1990-283945 Recording Requested By: ~ ~ .....
Donald Countryman 0.~.~ ~ ~ ~: ~ ~
When Recorded, Mail To: ~,~d!~ ' ~ ~ ~ii~
City Engineer '
City of Encinitas
527 Encinitas Blvd.
Encinitas, CA. 92024
SPACE ABOVE FOR RECORDER'S USE
~/~'6~ PRIVATE ROAD~LAINTENANCE AGREEMENT
Assessor.'s Parcel Project No.:TPM 88-371
No. ~-~-Z,~I ~Z. J~ 2 ~ 1990 w.o. ~o.: 9204~
Log No.: ~6
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 e n t er ed into by ~_~~~~~ ~
.~!.~/./___.~__3.~ilk!~./~ ~!~.~.~; ! ~,. (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,
BW/05/BC1-26wp5 (6-12-89)
o
WHEREAS, Developer is the owner of certain real property being
subdivided
as ~. ~-~71 that will use and
and
developed
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 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 benefited 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 shall be divided equally among the subdivided parcels
BW/05/BC1-26wp5 (6-12-89) 2
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 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
BW/05/BC1-26wp5 (6-12-89) 3
1562
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 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 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
BW/05/BC1-26wp5 (6-12-89) 4
3
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
BW/05/BC1-26wp5 (6-12-89) 5
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 specifications or
inspection of the work is intended 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.
BW/05/BC1-26wp5 (6-12-89) 6
565
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
BW/05/BC1-26wp5 (6-12-89) 7
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 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,
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STATE OF CALIFORNIA SS.
COUNTY OF SAN DiElCO .} (SEAL)
On ~JlTT. ~lJ~ 7- 1 ~ . before me, the under*
signed Notary Public, personally appeared _
ROBIN E. GORDON
NOTARY PUSL)C - CAL)EO~N{A
(personally known to me] or (proved to me on the basis of satisfactory PR(NCIP^L OFFICE IN
evidence) to be the person J whose name a~'e ~ DIEGO COUNTY
My Commission Exp February 15. 1992
subscribed to the within instrument and acknowledged that
Ck~F executed the same.
SAV-193 (7187)
STATE OF GALrFORNrA ~ SS
COUNTY OF S~,~J
!
the undersigned Notary Public, personally appeared
(personally known to me) (proved on the basis of satisfactory
evidence) to be the - President, and
S ECItB"~AI~
STATE OF CALIFORNIA
COUNTy O~ San Di~.go_
°~--~L 4- 199a -
~ Said S ate - before me the unders gned a Notary Public i
.~, , personalty appeared_ Kir]( ~o~8= ' ' ' ' ' 'n d for
~ ~ basi~ of satisfacto~ evidenc ~fi~/~fl¢¢¢~/proved t o me o n t he
~~~[ ~~ c ~ the corporation, therein named, .and acknowledged to me that Sign
AN EASEMENT FOR PRIVATE STREET PURPOSES ACROSS THAT PORTION OF
LOTS 8 A~D 9 IN BLOCK 6 OF SOUTH COAST PARK, IN THE CITY OF
ENCIN~TAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO
MAP NO. 1776 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY JANUARY 11, 1924, SAID EASEMENT BEING MORE
PARTICULATLY DESCRIBED A~ FOLLOWS~
~0ST SOUTHEASTERLY CORNER OF BLOCK 35 ACCORDING
~ ~LONG T~E SOUTHERLY BOUNDARY OF SAID BLOCK
~iC ~0,42 F~; ~.E~CE L,~VING SAID
TO THE TR_~UE
AN EASEMENT FOR PRIVATE STREET PURPOSES ACROSS THAT PORTION OF
LOTS 8 AND 9 IN BLOCK 6 OF SOUTH COAST PARK, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO
MAP NO. 1776 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN
DIEGO COUNTY JANUARY 11, 1924, SAID EASEMENT BEING MORE
PARTICULATLY DESCRIBED AS FOLLOWSI
COMMENCING AT THE MOST SOUTHEASTERLY CORNER OF BLOCK 35 ACCORDING
TO MAP NO. 524, THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID BLOCK
35 NORTH 89~2' 12" WEST, 10.42 FEET; THENCE LEAVING SAID
SOUTHEBLY BOUNDARY SOUTH 15° 43' 18" EAST, 74.94 FEET TO THE TRUE
POINT OF BEGINNING OF THE HEREIN DESCRIBED EASEMENT; THENCE SOUTH
74° 16' 42" WEST, 79.24 FEET TO THE BEGINNING OF A TANGENT 17.00
FOOT RADIUS CURVE CONCAVE NORTHERLY; A RADIAL BEARING TO SAID
POINT BEARS SOUTH 15~ 43' ~18" EAST; THENCE ALONG THE ARC OF
CURVE THROUGH A CENTRAL ANGLE OF 45" 34' 23", A DISTANCE OF 13.52
FEET TO THE BEGINNING OF A REVERSING 33.00 FOOT RADIUS CURVE
CONCAVE SOUTHERLY; A RADIAL BEARING TO SAID POINT BEARS' SOUTH 29°
51' 05" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A
CENTRAL ANGLE OF 271" 08' 46", A DISTANCE OF 156.17 FEET TO'THE
BEGINNING OF A REVERSING 17.00 FOOT RADIUS" CURVE CONCAVE
SOUTHEASTERLY; A RADIAL BEARING TO SAID POINT BEARS NORTH 61~ 17'
41" WEST; THENCE ALONG THE ARC OF SAID .CURVE THROUGH A CENTRAL
ANGLE OF 45° 34' 23", A DISTANCE OF 13.§2 FEET; THENCE TANGENT TO
SAID CURVE NORTH 74" 16' 42" EAST, 79.24 FEET; THENCE NORTH 15"
43' 18" WEST~ 36.00 FEET TO THE TRUE POINT OF BEGINNING..
Lot 8 and 9 in Block 6 of SOUTH COAST PARK, in the City of
Encinitas, County of San Diego, State of California, accord-
ing to Map thereof No. 1776, filed in the Office of the County
Recorder of San Diego County, January 11, 1924.