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.