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