2002-654318` DCC 2002- 065318
lob First Recording American le by
AUG 02 a 2002 3:44 PM
First American Title and; )
When Recorded Mail to: ) OFFICIAL RECORDS
STUART 1976 Family Trust 01'3565 SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SNI% COUNTY RECORDER
PO Box 134 ) FEES: 34.00
Rancho Santa Fe, CA 92067 j SPACE ABOVE F( IIII�IIII�IIIIIIIIIIIIIIIIIIIII�IIIIIIIIIII (IIIIIIIIIIIIIIIIIIIIIII \
PRIVATE ROAD 2002. 0664318
MAINTENANCE AGREEMENT
FOR PARCEL MAP 9944
Assessor's Parcel No's 264 - 090 -30; 264- 090 -31; 264 - 090 -32; 264- 090 -33
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 B attached hereto and made a part hereof, is entered
into by STUART 1976 FAMILY TRUST (hereinafter referred to as "Developer") for the benefit of
present and 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, Developer was and is now the majority owner of that certain real property
subdivided and developed as PM 9944 that will use and enjoy the benefit of said road easement(s). A
complete legal description of said real property is attached, labeled Exhibit A, and incorporated by
reference. Said real property is hereinafter referred to as the "property". All current property owners
shall agree to and sign this document; and
WHEREAS, it is the desire of the Developer that said private road be maintained in a safe and
usable condition by the lot . owners; and
WHEREAS, it is the desire of the Developer 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 intention of the Developer 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 THEREFOR, 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 bome by the
individual parcels which benefit from the use of said private roadway in the following shares:
Seement "A" on Exhibit B
Parcel 1
25%
Parcel
25%
Parcel
25%
Parcel
25%
100%
Seement "B" on Exhibit B
none
33 1/3%
331/3%
33 1/3%
100%
Page 1 of 4
013566
Parcel 1 shall bear no part of the cost and expense of maintaining Segment "B" of the private road
easement. The shares to be bome by the respective parcels shall be paid by the parcel 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 to permit all- weather access and conveyance of storm flows. Repairs and maintenance under
this Agreement shall include, but is not limited to, filling of holes, 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 and 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 lot owners 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 to do all acts
necessary to accomplish the repairs and maintenance required and/or authorized under this Agreement.
Developer further agrees 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 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 shall notify the parties and each parry 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 attorneys fees.
Page 2 of 4
01356
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
home, 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 Developer does 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 damaged results from, arises out of, or is
attributable to any maintenance or repairs undertaken pursuant to this Agreement.
10. OMITTED
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.
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 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.
Page 3 of 4
013568
(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 Declaration.
IN WITNESS WHEREO th parties have executed this Agreement
on the —54—day of 2002.
Developer (lot owner APN 264 - 090 -31, 264- 090 -32 & 264 - 090 -33):
Stuart 1976F�Trust, by�tu Trustee
e�- er S fi--?�;
Stuart 1976 Family Trust, by Nedda S. Stuart, Trustee
Lot owner APN 264 - 090 -30
Hugh Hodsman
Alexandra Hodsman
Signatures must be notarized. Attach the appropriate acknowledgement.
Page 4 of 4
013569
Title or Type of Document—Private Road
maintenance Agreement for parcel map 9944
No. Pages _ 4_ Date:_7 /31/02
Signers other than below:_None
Certificate of Acknowledgment
State of California
County of San Diego
On _7/31/02 before me, Grace Diaz, a Notary Public for the State of California,
personally appeared—George Stuart and Nedda S Stuart_, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within
instrument and acknowledged to me that hek.,kelthey executed the same in his/her /their authorized
capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: J'(,�
L�
Grace Diaz
01:35'70
(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 Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement
on the day of , 2002.
Developer (lot owner APN 264 - 090 -31, 264- 090 -32 & 264- 090 -33):
Stuart 1976 Family Trust, by George Stuart, Trustee
Stuart 1976 Family Trust, by Nedda S. Stuart, Trustee
Lot owner APN 264- 090 -30
Hugh •:
40 a
Alexandra Hodsman
Signatures must be notarized. Attach the appropriate acknowledgement.
Page 4 of 4
013571
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
CC ss.
Countyof 7pIEGD
personally appeared
dD0 y before me, Y/�/Yo/ /� �S SsYI / %�� (/dJy�1cc,
( , / Name are The of officer (e.g., 'Jane Doe, Notary Public')
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❑ personally known to me
oved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) is /Ve
subscribed to the within instrument and
acknowledged to me that he /se /thy executed
the same in his /h4thVir authorized
capacity(ies), and that by his /h4 /th(<r
signatures) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my ha�n /d/ and official seal.
Signature of NOlary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: 142' V ill -t(T o!t-D jy/� /,tJ >H�VlJdlb`b >�.CdC— �nsarr
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
❑ Individual Top of thumb here
❑ Corporate Officer— Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney -in -Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
a 1 999 National Noary Aerad - M De Solo Ave.. P.O. Box 24N- Chatsworth, CA 913132402• www.nircwalnotarrorg Prod No. 5907 Reorcec Call Toll Free 1 b00d]6-662)
oi3572
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
State of California
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County of —/�� / �IG lrO
On _LAN /.Od1 before me,
Dam //// // Name and Tire of Officer (e.g - c
'Jane Doe, Notary Public)
personally appeared lgl!-2 bak &ilsl)'/R�j
Names) of Signens)
`.::., -o..� ..,- •t eat �;.
O personally known to me
9>0roved to me on the basis of satisfactory
evidence
to be the person(s) whose names) is /are
subscribed to the within instrument and
acknowledged to me that t4she /tht(j executed
the same in Ms /her /tWr- authorized
capacity(ies), and that by hk /her /th€ir
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/1 U Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached pDocument '
Title or Type of Document: rgtVr�G ko4-> kPut)71+-n1FfA'C6 Avr�C—%%r?F�/
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
• Individual Top of thumb here
• Corporate Officer — Title(s):
• Partner — ❑Limited 0General
• Attorney -in -Fact
• Trustee
• Guardian or Conservator
• Other:
Signer Is Representing:
01999 National Notary Alsociation•9380 De Soto Ave., P.O. 12402 • Chatsworth, CA91313-2402• v rralionalnotary.org Prod. No. 5907 reenter: Call Toll- Free I- 876 6827
4135'73
EXHIBIT A
Lrz6AL i7E5GRIPTION
PARCELS I, 213 AND 4 OF PARCEL. MAP NO. gg441 IN THE CITY OF ENCINITAS,
COUNTY OF SAN DIE60, STATE OF GALIFORNIA, PILED IN THE OFFICE OF TI-E
COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 241 Ig80.
RESERVING THEREFROM AN EASEMENT FOR ROAD, UTILITIES AND SEWER OVER
UNDER, ALONG AND ACRO55 THAT PORTION OF PARCEL MAP NO. gg441 IN THE
CITY OF ENCINITAS, COUNTY OF SAN DIE60, STATE OF CALIFORNIA, FILED
IN THE COUNTY OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
APRIL 24, I680, DE516NATED AND DELINEATED AS "PROPOSED 40 FOOT
PRIVATE ROAD EASEMENT".
THE ABOVE MENTIONED RESERVATION 5HALL RUN WITH THE LAND AND INURE TO
THE BENEFIT OF THE PRESENT AND FUTURE OWNERS OF PARCELS I, 21 3 AND 4
OF PARCEL MAP NO. gg44
013574
EXHIBIT B
ImARCEL tN4AF 1 4 44
ROAD MAINTENANGE AGREEMENT
i P�fizG�L 3
,
M ti
,
PARCEL 2
iP,�RG�L
PARCEL 4
SEGMENT S
NO SGALE
SEGMENT A