2008-491749
DO # 2008-0491749
1 II III 111111111111111 11111111111111 II
Recording Requested By: ) SEP 16, 2008 3;27 PM
City Engineer ) LFFiGAL RECORDS
bSN DIELLI l_OLIHTY RECORDER'S LFRCE
ClREGLR'i,l SMITH,LLLNT, RECORDER
When Recorded Mail to: ) FEES 31 Du
City Clerk ) PAGES: 8
f City of Encinitas > 111111111 Hill Hill Hill 11111 Hill Hill Dill Hill Hill Hill Hill Hill Hill Ull 111111
505 South Vulcan Avenue )
Glpr Encinitas, CA 92024 ) SPACE,vnuvE ruK KEI:uxDEx's USE ONLY
PRIVATE ROAD AND PRIVATE STORM WATER TREATMENT
MAINTENANCE AGREEMENT
FOR TPM 04-178
✓ /
Assessor's Parcel No. 260-630-12,13 Project No.: TPM 04-178
W.O.No.: 0578-G
~o`C THIS AGREEMENT for the maintenance and repair of that certain private road easement and
storm water treatment faciliteies , 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 Dale L. Schreiber and Donna E.
Schreiber. Trustee under Trust Agreement dated December 3. 1985
(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 TPM 04-178 that will use and enjoy the benefit of said road easement(s). A
complete legal description of said real property is attached, labelled Exhibit 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 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 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 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.
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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
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.
I
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.
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 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
4
"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.
(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 ` 1n day of Ff vLAA! ~ 2
Developer: ~r~G^
(Print name:)
(Print name:)
C
Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
5
ALL PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY O-- ~C
n
On' ' . =before me, yAeI3 t y I l,T I LPt3 U
Insert name and title of MR fficer)
personally apPBare
who 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 acknowledged to me that he"/they executed the same in44e4%dtheir
authorized capacity(ies), and that by hisfher/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
W OFFICIAL SEAL
A~ NOTARY PUBLIIC•CALIIFORNIA~
COMM. NO. 1809122
SAN DIEGO'COUNTY
MY COMM. EXP. AUG. 8, 2012
rwww~w
C
Signature
(This area for offictal notarial seal)
Rec. Form #R11 (12105/07)
FXfi1S:rT "A"
PA;:CEl A:
THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 13 SOUTH, RANGE 4
WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF CARDIFF VILLA TRACT, ACCORDING TO MAP NO.
1469; THENCE SOUTH 89034' WEST ALONG THE PROLONGATION OF THE. NORTHERLY BOUNDARY
LINE OF SAID CARDIFF VILLA TRACT, A DISTANCE OF 23.34 FEET TO THE NORTHEASTERLY
BOUNDARY LINE OF COUNTY HIGHWAY ROUTE 1, DIVISION 1; THENCE NORTH 31038' WEST
ALONG SAID NORTHEASTERLY BOUNDARY LINE A DISTANCE OF 213.03 FEET TO THE
BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1275.62
FEET AND A CENTRAL ANGLE OF 08001.'; THENCE NORTHWESTERLY ALONG SAID CURVE A
DISTANCE OF 159.29 FEET THROUGH A CENTRAL ANGLE OF 07009'03" TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING NORTHWESTERLY ALONG SAID CURVE A DISTANCE OF 19.28
FEET THROUGH A CENTRAL ANGLE OF 00051'57" TO A POINT; THENCE TANGENT TO SAID
CURVE. NORTH 23027' WEST A DISTANCE OF 77.86 FEET TO AN ANGLE POINT IN THE
SOUTHWESTERLY BOUNDARY OF LAND DESCRIBED IN DEED TO KNUTE E. EASTMAN, ET UX,
RECORDED OCTOBER 5, 1959 AS DOCUMENT NO. 205156 OF OFFICIAL RECORDS; THENCE
ALONG THE BOUNDARY OF SAID LAND AS FOLLOWS:
NORTH 66048' EAST TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG SAID
BOUNDARY SOUTH 23027' EAST TO THE MOST SOUTHERLY CORNER OF SAID LAND; THENCE
SOUTH 66048' WEST ALONG THE SOUTH LINE OF THE LAND CONVEYED TO HAROLD J. R.
RAWLINGS, ET UX, BY DEED RECORDED IN BOOK 1817, PAGE 349 OF OFFICIAL RECORDS
119.14 FEET. MORE OR LESS TO THE TRUE POINT OF BEGINNING.
PARCEL B:
THAT PORTION OF THE NORTHWEST QUARTER OF SECTION 22, TOWNSHIP 13 SOUTH, RANGE 4
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF CARDIFF VILLA TRACT, ACCORDING TO MAP NO.
1469; THENCE SOUTH .89034' WEST ALONG THE PROLONGATION OFTHE NORTHERLY BOUNDARY
OF SAID CARDIFF VILLA TRACT, A DISTANCE OF 23.34 FEET TO THE NORTHEASTERLY
BOUNDARY LINE OF COUNTY HIGHWAY ROUTE 1, DIVISION 1; THENCE NORTH 31038' WEST
ALONG SAID NORTHEASTERLY BOUNDARY LINE,A DISTANCE OF 213.03 FEET TO THE
BEGINNING OF A CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 1275.82
FEET AND A CENTRAL ANGLE OF-08001'; THENCE NORTHWESTERLY ALONG SAID CURVE A
DISTANCE OF 159.29 FEET THROUGH A CENTRAL ANGLE OF 07009'03" TO A POINT; THENCE
CONTINUING NORTHWESTERLY ALONG SAID CURVE A DISTANCE OF 19.28 FEET THROUGH A
CENTRAL ANGLE OF 00051'57" TO A POINT; THENCE TANGENT TO SAID CURVE, NORTH 23027'
WEST A DISTANCE OF 77.86 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING
NORTH 23027' WEST 10.00 FEET TO THE MOST SOUTHERLY CORNER OF THE LAND CONVEYED TO
EDWARD M. BAINTER AND ADA BAINTER VOORHIES, BY DEED RECORDED IN BOOK 1448, PAGE
80 OF OFFICIAL RECORDS, RECORDS OF SAN DIEGO COUNTY; THENCE NORTH 66048' EAST -
ALONG THE SOUTHEASTERLY LINE OF LAND SO CONVEYED TO SAID BAINTER AND VOORHIES, A
DISTANCE OF 184.14 FEET; THENCE SOUTH 23012' EAST, A DISTANCE OF 107.14 FEET MORE
OR LESS, TO THE SOUTH LINE OF THE LAND CONVEYED TO HAROLD J. R. RAWLINGS ET UX,
BY DEED RECORDED IN BOOK 1817, PAGE 349 OF OFFICIAL RECORDS, RECORDS OF SAN
DIEGO COUNTY; THENCE SOUTH 66048' WEST ALONG THE SOUTH LINE OF SAID RAWLINGS'
LAND A DISTANCE OF 64.00 FEET; THENCE NORTH 23027' WEST TO A LINE WHICH BEARS
NORTH 660 EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 66048' WEST TO THE
TRUE POINT OF BEGINNING.
Schreiber 04-178, 578-C
EXHIBIT B
LEGEND
STORM WATER TREATMENT FACILITY C
(GRASS LINED SWALE) II
PRIVATE ROAD EASEMENT
J
Q
V
N
PROPOSED PRIVATE DRAINAGE
PORTION OF SAN ELIJO AVENUE EASEMENT TO BE GRANTED AT
TOGETHER WITH THE RIGHT TO TIME OF SALE.
EXTEND AND MAINTAIN DRAINAGE
FACILITIES, EXCAVATION AND
EMBANKMENT SLOPES BEYOND
LIMITS OF SAID RIGHT-OF-WAY /
PER P.M. NO.
/ PROPERTY
/ BOUNDARY
/ (TYP.)
/ PARCEL 4
PARCEL 3
PARCEL 2
u \\PARCEL 1
7~ o
0
7, ~ PROPOSED PRIVATE ROAD AND UTILITY
EASEMENT TO BE RESERVED OR GRANTED
AT TIME OF SALE TO RESPECTIVE PARCELS
fn TO INSURE ACCESS TO PUBLIC STREET
AND EASEMENT FOR PUBLIC SEWER
50 NO PURPOSES PER P.M. NO.
EASEMENT FOR PUBLIC PEDESTRIAN,
DRAINAGE, SEWER, WATER AND UTILITY
PURPOSES PER P.M. N0.
Schreiber 04-178, 578-G JN 1286