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2011-640466D O C # 2011-0640466 IIIIIIII 1111111111111111111111111111111111111111111111111111111111 IN Recording Requested By* ) NOV 30, 2011 1:33 PM * OFFICIAL RECORDS City Engineer SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J Dronenburg, Jr , COUNTY RECORDER When Recorded Mall to ) , FEES 40.00 City Clerk ) FACES: 9 City of Encinitas 505 South Vulcan Avenue ) Encinitas, CA 92024 Space above for recorders use only PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR 06-111 TM & 06-112 TM 1 ! APNs 254-351-30, 54-351-31, & Project No 06-111 TM & 06-112 TM 254-351-32 Plan No 10598-G/I/FM & 10599-FM 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 Warmington Encinitas 41 LLC, a Delaware Limited Liability Company, 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 06-111 TM & 06-112 TM 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 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 manner which reduces or limits the Association's rights and duties pursuant to its Bylaws and Declaration. ACCEPTED AND AGREED BY DEVELOPER Warmington Encinitas 41, LLC, a Delaware Limited Liability Company By- Warmington 2011 Pool, LLC, a Delaware Limited Liability Company, its Member By- WRG Builder 1, L.P., a California Limited Partnership, Managing Member By: Warmington Residential California, Inc., a California Corporation, General Partner By C ,r. (c I 1 U Matthew L. Tingler Executive Vice President Date Signature of OWNER/DEVELOPER must be notarized Attach the appropriate acknowledgement. ACKNOWLEDGMENT State of California County of Orange ) On November 17, 2011 _ before me, Jackie L. Venturelli, Notary Public (insert name and title of the officer) personally appeared Matthew L. Tingler who proved to me on the basis of satisfactory evidence to be the person(sTwhose name(s~is/ara. subscribed to the within instrument and acknowledged to me that he/sl+,~ executed the same in his/herftheir authorized capacity(k-*, and that by his/f emir signature(s)-on the instrument the person(s), or the entity upon behalf of which the person(* acted, executed the instru ment. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. JACKIE L. VENTURELLI r Commission # 1856725 WITNESS my hand and official seal. i lb Notary Public - California Z Orange County My Comm. Expires Jul 4, 2013 Signature (Seal) EXHIBIT "A" LEGAL DESCRIPTION ALL OF LOTS 38 AND 42 TOGETHER WITH PORTIONS OF LOTS 35, 36, AND 37 OF HILLSIDE ACRES, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO 1992, RECORDED JANUARY 25, 1927 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 38, THENCE ALONG THE SOUTHEASTERLY LINE THEREOF SOUTH 50°13'53" WEST, 239 96 FEET (N 50°16'24" E, 239 96' PER SAID CERTIFICATE OF COMPLIANCE) TO THE SOUTHWEST CORNER OF SAID LOT 38, THENCE ALONG THE SOUTHWESTERLY LINE THEREOF NORTH 39°42'34" WEST, 262 19 FEET TO THE SOUTHEASTERLY LINE OF THE NORTHWESTERLY HALF OF SAID LOT 37, THENCE ALONG SAID SOUTHEASTERLY LINE SOUTH 50°15'02" WEST, 240 31 FEET TO THE NORTHEASTERLY LINE OF SAID LOT 36, THENCE ALONG SAID NORTHEASTERLY LINE SOUTH 39°46'07" EAST, 0 24 FEET TO THE SOUTHEASTERLY LINE OF THE NORTHWESTERLY 262 25 FEET OF SAID LOT 36, THENCE ALONG SAID SOUTHEASTERLY LINE SOUTH 50°15'02" WEST, 336 48 FEET, THENCE LEAVING SAID SOUTHEASTERLY LINE NORTH 89°14'43" WEST, 97 03 FEET TO A POINT IN THE WESTERLY LINE OF SAID LOT 35; THENCE ALONG THE WESTERLY LINE OF SAID LOTS 35 AND 42 NORTH 00°45'17" EAST, 714 44 FEET TO THE NORTHWEST CORNER OF SAID LOT 42, THENCE ALONG THE NORTHERLY LINE THEREOF SOUTH 89°11'53" EAST, 529 79 FEET TO THE MOST EASTERLY CORNER OF SAID LOT 42, THENCE LEAVING SAID NORTHERLY LINE ALONG THE NORTHWESTERLY AND NORTHEASTERLY LINE OF SAID LOT 38 NORTH 50°24'38" EAST, 24 62 FEET, THENCE SOUTH 39°39'23" EAST, 523 62 FEET TO THE POINT OF BEGINNING THE HEREINABOVE DESCRIBED PARCEL OF LAND CONTAINS 9 111 ACRES, MORE OR LESS DOU LAS B S OUP L.S 8553 HUNSAKER & ASSOCIATES SAN DIEGO, INC LAND S~\ a L.S. 8553 OF CAt1 PAGE 1 OF 1 :ML M:\0107\270\ProcessingW03 Covenants- Full legal.docx WO 107-270 8/5/11 PRIVATE MAINTENANCE AGREEMENT EXHIBIT 'B' ROADSIDE - TREATMENT SWALE BOUNDARY TM 06-112 SCALE: 1"=80' ROADSIDE - TREATMENT SWALE 14 DOLPHIN CIRCLE W DITCH CD SANDYICOURT 12 N DRAIN BUT 0 0 BOUNDARY- TM 06-111 ROADSIDE - TREATMENT SWALE SHT 1 OF 2 \1009\&Eng\Exhi CD CD o!o 10 a w C O BROW DITCH BIO-RETENTION S TEM O and Agreement Exhibits\Private Maint. INTENANCE AREAS CD - (3) ROADSIDE TREATMENT SWALES - (2) BIO-RETENETIONSYSTEMS - (2) PRIVATE STREETS BROW DITCH PRIVATE EASEMENT - STORM DRAIN PRIVATE EASEMENT (NOTE. MAINT INCLUDES LANDSCAPING & IRRIGATION IN THESE AREAS) HUNSAKER & ASSOCIATES S A N D I E G Q I N C PUNNING W Wapln SUW B4ON®ING Sul DbM Cs %M 1[ Oct-28-2011: 15: 14sulvnic mwse)s%4soo. FxK%)ss&uu PRIVATE MAINENANCE AGREEMENT EXHIBIT 'B'