2012-581236 DOC # 201 2-0581 236
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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)
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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
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Commission# 1884092 E laws of the State of California that the foregoing
Z Notary Public-California zZ paragraph is true and correct.
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WITNESS rn han 'and offi seal
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OPTIONAL
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2010 National Notary Association National Notary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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fi On g /S /2 before me,-R.4 4,414, Au L7v u!2
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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.
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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
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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