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1996-319199 1 ~ " mss k u 0f ' 2131 a G"r, Recording Requested By: ) _.r js 41 .7 uUHT r ur ~;"C F ~t City of Encinitas ) hl n `LJ, When Recorded, Mail To: City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE PRIVATE SEWER AND STORM DRAINAGE MAINTENANCE AGREEMENT FOR TPM 93-138 Assessor's Parcel Project No.: TPM 93-138 No. 254-120-09 W.O. No.: 3779PM THIS AGREEMENT for the maintenance and repair of that certain private sewer and storm drain, the legal description and/or plat of which is set forth in Exhibit A attached hereto and made a part hereof, is entered into by E. Paul Love, Jr.; Lyle J. Stewart Truc : and Kathleen A. Stewart. Trustee (hereinafter referred to as "Developer") for the benefit of future subdivision lot owners who will use the private sewer and storm drain (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, bp3919 (12-06-93) 0132 WHEREAS, a Developer is the owner of certain real property being subdivided and developed as two parcels that will use and enjoy the benefit of said sewer and storm drain. A complete legal description of said real property is attached, labeled Exhibit B, 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 sewer and storm drain 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 sewer and storm drain 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 expressly bound hereby for the benefit of the land. 2. The cost and expense of maintaining the private sewer and bp3919 (12-06-93) 2133 storm drain 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 of 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 sewer and storm drain improvements and maintenance work to adequately maintain the sewer and storm drain facilities and related structures. Such repairs and maintenance shall include, without limitation, repairing cracks, leaks, stoppage, damage caused to the sewer and drainage easement landscaping and any structures allowed in said easement such as driveways, walls, water lines, etc., and other work reasonably necessary and proper to repair and preserve the sewer and storm drain system and related easements; 5. Any extraordinary repair required to correct damage to said sewer or storm drain 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 bp3919 (12-06-93) 2134 repair shall be such as to restore the sewer or storm drain to the condition existing prior to said damage. 6. 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 sewer or storm drain 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 equivalence 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. bp3919 (12-06-93) 2135 7. 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 attorney's fees. 8. 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 bp3919 (12-06-93) 2136 injury or damage results from, arises out of, or is attributable to any maintenance or repairs undertaken pursuant to this Agreement. 9. 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, 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 sewer. 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. 10. 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. bp3919 (12-06-93) 2137 11. 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. 12. 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 7 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. 13. The terms of this Agreement may be amended in writing upon majority approval of the lot owners and consent of the City. 14. 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. bp3919 (12-06-93) 2138 15. 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 sewer and drainage easement) is managed and controlled by an Association: (a) The Association, through its Board of Directors, shall repair and maintain the private sewer and storm drain and shall be deemed the "agent" as referred to in Paragraph 6 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 7 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 bp3919 (12-06-93) 2139 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 the Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the 021 day of -Ovjj ~ .047 „ 1995. Developer: vat Signature of DEVELOPER must be notarized. Attac he appropriate acknowledgement. SEE ATTACHED CAUFOM ALL-PURPOSE ACKNOWLEDGMENT bp3919 (12-06-93) CALIFORNIA ALL-PURPO&CKNOWLEDGMENT 2140 /1. No. 5907 State of (1,4 County of S~/1 / Goa On 6-dinu t-qd l.before me, ~ AAJ D /P TE NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" personally appeared d'~/ Ir ySa`~c,ld r NAME(S) OF SIGNER(S) ❑ personally known to me - OR - ®'proved to me on the basis of satisfactory evidence to be the person whose naimeX is/, subscribed to the within instrument and ac- knowledged to me that )$a/she/executed the same in ,/her/ authorized capacity K44 and that by X Vher/ Dew n~is`a M. Loachm'In ( signature~J on the instrument the person(; N CommlB$Ion*1031207 p or the entity upon behalf of which the IL Not"Publle-Callf," (P Person§j acted, executed the instrument. > San Dtep0 County o My Commlxeion Expires July 3, 1998 WITNESS my hand and official seal. ~~s1~L~Jr1a A-~ a w6 j_ w_ SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. Ibr CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT rK INDIVIDUAL ❑ CORPORATE OFFICER r' nnE(s) TITLE OR TYPE OFD IJMENT ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DA OFD CUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(ES) ® , - L-~_- IGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91309-7184 • • 2141 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 0 5907 State of CAL I FORN I A County of SAN DIEGO On 2`j 2before me, Susan Shattuck, Notary Public SATE NAME. TITLE OF OFFICER . E G, 'JANE DOE. NOTARY PUBLIC' personally appeared y.CF 1 STE a~Q k T NAMEISI OF SIGNERISI ' personally known to me - OR -proved to me on the basis Of satisfactory evidence to be the personsvf whose nameWt Qare subscribed to the within instrument and ac- knowledged to me that hethey executed the same in his a their aut rized capacity(iW, and that by his their signature(e'r-on the instrument the personal' i OFFICIAL SEA or the entity upon behalf of which the SUSAN SHATTUCK a ;NorA UPLiC CALIFORNIA person(efacted, executed the instrument. f 3-p % % GRANGE COUNTY y CO Expires May271w995 WITNESS my hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT INDIVIDUAL CORPORATE OFFICER 7 ~4'Fa7F" ~£c /E";2 T E~ 2~/.nisr CrT ~✓/AiuYF,usPJ✓Lb A~rNPm~~u TTREiSI TITLE OR TYPE OF DOCUMENT - PARTNER(S) ❑ LIMITED ❑ GENERAL ORNEY-IN-FACT NUMBER OF PAGES TRUSTEE(S) - GUARDIAN/CONSERVATOR OTHER: fI7 S:c.T/risr.. DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSONS) OR ENTRYIIESI ~ . >~f7T /L Cole KA A. SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - Bp3B gaRxTlat Aw.. P.O. Box 7184 - Canoga Park. CA 91309.7184 i 2142 STATE OF VERMONT WINDHAM COUNTY, SS. On the 9th day of June, 1995, personally appeared E. Paul Love, Jr. and swore that the signing of the attached document was his free act and deed. Before me, Heidi A. Russ, Notary Public My commission expires: 2/10/95 i EXHIBIT "A" 2143 Legal Description for Maintenance of Private Sewer and Drainage Easements Parcel 1 The Southerly 3.00 feet of that portion of the land described in Deed to Thomas J. Oliver and Patricia A. Oliver recorded June 30, 1981 as File No. 81-204938 in the Office of the Recorder of San Diego County, being also a portion of Lot 4 in Block "L" of SOUTH COAST PARK ANNEX, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 1788, filed in the Office of the County Recorder of San Diego County, March 29, 1924, described as follows: Commencing at the intersection of the center line of Hymettus Avenue with the center line of Eolus Avenue, as said avenues are shown on said Map No. 1788; thence South 3°27'30" East along said center line of Hymettus Avenue 269.35 feet to an intersection with the Westerly prolongation of the Southerly line of the land conveyed to Bruce W. Hoffman and wife, by deed dated December 21, 1953 and recorded in Book 5102, Page 93 of Official Records, said intersection being the True Point of Beginning; thence along said Westerly prolongation and said Southerly line North 89°59'23" East 155.05 feet to the Southeasterly corner of said Hoffman land, being also the Northwesterly corner of land described in deed to Vittorio A. Favati, et ux, recorded November 23, 1956 in Book 6353, Page 275 of Official Records; thence along the Westerly line of said Favati's land South 0°38'53" East 91.69 feet; thence South 89°59'23" West 150.55 feet to the center line of Hymettus Avenue; thence North 3°27'30" West along said center line 91.86 feet to the True Point of Beginning. Parcel 2 That portion the land described in Deed to E. Paul Love, Jr., et. al. recorded March 1, 1990 as Document No. 90-110197 in the Office of the Recorder of San Diego County, being also a portion of Lot 4 in Block "L" of South Coast Park Annex, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 1788, filed in the Office of the County Recorder of San Diego County, March 29, 1924 described as follows: Commencing at the intersection of the center line of Hymettus Avenue with the center line of Eolus Avenue, as said avenues are shown on said Map No. 1788; thence South 3°27'30" East along said center line of Hymettus Avenue 269.35 feet to an intersection with the Westerly prolongation of the Southerly line of the land conveyed to Bruce W. Hoffman and wife, by deed dated December 21, 1953 and recorded in Book 5102, Page 93 of Official Records; thence along said Westerly prolongation and said Southerly line North 89°59'23" East 155.05 feet to the Southeasterly corner of said Hoffman land, being also the Northwesterly corner of said Love's land; thence along the Westerly line of said Love's land South 0°03'41" West 91.67 feet (South 0°38'53" East 91.69 feet, record) to the True Point of Beginning; thence North 48°05'47" East 13.45 feet; thence North 88°41'11" West 4.38 feet; thence South 48°05'47" West 7.56 feet to the Westerly line of said Pavati's land; thence along said Westerly line South 0°03'41" West (South 0°38'53" East record) 4.03 feet to the True Point of Beginning. • 2144 EXHIBIT "B" Parcel 1: All that portion of Lot 4 in Block "L" of South Coast Park Annex, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 1788, filed in the Office: of the County Recorder of San Diego County, March 29, 1924, described as follows: Commencing at the intersection of the center line of Hymettus Avenue with the center line of Eolus Avenue, as said avenues are shown on said Map No. 1788; thence South 3"27'30" East along the center line of said Hymettus Avenue, 269.35 feet to the intersection with the Westerly prolongation of the Southerly line of land conveyed to Bruce W. Hoffman, et ux, by deed dated December 21, 1953 and recorded in Book 5102, Page 93 of Official Records; thence along said Westerly prolongation and said Southerly line North 89"59'23" East 155.06 feet, more or less, to the Southeasterly comer of said Hoffman's land, hereinafter referred to as Point "A" of this description; thence retracing along said Southerly line and Westerly prolongation South 89059'23" West 155.06 feet; more or less, to the center line of said Hymettus Avenue; thence along said center line South 3°27'30" East 272.24 feet to the intersection of the Westerly prolongation of the Southerly line of said Lot 4; thence South 89°23'30" East along said Westerly prolongation and along the Southerly line of said Lot 4, a distance of 170.61 feet to the Southwesterly comer of land conveyed to A. W. Bristow, et ux, by deed dated October 8, 1954 and recorded in Book 5404, Page 546 of Official Records; thence North 14"23'30" West along the Westerly line of Bristow's land 50.0 feet to the Northwesterly comer thereof, thence Northerly along the Northerly prolongation thereof 73.0 feet to the true point of beginning; thence North 89"23'30" East along a line parallel with the Northerly line of said Bristow's land and the Easterly prolongation thereof, a distance of 233 feet to the center line of said Eolus Avenue; thence along said center line North 14"23'30" West to the intersection with a line which bears North 89°59'23" East from said Point "A" hereinafter mentioned; thence South 89°59'23" West to said Point "A"; thence Southerly in a straight line to the true point of beginning. Parcel 2: An easement allowing the encroachment of a garage over, under, along and across. All that certain piece of parcel of land which is delineated and designated as Parcel 4 on Record of Survey Map No. 4891, filed in the Office of the County Recorder of San Diego County, January 29, 1959. said Record of Survey Map No. 4891 being a Survey of a portion of Lot 4 in Block "L" of South Coast Park Annex, in the County of San Diego, State of California, according to Map thereof No. 1788 filed in the Office of the County Recorder of San Diego County, March 29, 1924, described as follows: Beginning at the Easterly terminus of that course and distance designated "s 89"23'30" East 201.94 feet" in the Northerly line of said Parcel 4 as shown on said Record of Survey Map No. 4891; thence along said Northerly line North 89"23'30" West 87.85 feet to the true point of beginning; thence continuing Notch 89°23'30" West 9.45 feet; thence South 7°14'06" East 1.29 feet; thence North 82045'54" East 9.36 feet to the true point of beginning.