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2006-561949 . ...... j ~. 1IIt e DOC. 2006-0561949 1111111111111111111111111111111111111111111111111111111111111111111111 - ffl ~Ording Requested By: Ny City Engineer P" ) ) ) ) ) ) ) ) ) AUG 08, 2006 3:36 PM When Recorded Mail to: City Clerk City ofEncinitas 505 South Vulcan Avenue Encinitas. CA 92024 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GF:EGORY J SMITH, COUNT\' RECORDER FEES: 0.00 PAGES: 7 IIIMM~_M__R__I_II SPACE ~ " Lj ~ '-'~'- ~'-I,j'-''-'~'-'-'Lj~'- ~ \J~Lj '-'.1 'U-'~ u y1) (, Cl ~\AJ PRIVATE ROAD MAINTENANCE AGREEMENT CASE 04-251 TPM Assessor's Parcel No. 256-400-21 Project No.: 04-251 TPM (9577-G) THIS AGREEMENT for the maintenance and repair of that certain private road, the legal description and/or plat of which is set forth in Attachment "A" attached hereto and made a part hereof, is entered into by ROBERT B. MILLER, AN UNMARRIED MAN AND SALLY K. MALCHIODI, A MARRIED WOMAN AS HER SOLE AND SEPARATE PROPERTY AS tf!NA'~fN' C~N". Qtetei4~et referred to 3$.~~~ lor the benelt'of 'future =:~#~~-;~(f"(s:fue'prrv~~""ro~eaSerttei1i" (!e';eiJRte .' . ,.t~Y~~or&tK~~.fwM8!i. " ." ". .-,',', ','; ,:' . _ _ '," -_~)""~,"'.!.._-_-i,-:',"'/':;'~'/~'f-- t':: ;"'.' ""_,':'-~";(-",' '1""~""'"1' shall include the Developer to the extent the Developer i~ any oWnership mterest in any lot or lots). WHEREAS, Developer is the owner of certain real property being subdivided and developed as CASE 04-251 TPM that will use and enjoy the benefit of said road easement. A complete legal description of said real property is: AS DESCRIBED IN ATTACHMENT "A" ATTACHEQ HERETO AND MADE A PART HEREOF 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 and usable condition by the lot owners; and WHEREAS, it is the desire of the Developer to e ethod fo~ the maintenance'and repair 0f' said~ priVate ~oad" e~~t arid' fdr'.'ui il\< .'.,1 f~r~_{ ~~~t\~ maintenance and repair among existing and future lot owners; and r . :<J e e 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 benefited 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 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 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. 6 . Any extraordinary repair required to correct damage to said road easement 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 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 shall be commenced when a majority of the lot owners agree in writing that such work is needed. The 2 { ~ e e 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 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. 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. 3 .j e e 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 pe 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: (a) The Association, through its Board of Directors, shall repair and maintain the private road easement 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. 4 ..A e e (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 aJ^'cL day oC.Jun-e, 2006. Developer: ~./J~ ROBERT B. MILLER (Print name:) Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. . " 5 l\LL-PURPOSE ACKNOWLEDGMENT - , e e State of California } . 88. County of San DIego On OG la~[O.b before me, A. Vasvani, NO. tary .Public (~A~ ~ A) (NaTARYM personally appearePNJ...,'"I ~L..CH'01::>' 00('" . KOOe::t:r \'" t-L~ SIGNER(S) ~ .. \);..~ ~roved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that R~/~Re/they executed the same in hidhp.r/their authorized capacity(ies), and that by Rig.'R~pltheir signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. o personally known to me - OR - J.... . . . A. VASVANI ( - Camm. # 1506303 ~ IIOTARV PIIIUC.CAUf_ UI San Diego County - . w .. ..... My ~~. .E~~~~~,~~~ .T Effective January 1, 2006. the California certificate of acknowledgment must be in the form set forth in Civil Code section 1189. rather than .substantially" in the form set forth therein. The form set forth in Civil Code section 1189 did not change. but variations in the C;ilifomia form are no longer pennitted. (The law regarding acknowledgments to be used f' with documents to be filed in other states has not ctianged (Civil Code ~ 1189(c)). - ~ NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) o INDIVIDUAL o CORPORATE OFFICER DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT 'IlTLE(S} o PARTNER(S) o ATTORNEY-IN-FACT o TRUSTEE(S) o GUARDIAN/CONSERVATOR o OTHER: NUMBER OF PAGES DATE OF DOCUMENT afHER i SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(lES) RIGHT THUMBPRINT OF SIGNER 1:: 'Ii ~ e ::l ,s '0 c. ~ APA5199 VALLEY-SIERRA. 800-362-3369 . .. i . . e e 7 ~ ATTACHMENT "A" TO COVENANT 04-251 TPMlCDP THAT PORTION OF LOT 10, IN BLOCK "V" OF SEASIDE GARDENS ANNEX, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1801, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 6, 1924, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST WESTERLY CORNER OF SAID LOT 10, SAID POINT BEING IN THE NORTHEASTERLY SIDELINE OF VULCAN AVENUE AS SHOWN ON SAID MAP 1801, HAVING A HALF WIDTH OF 20.00 FEET; THENCE ALONG THE NORTHWESTERLY LINE OF SAID LOT 10 NORTH 61026'30" EAST 10.00 FEET TO THE MOST WESTERLY CORNER OF LAND DESCRIBED IN DEED TO ROBERT B. MILLER AND SALLY K. MILLER RECORDED FEBRUARY 28, 2001 AS DOCUMENT NO. 2001-0111625 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID MILLER LAND, SOUTH 28033'30" EAST 66.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 61 ~5'59" EAST 100.00 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 16.50 FEET, A RADIAL TO SAID POINT BEARS NORTH 28034'01" WEST; THENCE EASTERLY AND SOUTHEASTERLY ALONG THE ARC OF SAID CURVE 17.57 FEET THROUGH A CENTRAL ANGLE OF 60059'51" TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 16.50 FEET, A RADIAL TO SAID POINT BEARS SOUTH 89034'07" EAST; THENCE SOUTHWESTERLY AND WESTERLY ALONG THE ARC OF SAID CURVE 17.57 FEET THROUGH A CENTRAL ANGLE OF 61000'06"; THENCE SOUTH 61025'59" WEST 100.00 FEET TO THE SOUTHWESTERLY LINE OF SAID MILLER LAND; THENCE ALONG THE SOUTHWESTERLY LINE THEREOF NORTH 28033'30" WEST 17.00 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 1,874 SQUARE FEET, MORE OR LESS.