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1988-108805When Recorded please nail to:) • Thomas F. Noonan 2121 Newcastle Av. ) Cardiff -by- the- Sea, "Ca• 92007) i �i0111 Y 1LUVR. F� r uest of CC�lt #t'{ ttz.,€:; rdOI !{ ':, ] ttecorded Fteq ) DepartMEMt of Pubic Werka DER'S USE ) SPACE ABOVE FOR RECOR RF AR pRIVATE ROAD MAINTENANCE AGREEMENT MG FOR TPM 87 ^117 that air of al description and/or THIS AGREEME NT for the maintenance and rep certain private road easement, W. Stewart. forth in Exhibit A attached hereto and plat of which is set f Atta p art hereof, is entered i.nto� by for the benefit of made a P private road (hereinafter referred to as "Developer ) which shall future subdivision lot owners who will use th er retains any easement (hereinafter referred to as "lot owners ", include the Developer to the extent the Develop lot or lots) - ownership interest in any condition of required as a WHEREAS, this Agreement is a subdivision prole ct as approval by the City of Encinitas of in Section 21065 de Section 24. 16 of the public Resources Code and defined of Encinitas Municipal Co .060 pursuant to City and Section 24.29.040; and, of certain real property Developer is the owner use and WHEREAS, ed as four lots that complete legal being subdivided and develop easement. A comp , ro erty is attached, labeled Exhibit enjoy the benefit of said road is description of said real reference. Said real property B, and incorporated by n ro ertyn; and hereinafter referred to as the P P er that Isaid desire of the Develop WHEREAS, it is the safe and usable private road easement be maintained in a. i P owners; and the lot o condition by ez. to establish a private road WHEREAS, it is the desire of the r of said p air of of such ortionment of the expense method for the maintenance and rep and future lot owners; easement and for the air aamong existing <. maintenance and rep and Developer that this it is the intention of the with the and, binding WHEREAS, portion, of the Agreement constitute a covenant ofn all or any P IT IS HEREBY AGREED AS FOLLOWS: upon each successive W THEREFORE owner property• this Agreement, and 1. The property is benefited by portion of the e ound hereby for the benefit of the . present and successive lot owners of all or any ,.` property are expressly s land. ION g� 108805 s t�ECOi'CCt #[ CaFFICf'Y tt F a Fttl� iF S i DINIO LU: 4 rr V. 2012 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. 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 1000 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 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 agree 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 a j 2413 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 E' 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 rn } 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 =i 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 Tn { 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 r provide for the sharing of liability with respect to personal j 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 . a 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, w agents and employees from and against all liability, claims, R 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 1; 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 ;1 specifications or inspection of the work is intended to include - -• � BW /06 /BC1 -06wp 3(2- 18 -88 74) ' u tl f 201 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. 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 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 notwith- standing, 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 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 w, 2015 Y 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 )i ;f i 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 the Declaration. IN WITNESS WHEREOF, the parties have executed this Agreement on the % day of ;�!3d�yt�-, 19 Assessor's parcel No. .S r-- 6� rL34 Atta.W. Stewart Developer STATE OF CALIFORNIA COUNTY OF X-t -f 01':" SS On this /20 day of in the year 19_ before me, the undersigned, a Notary Public n and for said State personally. appeared __4 tts. vV, , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within, instrument and acknowledged to me that Slt executed it. MR= UAL ROM FWw"WN"a WITNESS my hand and official seal tan owe CMW �T..d- .�,,.: •,L,7 -0... «. -..,a P..,.. A ea-. 4— pmt.,; -F-P4 r.,-1 An easement (24 feet wide) for private road and utility purposes over, across, and under a portion of Lot 3 of Coast Park according to Map thereof No. 1776 as filed in The Office of The Recorder of San Diego County, State # of California and being more particularly described as follows; Beginning at the most Southerly corner of Parcel Map No. 1247 as filed in The Office of The Recorder of San Diego County also being a point on a 254.2 foot radius curve (concave Southeasterly) in the Northwesterly Tine of East Glaucus Street through which a radial bears North 32 057'02" West; thence along the arc of said curve through a central angle of 23 °01'03" for an arc length of 102.12 feet to the True Point of Beginning; thence North - °48'54" 1 .` 36 West, 165.39 feet; thence North 530 11'06" East, 24.00 feet;.' thence South 360 48'54" East, 158_66 feet to a point on said 254.2 foot radius curve through which a radial bears North 500 19'43" West; thence all ly along the arc of curve said through a central angle of 5 138'21" for an arc length of 25.02 feet to the True Point of Beginning. o L . 2017 February 26, 1988 W.O. 1730 Exhibit B A portion of Lot 3 of Coast Park according to Map thereof No. 1776 as filed in the Office of The Recorder of San Diego County, State of California and being more particularly described as follows: Beginning at a point in the Westerly line of East Glaucus Street which point is also the most Easterly corner of Record of Survey No. 2751 as filed in The Office of The Recorder of said San Diego County; thence along the Northerly line thereof North 73 046'52" West, 72.94 feet to an Easterly corner of Record of Survey No. 4553 as filed in The Office of The Recorder of San Diego County; thence along the Easterly line thereof North 15051'39" West, 324.46 feet to the Southerly line of Record of Survey No. 9458; thence along said Southerly line North 80 °37 117" East, 233.00 feet to the Westerly line of Parcel Map No. 1247 as filed in The Office of The Recorder of San Diego County; thence along said Westerly line South 19 °38'28" East, 165.55 feet to a point in the Northwesterly line of said East Glaucus Street which is also a point on a 254.2 foot 'radius curve (concave Southerly) through which point a radial bears North 32057'02" West; thence along the arc of said curve through a central angle of 40 °49'50" for an arc length of 181.15 feet; thence South 16 °13'08" West, 75.27 feet to the Point of Beginning.