1988-7081I
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1 s 1980 JAN -7 PM 12. 50
r . VEPAL.LYLE
C When recorded, please mail to: IJNCY'f2ECORDER
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j' Spencer A. Smith, Jr. RF m j
i 1822 Encinitas Blvd. AR
=1 Encinitas, CA 92024
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. Recorded Requost of
§ Department of Public Works PRIVATE ROAD MAINTENANCE AGREEMENT TPM 18459
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{ THIS AGREEMENT for the maintenance and repair of that
l certain private road easement, the legal description and /or plat
i of which is set forth in Exhibit A attached hereto and made a
part hereof, is entered into by
Spencer A Smith, Tr -
(hereinafter referred to as "Developer ") for the benefit of 0
future subdivision lot owners who will use the private road r
easement (hereinafter referred to as "lot owners ", which shall m
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 O
A of Encinitas Municipal Code Section 24.16.060 and Section � !,
24.29.040; and, Z
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WHEREAS, Developer is the owner of certain real property '
being subdivided and developed as TPM 18459 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 mutual desire of the parties hereto that
said private road 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
1 road easement and for the apportionment of the expense of such
s' maintenance and repair among existing and future lot owners; and
- 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: ir:
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,1. The property is benefited by this Agreement,
of the
present and successive lot owners of all or any portion
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
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 shell include, crackst
is not limited to, filling of chuckholes re airing
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. at an
. The parties further agree that the agent may y
time be replaced at the direction of a majority of the lot
owners. Repair and maintenance work on the private road easement
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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 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
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
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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 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
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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 bald 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
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of the property (including the private road easement) is managed
and controlled by an Association:
j; (a) The Association, through its Board of Directors, shall
E 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 d this Agreement
on the 28th day of October ,
!
Dev loper
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- 1761
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COUNTY OF SAN DIEGO)
STATE OF CALIFORNIA) SS
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ON THIS 28 th DAY OF October , 1987 , BEFORE ME, THE
UNDERSIGNED, A NOTARY PUBLIC 1I-AND FOR SAID STATE PERSONALLY
APPEARED
�!✓�T%i �%%l
ENCER A. SMITH,
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(PERSONALLY KNOWN TO ME)(PROVEN ON THE BASIS OF SATISFACTORY
EVIDENCE)
TO BE THE PERSON WHOSE NAME IS SUBSCRIBED TO THE WITHIN'
INSTRUMENT AND ACKNOWLEDGED TO ME THAT
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HE EXECUTED THE SAME.
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WITNESS MY HAND
OFFICIAL SEAL
RENEE L MARRON
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NOTARY PUBLIC IN AND FOR SAID STATE
Notary Publfc - California
` ® SAN DIEGO COUNTY
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MY COMMISSION EXPIRES May 28, 1991
M domf�. o. May pe,9sat
PRINCIPAL PLACE OF BUSINESS: SAN DIEGO COUNTY
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olEXHIBIT
" A
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BEGINNING AT A POINT ON THE SOUTHWEST BOUNDARY SOUTH 72 52'39"
EAST 37.02 FEET FROM THE WEST CORNER OF SAID PARCEL 1 DESCRIBED
HEREIN; THENCE NORTH 15 18' 16" EAST 35.49 FEET TO THE BEGINING
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OF A 48.00 FOOT RADIUS TANGENT CURVE CONCAVE WESTERLY; THENCE
ALONG SAID CURVE THROUGH AN ANGLE OF 14 53' 47" A DISTANCE OF
12.48 FEET TO THE TRUE POINT OF BEGINING; THENCE CONTINUING ALONG
�y
THE ARC OF SAID CURVE THROUGH AN ANGLE OF 28 59' 46" A DISTANCE
OF 24.29 FEET; THENCE NORTH 85 27' 50" EAST 39.68 FEET; THENCE
"
SOUTH 72 521 39" EAST 87.81 FEET; THENCE SOUTH 15 0.8' 20" WEST
24.01 FEET; THENCE .NORTH 72 52' 39" WEST 84.86 FEET; THENCE
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SOUTH 85 27' 5,0" WEST 30.34 FEET TO THE TRUE POINT OF BEGINING.
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1763
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Exhibit B
PARCEL l:
THAT PORTION OF BLOCK 92 OF COLONY OLIVENHAIN, IN THE COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF N0. 326, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 89 1885, DESCRIBED
AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY LINE OF SAID BLOCK 92, DISTANT THEREON
NORTHERLY 240.00 FEET FROM THE SOUTHEASTERLY CORNER THEREOF, SAID POINT
6EING THE NORTHEASTERLY CORNER OF LAND DESCRIBED IN DEED TO ROBERT J.
BIRCHALL, ET UX, RECORDED AUGUST 27, 1971 AS FILE /PAGE NO. 193296 OF OFFI-
CIAL RECORDS; THENCE WESTERLY ALONG THE NORTHERLY BOUNDARY OF SAID
BIRCHALL'S LAND 158.49 FEET (RECORD 165.00 FEET) MORE OR LESS TO THE NORTH-
WESTERLY CORNER THEREOF, BEING A POINT ON THE EASTERLY BOUNDARY OF LAND
DESCRIBED IN DEED TO JOHN S. THOMAS, ET UX, RECORDED JANUARY 22, 1959 IN
BOOK 7459, PAGE 120 OF OFFICIAL RECORDS; THENCE NORTHERLY ALONG THE
EASTERLY BOUNDARY OF SAID THOMAS LAND 171.09 FEET (RECORD 175.00 FEET) TO
THE NORTHEASTERLY CORNER THEREOF; BEING A POINT ON THE SOUTHERLY LINE OF
THE NORTHERLY 2 ACRES OF THE EASTERLY 5 ACRES OF SAID BLOCK 92; THENCE
EASTERLY ALONG SAID SOUTHERLY LINE 157.95 FEET (RECORD 165.00 FEET) MORE OR
LESS TO THE EASTERLY LINE OF SAID BLOCK 92; THENCE SOUTHERLY ALONG SAID
EASTERLY LINE 1,71.08 FEET (RECORD 175.00 FEET) TO THE POINT OF BEGINNING;
TOGETHER WITH THAT PORTION OF THE WEST HALF OF SAN DIEGO AVENUE, LYING
EASTERLY OF AND ADJACENT TO-SAID HEREINABOVIE PROPERTY, AS VACATED AND
CLOSED TO PUBLIC USE BY THE SAN DIEGO COUNTY BOARD OF SUPERVISORS, IN RESO-
LUTION NO. 8, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, AUGUST 2, 1984 AS FILE /PAGE NO. 84- 294011 OF OFFICIAL RECORDS.
PARCEL 2:
THAT PORTION OF LOT 27 OF THE SUBDIVISION OF RANCHO LAS ENCINITAS, IN THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ON MAP NO. 848, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898,
INCLUDED WITHIN THE FOLLOWING BOUNDARIES:
COMMENCING AT THE SOUTHEAST CORNER OF BLOCK 92 OF COLONY OLIVENHAIN,
ACCORDING TO THE MAP THEREOF NO. 326; THENCE RUNNING NOr<TH ALONG THE
EASTERLY LINE OF SAID BLOCK 92, A DISTANCE OF 375 FEET TO A POINT; THENCE
EAST 150 FEET TO A POINT; THENCE SOUTHWESTERLY TO THE POINT OF BEGINNING;
TOGETHER WITH THAT PORTION OF THE EAST HALF OF SAN DIEGO AVENUE, LYING
WESTERLY OF AND ADJACENT TO SAID HEREINABOVE PROPERTY, AS VACATED AND
CLOSED TO PUBLIC USE BY THE SAN DIEGO COUNTY BOARD OF SUPERVISORS, IN RESO-
LUTION NO. 8, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, AUGUST 2, '984 AS FILE /PAGE N0. 84- 294011 OF OFFICIAL RECORDS.
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PARCEL 3: r"
THAT PORTION OF BLOCK 9 BLOCK OLIVENHAIN ACCORDING TO THE MAP THEREOF �
NO. 326 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID DIEGO COUNTY, AND rn
DESCRIBED AS FOLLOWS:
BEGINNING IN THE MOST NORTHEASTERLY CORNER OF LAND DESCRIBED IN A DEED TO
ROBERT J. BIRCHALL, ET, RECORDED OCTOBER 26,'1982 AS FILE /PAGE NO.
82- 329600 IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG A LINE SOUTH 'p
74 051140" EAST, 40.00 FEET; THENCE SOUTHWESTERLY ALONG A LINE SOUTH N
15 008120" NEST, 20.02 FEET; THENCE NORTHWESTERLY ALONG A LINE NORTH
48 025'45" WEST, 44.73 FEET TO THE POINT OF BEGINNING.
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