1986-71550-.,...
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, wne ecor ec - -e —=se mall to:
Michael E. Upton +�61
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,,1301 Rymettus .r
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Leuaadia, CA q Zo 2¢
i- Record0d
Request of
pepartment of egblic Works
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PRIVATE ROAD MAINTENANCE AGREEMENT TPM 18324
THIS AGREE:�IENIT for the maintenance and repair of that certain
private road easement, the legal description and /or
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plat of which
is set forth in Exhibit A attached hereto and made a part hereof,
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is entered into between Craig S. Sisson, Carolyn A. Sisson.
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Michael E. Upton, Jill. A. Upton, Melvin Servi and Annette Servi
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(hereinafter referred to as "Developer ") and the County of Sam
Diego (hereinafter referred to as "County ") for _ the benefit of
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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).
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WHEREAS, this Agreement is recuired as a condition of. approval.
;
by the County of a subdivision project as defined in Section
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21065 of the Public Resources Code and pursuant to San Diego`
County
Code of Regulatory Ordinances Section,81.4•02(c)(1) and
Section 81. 703 (c) (1) ; and,
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WHEREAS, Developer is the owner of certain real property
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being subdivided and developed as . TPM 18324'
that will use and enjoy the benefit of said road easement. A
complete legal description of said real property is attached,
it
labeled Exhibit B, and incoraorated by - reference. Said real
_property is hereinafter re___rea to as one "property"; and
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Tv'EiEREz1S, 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
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establish a method the maintenance and repair of said private
road easement and for the apportionment of the expense of such
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maintenance and repair among existing and future lot owners; and
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WHEREAS, the County shall be deemed a party hereto with the
but
right not the obligation to enforce full compliance with the
terms and conditions of this Agreement; and
the
WHEREAS, it is the mutual intention of 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, 86-07".550
FiECODED pd RF O
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.FaSr�ALR�CDf2I2
�f1 G,ESU GQURTY, C1..t AR
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1906 FEB 24 AN 11: 53 MG
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L C 1Ut1 V ERA L. LYLE
1 Y RECORDER
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IT IS HERMY AGREED -AS FOLLOWS:
1. The_property -is benefited by this Agreement, and
present and successive lot owners or all or any portion of the
property are expressly bound hereby for the benefit of the land.
2. The cost and exn_ease 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
t heirs, assigns and successors in interest of each such owner_
3. In the event anv 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.
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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 anv, 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 easemenf that results from action taken or contracted
for by -parties hereto or their successors in interest shall be
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paid for by the party taking action or party contracting for
work which caused the necessity for. he extraordinary re aif_
The repair shall be such as to restore the road easementpto'
the condition existing prior to said damage. 7',
. {' 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 requrired 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 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 aad,shall accept i
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 agents services, and such
costs shall be added to and aid as a p `
p part of the repair and
maintenance cost; provided, however,. that`cor,.pensation for f
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�i
each party shall within forty -five (45) days pay the agent, t
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.
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8. Should any lot owner fail to pay the pro rata share
Of costs and expenses as p 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.
S 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 T
- 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
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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.County, County'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 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) clays, 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 10 above, said work shall be
without warranty. Said repair shall be accepted "as is" by
the lot owners withQut.any warranty of workmanship and be
guaranteed and indemnified by them in accordance with
paragraph 9.
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13. The foregoing covenants shall run with the land and
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shall be deemed to be for the benefit of the land of each.'cf
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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
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shall be binding on the heirs, executors,_ administratcrs,
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successors, and assigns of each of the lost owners.
15. It is the purpose of the signators 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
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become bound by these presents, including without limitation,
;
the right of any person entitled to enforce the terms of this
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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 in
or equity.
16. The terms of this Agreement may be amended in writing
upon majority approval of the lot owners and consent of the
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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" defined in California Civil Code Section
as
1351(c) which will include membership in or ownership of an
"Association" as defined in California Civil Code Section
ImSi
1351 (a), anything in this Agreement to the contrary
nonwithstanding, the following provisions shall apply at and
during such time as (i) the Property is encumbered by a
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"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,
the road shall
shall repair and maintain private easement and
be deemed the "agent" as referred to in Paragraph 7 above. The
Association, which shall not be replaced except by amendment to
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the Declaration, shall receive no compensation for performing
such duties. The costs of such maintenance and repair shall be
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assessed against each owner and his subdivision interest in
the Property pursuant to the Ceclaration The assessments
shall be depositied 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
IN WITNESS WHEREOF, the parties have executed this
Agreement on ,,7/ day of 19.
41 i /> —
ne.Lvin oervi
COUNTY O/" 9AN DIE
By
rrector, Department of
Public Works
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STATE OF CALIFORNIA San Diego )ss.
A
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On February 21, 1986 ,before me, the undersigned, a Notary Public in and for
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said Slate, personally appeare
A UPTON
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r proved to me on the basis of satis-
OFFyC1....
factory evidence) to be the person(s) whose name(s) fKare sub-
,JOAN O'DONNEtL
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scribed to the within instrument and acknowledged to that
npniey p{ �. CAUFONNA
e /they executed. the same. -
FMNgPALQFICEIN
SAN DIEGO couNry
WITNESS my hand and official seal.
My CenlmiMla Exp. July 8, 1988
IMAM "AMM
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Signature
(This area for official notarial seal)
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c STATE OF CALIFORNIA San Diego Iss.
fad` COUNTYOF ) c
q{ On
February 21, 1986 ,before me, the undersigned,. a Notary Public in and for
said State, personally appeared CRAIG S. SISSON AND CARoLYN A. SISSON
(D
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proved to me on the basis of sells
factory evidence) to be the person(s) whose name(sn /are sub- OFFfCkAL SM
scribed to the within instrument and acknowledged to me that `SAN &t30NNELL
1C- CALIFORfYgt f
)QgWthey executed the same. NOTARYPUa
PRINCIPALOFFICE IN
O CO -
WIl "NESS my hand and official seal MN DIEG UNTY
pty Comm'usiaa P. 1111p t{. 1988- t�
°o / /��i er StLt'6RfSfWy�°r
Signature) / !�`�X•� (This area for official notarial seal)
Joan O Donnell.
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STATE OF CALIFORNIA )ss.
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COUNTY OF San Diego )
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On February 21 1986 n
r ,before me, the undersigned, a Notary Public in and for
ms .
said State, personally appeared DmwiN SERVI AND ANNETTE SERVI 1
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LL
'Pe+`�ffPA+�'ro`nte'fnr proved to me on the basis of satis-
factory evidence) to be the person(s) whose name(s)x/are sub -
SEAL
ONNELL
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scribed to the within instrument and acknowledged to me that
NOTARY ffOMA
=Q-C"OMA
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/they executed the same.
OFFICE IN
ol
COUNTY
coWITNESS
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my hand and offi cial seal.
q. July 8, 1988
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MMMMMMMARM
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Signature —
(This area for official notarial seal)
v�oan O'Donnell
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