1987-6857747-7
87 6 8 5 7 7 4
RECORDING REQUESTED BY
When recorded, please mail to:
Jan P. Stubbs
1808 Wilstone Avenue 1M DEC 14 Allik 02
Leucadia, CA 92024
R ] [ RF
VE P A L. L.Y L E.,,
I AR
PUBLIC ROAD MAINTENANCE AGREEMENT
L:M:G:��
THIS AGREEMENT for the maintenance and repair of that cer-
tain public road, 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 Jan P. Stubbs, Kristiana A. Stubbs, and Stephan
M. Moret (hereinafter referred to as "Developer"), for the
benefit of future subdivision lot owners who will use the public
road (hereinafter referred to as "lot owners", which shall in-
clude the Developer to the extent the Developer retains any
ownership interest in any lot or lots herein described).
WHEREAS, this Agreement is required as a condition of ap-
proval by the City of Encintas of a subdivision project as
defined in Section 21065 of the Public Resources Code and pur-
suant to the 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 18782-RPL a portion of
which will use. and enjoy the benefit of said road. A complete
legal description of said real property is attached, labeled Ex-
hibit 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 road be maintained in a safe and usable condition by the lot
owners of Parcels 1,2, and 3 of TPM 18782-RPL; and,
WHEREAS, it is the mutual desire of the parties hereto to
establish a method for the maintenance and repair of said public
road and for the apportionment of the expense of such maintenance
and repair among existing and future lot owners of Parcels 1,2,
and 3; 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 Parcels
1.2 and 3. 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 Par-
cels 1,2 and 3 are expressly bound hereby for the benefit of the
land.
- 102%
2. The cost and expense of maintaining the public road
shall be divided equally among the subdivided Parcels 1,2 and 3
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 ex-
penses 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 subdivi-
sions thereof as described in paragraph 3 above. Reasonable and
normal road improvement and maintenance work to adequately main-
tain said public road and related drainage facilities to permit
all- weather access.
Repairs and maintenance under this Agreement shall include, but
are not limited to, filling of chuckholes, repairing cracks, 1
repairing and resurfacing of roadbeds, repairing and maintaining
drainage structures, removing debris, maintaining signs, markers,
striping and lighting, if any, and other work reasonably neces-
sary or proper to repair and preserve the road for all weather
road purposes.
5. If there is a covenant, agreement, or other obligation
imposed as a condition of subdivision approval to make public
road improvements to the public road the obligation to repair and
maintain the public road as herein set forth shall commence when
the public road improvements have been completed and approved by
the City.
6. Any extraordinary repair required to correct damage to
said road 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 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, including the procurement of applicable permits from
the City.
-1028
The parties further agree that the agent may at any time be re-
placed at the direction of a majority of the lot owners. Repair
and maintenance work on the public road shall be commenced when a
majority of the lot owners agree in writing that such work is
needed, or at the direction of the City should the City deem such
work as 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 ad-
vanced on behalf of such lot owner in accordance with the provi-
sions of California Civil Code Section 845, and shall be entitled
to recover in such action in addition to the funds advanced, in-
terest 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 himself or damage
to his property when such injury or damage results from, arises
out of, or is attributable to any maintenance or repairs under-
taken pursuant to this Agreement.
t;
1029
10. Lot owners shall jointly and severally defend and in- 1
demnify and hold harmless City, City's Engineer and their con-
sultants 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. j
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, 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 public road.
Nothing in the Agreement, the specifications or other con-
tract documents or City's approval of the plans and specifica-
tions or inspection of the work is intended to iclude a review,
inspection acknowledgment of a responsibility for any such mat-
ter, and City, City's Engineer and their consultants, and each of
their officials, directors, officers, employees and agents, shall
have absolutely no responsbility 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 Parcels 1,2, and 3 referred to herein.
12. It is understood and agreed that the covenants herein
contained shall be binding on the heirs, executors, ad-
ministrators, 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 a deed and /or conveyance
regardless of form, shall be deemed to have consented to and be-
come bound by those present, including without limitation, the
right of any person entitled to enforce the terms of this Agree-
ment 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.
1030
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 nonwithstanding, the following
provisions shall apply at and during such time as (i) the
Property is encumbered by a "Declaration" (as defined in Califor-
nia Civil Code Section 1351(h) , and (ii) the Common Area of the
property is managed and controlled by an Association:
(a) The Association, through its Board of Directors, shall
repair and maintain the public road 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 Declara-
tion, shall receive no compensation for performing such duties.
The costs of such maintenance and repair shall be assessed
against each lot 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 en-
tirety.
(c) This Agreement shall not be interpreted in any manner
which reduces or limits the Association's rights and duties pur-
suant to its Bylaws and the Declaration.
IN WITNESS "EREOF, the parties have executed this Agreement
on 14- day of /yw 19 8�
r
GENERAL ACKNOWLEDGMENT No. 201
State of California San .Tiego �:�l SS.
1 f County o
xrx.'YSw11N�,
OFFICIAL. SEAL
PATRICIA DREW
r NOTARY PU: ;UC CALIFORNIA
PRINCIPAL OFFICE IN
SAN OIE;O COUNTY
MyCmomissfon.Expiras May 12, 1989
On this the 14tlday of
December
Patricia Drew
the undersigned Notary Public, personally appeared
1987 , before me,
JAN P. STUBBS, KRISTINA A. STUBBS, STEPHEN M. MORET
❑ personally known tome
IN proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) are subscribed to the
within instrument, and acknowledged that they executed it.
WITNESS my h a fficial seal.
Notary's Signature
0
w
. -1031
EXHIBIT A
LEGAL DESCRIPTION
LOT 26 AND 27 OF AVOCADO ACRES NO. 3, IN THE COUNTY OF THE SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, NO. 2063,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
OCTOBER 3, 1927, EXCEPTING FROM SAID LOT 26 THAT PORTION
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 26; THENCE
SOUTHERLY ALONG THE EASTERLY LINE OF SAID LOT 26, A DISTANCE OF
80 FEET; THENCE IN A WESTERLY DIRECTION PARALLEL WITH THE NORTH-
ERLY LINE OF SAID LOT 26, A DISTANCE OF 115 FEET; THENCE IN A
NORTHERLY DIRECTION PARALLEL WITH THE EASTERLY LINE OF SAID LOT
26, A DISTANCE OF 80 FEET TO THE NORTHERLY LINE OF SAID LOT 26;
THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 26, A DIS-
TANCE OF 115 FEET TO THE NORTHEAST CORNER OF SAID LOT 26 AND THE
POINT OF BEGINNING.
AND EXCEPTING THAT PORTION OF SAID LOT 26 DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERN CORNER OF SAID LOT 26; THENCE
WESTERLY ALONG THE SOUTHERLY LINE OF SAID LOT 26, A DISTANCE OF
115.15 FEET; THENCE IN A NORTHERLY DIRECTION PARALLEL WITH THE
EASTERLY LINE OF SAID LOT 26, A DISTANCE OF 87.24 FEET; THENCE IN
AN EASTERLY DIRECTION PARALLEL WITH THE SOUTHERLY LINE OF SAID
LOT 26, A DISTANCE OF 115.00 FEET TO THE EASTERLY LINE OF SAID
LOT 26; THENCE SOUTHERLY ALONG SAID EASTERLY LINE, A DISTANCE OF
87.26 FEET TO THE POINT OF BEGINNING.
} AND EXCEPTING THAT PORTION OF SAID LOT 27; THE SOUTHERLY 100 FEET
THEREOF; THE NORTHERLY LINE OF SAID SOUTHERLY 100 FEET BEING
DRAWN PARALLEL WITH AND DISTANCE 100 FEET NORTHERLY MEASURED AT
"4 RIGHT ANGLES FROM THE SOUTHERLY LINE OF SAID LOT 27.
AND EXCEPTING THAT PORTION OF SAID LOT 27; BEGINNING AT THE
NORTHEASTERLY CORNER OF SAID LOT 27, THENCE SOUTH 74 16121" WEST,
138.87 FEET, THENCE SOUTH 920'10" EAST, 66.99 FEET; THENCE SOUTH
15043120" EAST, 5.00 FEET; THENCE NORTH 74 °16140" EAST, 140.01
FEET; THENCE NORTH 1 041100" WEST, 71.87 FEET TO THE POINT OF
BEGINNING.
AND ADDING THE NORTHERLY 5 FEET OF THE SOUTHERLY 100 FEET OF SAID
LOT 27; THE NORTHERLY LINE OF SAID SOUTHERLY 100 FEET BEING
PARALLEL TO AND DISTANT 100 FEET, MEASURED AT RIGHT ANGLES NORTH -
ERLY FROM THE SOUTH LINE OF SAID LOT 27; EXCEPTING THE WESTERLY
100 FEET THEREOF.
i
M
it
ON
M
it
ON
r
i
.,v 1032
EXHIBIT B
LEGAL DESCRIPTION
BEING THE PORTION OF HYGEIA AVENUE, WHICH IS A PUBLICLY OWNED,
PRIVATELY MAINTAINED STREET, ADJACENT TO AND WESTERLY OF LOTS 26
AND THE NORTHERLY 95.62 FEET OF LOT 27 OF AVOCADO ACRES NO.3, IN
THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
MAP THEREOF, NO. 2063, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, OCTOBER 8, 1927, AND ACRES NO. 2 IN THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
AVOCADO MAP THEREOF NO. 1802 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, AUGUST 6, 1924.
AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF LOT 26; THENCE SOUTHERLY
ALONG THE EASTERLY LINE OF HYGEIA AVENUE AT A BEARING OF SOUTH
15044112" EAST (SOUTH 1546130" EAST PER MAP 2063), A DISTANCE OF
262.22 FEET; THENCE SOUTH 74015'48" WEST, A DISTANCE OF 40.00
FEET TO A POINT IN THE WESTERLY LINE OF HYGEIA AVENUE, SAID POINT
ALSO BEING IN THE SOUTHERLY LINE OF ASHBURY STREET WHICH IS A
PUBLICLY MAINTAINED STREET; THENCE NORTH 15044'12" WEST (NORTH
15049' WEST PER MAP 1802), A DISTANCE OF 20.00 FEET TO A POINT IN
THE NORTHERLY LINE OF ASHBURY STREET, SAID POINT ALSO BEING IN
THE WESTERLY LINE OF HYGEIA AVENUE; THENCE CONTINUING ALONG THE
WESTERLY LINE OF HYGEIA AVENUE AT A BEARING OF NORTH 15044'12"
WEST (NORTH 15049' WEST PER MAP 1802), A DISTANCE OF 242.22 FEET;
THENCE NORTH 74015148" EAST, A DISTANCE OF 40.00 FEET TO THE
POINT OF BEGINNING.
..r+.�..�i�.— n..r�r- .�w�'.`.. �. � '�: � a«.�- .+- �"�..�..rnay..+,- art+. r.•— ...r.�'-�+.rt.+"'°�eM.yw�
1�