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2005-665101 " "ECO"!!IO AT TN!! "EOUEST. :;"'1.,0232 DOC. " "::HICAQO TITLE COMFlIlNY 2005-06651 01 ..... " ',UBOIVISION OEPT. 111111111 111111111111111111111111111111111111111111111111 1111111111111 Recording Requested By: ) AUG 04, 2005 12:26 PM ) City Engineer ) OFFICIAL RECOROS SAN DIEGO COUNTY RECORDER'S OFFICE ~ ) GREGORY J. SMITH, COUNTY RECORDER When Recorded Mail to: ) FEES 38.00 F:I\GES: 11 ( tP City Clerk ) IIHIII 1111 01111111111111111111111111 0111 Rill 1111 1111 1111 1111 III IHI City of Encinitas ) ,~ 505 South Vu1canAvenue ) Encinitas. CA 92024 ) SPACE Al:lvvn l'Ul'.. =~"'U"'J'="~" M~ qf'l1 ./ Cf-y~ PRIVATE ROAD, LANDSCAPING, WALLS, AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR 1M 04-040 Assessor's Parcel No. 259-280-44.45. & 46 Project No.: TM 04-040 W.O. No.: 9318 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, landscaping and appurtenances the legal description and/or plat of which is set forth in Exhibit B attached hereto and made a part hereof, is entered into by Bluewater Encinitas. LLC. a California Limited Liabilitv Company (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 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 TM 04-040 that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Attachment b, 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, landscaping, walls, and drainage facilities be maintained in a safe and usable condition by the lot owners; and WHEREAS, it is the desire of the Developer to establish a method for the maintenance and repair of said private road easement, landscaping, walls, and drainage facilities, and for the .. " . :t ~2,3~., . 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 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 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, landscaping, walls, maintaining signs, markers, striping and lighting, if any, and other work reasonably necessary and proper to repair and preserve the improvement for their intended 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. 6. Any extraordinary repair required to correct damage to said road easement, landscaping, wall, or drainage facility that results from action taken or contracted for by lot > '. . ~I., ,02~~ . 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 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. , . :1.0235 . 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 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, landscaping, walls, or drainage facilities. Nothing in the Agreement, the specifications or other contract documents or City's approval ofthe 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 ofthe lot owners and consent 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 . . "'i! !If'~-~"'..4'-' ,;;",,,~,~~"'r,,...b . "Association" as defined in California Civil Code Section 135 I (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 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 I day of :TVI'VE ,2005. STE'F"A LA ('A sse Pit/!! 'n.....r Q,,;^^ c.o"""'...,,:......,. :...s o."c'......+- M4""'3~'" Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. Hc... 'i " . " CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT :!!.0237 . No. 5907 State of ::unty J i<<L/'#E<7,. ~b1Jf before me, ilk /If ~. d 4lzl;l S/~ u ""5A"1 ~ NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC. personally appeared' .t!. C"J.f' o personally known to me - OR - NAME(S) OF SIGNEA(S) COAIEUA A. .... . COI.._' . .'_11 ..,~.~* .... ..... proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. \ SIGNA OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the d ument and could prevent fraudulent reattachment of this form. TITlE(S) TITLE OR TYPE OF DOCUMENT CAPACITY CLAIMED BY SIGNER o INDIVIDUAL o CORPORATE OFFICER o PARTNER(S) o ATTORNEY-IN-FACT o TRUSTEE(S) o GUARDIANlCONSERVAT o OTHER: NUMBER OF PAGES DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(lES) SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION -8236 Remmel Ave., P.O. Box 7184. Canoga Park, CA 91309-7184 . ~t02~38 . ATTACHMENT "A" TO COVENANT REGARDING REAL PROPERTY PROJECT NO. TM 04-040 ALL OF PARCEL 2 THAT PORTION OF PARCELS 3 AND 4 OF CITY OF ENCINIT AS LOT LINE ADJUSTMENT NO. 02-067 BNCDP, AS SHOWN IN DOC NO. 2002-0615883 RECORDED IN THE OFFICE OF THE COU.NTY RECORDER OF THE COUNTY OF SAN DIEGO ON JULY 23, 2002, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTH EAST CORNER OF PARCEL 2 AS SHOWN ON SAID LOT LINE ADJUSTMENT, THENCE ALONG T HE SOUTH LINE OF SAID PARCEL 2, NORTH 890 27' 52" WEST, 242.00 FEET; THENCE ALONG THE EAST LINE OF SAID PARCELS 2, 3 AND 4, NORTH 00 50' 08" EAST, 303.34 FEET; THENCE ALONG THE NORTH LINE OF SAID PARCEL 4, SOUTH 890 27' 39" EAST 132.00 FEET TO A POINT WHICH IS 110.00 FEET WESTERLY OF THE EAST LINE OF SAID PARCEL 4; THENCE PARALLEL WITH THE EAST LINE OF SAID PARCEL 4, SOUTH 00 50' 08"WEST, 108.52 FEET; THENCE SOUTHERLY ALONG A TANGENT CURVE CONCAVE TO THE EAST, HAVING A 23.00 FOOT RADIUS, THRU A CENTRAL ANGLE OF 290 53' 41", FOR A CURVE LENGTH OF 12.00 FEET; THENCE PARALLEL WITH THE SOUTH LINE OF SAID PARCEL 2, SOUTH 890 27' 52" EAST, 87.05 FEET; THENCE NORTHEASTERLY ALONG A TANGENT CURVE CONCAVE TO THE NORTH WEST, HAVING A 20.00 FOOT RADIUS, THRU A CENTRAL ANGLE OF 890 42' 00", FOR A CURVE LENGTH OF 31.31 FEET TO THE EAST LINE OF SAID PARCEL 3, THENCE SOUTH 00 50' 08" WEST, 203.22 FEET TO THE TRUE POINT OF BEGINNING. SAID PROPERTY BEING DESCRIBED AS PARCEL C OF THAT CERTAIN CERTIFICATE OF COMPLIANCE RECORDED JUNE 1, 2004, AS FILE NO. 2004-0505958, OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY. COV99-2JO . 10239 . EXHIBIT "B" COVENANT REGARDING REAL PROPERTY PROJECT NO. TM 04-040 AN EASEMENT OVER, ALONG AND ACROSS A PORTION OF PARCEL C AS DESCRIBED IN THAT CERTIFICATE OF COMPLIANCE RECORDED AS DOCUMENT NUMBER 2004-0505958 ON JUNE 1, 2004, IN THE COUNTY RECORDER'S OFFICE OF SAN DIEGO COUNTY, BEING IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWESTERLY CORNER OF SAID PARCEL C; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL C, SOUTH 88046'12" EAST, 132.00 FEET (RECORD PER DOCUMENT NUMBER 2004-0505958: SOUTH 89027'39" EAST, 132.00 FEET) TO THE NORTHWESTERLY CORNER OF PARCEL A PER SAID CERTIFICATE OF COMPLIANCE; THENCE ALONG THE WESTERLY LINE OF PARCELS A AND B OF SAID CERTIFICATE OF COMPLIANCE, SOUTH 01033'42" WEST, 108.52 FEET (RECORD PER DOCUMENT NUMBER 2004-0505958: SOUTH 0050'08" WEST, 108.52 FEET) TO A TANGENT 23.00 FOOT RADIUS CURVE, CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF PARCEL B AND ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 29053'41", AN ARC DISTANCE OF 12.00 FEET; THENCE ALONG THE SOUTHERLY LINE OF PARCEL B, SOUTH 88044'19" EAST (RECORD BEARING PER DOCUMENT NUMBER 2004-0505958: SOUTH 89027'52" EAST), 39.33 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE SOUTHERLY LINE OF PARCEL B, SOUTH 88044'19" EAST, 47.72 FEET TO A TANGENT 20.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE SOUTHERLY LINE OF PARCEL B AND ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 36034'10", AN ARC DISTANCE OF 12.77 FEET; THENCE SOUTH 01033'42" WEST, 33.13 FEET TO THE BEGINNING OF A NON TANGENT 19.50 FOOT RADIUS CURVE, CONCAVE SOUTHERLY, A RADIAL BEARING TO SAID CURVE BEARS NORTH 39032'30" EAST; THENCE WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 38016'49", AN ARC DISTANCE OF 13.03 FEET; THENCE NORTH 88044'19" WEST, 47.38 FEET TO A TANGENT 37.50 FOOT RADIUS CURVE, CONCAVE SOUTHERLY; THENCE WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 30005'59", AN ARC DISTANCE OF 19.70 FEET TO A 19.50 FOOT RADIUS COMPOUND CURVE, CONCAVE EASTERLY; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 86030'42", AN ARC DISTANCE OF 29.44 FEET TO A 36.50 FOOT RADIUS REVERSE CURVE, CONCAVE NORTHEASTERLY; THENCE SOUTHERLY, WESTERLY, AND NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 287025'19", AN ARC DISTANCE OF 183.10 FEET TO A 19.50 FOOT RADIUS REVERSE CURVE, CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 46052'54", AN ARC wo: 761-1024-600 K:\Land Projects 3\761-1024-600\dwg\easements\city.street.ease.doc Page 1 of2 . :? 'Z!2 . DISTANCE OF 15.96 FEET TO A 62.50 FOOT RADIUS REVERSE CURVE, CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 56004'15", AN ARC DISTANCE OF 61.16 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING 0.16 ACRES OF LAND, MORE OR LESS. THIS LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION s- DATE wo: 761-1024-600 K:\Land Projects 31761-1024-600Idwgleasementslcity.street.ease.doc Page 2 of2 :.02 ~. E IBIT B - PAGE 1 589'46'12 E 132.00 (589'27'39"E 132.00') POC NORTHWESTERL Y CORNER PARCEL C NORTHWESTERL Y CORNER PARCEL A '" "N Nt[) t[) . 'CO ~o ~~ PARCEL A SCALE I" = 40' V / / / ,! = EASEMENT 0.16 AC. (xxx) = RECORD DATA PER CERTIFICA TE OF COMPLIANCE RECORDED A5 DOCUMENT NUMBER 2004-0505958 ON JUNE 1, 2004 ?!>~ '"co ~o nO nt[) 00 VlVl '-' PARCEL B PAR CEL C (S89'27'52"E 87.05') TPOB L2 Cl n ....J ~ ...... ~ ~ ~ ~ ~ ~ ~ SANTA FE DRIVE T ~ SNlTA bliA, Inc. land planning. civil engineering. surveying 5115 Avenlda Encinas Sulle L Carlsbad. California 92008-4387 (760) 931-8700 WO:761-1024-600 STREET MAINTENANCE EASEMENT "'1J LINE TABLE LINE BEARING LENGTH L1 S88'44'19"E 39.33 L2 S88'44'19"E 47.72 L3 S01'33' 42"W 33.13 L4 N88'44'19"W 47.38 CURVE C1 C2 C3 C4 C5 C6 C7 C8 CURVE TABLE LENGTH RADIUS 12.00 23.00 12.77 20.00 13.03 19.50 19.70 37.50 29.44 19.50 183.10 36.50 15.96 19.50 61.16 62.50 DELTA 29'53'41" 36'34'10" 38i 6' 49" 30'05'59" 86'30' 42" 287'25'19" 46'52'54" 56'04'15" E BIT B - PAGE 2 bltA, Inc. land planning. civil englneerlng. .urveylng 5115 Avenlda Encinas Suite L Carl.bad, California 92008-4387 (760) 931-8700 WO:761-1024-600 STREIT MAINTENANCE EASEMENT -1 wg Gap nap.g6'" 4' .