1991-536023 M
G _
DOC # 1991-0536023
814 16-OCT-1991 01 :33 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE °)
Recording Requested By: ANNETT€ EUA,NS, COUNTY RECORDER,
RF: 13.00 FEES: 35.00
q/ F. Mayo AF: 21.00
When recorded, mail to: MF: 1.00
AL F. MAYO �
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1722 Kettering Street
Irvine, CA 92714 ��lb
SPACE ABOVE FOR RECORDER'S USE
PRIVATE ROAD MAINTENANCE AGREEMENT '
FOR ENCINITAS TRACT NO. 88-183 ;
Assessor's Parcel
a►
No.264-091-18 Project No. :TM 88-183
W.O. No. :05491
THIS AGREEMENT for the maintenance and repair of that cer-
tain private road easement, the legal description and/or plat of
which is set forth in Exhibit A attached hereto and made a part r
hereof, is entered into by MANSOUR HEIDARI, ROGER 0. MC FARLAND
PHILIP G. DECARION AND ALVIN F MAYO AND NANETTE MAYO TRUSTEES
OF THE MAYO FAMILY TRUST DATED FEBRUARY 19 1990 AND JESSE R
OAKLEY AND DIANA M. OAKLEY (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 ap- t
proval by the City of Encinitas of a subdivision project as J
defined in Section 21065 of the Public Resources Code and pur-
suant 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 ENCINITAS TRACT NO. 88-183 that
will use and enjoy the benefit of said road easement. A complete
legal description of said real property is attached, labeled Ex-
'^ hibit B, and incorporated by reference. Said real property is
'y 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
'i WHEREAS, it is the desire of the Developer to establish a
method for the maintenance and repair of said private road ease-
ment and for the apportionment of the expense of such maintenance
and repair among existing and future lot owners; and
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9 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:
I 4.
I. The property is benefited by this Agreement, and
present and successive lot owners of all or any portion of the
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property are expressly bound hereby for the benefit of the land.
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2. The cost and expense of maintaining the private road
easement 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 of each such owner.
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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 ex- = .
penses and such pro rata shares of expenses shall be computed to
reflect such newly created parcels.
4. The repairs and maintenance to be " -'
p 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 subdivi-
sions thereof as described in Paragraph 3 above: reasonable and
normal road improvement and maintenance work to adequately main-
tain 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 chuck-
holes, repairing cracks, repairing and resurfacing of roadbeds,
repairing and maintaining drainage structure, removing debris,
maintaining signs, marker, striping and lighting, if any, and
other work reasonable necessary and proper to repair and preserve
the easement for all-weather road purposes.
5. If there is a covenant, agreement, or other obligation s
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 com-
pleted and approved by the City.
6. Any extraordinary repair required to correct damage to srr
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 condi-
tion existing prior to said damage.
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7. It is agreed that Developer is initially the agent to
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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 com-
pensation 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 ac-
tual 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 4A,
(45) days pay the agent, who shall maintain a trustee account and
also maintain accurate accounting records which are to be. avail-
able 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 ad-
vanced on behalf of such lot owner in accordance with the provi-
sions of California Civil Code Section 845, and shall be entitled
to recover in such action in addition to the funds advanced, in-
terest 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. An liability of the lot
owners for personal
in'u to
Y Y injury
the agent hereunder, or to any worker employed to make repairs or
provide maintenance under this Agreement, or to third persons, as
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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 arisin g re out of airs and maintenance under
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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
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817
Aft
to his property when such injury or damage results from, arises
out of, or is attributable to any maintenance or repairs under-
taken pursuant to this Agreement.
10. Lot owners shall jointly and severally defend and indem-
nify 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 use of
the road easement, or to any other third persons arising out of
1 or in any way related to the use of, repair or maintenance of, or
{ the failure to repair or maintain the private road easement. s'
Nothing in the Agreement, the specifications or other con-
tract documents or City's approval of the plans and specifica-
tions or inspection of the work is intended to include a review,
j inspection acknowledgment of a responsibility for any such mat-
! ter, 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, ad-
ministrators, successors, and assignees of each of the lot
owners.
13. It is the purpose of the signatories hereto that this ti a
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 be-
come bound by these presents, including without limitation, the "
right of any person entitled to enforce the terms of this Agree-
' ment 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.
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i 15. This Agreement shall be governed by the laws of they
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 Develop-
ment" as defined in California Civil Code Section 1351(a), any-
thing in this Agreement to the contrary notwithstanding, the fol-
lowing provisions shall apply at and during such time as (i) the
Property is encumbered by a "Declaration" (as defined in Califor-
nia Civil Code Section 1351(h) , and (ii) the Common Area of the
property (including the private road easement) is managed and con-
trolled 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 Associa-
tion, which shall receive no compensation for performing such -a
duties. The costs of such maintenance and repair shall be as-
sessed 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 as-
sessment liens in favor of the Association and enforcement
thereof shall supersede Paragraph 8 of the Agreement in its en-
tirety. No individual owners shall have the right to alter, main-
tain or repair any of the Common Area (as defined in California
Civil Code Section 1351 (b) in the Property except as may be al-
lowed by the Declaration.
(c) This Agreement shall not be interpreted in any manner
which reduces or limits the Association's rights and duties pur- M1 ,f
suant to its Bylaws and the Declaration.
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IN WIT E WHEREOF, the parties have exec ted this Agreement
on the _ day of 19�. p
Assessor's Parcel No. 264-091-18 i Y
MANSOUR HEIDARI , A -0 N^
ROGAR Q. MC °ARLAND, AS OWNER {
IR
ILIP DE ON , AS OWNER
VIN F. YO AND NANETTE MAYO, TRUSTEES OF _�-�
E MA 0 AMILY TRUST DATED FEBRUARY 19, 1990
04 jrasleel 0A
IN , TRUSTEE
E E MAYO, T EE ;
IANA M. OAKLEY, AS OWNER
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STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO) SS
ON yu/i BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLICF
IN AND FOR Se STATE, PERSONALLY APPEARED MANSOUR HEIDARI
(PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF SATISFAC-
TORY EVIDENCE) TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE
WITHIN INSTRUMENT, AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE
SAME. /1-"o —DAY/l -1
WITNE ,SWHEREOFg I HAVE S MY HAND THIS Y OF s ' 1
SIGNATURE: 14412 Q
NAME• 6?fIC21►L 9Z71L
PRINCIPAL PLACE OF BUSINESS: KAREN K. PIERCE
MY COMMISSION EXPIRES: NOTARY FUBIio-CAL�FONIIA
AN WANARdNO CWNTY
Ab'Cartxn.Eagra MBY 6,1995
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO) SS `
ON , BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC
4'3
IN AND FOR SAD STATE, PERSONALLY APPEARED ROGER Q. MC FARLAND
(PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF SATISFAC-
TORY EVIDENCE) TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE
WITHIN INSTRUMENT, AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE
SAME.
WITNESS WHEREOF I HAVE SET MY HAND THIS DAY OF '
L 190 11
SIGNATURE• �9�NAME: Y H. WARNER PRINCIPAL PLA E OF BUSINESS• PWtEROCIA
uuccAUIOlr Rmj
MY COMMISSION EXPIRES: ORANGE COUNTY
NY C01l1 EXP. JUNE 2{ 1994
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STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO) SS
ON -:I'U_Wa__1j, , BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC
IN AND FOR SAID STATE, PERSONALLY APPEARED PHILIP G. DE CARION
(PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF SATISFAC-
TORY EVIDENCE) TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE
WITHIN INSTRUMENT, AND ACKNOWLEDGED TO ME THAT HE EXECUTED THE
SAME.
WITNESS WHEREOF I HAVE SET MY HAND THIS DAY OF
-a9Lv 19e. '., .
jSIGNATURE: OFFICIAL
NAME: NANCY H. WARNER
PRINCIPAL PLA E OF BUSINESS TARYPURIGCAUFOR w
MY COMMISSION EXPIRES: ORANGE COUNTY s
MY OIN. XP. JUNE 24 1994 _
STATE OF CALIFORNIA) ?
i COUNTY OF SAN DIEGO) SS
ON �(�( , BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC
IN AND FOR SAID STATE, PERSONALLY APPEARED ALVIN F. MAYO AND
NANETTE MAYO (PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS
OF SATISFACTORY EVIDENCE) TO BE THE TRUSTEES OF THE MAYO FAMILY
f TRUST DATED FEBRUARY 19, 1990, THE TRUST THAT EXECUTED THE WITHIN
INSTRUMENT (PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE BASIS OF
SATISFACTORY EVIDENCE) TO BE THE PERSONS WHO EXECUTED THE WITHIN
INSTRUMENT ON BEHALF OF SAID TRUST AND ACKNOWLEDGED THAT THEY EX-
ECUTED THE SAME AS SUCH TRUSTEES. ?,
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E WITNESS WHEREOF I HAVE SET MY HAND THIS 10 DAY OF °
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SIGNATURE: WalAlA
NAME: OFFICIAL WAL
PRINCIPAL PLACE OF BUSINESS NANCY H. WARNER
MY COMMISSION EXPIRES:
oT�RrruauccnuFOwu
ORANGE COUNTY
MY OIM. EXP. JUNE 24 1994
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822
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO) SS
ON , BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC
IN AND FO SA D STATE, PERSONALLY APPEARED JESSE R. OAKLEY AND
DIANA M. OAKLEY (PERSONALLY KNOWN TO ME) (PROVED TO ME ON THE
BASIS OF SATISFACTORY EVIDENCE) TO BE THE PERSONS WHOSE NAMES ARE
SUBSCRIBED TO THE WITHIN INSTRUMENT, AND ACKNOWLEDGED TO ME THAT ,
,.
THEY EXECUTED THE SAME.
WITNES WHEREOF I HAVE SET MY HAND THIS DAY OF
SIGNATURE:
OFFICIAL SEAL
NAME: NANCY H. WARNER
PRINCIPAL PLACE OF BUSINESS- OTARY PUSUC•CALIFORMA
MY COMMISSION EXPIRES:
ORANGE COUNTY
NY `m ?`
EXP. 1UNE 24 1994
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8231
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EXHIBIT "A"
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CITY OF ENGINITAS �:���• ;
Tk�A4T �S - 183
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PRIVATe ROAD
MASP-M SWT
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EXHIBIT "B"
ALL THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF
SECTION 8, TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA ACCORDING T
O FF
0 ICIAL PLAT THEREOF
LYING NORTHERLY
OF THE FOLLOWING DESCRIBED LINE:
L BEGINNING AT A POINT ON THE WEST LINE OF THE SAID NORTH HALF OF
THE SOUTHEAST QUARTER OF SECTION 8, DISTANT THEREON SOUTH
III 4°09'12" WEST, 831.16 FEET FROM THE NORTHWEST CORNER THEREOF,
BEING A POINT ON A NON-TANGENT 5826.00 FOOT RADIUS CURVE, CONCAVE
SOUTHERLY, A RADIAL BEARING TO SAID POINT BEARS NORTH 15 012116"
EAST; THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
3 039'57", A DISTANCE OF 372.75 FEET; THENCE SOUTH 71 107147" EAST,
A DISTANCE OF 771.06 FEET TO THE BEGINNING OF A 1949.00 FOOT
RADIUS CURVE, CONCAVE NORTHERLY, THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 4 020'43", A DISTANCE OF 147.81 FEET;
THENCE SOUTH 75 028'30" EAST, A DISTANCE OF 688.22 FEET TO A POINT
IN THE SOUTH LINE OF THE SAID NORTH HALF OF THE SOUTHEAST
QUARTER.
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