1988-64865E
88 064865
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lease mail to: snn? FEB
When recorded, please y I-, I .I c.
and Grace
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Elgin `r • AR lif Y 4�t Lttf,.:
371 HillcrCA 92024 MVG
Leucadia, ,
uost of MAINTENANCE AGREEMENT
Recorded Peq RZVP,TE ROAD MP'I
®0po�e It of Public Worms repair of that
maintenance and and /or plat
for the legal description and made a
THIS AGREEMENT easement, attached- he Kell
certain private road Exhibit A race R.
is set forth into by El in T. Kell I ±
of which is entered
part hereof, Kelly the benefit of t
and George T• " for private
road
to as "Developer ) 'LISP- the p shall
referred who Will ers" , which r*
(hereinafter lot owners to as n lot own retains any .,
future subdivision referred the Developer
hereinafter to the extent
easement the Developer lot or lots) -
include as a condition of
ownership interest in any e aired defined in
r q roj ect as
this reemensdivisi City
Ag on p ursuant tO t
WHEREAS the City oz a Code and p and Section
approval by lic Resources 24.16.060
21065 of the Pub Code Section
Section Municipal
of Encinitas real property
24.29.040; certain use
owner of that willeg
EREAS, Developer is the TPM 18762 complete al
and developed as --g complete ibit Br
subdivided said road easement• labeled 1
being the benefit of arty is attached, is her
and enjoy said real prOp real prop
description of reference. Said r
and incorporated byn arty "; and hereto that
referred to as the prop the parties h usable
desire of in a safe and
mutual r:a
WHEREAS. it is the be maintained
said private road easement and
the lot owners; hereto to
condition by the a parties said private
desire of
WHEREAS it it the he maintenance an of ethe expense of a d
a method for apportionment
pportionm and future lot owners;
establish and for the existing
road easement among axis that this
and repair the parties
maintenance land, binding t�
mutual t running With the of the
WHEREAS, it is the covenant all or any portion
;€ constitute a owner. Of GREED AS FOLLOWS: '
t Agreement lot
} upon each successive " IT IS HEREBY A
} property- NOW THERE
A
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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
ion
created in the subdivision and paid by the lot owner of the
heirs, assigns and successors in interest of each such owner.
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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
a
liable under this Agreement for their then pro rata share of
f 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
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' Agreement shall be limited to the following unless the consent
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for additional" work -is • agreed to by a maj oritx vote of the lot
owners owning loot of the number of parcel's; " including
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�..�y
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'p"
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,
a
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repairing and resurfacing of roadbeds, repairing and maintaining
drainage structures, removing debris, maintaining signs, markers,
striping and lighting, if any, and ocher work reasonably:
necessary of proper to repair and preserve the easement for all
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weather road purposes.
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5. If there is a covenant, agreement, or other obligation
imposed as a condition of subdivision approval to make private
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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
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completed.. and. approved by the City.
to damage to
(�`a
6. Any extraordinary repair required correct
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.
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7. It is agreed that Developer is initially the agent to
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contract and oversee and do all acts necessary to accomplish the
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repairs and maintenance required and /or authorized under this
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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
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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.A and.anc?
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
1 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 3.351(h), and ( ii) the Common Area
BW /sd /BC1 -06 (10- 20 -87 -1)
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of the property (including the private road easement)
and controlled by an Association:
is managed
(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 executgdthis Agreement
on the 2f day of 19 '67 -
6 (Developer) gin T. Kelly Gr c R. Keo T.
STATE OF CALIF IA
Iss.
COUNTY
E OFD
t U On I CGhi �� I
before me, the undersigned, a Notary Public in and for
T said State, personally appeared
r XC-LL
t E G
a personally known to me (or proved to me on the basis of satis•
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m factory evidence) to be the person(s) whose name(s) is /are sub• OFFICIAL SEALy'
BURTON W COLLINS
v r scribed to the within instrument and acknowledged to me that �y NOTARY PUBLIC CALIFORNIA
he /she /they executed the same. y .� PRINCIFAL_OFFICE IN
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1045
EXHIBIT "A"
TPM 18762
A NON— EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS AND FOR ROAD AND
UTILITY PURPOSES TO BE USED IN COMMON WITH OTHERS OVER, ALONG,
UNDER, AND ACROSS THAT PORTION OF LOTS 33 AND 34 OF AVOCADO ACRES
NO. 3, BEING IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AC-
CORDING TO MAP THEREOF NO. 2063, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAID SAN DIEGO COUNTY, OCTOBER 3, 1927, AND
THAT PORTION OF NORTH LEUCADIA, IN THE COUNTY OF SAN DIEGO, STATE
OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 524, FILED IN THE OF-
FICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, APRIL 6,
1888 AND MAP 763, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAID SAN DIEGO COUNTY, SEPTEMBER 25, 1923 AND ALSO THOSE PORTIONS
OF EOLUS AVENUE AND PACIFIC STREET BEING VACATED BY ORDER OF THE
BOARD OF SUPERVISORS OF SAN DIEGO COUNTY, ON NOVEMBER 19, 1915,
DESCRIBED IN DEED TO GEORGE T. KELLY, ET. AL., RECORDED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 19,
1978 AS FILE /PAGE NO. 78- 446550 OF OFFICIAL RECORDS DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF THE NORTHERLY 164.00
FEET OF SAID LOT 34 OF MAP NO. 2063; THENCE ALONG THE SOUTHERLY
LINE THEREOF AND ITS EASTERLY PROLONGATION, NORTH 74 027'05" EAST
299.97 FEET TO A POINT DISTANT SOUTH 74 °27'05" WEST, 60.00 FEET
FROM THE CENTERLINE OF SAID EOLUS AVENUE AS SHOWN ON SAID MAP
524; SAID POINT BEING THE BEGINNING OF A TANGENT 10.00 FOOT
RADIUS CURVE CONCAVE NORTHERLY; THENCE ALONG THE ARC OF SAID
CURVE 9.67 FEET THROUGH A CENTRAL ANGLE OF 55 022'35" TO THE
BEGINNING OF A REVERSE 34.00 FOOT RADIUS CURVE CONCAVE WESTERLY;
THENCE ALONG THE ARC OF SAID CURVE 124.54 FEET THROUGH A CENTRAL
ANGLE OF 209 051'42" TO A POINT ON THE ARC OF SAID CURVE, A RADIAL
LINE TO SAID POINT BEARS NORTH 41 003'48" WEST; THENCE LEAVING
SAID CURVE SOUTH 1.4 026'51" EAST 122.03 FEET; THENCE SOUTH
74 000'16" WEST 20.01 FEET; THENCE NORTH 14 °26'51" WEST 119.30
FEET TO A POINT ON THE ARC OF A 34.0.0 FOOT CURVE CONCAVE NORTH-
EASTERLY, A RADIAL BEARING TO SAID POINT BEARS NORTH 6 °23'11"
WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE 27.42 FEET
THRU A CENTRAL ANGLE OF 46 12' 51" TO THE BEGINNING OF A REVERSE
10.00 FOOT RADIUS CURVE C014CAVE SOUTHERLY; THENCE ALONG THE ARC
OF SAID CURVE 9.67 FEET THROUGH A CENTRAL ANGLE OF 55 02213511;
THENCE TANGENT TO SAID CURVE SOUTH 74 027'05" WEST 275.07 FEET;
THENCE SOUTH 74 055'53" WEST 27.44 FEET TO THE WESTERLY LINE OF
{ SAID LOT 33 OF MAP 2063; THENCE NORTH 10 °41'00" WEST 29.88 FEET
TO THE POINT OF BEGINNING.
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EXHIBIT "B"
PARCEL 1: ACRES NO. 3. in the County
portion of Lots 33 and 34 of AVOCADO thereof NO
2063, filed
of San Diego, State of California, according to map Di County, October 3,
in to office of the County Recorder of said San Diego
1927•
r gl(CEPTING from said Lot 33 the Southerly 138.00 feet of the Westerly 121.00
feet.
AL,0 EXCEpTING from said Lot 34 the Northerly 164.00 feet.
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PARCEL 2: l South,
That portion of the Northwest Quarter of Section 4, Township 3
rorthwes Meridian, in the County of San Diego, State
Range 4 West, San Be described as follows:
of California, according to Official Plat sald Section 4, which is South
Beginning at a point on the North Line of
89 59'45" East, 1634 thereoftNoro1802, filed�intthe office of the County No.
2, according to Map t 6, 1924, said point of beginning being
Recorder of San Diego County, August reel of land conveyed to Chester S.
also the most Westerrlydeednrecorded August 4, 1944 as Document No. 57070
McFarland, et ux, y thence along the
in Book 1706, page 430 of Officia boundary of
l Records;
said Me Farland's Land, South 1601'30" East, 265.56 feet (Record South 1545'
20" East, 264.60 feet) to an angle point thereof in the center line of North
Pacific Street (now vacated) as said Street is shotirn on �P
Leucadia, filed in to office of the County Recorder of San Diego County,
April 6j 1888 and North 7 c5St3r eetE4 -00 feet to ehNortheastterly corner of
said er Fors et ux, recorded in the office
that land described in deed to Ragn 1960 as File No. 232028; thence along
of the County Recorder, f, South 16x01930" East, 164.91 feet to the Easterly
the Easterly line thereof,
prolongation of the Southerly �e 'o Map thereof No. 2063 filed in the
of Avocado Acres No.- 3, according 1 2 said point being the TRUE
office of to County Recorder, October ,,1 r91gation, North 7429'20" East,
POINT OF BEGINNING; thence along p
29.00 feet to a point distant South 74 29120" West, e•begfei�ning of a e
center line of said Eolus Avenue, said point being the arc of
tangent 10.00 foot radius curve concave Northefl ;,thence along
said curve 9.66 feet trough a central angle of 55 22'35" to the beginning
of a reverse 34.00 foot radius curvh concave central angle of 99P35114 "o o the
are of said curve 59.10 feet throng d center jine, South 16'
center line of said Eolus Avenue; thence along of that land described
01'30" East, 17.23 feet to the Southwesterly
in deed to Victoria Mason recorded in the office of the Cthence along ersaid
June 30, Vi in Book 774 , Page 155 of Official Records; " East) 71.51
Mason boundary, North 7502'22" East (Record North abed 75'23'30
feet to the Northeasterly corner of that ]and described R cordertoNov�r 6,
f Zellers, et ux, recorded in to office of to County ;Ad Zellers
1947 in Book 2539 °Page 182 of Official Records- thence along feet
boundary, South 11 01'30" East (Record South 15 4Wes�; gt�19feetOto tthe
and South 73'58130" West (Record South 7 14,40" er Fors, et
Easterly line of that land described in Parcel 2 of Deed to Ragn
x _
{ PAGE 2
1047
4 EXHIBIT "B" �C°dN�7dyE�
the office of the County Recorder, November 29, 1960 as
ux recorded in 9 of Official Records* thence along said Easterly line, North
Fife No. 232029 12 said Hap to63� the"
16'01.130" West (Record North 15 45 � ��� 120.00 feet to the Easter
prolongation of the Northerly line thereof and its Northerly
South 73 58'30" West, 112.00 feet to the Southeasterly corner of Lot 33 of
said map 2063; thence along the Easterly line
pprolongation, North 16'01'30" iiest4 c , Ma 2063' thenice g southerly ast said f
the Northerly 164.00 feet of Lot 3 q4 29' 0" East, '101.00 feet to
line and its Easterly prolongation North
the ?RUE POINT OF BEGINNING.