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2012-581236 DOC # 201 2-0581 236 j; IIIIIIIIIIIIII 111111111111111111111111111111111111111111111111111111111 IN Recording Requested By- ) SEP 25, 2012 3:36 PM City Engineer ) SAN DIEGO COUNTY RECORDER'S OFFICE ( ) Ernest J DronenburJr,COUNTY RECORDER l When Recorded Mail to ) FEES 3700 City Clerk ) PAGES: 8 City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 ) SPACL A/t PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 10-028 Assessor's Parcel No 260-212-18 Project No 10851-G,i Planning Case 10-028 TM, CDP THIS AGREEMENT for the maintenance and repair of that certain private road easement, and those private drainage facilities, all set forth in the legal description and/or plat of which is set forth in Attachment 'A' attached hereto and made a part hereof, is entered into by CV ENCINITAS LAKE ST, LLC, A DELAWARE LIMITED LIABILITY COMPANY 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 being subdivided and developed as TM 10-028 that will use and enjoy the benefit of said road easement. A complete legal description of said real property is attached, labeled Attachment 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 and drainage facilities 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 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 lot 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 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 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 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 2 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 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 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 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 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 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 3 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. (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 DEVELOPER Dated `' t Z 12— Tony a er CV Encinitas Lake St, LLC Signature of DEVELOPER must be notarized Attach the appropriate acknowledgement. CITY OF ENCINITAS By Dated ' �- R C, Greg S j ds Depu City Engineer (Notarization not required) a CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 fi State of California fi County of On before me, Date fiHere Insert Name and Title of the Officer fiI personally appeared Name(s)of Signer(s) who proved to me on the basis of satisfactory fi evidence to be the person(o whose name(j)(DeAe fi subscribed to the within instrument and acknowledged to me that (ge syb/tl y executed the same in i ' r/the"ir authorized capacity(io, and that by hi r/t4ir signature(y5 on the instrument the person(#, or the entity upon behalf of which the persont-A acted, executed the instrument. fi MICHELLE BOHMNON I certify under PENALTY OF PERJURY under the • I Commission# 1884092 E laws of the State of California that the foregoing Z Notary Public-California zZ paragraph is true and correct. Z "range County My Comm.Expires Mar 26,20 WITNESS rn han 'and offi seal fi Signature fi Place Notary Seal Above gwUy�rR.-,?o Pu A hl OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document I and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: A a C, C fi OCA nt Date �\Ac,&VAA�_-v Document t'?_'V*uXm_b_�_of Pages. Signer(s) Other Than Named Above Capacity(les) Claimed by Sy* ner s) i�, Signer's Name Sign ' Name Corporate Officer — Title(s) Corpora fficer — Title(s) v, d c 3 U �Individual L-1 Individual ❑ Partner — Lj-Limited ❑General Top of thumb here ❑ Partner — ❑Limited eneral of thumb here ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee ❑Trustee ❑ Guardian or Conservator ❑Guardian or Cons ator F-1 Other- ❑Other, Signer Is Representing Signer<Representing fi 2010 National Notary Association National Notary.org•1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 State of California fi County o fi On g /S /2 before me,-R.4 4,414, Au L7v u!2 D to Here Insert Name and Title of he Officer fipersonally appeared F Name(s)of Signer(s) who proved to me on the basis of satnpory evidenc e to be the person(s) whose name( re subscribed to thqwithin instrument and acknowledged e that (e/e/they executed the same in fi RANDA GAIL MILLJOUR his/ r/their authorized capacity(ies), and that by a ' Commission#1916144 < rn ..m A his er/their signature(s) on the instrument the ' Notary Public- California person(s), or the entity upon behalf of which the > '' San Diego County My Commission Exp. Jan, 6, 2015 person(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. I fi WITNESS my hand and official seal fi Signature Place Notary Seal Above Sig ature of Notary Public hI CC 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. fi Description of Attached Document fi Title or Type of Document: fi Document Date Number of Pages Signer(s) Other Than Named Above Capacity(ies) Claimed by Signer(s) fi I Signer's Name Signer's Name L Corporate Officer — Title(s) ❑Corporate Officer — Title(s) fi Individual I Individual ? _I Partner — -Limited ❑General Top of thumb here ❑ Partner — ❑ Limited ❑General To 51 p of thu mb here fi ❑ Attorney in Fact ❑Attorney in Fact Trustee ❑Trustee fi ❑ Guardian or Conservator ❑Guardian or Conservator fi fi ❑ Other- Other- Signer Is Representing Signer Is Representing Oc fi fi I 2010 National Notary Association•National Notary.org 1-800-US NOTARY(1-800-876-6827) Item#5907 7808 - i A AIME - RD0,4D Lo Rim r MAP 7808 SCALE. 1" =200' SHEET 1 OF 1 • 27156 BURBANK BY.DSK FOOTHILL RANCH AINCIJA0417' �A' CA 92610 PRIVATE STREET DATE.8/29111 CONSULTING, INC. T 949.916.3800 CIVIL ENGINEERING F 949.916.3805 1264 LAKE DRIVE SCALE. 1"=200 LAND PLANNING & SURVEYING WWW.CVC4NC.NET ATTACHMENT19TO COVENANT REGARDING REAL PROPERTY: PROJECT NO. TM 10-028 APN 260-212-18 PROPERTY DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS_ THAT PORTION OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION TWENTY-THREE, TOWNSHIP THIRTEEN SOUTH, RANGE FOUR WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS- BEGINNING AT THE NORTHWEST CORNER OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 23, THENCE SOUTH 0°12'47" WEST ALONG THE WEST LINE OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 23, A DISTANCE OF 139.60 FEET, THENCE SOUTH 89°25' EAST 103 37 FEET; THENCE SOUTH 18°47' EAST 630 00 FEET, THENCE SOUTH 0°47' EAST, 395 0 FEET; THENCE SOUTH 88°41' EAST 245 53 FEET, THENCE SOUTH 53°45' EAST 86.90 FEET, THENCE NORTH 89 040' EAST 30 88 FEET TO AN INTERSECTION WITH THE EAST LINE OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 23, THENCE NORTH 0°17'03" EAST ALONG THE EAST LINE OF THE WEST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 23, A DISTANCE OF 1182 52 FEET TO AN INTERSECTION WITH THE NORTH LINE OF SECTION 23, THENCE NORTH 89°27'52" WEST ALONG THE NORTH LINE OF SECTION 23, A DISTANCE OF 663.41 FEET TO THE POINT OF BEGINNING EXCEPTING THEREFROM THE NORTH 20 FEET THEREOF, SAID 20 FEET BEING THE COUNTRY ROAD KNOWN AS SANTA FE DRIVE 5