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2009-679927J~ . Recording Requested By DOC k 2009-0679927 111111111111111111111111111111111111111111111111111111111111111 IN III DEC08. 2009 3:59 PM OFFICIAL RECORDS City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: :31.00 When Recorded Mail to: ) ]PAGES: City Clerk ) City of Encinitas 505 South Vulcan Avenue ) Encinitas, CA 92024 Space above for recorders use only PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TPM 04-147 Assessor's Parcel No.'s: 262-080-04 04-147 TPM/DR/CDP 10013-G/I/PM THIS AGREEMENT for the maintenance and repair of that certain private access drive and those private drainage facilities, the plat of which is set forth in Exhibit "B" attached hereto and made a part hereof, is entered into by Kent J. Horner and Kim Louise Horner, husband and wife hereinafter referred to as "Developer", for the benefit of future subdivision lot owners who will use the private road easement, hereinafter referred to as "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 developed as TPM 04-147 that will use and enjoy the benefit of said access drive. 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 access drive and drainage facilities be maintained in a safe and usable condition by the owners; and 8 WHEREAS, it is the desire of the Developer to establish a method for the maintenance and repair of said private access drive and drainage facilities and for the apportionment of the expense of such maintenance and repair among existing and future owners; and WHEREAS, it is the intention of the Developer that this Agreement constitute a covenant running with the land, binding upon each successive 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 road easement and drainage facilities shall be divided equally among the owners and paid by the owner or the heirs, assigns, and successors in interest or each such owner. 3. 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 units: reasonable and normal road improvement and maintenance work to adequately maintain said private access drive and drainage facilities to permit all-weather access and conveyance of storm flows. Repairs and maintenance under this Agreement shall include, but are 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. 4. 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. 5.Any extraordinary repair required to correct damage to said private access drive or drainage facility that results from action taken or contracted for by 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 private access drive or drainage facility 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 owners. Repair and maintenance work on the private access drive and drainage facilities shall be commenced when a majority of the 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. 7. Should any owner fail to pay the pro rata share of costs and expenses as provided in this Agreement, then the agent or any 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. 8. Any liability of the 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 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 owners in the same percentages as they bear the costs and expenses of such repairs and maintenance. Each 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 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. 9. 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 owner, any contractor, any subcontractor, any user of the private access drive, 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 access drive or drainage facilities. 10. 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 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 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 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 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 access drive 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 mariner which reduces or li its the Association's rights and duties pursuant to its Bylaws and Declo-fation ACC AGREED BY: or er Developer/Owner Kim Louise Horner, Develop-`e ner , 1(.e - e V Date c^ Da e t Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT - - - - - - - - - - - - - - - - - - DEANA GAY Commission # 1862433 = C Notary PubHC - California Z Ila San Diego County Comm. Ex Tres Au 23, 2013 Place Notary Seal Above who proved to me on the basis Qf satisfactory evidence to be the person so whose names ware subscribed to the within instrument and acknowledged to me that he/,&he/the executed the same in-hiaf er/their authorized capaci to , and that b hisl+~er/their signature@ on the instrument the person, or the entity upon behalf of which the persor(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 y h d and offici seal. Signature Signature of Notary Pub' OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Docu Document Date: Signer(s) Other Than Named Above: Number of Pages: Capacity(ies) Claimed by Signer(s) V\'oN -OLQ D -obc) -C)q Cam. " oLt - \417~~-t v- I cod Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 02007 National Notary Association • 9350 De Soto Ave., P.O. Bm 2402 -Chatsworth, CA 91313-2402 • www.NationaiNotary.org Item #5907 Reorder: Call Toll-Free 1Free 1-8 State of California County of EXHIBIT'Y PROPERTY LEGAL DESCRIPTION Project No. 04-147 TPM THAT PORTION OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 23, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF, TOGETHER WITH PARCEL 1 OF PARCEL MAP NO. 3725, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE. OFFICE OF THE SAN DIEGO COUNTY RECORDER ON APRIL 24, 1975, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: . BEGINNING AT THE NORTHEASTERLY CORNER OF THE WESTERLY 609.00 FEET OF SAID SOUTHEAST QUARTER, BEING ALSO THE NORTHEASTERLY CORNER OF SAID PARCEL 1 OF PARCEL MAP NO. 3725; THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHEAST QUARTER, SOUTH 88°59'35" EAST, 311.00 FEET TO THE NORTHEASTERLY CORNER OF THE WESTERLY 920.00 FEET OF SAID SOUTHEAST QUARTER; THENCE CONTINUING ALONG THE NORTHERLY LINE OF SAID SOUTHEAST QUARTER, SOUTH 88°59'35" EAST, 31.59 FEET TO THE NORTHEASTERLY CORNER OF THAT LAND DESCRIBED IN DEED TO DALE WOOD WARD, RECORDED SEPTEMBER 19, 1962 AS FILE NO. 161482 OF OFFICIAL RECORDS; THENCE LEAVING SAID NORTHERLY LINE, PARALLEL WITH THE EASTERLY LINE OF SAID SOUTHEAST QUARTER, SOUTH 00°39'09" WEST 168.20 FEET; THENCE NORTH 88°59'35" WEST, 343.19 FEET PARALLEL WITH SAID NORTHERLY LINE OF SAID SOUTHEAST QUARTER, TO THE EASTERLY LINE OF THE WESTERLY 609.00 FEET OF SAID SOUTHEAST QUARTER ALSO BEING THE SOUTHEASTERLY CORNER OF SAID PARCEL l; THENCE ALONG THE EASTERLY LINE OFSAID PARCEL 1, NORTH 00°51'21" EAST, 168.20 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION OF SAID PARCEL 1 OF PARCEL MAP NO. 3725, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE NORTHERLY LINE OF SAID PtARCEL 1, SOUTH 88°59'35"EAST, 160.00 FEET; THENCE LEAVING SAID NORTHERLY LINE, SOUTH 1 1°37'59" WEST, 171.13 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID PARCEL l; THENCE ALONG SAID SOUTHERLY LINE, NORTH 88°59'35" WEST, 128.00 FEET TO THE SOUTHWESTERLY CORNER OF SAID PARCEL 1; THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 1, NORTH 00°51'21" EAST, 168.20 FEET TO THE POINT OF BEGINNING. CONTAINS 1.567 ACRES MORE OR LESS. APN: 262-080-04 M i EXHIBIT "B" N 00'39'10" E _ 167.92' - - - - - Q BERRYMAN CANYON RD. o i O f NN A et , f I J T ~ r 0 3 l a 4 ~ L ►o f rn u') 00 f 00 z I H CL f IL ' X1,~ h1 61.01 M N00'26'30"E f W ~ f O r f Lo p 000 f V o z f cc a ~ I 3 Irl 00 la r-l 00 00 1 42'15., w z ~7n !!!T~ N 50 25 0 50 100 SCALE IN FEET SCALE: 1 " = 50' • REPRESENTS SOUTHEAST CORNER OF HORNER PROPERTY. REPRESENTS PROPOSED PRIVATE DRIVEWAY TO BE MAINTAINED AQ EXISTING PRIVATE ROAD AND UTILITY EASEMENT REC. 03-22-1971 AS FILE NO. 54587 0. R. © EXISTING PRIVATE ROAD AND UTILITY EASEMENT PER PARCEL 4 OF GRANT DEED REC. 08-25-1993 AS FILE NO. 0556369 O.R. ENGINEERING Single Source Deuelopmeot Coosultooi 1635 S. RANCHO SANTA FE #204 SAN MARCOS, CA. 92078 (760) 510-3152 Ph / (760) 510-3153 Fax