1988-108805When Recorded please nail to:)
• Thomas F. Noonan
2121 Newcastle Av. )
Cardiff -by- the- Sea, "Ca• 92007)
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uest of CC�lt #t'{ ttz.,€:; rdOI !{ ':, ]
ttecorded Fteq )
DepartMEMt of Pubic Werka DER'S USE
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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.
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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.
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
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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
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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
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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
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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
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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,
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agents and employees from and against all liability, claims,
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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
- -•
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BW /06 /BC1 -06wp 3(2- 18 -88 74)
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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
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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.