1987-6348221920
87 634022
RE'CD�?tlf:L3lti�
nr-iu-1Aa f�G:rc;t�t7s
When recorded Or SA'i I!'f LUU49 �. �n.
please mail to:
COVER BROTHERS DEVELOPMENT COMPANY 1987 NOV 12 PM 12' 47
225 North Pacific Avenue vEnA LLYLE
G
Solana Beach, CA. 92075 Ut Ly lil!cofio i
Recorded Request of
DOPOrtmont of Public Works PRIVATE ROAD MAINTENANCE AGREEMENT TIN 1922 RF
AR
THIS AGREEMENT for the maintenance and repair of that MC'
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 COVER BROTHERS DEVELOPMENT COMPANY,
a general partnership -
(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 a subdivision project as defined in
Section 21065 of the Public Resources Code and pursuant to City
1C of Encinitas Municipal Code Section 24.16.060 and Section
01 24.29.040; and,
WHEREAS, Developer is the owner of certain real property
being subdivided and deve,,Yoped as TPM 18550 that will use
and enjoy the benefit �said read' easement. A complete legal
description of said realp'roperty is attached, labeled Exhibit B,
and incorporated by reference. Said real property is hereinafter
referred to as the "property "; and
WHEREAS, it is the mutual desire of the parties hereto that
said private roars easement be maintained in a safe and usable
condition by the lot owners; and
WHEREAS, it it the mutual desire of the parties hereto 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
t
WHEREAS, it is the mutual intention of the parties 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:
j BW /sd /BC1 -06 (10- 20 -87 -1)
z it 4� ' �'� 'S i m -:c� ,• C^. t.� I ^cVr
1
1921
1. 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
created in the subdivision and paid by the lot owner of the
0
heirs, assigns and successors in interest of each such owner.
3. In the event any of the herein described parcels of'�
0
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
r
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
m
` Agreement shall be limited to the following unless the consent
0
for additional" work -is -agreed to by q majority vote of the lot
O
4, owners owning 100% of the number of parcel's ' ; iricluciing
�.
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
N.
drainage facilities to permit all weather access.
r
UP
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 of 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 parties hereto 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. The parties 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
sw /sd/scl -06 (10- 20 -87 -1)
1
.0 1922
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 105.-1 of the
actual 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
(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 ar, 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
S,ame,,peraentages - as .• they bear the cost's • 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
parties do 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 their
consultants and each of their 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
Bw /sd /BC1 -06 (10- 20 -87 -1)
1
1923
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 their consultants,
and each of their officials, directors, officers, employees and
agents, shall have absolutely no responsibility or liability
therefore.
11. The foregoing covenants shalt run with...the...J and .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 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 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 (ii) the Common Area
BW /sd /BC1 -06 (10- 20 -87 -1)
C
m
r;
r.
�m
�m
.n
o.
cv
m
1
i
o
I� U
flfIh �_
It P
N
U
E
L.
i c
r
m
a
i N
1 �
0
C.
M
1924
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,
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 L�K day of a
COVER BROTHERS DEVELOPMENT COMPANY,
A General Partnership
o� L�
De e open JOHN L. COVER, General Partner
STATE OF
COUNTY
before me, the undersigned, a Notary Public in and
said State, personally
personally known to me (qr proved to ng on the basis of satis-
Sactoge- uvtAence) to be the person that executed the within
instrument a tA..�.� partner(s),
behalf of_� OFFICIAL SEAL
1.11 • the partnership LESLIE A COTHRAN
YC'cL �^ NOTARY PUBLIC - CALIFORNIA
therein named and acknowledged to me that the partnership L SAI DIEGO COUNTY
executed it. My csmm. expires MAR 15, 1991
WITNESS ha and official seal.
Signature — (This area for official notarial seal)
, 011
III
r-
Z
rn
O
O
C
z
.y
C
m
r-.
m
V
M
M
..
m
EX/ST /NG 10'P4IV4rEZ04D AND
UT/UTr EASEMENT /N fAVOQ
LlOB9Y G HCGENEE,ET UX, PeZ
DOC. RECD /2- 5 -69 AS f/P
NO. Z21547
r
(Agreement to include all private ease-
ments m
.,;;� •• menu shown)
m
i
�o
x �1■
0 .
LLI
W
cc
a
�
0
�` -
-.
2
O
I
EX /STING 100'PPIVATE 0
•4�� ArWOANOUT /CITYP Q
.,EASEMENT
PARCEL I
PARCEL 2
I
!/
PR /v4TE Q
.ecL1DAN0 UT /L /TYEAS�E-
HE.Vr
I !
fj�
` : ProrostO Aowre 410,90
tunurr FASerif.Yr
m
PARCEL 3
PARCEL 4
`�1�
N
' 0
J
30
. EX /Sr/NG 3P'PE/VArE eado ANO Ur /CITY
EASEHENr /N fA✓04 a, AGCY O.MC GENES,
ET UX PE4 OOC. QEC D /2- 5 69 A9 F/P
�.
N0. 2W'S'f
O,
l;
I
PeoposE=e OU0
{U7 /UTrfiJSfNe
I
'
I•
'
•\b=
- _.t
I` t.
.-__._ -_ /_9974'
,
3
Q
s
np < 1/177 9
/26.75•
m
EX/ST /NG 10'P4IV4rEZ04D AND
UT/UTr EASEMENT /N fAVOQ
LlOB9Y G HCGENEE,ET UX, PeZ
DOC. RECD /2- 5 -69 AS f/P
NO. Z21547
r
(Agreement to include all private ease-
ments m
.,;;� •• menu shown)
m
i
�o
x �1■
1926
EXHIBIT "B"
iA
THAT PORTION OF LOT 27 OF THE SUBDIVISION OF THE RANCHO LAS
1 =,
ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP NO. 848, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, JUNE 27, 1898, TOGETHER WITH THAT POR-
TION OF THE WESTERLY HALF OF "C" STREET AND THE SOUTHERLY ONE-
HALF OF 6TH STREET, NOW VACATED AND CLOSED TO PUBLIC USE, IN
}{ COLONY OLIVENHAIN, ACCORDING TO MAP THEREOF NO. 326, FILED IN
THE COUNTY RECORDERS OFFICE, COUNTY OF SAN DIEGO JULY 8, 1885,
I AS'•:IN DEED TO COVER BROTHERS DEVELOPMENT COMPANY, RECORDED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON
` SEPTEMBER 19, 1985, AS FILE PAGE NO. 85- 346223.