
approval of the plans and specifications or inspection of the work is intended to include 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 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 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 agreed 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 intent 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, including without limitation, the right of any person entitled to enforce
the terms of this Agreement to institute legal action as provided in Paragraph 8 hereof, such
remedy to be cumulative 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 consent ofthe 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
"Association" as defined in California Civil Code Section 1351(a), anything in this Agreement to
the contrary notwithstanding, the following provisions shall apply at and during such time as (i)
the Property is encumbered by a "Declaration" (as defined in California Civil Code Section
1351(h), and (ii) the Common Area of the property (including the private road easement) is
managed and controlled by an Association:
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9839
(a) The Association, through its Board of Directors, shall repair and maintain the
private drainage facilities and shall be deemed the "agent" as referred to in Paragraph 7 above.
The Association, which shall not be replaced except by amendment to the Declaration, shall
receive no compensation for performing 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 which 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 1351(b) in 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 WITNESS WHEREOF, the parties have executed this Agreement
on the ;? ~ day of m /J1Ztt1 ' 2005.
~C~
. . evin Allin, Manager
Beach Town Bungalows LLC
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Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CA,LIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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9840
No. 5907
GCI:
County of .~~..... 9\~ ___ I
On ft\r~^v ,)) ,1tv<~ before me, -<~7. <:\) ('~L-U,'t
DATE L/ . NAME, TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBLIC"
personally appeared {.. tel)' iN tJi ,\..A t, J
. NAME(S) OF SIGNER(S)
o personally known to me - OR - IS:Yproved to me on the basis of satisfactory evidence
to be the person(s) whose name(s)~re
subscribed to the with~ ~nstrument and ac-
knowledged to me that~she/they executed
the same in tlIs7)1er/their a..!,!thorized
capacity(ies), a'ittf that bylhiJher/their
signature(s) on the instrumen~person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
State of
f~ -- ul
@ OFFICIAL SEAL
_ ROBERT D. COLLETT
<b NOTARY PUBLIC'CALlFORNIA~
lI! COMM. NO. 1382136 -
l . SAN DIEGO COUNTY J
_ MY COMM. EXP. OCT 29, nJ6
WITt)lESS my hand and official seal.
W^ I A~/) (1;0[(
v SIGNATUAE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
o INDIVIDUAL
o CORPORATE OFFICER
DESCRIPTION OF ATTACHED DOCUMENT
//
TITLE OR TYPE OF DOCUMENT
TITlE(S)
...-----------
I 0 PARTNER(S)
.
o LIMITED
o GENERAL
o ATTORNEY-IN-FACT
o TRUSTEE(S)
o GUARDIAN/CONSERVATOR
o OTHER:
NUMBER OF PAGES
DATE OF DOCUMENT
SIGNER IS REPRES'EtITING:
NAME OF PERSON(S} OR ENTITY(IES)
SIGNER(S) OTHER THAN NAMED ABOVE
@1993 NATIONAL NOTARY ASSOCIATION. 8236 Remmet Ave., P.O. Box 7184. Canoga Park., CA 91309-7184
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9841
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ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TPM 03-029
Legal Description of Real Property
LOTS 14, 15, 16 IN BLOCK 7A OF STURGES AND RATTON'S SUBDIVISION
IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF No. 33 FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 16, 1887.
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A'l"l'ACHMENT -B- TO
COVENANT REGARDING REAL PROPERTY
PROJECT No, TPK 03-029
Plat of Private Storm Drain Facilities
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9842
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DRAIN INLET
TO BE MAINTAINED
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12" PVC DRAIN PIPE :
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