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1991-669490 v , ;, . Ie" " " 1991-0669490 - 1800 26-0E[-1991 08: 12 AM Recording Requested By: ) OFFICIAL RECORDS ) SAN DIEGO COUNTY RECORDER'S OFFICE /;!/AviVE WII6N£I!; ) ANHETTE EVANS COUNTY RECOROER ) RF: 14.00 FEES: 38.00 ) AF: 23.00 When Recorded, Mail To: ) MF: 1.00 Co""r>'Il.\..Ù'~~6U. D4.,rt. ) CITY 0/= &JAllïII: ) S&l7 6NGINIT-"I$ .BlvD. ) G.Nc.'N,rllð, c.~ O¡~o;l,1 . ) ý6 A~",' ::r t'H': "~ } SPACE ABOVE FOR RECORDER'S USE ¡'hi ~')I) PRIVATE ROAD MAINTENANCE AGREEMENT FOR T.M. 89-297 Assessor's Parcel Project No.: RQ-;>Q7 No. 264-152-31.32.33 & 34 W.O. No.: 1134-,1 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 entered into by Arthur W~gnpr Mn11i W~gnp~ £ W~ynp W~gnp~ (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/O4/BC2-110wp5 (2/26/91) 1 .,. . . 1801 ". WHEREAS, Developer is the owner of certain real property being subdivided and developed as ToM. 89-297 that will use and 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: L 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/O4/BC2-110wp5 (2/26/91) 2 ~------ . 1802 . 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/04/BC2-110wp5 (2/26/91) 3 . . 1803 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/04/BC2-110wp5 (2/26/91) 4 ~-~ .' . 1804 . 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/O4/BC2-110wp5 (2/26/91) 5 ~ . 1805 . 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/04/BC2-110wp5 (2/26/91) 6 . " . . ., 1806 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/O4/BC2-110wp5 (2/26/91) 7 . '. . . 1807 .. 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 (H) 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, BW/O4/BC2-110wp5 (2/26/91) 8 . - . 1808 . ' .. 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 the Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the 3 day of e c:;f , 19!1L. Developer: aA- ~r 1,- ~ !/1tdL. ~ f- ~ ~ Signature of DEVELOPER must be notarized. the appropriate acknowledgement. BW/O4/BC2-110wp5 (2/26/91) 9 . 1809 . STATE OF CALIFORNIA) ) COUNTY OF SAN DIEGO) On this 3rd day of October, in the year 1991, before me, the undersigned, a. Notary Public in and for said State, personally appeared Wayne Wagner, proved to me on the basis of satisfactory evidence, to be the person whose name is subscribed to the within instrument as the Attorney-in-Fact of Arthur and Mo11i Wagner and acknowledged to me that he subscribed the names of Arthur and Molli Wagner thereto as principal, and his own mame as Atorney-in-Fact. WITNESS MY HAND and official seal. @ ~- '-" LEONA V. KAUFLIN ~) t/. Rn~~ . . NO~~D~~M~~ " My Commission Expires otary Public in tl for OCTOBER 8,1994 Said County and State STATE OF CALIFORNIA) ) SS COUNTY OF SAN DIEGO) On October 3, 1991, before me, the undersigned, a Notary Public in and for said State, personally appeared Wayne Wagner, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same. WITNESS my hand and official seal. @ ~~ .-.. LEONA V. KAUFLIN . NO~~D~~~~~ I. My Commission Expires OCTOBER 8.1994 PL!ACK-POA1 . . 1810 EXHIBIT "A" LEGAL DESCRIPTION FOR PRIVATE ROAD FOR CITY OF ENCINITAS TRACT NO. 89-297 That portion of land lying within Parcel Map No. 11411 recorded June 25, 1981 with the county recorder as File No. 81-199898 in book of parcel maps page 11411, City of Encini- tas, County of San Diego, State of California, described as follows: Commencing at the southeast corner of said Parcel Map; thence North 73° 33' 58" West, along the southerly boundary line of said Parcel Map No.11411, 208.06 feet to the true point of beginning; thence departing from said boundary line, North 14° 00' 00" East 163.85 feet to the beginning of a tangent 260.00 foot radius curve concave westerly; thence northerly along the arc of said curve, through a central angle of 24' 20'56", 110.49 feet to the beginning of a tan- gent 220.00 foot radius reverse curve concave easterly;thence northerly along the arc of said curve through a central angle of 32" 18' 56", 124.08 feet to the beginning of a tangent 20.00 foot radius compound curve concave southeasterly; thence Northeasterly along the arc of said curve, through a central angle of 59'02' 28", 20.61 feet to the beginning of 45.00 foot radius reverse curve concave northwesterly having a radial bearing of South 8'59' 32" East; thence northerly along the arc of said curve, through a central angle of 283°31' 18", 222.68'feet to the beginning of a 20.00 foot radius reverse curve concave westerly having a radial bearing of South 67'29' 10" West; thence Southerly along the arc of said curve, through a central angle of 46° 34' 03", 16.26 feet to the beginning of a tangent 260.00 foot radius reverse curve, concave easter- ly; thence southerly along the arc of said curve, through a central angle of 34" 24' 09", 156.11 feet to the beginning of a tangent 220.00 foot radius reverse curve concave westerly; thence southerly along the arc of said curve, through a central angle of 24" 20' 56", 93.49 feet; thence South 14" 00 ' 00" West 129.59 feet to the southerly boundary line of said Parcel Map No.11411; thence South 7:f 33' 58" East along the southerly boundary line of said Parcel Map No. 1141, 11.18 feet to an angle point in said southerly boundary line; thence South 26'26' 02" West along said southerly boundary line, 33.03 feet to an angle point in said southerly bound- ary line; thence along said southerly boundary line South 73 33' 58" East, 35.98 feet to the point of beginning. GARY H. MAGILL, L.S.#5871 ~ . . '\ 1811 EXHIBIT "B" LEGAL DESCRIPTION OF REAL PROPERTY FOR CITY OF ENCINITAS TRACT NO. 89-291 Parcels 1-4 of P.M. No. 11411, recorded June 25, 1981 with the county recorder as File No. 81-199898 in the book of Parcel Maps page 11411, City of Encinitas, County of San Diego, State of California.