2001-8988585RECORDED AT REQUEST OF
DEPARTMENT OF PUBLIC WORKS
When recorded please mail to:
Patricia Gillies Astier
Post Office Box 625
Rancho Santa Fe, California 92067
DEC 07 a 2-003- 1: OCJ
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH. COUNTY RECORDER
FEES: 25.00
9831
PRIVATE ROAD MAINTENANCE AGREEMENT
(TPM 20468)
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 between Patricia Gillies Astier, trustee
of the Patricia Gillies Astier 1984 trust dated August 3, 1984, as owner (hereinafter
referred to as "DEVELOPER ") and the County of San Diego (hereinafter referred to as
"COUNTY ") 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
COUNTY of a subdivision project as defined in Section 21065 of the Public Resources
Code and pursuant to San Diego County Code of Regulatory Ordinances Section
81.402(c)(1) and Section 81.703(c)(1); and,
WHEREAS, DEVELOPER is the owner of certain real property being subdivided
and developed as TPM 20468 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 is 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, the COUNTY shall be deemed a party hereto with the right but not
the obligation to enforce full compliance with the terms and conditions of this
Agreement; and
WHEREAS, it is the mutual intention of the parties that this Agreement constitute
CCSF 84.83
ZI
Val
9832
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:
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 or 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 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 or 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 COUNTY.
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
CCSF 84.83
2
T V12046
9833
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 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 cost; 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 him 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 COUNTY, COUNTY'S engineer, and their consultants and each of their
officials, directors, officers, agents and employees from and against all liability, claims,
CCSF 84.83
3
T13 J2046 8
9834
damages, losses, expenses, personal injury and other costs, including costs of defense
and attorney's fees, to the agent 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
COUNTY'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 COUNTY, COUNTY'S engineer, and their consultants, and each of
their officials, directors, officers, employees and agents, shall have absolutely no
responsibility or liability therefor.
11. If in the COUNTY'S sole judgment said private road easement is not being
maintained to standards set forth in paragraph 4 of this Agreement, the COUNTY may
thereupon provide written notice to all LOT OWNERS to initiate repairs or construction
within ninety (90) days. Upon failure to demonstrate good faith to make repairs or
construction within ninety (90) days, the LOT OWNERS agree that the COUNTY may
make all needed repairs to said road easement and /or construct said road easement to
meet the standards set forth in paragraph 4 and to then assess costs to all LOT
OWNERS proportionately. The agent shall be responsible for collecting the
assessments and ensuring payment to the COUNTY. If the agent fails to collect the
assessments for any reason, the County may pursue the remedy provided for LOT
OWNERS in Paragraph 8 hereof, or any other remedies at law or in equity.
12. If the COUNTY elects to make necessary repairs in accordance with
paragraph 11 above, said work shall be without warranty. Said repair shall be accepted
"as is" by the LOT OWNERS without any warranty of workmanship and be guaranteed
and indemnified by them in accordance with paragraph 9.
13. 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.
14. It is understood and agreed that the covenants herein contained shall be
binding on the heirs, executors, administrators, successors, and assigns of each of the
LOT OWNERS.
15. 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
CCSF 84.83
4
9835
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.
16.
The
terms of this Agreement may
be amended in writing upon majority
approval
of the
LOT OWNERS and consent
of the COUNTY.
17. 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.
18. 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 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 this Agreement in its entirety. No individual owner 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.
CCSF 84.83
5
9836
IN WITNESS WHEREOF, the parties have executed this Agreement on the -O
day of 626-441r,- 200/
Patricia Gillies Astier, trustee of the Patricia Gillies Astier 1984 trust dated August
3, 1984, as owner
By:- //a/r7
Patricia Gilli s Astier, trustee
COUNTY OF SAN DIEGO
so
For Director of Public Works
STATE OF C IFORNIA )
COUNTY Ocn!E! —)
ON BEFORE ME S `
APPEAREc
PE.Rtni i v tom, �ninnmi Tn (OR PROVED TO ME ON THE BASIS OF
SATISFACTORY EVIDENCE) TO BE THE PERSON(,o WHOSE NAME �Sr IS ARE
SUBS�RIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TOME THAT
HE/ H HEY EXECUTED THE SAME IN HIS / E /THEIR AUTHORIZED
CAPACITY(IE), AND THAT BY HIS/ ER HEIR SIGNATURE ON THE
INSTRUMENT THE PERSOfN.O, OR THE ENTITY UPON BEHALF OF WHICH THE
PERSONE`ACTED, EXECUTED THE INSTRUMENT.
WITNESS
SIGNA
CCSF 84.83
OI&NMM #1B1MM
NOTRNYW&IGW�
SRN DIEGO COUNTY
MyC E)*WSa 19'=
SEAL
9837
Exhibit "A"
The Private Easement Road serving Parcels 1 and 2 to El Camino Del Norte all as
shown an indicated on TPM 20468.
Exhibit "B"
PARCEL 1 OF PARCEL MAP NO. 15375 IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO
COUNTY, SEPTEMBER 15, 1988 AS FILE NOo'88= 464711 OF OFFICIAL RECORDS.
CCSF 84.83
7