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1988-317193t I ; , i; r � MENUIVA When recorded, please mail to: PAsco Engineering 88 317193 of tt tr; 1980 J1114 30 A If 10 3 L t + f Vii: ;,lsl3f it 535 No. Highway 101, Suite A , Solana Beach CA-92075 ! RF O ' AR iV1G S:ecorded Request of Department of Public Works PRIVATE ROAD MAINTENANCE AGREEMENT TPM 19,Y9-3 r' 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 DANIEL T. SHELLEY (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 24.296040; and, WHEREAS, Developer is the owner of certain real. property being subdivided and developed as. TPM 18493 RPL 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: BW /s4 /BC1 -06 (10- 20 -87 -1) iAl 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. 1 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 r heirs, assigns and successors in interest of each such owner. 3. In the event any of the herein described parcels of m land are subdivided further, the'lot owners, heirs, assigns and n ,I successors in interest of each such newly created parcel shall be ® 1 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. { v 4. The repairs and maintenance to be performed under this r Agreement shall be limited to the following unless the consent "� } for additional work is agreed to by a majority vote of the lot j owners owning f the number of g 1000 % parcels, including subdivisions thereof as described in Paragraph 3 above. z Reasonable and normal road improvement and maintenance work to j adequately maintain said private road easement and related drainage facilities to permit all weather access. m 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 ct, necessar y of proper to repair and preserve the easement for all weather road purposes. 2 5 S. 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 .. I repair and maintain the private road easement as herein set forth shall commence when the private road improvements have been 1 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 BW /sd /BCl -06 (10- 20- 87 -1)- I 869 shall be commenced when a majority of the lot owners agree in z 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 j 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 loo 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 14 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 r 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 p aid, all costs and disbursements of such action, including such sum or sums as the bourt 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 i 1 r z v l 870 j hereunder or to-any lot owner, any contractor, any subcontractor, r 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 k therefore. 11. The foregoing covenants shall run with the land and 'i 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. k { 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 E upon majority approval of the lot owners and consent of the City. i 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 S 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) Mn 0 r M 0 0 v v U) Z z 871 t, 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. r' k (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 r777' day of O4G. , 19V7 . 1. 1 i DANIEL T. SHELLEY er I STATE OF CALIFORNIA <. I � COUNTY OF�� 0, F�� /? E'j2 �7� C before me, the undersigned, a Notary Public in and for said State, personally appeared �� �— T' \ } � v E �jJ 4 (or proved to me on the basis of satis LL factory evidence) to be the person(s) whose name(s) isA-" sub - scribed to the within Instrument and acknowledged to me that a he /sheilhey executed the same, t III 2� WITNESS my hand and official seal. m 0 M Signature OFFICIAL SEAL JANICE K. SWENSON NOTARY PUauU CALIFORNIA SAN DIEGO COUNTY lemyc—.• Fap— Momh 30,1990 (This area for official notarial seal) i t 4 • '87 2 t ' EXHIBIT "A" " LEGAL DESCRIPTION f ROAD EASEMENT 3 TPM 18493 AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER, UNDER, f ALONG AND ACROSS THAT PORTION OF BLOCK 26 OF THE COLONY OF OLIVENHAIN, TOGETHER WITH THE WESTERLY 12.00 FEET OF "E" STREET ADJACENT '.a TO SAID BLOCK ON THE EAST, AS VACATED BY THE CITY COUNCIL ON t JUNE 8, 1987 , IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 326 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON JULY 8, 1885 DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHERLY 289.00 FEET OF SAID BLOCK 26, THENCE SOUTH 73 011'00" EAST ALONG THE EASTERLY PROJECTION OF THE SOUTHERLY LINE OF SAID NORTHERLY 289.00 FEET, 12.01 FEET TO THE EASTERLY LINE OF THE WESTERLY 12.00 FEET OF "E" STREET; THENCE ALONG SAID EASTERLY LINE OF THE WESTERLY 12.00 FEET OF "E" STREET SOUTH 15 032'47" WEST 110.12 FEET TO THE TRUE POINT OF BEGINNING, SAID POINT BEING THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 90 000'00" A DISTANCE OF 31.42 FEET; THENCE TANGENT TO SAID CURVE NORTH 74 027'13" WEST 111.72 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 42 012'20" A DISTANCE OF 14.73 FEET TO THE BEGINNING OF A REVERSE 34.00 FOOT RADIUS CURVE CONCAVE EASTERLY, A �,ADIAL LINE ri l1 A f i i a� r EXHIBIT "A" (cont.) I� • V 873 TPM 18493 TO SAID POINT BEARS SOUTH 57 045'07" WEST; THENCE COUNTERCLOCKWISE ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 264 024'40" A DISTANCE OF 156.92 FEET TO THE BEGINNING OF A REVERSE 20.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 26 039'32" WEST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 42 012'20" A DISTANCE OF 14.73 FEET; THENCE TANGENT TO SAID CURVE SOUTH 74° 27'13" EAST 111.72 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THRU A CENTRAL ANGLE OF 90 000'00" A DISTANCE OF 31.42 FEET TO A POINT IN THE EASTERLY LINE OF THE WESTERLY 12.00 FEET OF "E" STREET; THENCE ALONG SAID EASTERLY LINE NORTH 15 032'47" EAST 80.00 FEET TO THE TRUE POINT OF BEGINNING. TOGETHER WITH THAT.PORTION OF THE NORTH —HALF OF FIFTH STREET ADJACENT TO SAID PARCEL AS VACATED BY THE CITY COUNCIL OF THE CITY OF ENCINITAS ON MAY 26, 1987 AND RECORDED DECEMBER 7, 1987 AS FILE NO. 87— .674382 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THE NORTHERLY 289 FEET THEREOF. ALSO EXCEPTING THEREFROM THAT PART THEREOF LYING WITHIN THE EAST- ERLY 156 FEET OF SAID BLOCK 26. EXHIBIT "B" LEGAL DESCRIPTION � 874 TPM 18493 j i ti b BLOCK 26 OF THE COLONY OF OLIVENHAIN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 8, 1885. TOGETHER WITH THAT PORTION OF THE SOUTHEASTERLY HALF OF "D" STREET, ALSO VACATED AND CLOSED BY RESOLUTION OF THE BOARD OF SUPERVISORS; APRIL 27, 1934, RECORDS OF THE BOARD OF SUPERVISORS, ADJOINING SAID BLOCK 26 ON THE NORTHWEST LYING NORTHEASTERLY OF THE CENTER LINE OF 5TH STREET AND SOUTHEASTERLY OF THE COUNTY ROAD SURVEY NO. 458, ACCORDING TO PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAN DIEGO COUNTY. TOGETHER WITH THAT.PORTION OF THE NORTH —HALF OF FIFTH STREET ADJACENT TO SAID PARCEL AS VACATED BY THE CITY COUNCIL OF THE CITY OF ENCINITAS ON MAY 26, 1987 AND RECORDED DECEMBER 7, 1987 AS FILE NO. 87— .674382 OF OFFICIAL RECORDS. EXCEPTING THEREFROM THE NORTHERLY 289 FEET THEREOF. ALSO EXCEPTING THEREFROM THAT PART THEREOF LYING WITHIN THE EAST- ERLY 156 FEET OF SAID BLOCK 26.