2005-503914
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DOC # 2005-0503914
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Recording Requested By:
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JUN 15, 2005
4:23 PM
City Engineer
OFFICIAL RECOROS
SAN OIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES 26.00
PAGES' 7
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
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PRIVATE ROAD AND DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
FOR TM 04-066
Assessor's Parcel No.
216-052-08
Project No.: TM 04-066
W.O. No.: 9336 FM
THIS 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 those private
drainage facilities, the legal description and/or plat of which is set forth in Exhibit A attached
hereto and made a part hereof, is entered into by Barratt American Inco~orated. A Delaware
Corporation (hereinafter referred to as "Developer") for the benefit of future subdivision lot
owners who will use the private road easement (hereinafter referred to as "lot owners", which
shall include the Developer to the extent the Developer retains any ownership in~erest 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 TM 04-066 that will use and enjoy the benefit of said road easement. 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 road easement and drainage
facilities be maintained in a safe and usable condition by the lot owners; and
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WHEREAS, it is the desire of the Developer to establish a method for the maintenance and
repair of said private road easement and drainage facilities 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
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 road easement and drainage
facilities shall be divided equally among the subdivided parcels created in the subdivision and
paid by the lot owner of the heirs, assigns and successors in interest or each such owner.
3. In the event any of the herein described parcels ofland 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 under 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 road improvement and maintenance
work to adequately maintain said private road easement and drainage facilities to permit all-
weather access and conveyance of storm flows. Repairs and maintenance under this Agreement
shall include, but is not limited to, filling of chuckholes, repairing cracks, repairing and
resurfacing of roadbeds, repairing and maintaining drainage structures, removing debris,
maintaining signs, markers, striping 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 shall commence
when the private road improvements have been completed and approved by the City.
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6. Any extraordinary repair required to correct damage to said road easement or
drainage facility 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 road easement
or drainage facility 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 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 road easement 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 0 f I iability 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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10. Lot owners shan 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
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 road easement or 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 shan 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 shan at anytime own
all or any portion of the property referred to herein.
12. It is understood and agreed that the covertants herein contained shan 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 shan be and constitute a covenant running with
the land and any subsequent purchaser of an or any portion thereof, by acceptance of delivery of
a deed and/or conveyance regardless of form, shan 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 Paragrapli 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 of the City.
15. This Agreement shan be governed by the laws of the State of Califomia. 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 shan
not be affected thereby.
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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:
(a) The Association, through its Board of Directors, shall repair and maintain the
private road easement and 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 marmer 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 7, IS+- day of----.AL!tI\. ,2005.
ck Becker, President San Diego Division
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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ALL PURPOSE ACKNOWLEDGEMENT
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STATEOFCALlF~1A ~
COUNTY OF t\/ Pl
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On ~,0I.100 before me, _1<PteAe'(rJe; ~ tJtvbt>iS
personally appeared ~VltA( ~
Dersonally known to me (or /lRlVSg to me
on the "MiA ur "..li"rclI..l<lry guideASS) to be the person(~ whose nameE4) is/aRt subscribed to the
within instrument and acknowledged to me that heist ,..Jtl'ley executed the same in his I hat " their
authorized capacity(ie"!l), and that by his I ""'. f II ..,ir signature~ on the instrument the person~ or the entity
upon behalf of which the perso~ acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(This a/9a for official notarial seal)
RM~NE K.'''MoM .1
CQIIM. .1477247 m
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1Nl_ COUIllY ..
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Rec.Form .11 (1113117)
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20001
ATTACHMENT "A" TO
COVENANT REGARDING REAL PROPERTY
PROJECT NO. TM 04-066
Real property in the City of Encinitas, County of San Diego, State of California, described as
follows:
ALL TIiAT PORTION OF TIiE SOUTHEAST QUARTER OF SECTION 33, TOWNSHIP 12 SOUTH,
RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN TIiE COUNlY OF SAN DIEGO, STATE OF
CAUFORNIA, ACCORDING TO MAP TIiEREOF NO. S13, FILED IN TIiE OFFICE OF TIiE COUNTY
RECORDER OF SAID SAN DIEGO COUNlY, UNDER TIiE TITLE OF EANTONVILLE, DESCRIBED AS
FOLLOWS:
COMMENONG AT TIiE INTERSECTION OF TIiE SOUTHERLY UNE OF SAID TOWNSHIP 12
SOUTH, WITH TIiE EASTERLY UNE OF TIiE RIGHT OF WAY OF TIiE ATCHISON, TOPEKA AND
SANTA FE RAILWAY COMPANY, SAID SOUTHERLY UNE OF TOWNSHIP BEING ALSO TIiE
NORTIiERLY UNE OF AVOCADO ACRES NO.2, ACCORDING TO MAP TIiEREOF NO. 1802,
RECORDS OF SAID SAN DIEGO COUNlY, NORTIi 89 DEGREES 58'45" EAST A DISTANCE OF
1236.98 FEET TO A POINT ON TIiE WESTERLY UNE OF AVOCADO ACRES NO.3, ACCORDING
TO A MAP TIiEREOF NO. 2063, RECORDS OF SAID SAN DIEGO COUNlY; TIiENCE ALONG SAID
WESTERLY UNE OF AVOCADO ACRES NO.3, NORTIi 0 DEGREES 01'45" WEST, A DISTANCE OF
616.72 FEET TO TIiE TRUE POINT OF BEGINNING; TIiENCE CONTINUING ALONG SAID
WESTERLY UNE OF AVOCADO ACRES NO.3, NORTIi 0 DEGREES 01'45" WEST A DISTANCE OF
376.40 FEET; THENCE SOUTH 83 DEGREES 04'15" WEST A DISTANCE OF 350.22 FEET; TIiENCE
SOUTH 15 DEGREES 46'45" EAST A DISTANCE OF 416.0S FEET; TIiENCE NORTIi 74 DEGREES
13'45" EAST A DISTANCE OF 243.91 FEET TO TIiE TRUE POINT OF BEGINNING.
EXCEPTING TIiEREFROM TIiE WESTERLY 10 FEET.
APN: 216-052-08-00
A