1988-195867iGO
When recorded, please mail to:
Ronald A. Grimes
1411 Crest Drive
88 195867
I S 14 ITT 28 W� 10'
i
Encinitas, Ca. 92024 RF
Recorded Request of AR
Department of Public Works PRIVATE ROAD MAINTENANCE AGREEMENT TPM /0 MG
THIS AGREEMENT for the maintenance and repair of that
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 Ronald A. Grimes
(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
of Encinitas Municipal Code Section 24.16.060 and Section
24.29.040; and,
WHEREAS, Developer is the owner of certain real property
being subdivided and developed as TPM 18336 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
road easement and for the apportionment of the expense of such
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:
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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
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. h:
Reasonable and normal road improvement and maintenance work to
adequately maintain said private road easement and related ,w
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 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.
G. 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
BTI /sd /BC1 -06 (10- 20 -87 -1)
1882
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 l00 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
costs and expenses
a the
pay pro rata share of
as provided in this
or any lot owner or
Agreement, then
the agent
co
owners shall be
notice to institute legal action for
entitled without further
the
as a result of or arising out of repairs and maintenance under
this Agreement, shall be borne, between
advanced on behalf of such lot
collection
in
of funds'
owner accordance
provisions of California Civil Code Section 845, and
with the
,
g.
entitled to recover in such action in
advanced, interest thereon
addition to
shall be
the funds
at the current prime rate of
until paid, all costs and disbursements of such action,
interest,
including
repairs and maintenance undertaken under
this Agreement. Each of the lot
such sum or sums as the Court may fix
attorney's fees.
as and for a reasonable
owners agrees to indemnify the
others from any and all liability for injury to himself or damage
�k
9. Any liability of the lot owners for personal injury to
the agent hereunder, or to any worker to
employed 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, between
as 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 intend
not to provide for the sharing of liability
with
respect to personal injury j Y 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 /BCl -06 (10- 20 -87 -1)
1883
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 privatej"
road easement.
Nothing in the Agreement, the specifications or other''
1'
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, 1
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
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
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1884
of the property (including the private road easement) is managed
and controlled by an Association:
t
1
i (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. she 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 24th day of February 19 88
Developer i onaid A. Grimes
TO 1944 GA (8-74)
--
(Individual) Road Maintenace Agreement rrANDTRUST TITLEwsuRANCE
�
STATE OF CALIFORNIA ll
COUNTY OF San Diego I SS. AnCOR COMPANY
On February 24 1988 before me, the undersigned, a Notary Public in and for said
State, personally appeared�Oflald A GrimP�-
iW nrovarl to ma on the hacic of caticfaCtory
= evidence {
W known to me
W to be the person whose name i S subscribed,
ato the within instrument and acknowledged that he OFFICIAL SEAL
executed the same.
WITNESS my hand and official seal. TARRY ANN EDWARD$
e
Fn AI4TAi2Y PUBLIC - CALIFORNIA
Signature /I ' vV
" RLth Ann Friwarric
SAN DIEGO COUNTY
my comm. expires APR 5, 2988
(This area for official notarial seal)
I
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m
EXHIBIT A
All that portion of Block "F" of PALOMARES HEIGHTS, in the County of San
Diego, State of California, according to the Map thereof No. 2114, filed in
'- the Office of the Recorder of said San Diego County, June 19, 1928,
described as follows:
Beginning at a point on the Easterly line of said PALOMARES HEIGHTS
distant thereon South 0" 51'21" West, 1377.51 feet from the Northeasterly
corner thereof; thence continuing along the said Easterly line of PALOMARES
HEIGHTS, South 0 °51'21" blest a distance of 141.18 feet; to the TRUE POINT
OF BEGINNING of this description; thence North 89 °08'39" West a distance
of 29.48 feet to a tangent, 72.00 foot radius curve, concave Northerly,
thence along the arc of said curve through a central angle of 36 °17'21" for
an arc length of 45.60 feet; thence, tangent to said curve, North 52 051'18"
West a distance of 78.21 feet to a tangent, 72.00 foot radius curve,
concave Northeasterly; thence along the arc of said curve through a central
angle of 22 044'02" for an arc length of 28.57 feet to a point through which
a radial bears North 60`48'14" East; thence North 0051'21" East a distance
of 39.92 feet; thence South 29 °11'46" East a distance of 33.39 feet to a
tangent 52.00 foot radius curve, concave Northeasterly; thence along the
arc of said curve through a central angle of 23 039'32" for an arc length of
21.47 feet; thence, tangent to said curve, South 52 "51'18" East a distance
of 78.21 teet to a tangent, 52.00 foot radius curve, concave Northerly;
thence along the arc of said curve through a central angle of 36°17'21" for
an arc length of 32.94 feet; thence tangent to said curve South 890 08'39"
East a distance of 29.48 feet to said Easterly line of PALOMARES HEIGHTS;
thence along said line South 0 051'21" West a distance of 20.00 feet to the
TRUE POINT OF BEGINNING.
EXHIBIT B
All that portion of Block "F" of PALOMAKE3 HEIGHTS, in the County of San
Diego, State of California, according to the May thereof Nn' 2114, filed in
the Office of the Recorder of said San Diego County, June 19, 1928,
described as follows:
Beginning at a point on the Easterly line of said PALOMARE5 HEIGHTS,
distant thereon South 0"51'21^' Vest, 1377.61 feet from the Northeasterly
corner thereof; thence continuing along the said Easterly line of PAL0MARES
HEIGHTS, South 0051'21" West, a distance of 141'18 feet; thence North 89^
08^39" Nest, a distance of 652.11 feet to a point which bears South
89"O8`39" East, 56.00 feet from the Southeasterly corner of Lot 10 thence
North 5048'42" East, a distance of 141.90 feet, thence South 89008'39"
East, a distance of 637.38 feet to the POINT OF BEGINNING.