2011-47036DOC # 201 1-0047036
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RECORDING REQUESTED BY: ) JAN 25, 2011 5:59 PM
City Engineer )
t_1 OFFICIAL RECORDS
a ) SAN DIEGO COUNTY RECORDER'S OFFICE
WHEN RECORDED MAIL TO: ) Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 40.00
City Clerk ) PAGES: 9
City of Encinitas
505 South Vulcan Avenue )
Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER'S USE
AMENDED PRIVATE ROAD AND DRAINAGE FACILITIES
` MAINTENANCE AGREEMENT FOR TM 89-031
Assessor's Parcel Nos. 264-591-1 Proughl0 Project No. TM 89-031
264-590-1 through 18 W.O. No. 6242 FM
This Amended Private Road and Drainage Facilities Maintenance Agreement for TM 89-031
("Agreement") supersedes and replaces the Private Road and Drainage Facilities Maintenance
Agreement recorded on September 6, 2000 as Instrument No. 2000-0478511.
This Agreement for the maintenance and repair of those certain private road easements, the legal
description of which is set forth in Exhibit A attached hereto (hereinafter collectively referred to
as "road easement") and those private drainage facilities, the legal description and/or plat of
which is set forth in Exhibit B attached hereto and made a part hereof (hereinafter referred to as
"drainage facilities"), is entered into by Torrey Pacific Corporation, A California Corporation
(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; and
WHEREAS, Developer is the owner of certain real property comprised of residential lots
that will use and enjoy the benefit of said road easement. A complete legal description of said
real property is attached, labeled Exhibit C, 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 useable 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 owner of all or any portion of a lot that is
part 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 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 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.
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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
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 10% of
the actual cost of repair 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, or other
applicable law, 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, including reasonable attorneys
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 person, 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.
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 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
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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, and 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 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 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.
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(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.
17. In addition to the rights described in this Agreement, the lot owners and/or
Association, shall have the right to seek contribution from other nonparty individuals or entities
who should or are obligated to contribute to the maintenance of one or more of the road
easements identified on Exhibit A. See California Civil Code § 845. In addition, the parties
retain any and all rights they may have for enforcement and/or contribution under the terms of
preexisting or future road easements.
18. The Private Road and Drainage Facilities Maintenance Agreement recorded on
September 6, 2000 as Instrument No. 2000-0478511 shall automatically terminate and be of no
further force and effect when this Agreement has been recorded.
IN WITNE\ S WHEREOF, the parties have executed this Agreement on the ~b
day of M4\ , 2008.
DEVELOPER
TORREY PACIFIC CORPORATION
By V C'V Y "
Tom Staver, President
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On May 28, 2008, before me, Lela M. Kerns, a Notary Public, personally appeared TOM
STAVER, who proved to me on the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or the entity on
behalf of which the person 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 my hand and official seal. C~uâ–º M. KEt
ubn * 17J1687
r Notary Public - Calltornia
Son D19" County
C° wn MOr 16.2011
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EXHIBIT A
PRIVATE ROAD EASEMENTS
TM 89-031
1. LOT 33 OF CITY OF ENCINITAS TRACT NO. 89-031 AS SHOWN AND
DELINEATED ON THE FINAL SUBDIVISION MAP THEREOF, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. /K.40 NO *3;L
2. EXISTING PRIVATE ROAD AND PUBLIC UTILITY EASEMENT PER
DOCUMENT RECORDED JANUARY 31, 1984 AS FILE NO. 19804 OF OFFICIAL
RECORDS.
3. EXISTING PRIVATE ROAD AND PUBLIC UTILITY EASEMENT PER
DOCUMENT RECORDED MARCH 24, 1989 AS FILE NO. 89-152343 OF OFFICIAL
RECORDS.
4. EXISTING PRIVATE ROAD AND PUBLIC UTILITY EASEMENT PER
DOCUMENT RECORDED MARCH 24, 1989 AS FILE NO. 89-152344 OF OFFICIAL
RECORDS.
5. EXISTING PRIVATE ROAD AND PUBLIC UTILITY EASEMENT PER
DOCUMENT RECORDED JULY 10, 1989 AS FILE NO. 89-361877 OF OFFICIAL
RECORDS.
6. EXISTING PRIVATE ROAD AND PUBLIC UTILILTY EASEMENT PER
DOCUMENT RECORDED DECEMBER 12, 1989 AS FILE NO. 89-673800 OF OFFICIAL
RECORDS.
7. EXISTING PRIVATE ROAD AND PUBLIC UTILITY EASEMENT PER
DOCUMENT RECORDED OCTOBER 1, 1991 AS FILE NO. 91-0508087 OF OFFICIAL
RECORDS.
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EXHIBIT B
PRIVATE DRAINAGE FACILITIES
TM 89-031
10~ -
ALL THOSE CERTAIN PRIVATE DRAINAGE FACILITIES LYING WITHIN PORTIONS
OF THOSE CERTAIN PRIVATE ROAD AND PUBLIC UTILITY EASEMENTS AS
DESCRIBED IN EXHIBIT "B," ATTACHED HERETO AND AS SHOWN AND
DELINEATED ON THE "GRADING AND PRIVATE STREET IMPROVEMENT PLANS
FOR FORTUNA RANCH ROAD AND RANCHO SUMMIT DRIVE" PER DRAWING NO.
6242-G ON FILE IN THE OFFICE OF THE CITY ENGINEER OF THE CITY OF
ENCINITAS, STATE OF CALIFORNIA, AND PER THE RECORDED FINAL
SUBDIVISION MAP FOR CITY OF ENCINITAS T.M. 89-031.
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RANCHO SUMMIT
DRIVE
ST. JAMES CT. /
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RANCHO SUMMIT
ES TA TES
j WILLIAMS TERRACE
1-
RANCHO SUMMIT
DRIVE
FOP TUNA RANCH
ROAD
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EXHIBIT C TO
COVENANT REGARDING REAL PROPERTY:
AMENDED PRIVATE ROAD AND DRAINAGE
FACILITIES MAINTENANCE AGREEMENT
PROJECT NO. TM 89-031
PROPERTY DESCRIPTION
Lots 1 through 28 of City of Encinitas Tract No. 89-031, in the City of Encinitas, County of San
Diego, State of California, according to Map thereof No. 14032, filed in the office of the County
Recorder of San Diego County, September 7, 2000.
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