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2000-149093 g Recorded at the re t of 2- 00-0 14`1 1 Chicago Title Recording Requested by: ; ¢ OFFIC'Igl- RECORDS AN DIEGO CCIaN, RL!_ORDER'S OFFICt. (3F'F60RY Ci~ITN9 COUNTY RECORDER City of Encinitas ) MT: Recor Whenty Clerkded Mail To: ; II I'I ~I II II II III I 1111111111 II ) SPACE ASOb~ rvn 0 city of Encinitas I 505 S. Vulcan Avenue 90 ~ Enc'n't CA l e ?3o 7 i i o 3 r SL PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 97-219 Phase 2 Assessor's Parcel Project No.: TM 47-2i9 No. 264-241-07 W.O. No.: PHASE 2 SIB 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 6 attached hereto and those private drainage facilities, the legal description and/or plat of which is set forth in Exhibits C- attached hereto and made a part hereof, is entered into by Gregory Cleary a_married man as his sole and separate property, and Christopher S. Lloyd, a married man as his sole and separate property (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; cov4173 1 ,M 447 and, WHEREAS, Developer is the owner of certain real property being subdivided and developed as TM 97-219 PHASE 2that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached,. labeled 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 easement 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 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 cov4173 2 4472 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 cov4173 3 44 73 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 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 cov4173 4 4471 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 108 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 cov4173 5 i 44; disbursements of such action, including such sum or sums as the Court may fix as and for a reasonable attorney's 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 cov4173 6 I 0 4475 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 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 cov4173 7 I 4477 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 "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 cov4173 8 i • 4478 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. cov4173 9 ~ • 447 IN WITNESS WHEREOF, the parties have executed this Agreement on the f day of r, i 19 S 9 . Devel 16(er:_ ' Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. i cov4173 10 CALIFORNIA ALL-PURPIA ACKNOWLEDGMENT • r<c^c~'~'~'.crc~`.crc~_'.4rcrcrcrc~`•cl'-c~srsY'-crcrcrc<>c~'.c~_-c~?c~?crcrcrcr.~rc~>~>.crcrcrc<>,cX_sr-c~'-c..:-crcrc~2cr~sr~y State of ~ IfLrnIG.. 4480 1 County of On i is before me, Q) l nols 1S n~ t / ~J Date Na a and Title of Officer leg "Jane Doe, Notary Publi personally appeared l (-l f ymale)ofsigners) Xersonally known to me - OR - -1 proved to me on the basis of satisfactory evidence to be the personv) whose naml Qafe subscribed to the within instrument and acknowledged to me that 0&hoA#ey executed the same in j& he eir authorized capacity(ies), and that by I fir signature(a') on the instrument the person(a'j,' or the entity upon behalf of which the person(4 acted, ROMANY BOWERS executed the instrument. a COMM. #1059265 W NOTARY PUBLIC-CALIFORNIA 3 WITNESS my hand and official seal.I 2 ' SAN DIEGO COUNTY MY COMMISSIONEXPIRES Ni ry AUGUST 18, 1999 r'. naNre of Notary Public OPTIONAL Though the information below is not required bylaw, it may prove valuable to persons relying on the document and could prevent ~I hh fraudulent removal and reattachment of this form to another document. r Description of Attached Document / Title or Type of Document: 1'>1~c F~ RQarJ 1 -t~V/-c,,,,,-i Fr_,_I1A2?,r T -M 9)-2191 At') Document Date: Number of Pages: / Signer(s) Other Than Named Above: c k S Lbz l Capacity(ies) Claimed by Sigfnell Signer's Name:I con Signer's Name: y~❑ Individual El Individual `Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Partner - ❑ Limited ❑ General ❑ Attorney-in-Fact Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or conservator ❑ Guardian or Conservator - E Other: Top of thumb here ❑ Other: Top of thumb here Signer Is Representing: Signer Is Representing: 0 1995 National Notary Association • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 Prod. Na. 5907 Reorder: Call Toll-Free 1-800-876-6827 I • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of LC2 44aYU cuJ 4481 County of .!~`d t L, ~Gkci On ~4/&2-/ L ( before me, i A09W ~r r~l~Gy1~U U(j/l ICU 3ClC_ Dais Name and Tolle of Officer (e.g.,-Jane Doe, Notary Pohli(n personally appeared ttdyL) Name(s) of Signer(s) ❑ personally known to me - OR oved to me on the basis of s tisfaetory evidence to be the person(s) whose name( is/ a subscribe the within instrument and ack aged to me th he he/they executed the same his/ r/their authorized capacity(ies), and that by OFFICIAL SEAL (his/ber/their signature(s) on the instrument the person(s), RANDA G. MILLJOUR or the entity upon behalf of which the person(s) acted, NOTARY PUBLIC-CALIFORNIA executed the instrument. COMM. NO. 1204250 SAN DIEGO COUNTY MY COMM. EXP. JAN, b, 2003 WITNESS my hand and official seal er.. Signature of Notary bfla OPTIONAL Though Me information below is not required by law, it may prove valuable to persons retying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached) Document ~ Title or Type of Document/: %ti I/ 2-D eCC2J Y~k~ ~Cd /i e 27/ Document Date: / 9) Number of Pages: / Signer(s) Other Than Named Above: 6 )CC e?0R V ck,~>Qf y Capacity(ies)~~rrClaimed by Signer(s) Signer's Name:L-7 5-/-25~6e 6 - 41-OYD Signer's Name: Xladividual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Partner - ❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: Top of thumb here ❑ Other Top of thumb here Signer Is Representing: Signer Is Representing: - ® 104 National Notary Association • 6236 Remmet Ave, PO. Box 7184 • Canoga Park, CA 91309-7184 Prod, No. 5907 Reorder Call Tdl-Free 1-600-876-6827 4482 ATTACHMENT A TO COVENANT REGARDING REAL PROPERTY: IMPROVEMENTS REQUIRED AS CONDITION ON FINAL APPROVAL OF SUBDIVISION OF REAL PROPERTY. PROJECT NO. TM 97-219 PHASE 2 PROPERTY DESCRIPTION Lots 5, 6, 7, 8, 9, 10, 11, and 12 of Encinitas Tract 97-219 (Phase 2), said lots being a portion of the lot designated as Remainder Parcel of Map No. 13566, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 13566, filed in the Office of the County Recorder of San Diego County on April 22, 1996, more particularly described as follows: Beginning at a point on the centerline of Double LL Ranch Road, said point being the Point of Beginning, whence the intersection of the centerlines of Double LL Ranch Road and Lone Jack Road bears South 69°39'35" West 30.01 feet; thence South 69°39'35" West 554.08 feet; thence North 10°20'00" West 53.58 feet to the beginning of a tangent 200.00 foot radius curve, concave East, thence along said curve through a central angle of 14°43'31" a distance of 51.40 feet; thence North 4°23'31" East 327.23 feet to the beginning of a tangent 200.00 foot radius curve, concave Southwest, thence along said curve through a central angle of 78°57'44" a distance of 275.63 feet; thence North 74°34'13" West 300.60 feet; thence South 15°25'47" West 374.96 feet; thence North 82°44'31" West 385.41 feet; thence North 10°59'00" West 78.73 feet; thence North 10°58'08" West 620.00 feet; thence North 50°23'26" West 200.57 feet; thence North 87°32'00" East 1625.22 feet; thence South 21°36'49" West 25.50 feet to the beginning of a tangent 170.00 foot radius curve, concave East; thence along said curve through a central angle of 28°07'24" a distance of 83.44 feet; thence South 6°30'35" East 44.79 feet to the beginning of a tangent 360.00 foot radius curve,' concave West; prop2-a2.doc 4483 thence along said curve through a central angle of 13°17'48" a distance of 83.55 feet; thence South 6°47'14" West 279.14 feet to the beginning of a tangent 360.00 foot radius curve, concave East; thence along said curve through a central angle of 8°40'50" a distance of 54.54 feet; thence South 1°53'36" East 166.26 feet to the beginning of a tangent 380.00 foot radius curve, concave East; thence along said curve through a central angle of 23°18'16" a distance of 154.56 feet; thence South 25°11'52" East 175.59 feet to the beginning of a tangent 540.00 foot radius curve, concave West; thence along said curve through a central angle of 6°33'35" a distance of 61.82 feet to the Point of Beginning. END PROPERTY DESCRIPTION prop2-a2.doc 4484 EXHIBIT B TO PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 97-219 PHASE 2 PRIVATE ROAD EASEMENT DESCRIPTION Portions of Lots 7 through 11 of Encinitas Tract 97-219 (Phase 2), said lots being a portion of the lot designated as Remainder Parcel of Map No. 13566, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 13566, filed in the Office of the County Recorder of San Diego County on April 22, 1996, excluding Lots 1 through 4 of Encinitas Tract 97-219 (Phase 1) according to Map thereof No. 13791, filed in the office of the County Recorder of San Diego County on May 26, 1999. Said portions of Lots 7 through 11 of Encinitas Tract 97-219 (Phase 2) are more particularly described as follows: Commencing at a point on the centerline of Double LL Ranch Road, whence the intersection of the centerlines of Double LL Ranch Road and Lone Jack Road bears South 69°39'35" West 584.10 feet; thence North 10°20'00" West 16.25 feet to the Point of Beginning; thence North 10°20`00" West 37.33 feet to the beginning of a tangent 200.00 foot radius curve, concave East; thence along said curve through a central angle of 14°43'31" a distance of 51.40 feet; thence North 4°23'31" East 327.23 feet to the beginning of a tangent 200.00 foot radius curve, concave Southwest; thence along said curve through a central angle of 78°57'44" a distance of 275.63 feet; thence North 74°34'13" West 300.60 feet; thence South 15°25'47" West 16.00 feet; thence North 74°34'13" West 132.68 feet to the beginning of a tangent 100.00 foot radius curve, concave Southwest; thence along said curve through a central angle of 36°20'10" a distance of 63.42 feet to the beginning of a tangent 44.00 foot radius curve, concave Southwest; thence along said curve through a central angle of 252040'20" a distance of 194.04 feet to the beginning of a tangent 100.00 foot radius curve, concave Northwest; thence along said curve through a central angle of 36°20'10" a distance of 63.42 feet; thence South 74°34'13" East 433.28 feet to the beginning of a tangent 216.00 foot radius curve, concave Southwest; pvtrd2-B.doc 44$$ thence along said curve through a central angle of 78°57'44" a distance of 297.68 feet; thence South 4°23'31" West 327.23 feet to the beginning of a tangent 184.00 foot radius curve, concave East; thence along said curve through a central angle of 14°43'31" a distance of 47.29 feet; thence South 10°20'00" East 15.44 feet to the beginning of a tangent 16.00 foot radius curve, concave East; thence along said curve through a central angle of 100°00'24" a distance of 27.93 feet; thence South 69°39'35" West 35.32 feet to the Point of Beginning. END PRIVATE ROAD EASEMENT DESCRIPTION pvtrd2-B.doc r r EXHIBIT C TO PRIVATE ROAD AND DRAINAGE FACILITIES 4186 MAINTENANCE AGREEMENT FOR TM 97-219 PHASE 2 PRIVATE STORM DRAIN EASEMENT DESCRIPTION Portions of Lots 7 through 11 of Encinitas Tract 97-219 (Phase 2), said lots being a portion of the lot designated as Remainder Parcel of Map No. 13566, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 13566, filed in the Office of the County Recorder of San Diego County on April 22, 1996, excluding Lots 1 through 4 of Encinitas Tract 97-219 (Phase 1) according to Map thereof No. 13791, filed in the Office of the County Recorder of San Diego County on May 26, 1999. Said portions of Lots 7 through 11 of Encinitas Tract 97-219 (Phase 2) are more particularly described as follows: Commencing at the Northwest corner of said Remainder Parcel thence South 50°23'26" East 167.36 feet to the Point of Beginning; thence South 50°23'26" East 33.21 feet; thence South 52°06'05" East 471.28 feet; thence South 74°34'13" East 557.29 feet to the beginning of a tangent 216.00 foot radius curve, concave Southwest; thence along said curve through a central angle of 38°07'28" a distance of 143.73 feet; thence North 51°33'52" East 13.18 feet; thence South 58°53'01" East 115.00 feet; thence North 09°34'27" East 7.77 feet; thence North 38°01'27" East 8.84 feet; thence North 58°53'01" West 200.26 feet to the beginning of a tangent 228.00 foot radius curve, concave Southwest; thence along said curve through a central angle of 15°41'12" a distance of 62.42 feet; thence North 74°34'13" West 508.15 feet; thence North 69°37'06" West 56.05 feet; thence North 52°06'05" West 491.48 feet; thence South 39°36'34" West 12.01 feet to the Point of Beginning. END PRIVATE STORM DRAIN EASEMENT DESCRIPTION pvtrd2-C.doc