2013-686902 D O C ## 2013-0686902
111111111111111111111111111111111111111111111111111111111 IN
Recording Requested By: ) NOV 21 , 2013 1 0:43 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
City Engineer I ) Ernest J. Dronenburg,Jr.,COUNTY RECORDER
FEES: 37.00
When Recorded Mail to: ) PAGES' 8
City Clerk )
City of Encinitas
505 South Vulcan Avenue ���" ) I IIIIII VIII VIII VIII IIII VIII VIII IIII IIII VIII VIII VIII VIII VIII VIII IIII IIII
Encinitas,CA 92024 )
Space Above for Recorder's Use Only
PRIVATE ROAD
\� MAINTENANCE AGREEMENT
✓/ FOR TPM 04-286
Assessor's Parcel No. 216-052-10-00 Project No.:04-286 TPM/CDP
W.O.No.: 353-G/I
WHEREAS, this Private Road Maintenance Agreement for TPM 04-286 ("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,Shea Homes Limited Partnership,a California limited partnership("Developer") is the owner of
certain real property being subdivided and developed as TPM 04-286 that will use and enjoy the benefit of and/or will
be burdened by said road easement(s).A complete legal description of said real property is attached,labeled Exhibit
"A"and incorporated by reference and depicted on the Site Plan attached hereto as Exhibit"B"("Site Plan"). Said real
property includes Parcel 1,Parcel 2,Parcel 3,Parcel 4 and Remainder Parcel and is hereinafter collectively referred to as
the"Property";and
WHEREAS the Owners of Parcels 1,2,3 and 4 (hereinafter referred to as"Parcel 1-4 Owners",which shall
include the Developer to the extent the Developer retains any ownership interest in any parcel or parcels)will use the
private road easement and the public and private utility facilities located therein;and
WHEREAS, it is the desire of the Developer that said private road("Private Road")and the private utility
facilities(including water,sewer and storm drain facilities)("Private Utility Facilities")located therein be maintained
in a safe and usable condition by the Parcel 1-4 Owners; and
WHEREAS, it is the desire of the Developer to establish a method for the maintenance and repair of said
Private Road and Private Utility Facilities and for the apportionment of the expense of such maintenance and repair
among existing and future Parcel 1-4 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. Benefitted and Burdened Propert y. The Property is benefited and burdened by this Agreement,and
present and successive owners of all or any portion of the Property are expressly bound hereby for the benefit of the
Property.
2. Maintenance of the Private Road.
US W 804031173.5
Private Road Maintenance Agmt.
124426-00092—Shea/Eaton Beach Estates 1 11/18/13
i P �
2.1 Maintenance Costs. The cost and expense of maintaining and repairing the Private Road shall
be divided equally among the Parcel 1 — 4 Owners. The Owner of the Property described on Exhibit "A" as the
Remainder Parcel ("Remainder Parcel Owner") shall have no obligation to contribute to the cost and expense of
maintaining or repairing the Private Road unless such cost or expense is caused by the Remainder Parcel Owner as
described in Section 2.5 below. The Remainder Parcel Owner and the Parcel 1-4 Owners are referred to collectively
herein at"Parcel Owners."
2.2 Further Subdivision.In the event any of the herein described Parcels are subdivided further,
the Parcel 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 originally allocated to the Parcel and such pro rata shares of expenses
shall be computed to reflect such newly created parcels.
2.3 Scope of Work. The repairs and maintenance to be performed for the Private Road under this
Agreement shall be limited to the following unless the consent for additional work is agreed to by a majority vote of the
Parcel 1—4 Owners,including subdivisions thereof as described in Paragraph 2.2 above:reasonable and normal road
improvement and maintenance work to adequately maintain said private road easement 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,slurry sealing,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.
2.4 Commencement of Obligations.� 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,the obligation to
repair and maintain the Private Road as herein set forth shall commence when the Private Road improvements have been
completed and approved by the City as evidenced by the City's release of bonds for the Private Road or the City's
acceptance of as-built drawings.
2.5 Damage Caused By Owners. Any extraordinary repair required to correct damage to said
Private Road that results from action taken or contracted for by the Owner of the Parcel causing the damage 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 Road to the condition existing prior to said damage.
2.6 Responsible Owner. 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 and
upon the earlier to occur of(i) the date Developer has transferred all of the Property to Parcel Owners other than
Developer,or(ii)the date Developer provides written notification to the Parcel 1—4 Owners that Parcel 4 Owner shall
be responsible for performing the maintenance obligations hereunder,the Owner of Parcel 4 shall be the agent to contract
and oversee and do all acts necessary to accomplish the repairs and maintenance required and/or authorized under this
Agreement("Maintaining Owner").Developer and any future Parcel Owners agree that the Maintaining Owner may at
any time be replaced at the direction of the non-Maintaining Owners.Repair and maintenance work on the Private Road
shall be commenced when a majority of the Parcel 1 - 4 Owners agree in writing that such work is needed. The
Maintaining Owner shall obtain three bids from licensed contractors and shall accept the lowest of said three bids and
shall then initiate the work. The Maintaining Owner shall be paid for all costs incurred including a reasonable
compensation for the Maintaining Owner'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 Maintaining Owner'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
Maintaining Owner,as he or she anticipates the need for funds,shall notify the parties and each party shall within forty-
five(45)days'pay the Maintaining Owner,who shall maintain a trustee account and also maintain accurate accounting
records which are to be available for inspection by any party or authorized Parcel 1—4 Owner upon reasonable request.
All such records shall be retained by the Maintaining Owner for a period of five years.
3. Maintenance of Private Utility Facilities. Each Parcel Owner shall be responsible, at such Parcel
Owner's sole cost and expense, for maintaining all portions of the Private Utility Facilities located within the Private
Road that exclusively service such Owner's Parcel including,without limitation,any sewer laterals and water lines to the
point of connection with the main and any drainage facilities servicing the individual Parcel.Any damage to the Private
Road that is caused due to the repair or replacement of such Private Utility Facilities shall be paid by the Owner causing
USW 804031173.5
Private Road Maintenance Agmt.
124426-00092—Shea/Eaton Beach Estates 2 11/18/13
. s
such damage. In addition to the foregoing,Parcel 4 and Parcel I are both serviced by an underground storm drain pipe
that runs underneath the Private Road. Parcel 4 Owner shall be responsible for maintaining the underground storm drain
pipe servicing Parcel 1 and Parcel 4 located within the Private Road;provided,however that Parcel 4 Owner shall be
entitled to reimbursement from Parcel 1 Owner of one half of the cost for such maintenance from the Owner of Parcel 1
except to the extent the maintenance or repair is necessitated solely by the Owner of Parcel 1 or the Owner of Parcel 4,in
which event the owner causing the damage shall be responsible for payment of the full amount of the cost to make the
repair.
4. Failure to Pay Costs. Should any Parcel Owner fail to pay any amounts payable hereunder,then the
agent or any Parcel Owner shall be entitled without further notice to institute legal action for the collection of funds
advanced on behalf of such Parcel 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 and
define as reasonable attorneys' fees.
5. Liabili . Any liability of the Parcel 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 Parcel 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 Parcel 1-4 Owners in
the same percentages as they bear the costs and expenses of such repairs and maintenance.Each Parcel Owner shall be
responsible for and shall 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 Parcel 1 -4 Owners agrees to indemnify,defend,
protect and hold harmless 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. In addition the Parcel I -4 Owners agree to indemnify,defend,protect and hold harmless the Remainder
Owner 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 except for any
liability, injury or damage arising from or related to the Remainder Owner's gross negligence or willful misconduct.
6. Remainder Parcel. The Remainder Parcel is included with the description of the Property since a
portion of the Private Road and Private Utility Facilities are located on the Remainder Parcel. The Remainder Parcel
Owner shall not have any obligation for the ongoing maintenance expenses for the Private Road,but shall be obligated to
pay any costs and expenses incurred under Section 2.5 and shall be obligated to maintain any drainage facilities located
within the Private Road that service such Owner's Remainder Parcel.
7. Indemnity. Parcel 1 —4 Owners (and Remainder Parcel Owner to the extent the liability, claim,
damage,loss expense,personal injury or other cost arises from or is related to the gross negligence or willful misconduct
of the Remainder Parcel Owner) 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 Parcel 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.
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.
8. Covenants Running With the Land. The foregoing covenants shall run with the land and shall be
deemed to be for the benefit of the land of each of the Parcel Owners and each and every person who shall at any time
own all or any portion of the property referred to herein. 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 Parcel Owners.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
USW 804031173.5
Private Road Maintenance Agmt.
124426-00092—Shea/Eaton Beach Estates 3 11/18/13
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.
9. Amendment.The terms of this Agreement may be amended in writing upon majority approval of the
Parcel Owners and consent of the City.
10. Governing Law. 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.
11. Constructive Notice and Acceptance. Every person who now or hereafter owns or acquires any right,
title,estate or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and
agreed to every covenant,condition and restriction contained herein,whether or not any reference to this Agreement is
contained in the instrument by which such person acquired an interest in said Property.
12. Rights of Lender. Owners may encumber the Property by deed of trust or mortgage. The beneficiary
of any bona fide deed of trust or mortgage made in good faith and for value encumbering any portion of the Property is
referred to in this paragraph as a"lender."A breach of any of the provisions of this Agreement shall not affect or impair
the lien or charge of any bona fide deed of trust or mortgage made in good faith and for value encumbering any portion
of the Property. A lender who acquires title by foreclosure or deed in lieu of foreclosure shall not be obligated to cure
any breach of this Agreement which is non-curable or of a type which is not practical or feasible to cure but otherwise
this Agreement shall be binding upon and effective against any Owner who acquires title by foreclosure,by Trustee's
sale or otherwise. It is intended that any loan to facilitate the resale of any portion of the Property after foreclosure or
deed in lieu of foreclosure is a loan made in good faith and for value.
13. Headinas. The headings used in this Agreement are for convenience only and are not to be used to
interpret the meaning of any of the provisions of this Agreement.
14. Severability. The provisions of this Agreement shall be deemed independent and severable,and the
invalidity or partial invalidity or unenforceability of any provision or provisions of it shall not invalidate any other
provisions.
15. Cumulative Remedies. Each remedy provided for in this Agreement shall be cumulative and not
exclusive. Failure to exercise any remedy provided for in this Agreement shall not, under any circumstances, be
construed as a waiver.
16. Violations as Nuisance. Every act or omission in violation of the provisions of this Agreement shall
constitute a nuisance and,in addition to all other remedies herein set forth,may be abated or enjoined by Developer or
any non-violating Parcel Owner.
17. Liberal Construction. The provisions of this Agreement shall be liberally construed to effectuate its
purpose. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce said provision
thereafter.
18. Notices. Unless otherwise permitted hereunder, notices shall be in writing and shall be given by
certified mail,return receipt requested,overnight courier or personal delivery. Notices shall be deemed received in three
(3)days if mailed by certified mail,return receipt requested,one(1)business day after deposit with an overnight courier
or upon receipt if delivered in person. All notices to the Developer shall be delivered to the address provided in the
purchase agreement for the purchase of a Parcel signed by the Developer and Owner. All notices to a Parcel Owner shall
be delivered to the address of the Parcel owned by such Owner.
USW 804031173.5
Private Road Maintenance Agmt.
124426-00092—Shea/Eaton Beach Estates 4 1 I/18/13
19. Number;Gender. The singular shall include the plural and the plural the singular unless the context
requires the contrary,and the masculine,feminine and neuter shall each include the masculine,feminine or neuter,as the
context requires.
20. Exhibits. All exhibits referred to are attached to this Agreement and incorporated by reference.
21. Binding Effect. This Agreement shall inure to the benefit of and be binding on the successors and
assigns of the Developer,and the heirs,personal representatives,grantees,tenants,successors and assigns of the Owner.
22. Severability. Should any provision in this Agreement be void or become invalid or unenforceable in
law or equity by judgment or court order,the remaining provisions hereof shall be and remain in full force and effect.
23. Negation of Partnership. None of the terms of this Agreement shall be deemed to create a partnership
between or among the Parcel Owners,nor shall it cause them to be considered joint venturers or members of any joint
enterprise.
IN WITNESS WHEREOF,the parties have executed this Agreement on the °ZO-wx day of
2013.
Developer:Shea Homes Limited Partnership,a California
limited partnership
By:
Na e: v C
Title: yrc r
By-
Name:
Title:
USW 804031173.5
Private Road Maintenance Agmt.
124426-00092—Shea/Eaton Beach Estates 5 11/18/13
ACKNOWLEDGMENT
State of California
County of San Diego )
On November 20, 2013 before me, Patty Rivas, Notary Public
(insert name and title of the officer)
personally appeared John B. Vance and Sarah Morrell
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) R/are
subscribed to the within instrument and acknowledged to me that fie/they executed the same in
higher/their authorized capacity(ies), and that by hicAwgtheir signature(s) on the instrument the
person(s), or the entity upon behalf of which the 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.
WITNESS my hand and official seal. PATTY RIVAS
COMM.#1960370
�°. NOTARY PUBLIC •CALIFORNIA ca
SAN DIEGO COUNTY
j CommW on EWw Nov 13,2015
Signature (Seal)
EXHIBIT "A"
PRIVATE ROAD MAINTENANCE AGREEMENT
PROJECT NO. 04-286 TPM, 0353-G,PM
APN 216-052-10
LEGAL DESCRIPTION
ALL THAT PORTION OF THE SOUTH HALF OF SECTION 33,TOWNSHIP 12 SOUTH,
RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO OFFICIAL PLAT BEING THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTHERLY LINE OF TOWNSHIP
TWELVE SOUTH, RANGE FOUR WEST, S. B. M., WITH THE EASTERLY LINE OF THE
A. T. & S. F. RAILWAY COMPANY'S RIGHT OF WAY; THENCE ALONG SAID
EASTERLY LINE OF THE RIGHT OF WAY,NORTH 15 DEGREES 43'30" WEST A
DISTANCE OF 257.70 FEET; THENCE NORTH 74 DEGREES 13'45" EAST(RECORD
NORTH 74 DEGREES 14'45" EAST)A DISTANCE OF 653.89 FEET TO THE TRUE POINT
OF BEGINNING; THENCE NORTH 15 DEGREES 32'40" WEST 437.33 FEET; THENCE
NORTH 67 DEGREES 39' EAST 186.04 FEET; THENCE NORTH 83 DEGREES 04'15
EAST 8.34 FEET; THENCE SOUTH 15 DEGREES 46' EAST 457.23 FEET; THENCE
SOUTH 74 DEGREES 13'45" WEST (RECORD 74 DEGREES 14'45" WEST) 194.60 FEET
TO THE TRUE POINT OF BEGINNING.
4v LAND
SEAN C. kbtiLERT, L.S. 7959 DATE u
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1 of 1
SCALE 1" = 60' EX H[ BIT "B" SHEEN 1 OF 1
PRIVATE ROAD MAINTENANCE AGREffiVIffiVT
PROJECT NO.04-286 TPM,0353—GPM
APN 216-052-10
N66-21' 41"E 186.02'
— � NOTE:
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