1988-338723
'0 1339, T 86 338723
Recording Reque~ By: )
City of Encinitas ) t
527 Encinitas Boulevard )
Encinitas, CA 92024 - '
0 J,
When recorded, mail LTI i 4x
)DEPC10 ~P~~{ ni N
fi7E FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT
77_._y
FOR
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 Exhibit A attached hereto and
made a part hereof, is entered into by Michael Mahon &
Nadine Mahon (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 P 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 cf 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 18572 that will
use and enjoy the benefit of said road easement. 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 road easement 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 ghat 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
BW/04/BC1-26wp 1(7-12-88)
1340
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 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 and normal road improvement and maintenance work to
adequately maintain said private road easement and related
drainage facilities to permit all-weather access. Repairs and
maintenance under this Agreement shall include but is
b 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 C-ty.
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
BW/04/bpl-26wp 2(7-11-88)
v 1341
costs shall be eded to and paid as a paloof 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 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 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
BW/04/bpl-26wp (7-11-88)
1342
specifications oenspection of the work is*. tended to include
• a review, inspection acknowledgment 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
"Association" as defined in California Civil Code Section
1351(a), anything in this Agreement to the contrary notwith-
standing, 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
BW/04/bpl-26wp (7-11-88)
1343
. --6-
less&
Property pursuant to the Declaration. The assessments
shall be depositied 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 this Agreement in its
entirety. No individual owner shall have the right to alter,
maintain or repair any of the Conunon 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 the Declaration.
I11 WITNESS WHEREOF, the parties hav executed this
Agreement on day of 19 .
OWNER Michael Mahon
STATE OF CALIFORNIA SS OWNER Nadine Mahon
.
}
COUNTY OF SI"ti 1 F'e'
on ~at ' I before me, the undersigned, a Notary Public in and for said State, personally appeared -
M) C4Re) M Poo t4-n~1 4/41))4q- m 4 40 h
personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) r
s, ascribed to the within Instrument and acknowledged that T!~~~► executed the same.
WITNESS my hand and official seal. f
f
;i
(Notary Public's Signature)
4 023200 9-82* 25 PS Individual Notarial Acknowledgment
1
CCS F 8 4 .8 3 ry
Revised 12/^c5 do n bW
U
BW/04/bpl-26wp (7-11-88)
1344 •
EXHIBIT "A"
That 40.00 foot private road easement across Parcels 1 2
of Parcel Map 1231 in the County of San Diego, State of California,
being described in Deed recorded July 18, 1972 as Doc. 1185258.
Together with the Westerly 20.00 of the Southerly 20.00 feet
of Parcel 1 of Parcel Map 1215 and the Northerly 20.00 feet
of the Westerly 20.00 feet of Parcel 2 of Parcel Map 1215,
in the County of San Diego, State of California.
EXHIBIT "B"
PARCEL 1 of Parcel Map 1215, in the County of San Diego, State
of California.