2015-464088 DOC# 2015-0464088
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Recording Requested By: ) Sep 01, 2015 03 57 PM
OFFICIAL RECORDS
Engineer Ernest J Dronenburg, Jr,
City g ) SAN DIEGO COUNTY RECORDER
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J ) FEES $45 00
1. When Recorded Mail to- ) PAGES 11
City Clerk )
City of Encinitas )
505 South Vulcan Avenue )
Encinitas. CA 92024
Space above for recorders use only
PRIVATE ROAD AND DRAINAGE FACILITIES
MAINTENANCE AGREEMENT FOR TM 01-239
APNs•262-080-21, 22, 23, & 24 Project No.. 01-239 TM
Plan No.. 9055-G/I/FM
THIS AGREEMENT for the maintenance and repair of that certain private access
drives and those private drainage facilities, the plat of which is set forth in Exhibit "B"
attached hereto and made a part hereof, is entered into by DEVELOPMENT
SOLUTION ENCLAVE, LLC, referred to as "Developer", for the benefit of future
subdivision lot owners who will use the private road easements, hereinafter referred to
as '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
Encinitas 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
24.29 040, and
WHEREAS, Developer is the owner of certain real property being developed as
TM 01-239 that will use and enjoy the benefit of said access drive. 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", and
WHEREAS, it is the desire of the Developer that said private access drive and
drainage facilities be maintained in a safe and usable condition by the owners, and
WHEREAS, it is the desire of the Developer to establish a method for the
maintenance and repair of said private access drive and drainage facilities and for the
apportionment of the expense of such maintenance and repair among existing and
future owners; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a
covenant running with the land, binding upon each successive owner of all or any
portion of the property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS
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1. The property is benefitted 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 and
drainage facilities shall be divided equally among the owners and paid by the
owner or the heirs, assigns, and successors in interest or each such owner
3 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 units:
reasonable and normal road improvement and maintenance work to
adequately maintain said private access drive and drainage facilities to permit
all-weather access and conveyance of storm flows Repairs and maintenance
under this Agreement shall include, but are 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 and proper to
repair and preserve the easement for all-weather road purposes.
4. 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.
5 Any extraordinary repair required to correct damage to said private access drive
or drainage facility that results from action taken or contracted for by 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 private access drive or drainage
facility to the condition existing prior to said damage
6. 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. Developer further agrees that the agent may
at any time be replaced at the direction of a majority of the owners Repair
and maintenance work on the private access drive and drainage facilities shall
be commenced when a majority of the 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 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.
7. Should any owner fail to pay the pro rata share of costs and expenses as
provided in this Agreement, then the agent or any 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
8 Any liability of the 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 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 owners in the same percentages as they bear
the costs and expenses of such repairs and maintenance. Each 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 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.
9. Owners shall jointly and severally defend and indemnify and hold harmless
City, City's engineer and its consultants and each of its 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 owner, any contractor,
any subcontractor, any user of the private access drive, 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 access drive or
drainage facilities.
10.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 acknowledgement of a responsibility
for any such matter, and City, City's engineer and its consultants, and each of
its officials, directors, officers, employees and agents, shall have no
responsibility 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 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 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 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.
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 access drive and drainage facilities 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 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.
ACCEPTED AND AGREED BY
DEVELOPER.
Development Solution Enclave, LLC
By-
Name: Judd Gilats
Title: y;«
Date: �i IS, a° s
(Notarization of DEVELOPERs signature is attached)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this is attached, and not the truthfulness, accuracy,
or validity of that document.
STATE OF MINNESOTA
COUNTY OF HENNEPIN
This instrument was acknowledged before me July 15, 2015 by Judd Gilats as Vice President of
Development Solutions Enclave, LLC.
d* BONNIE LYNN WOLD
s'` a Notary Public
Notary Public State of Minnesota
My Commission Expires
l � January 31, 2020
Printed Name: 01n V1► L h d
My Commission Expires.
jtihU&,-1q'I 3 (,zjt'Lo
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
APN. 262-080-19
THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 23, TOWNSHIP 13
SOUTH, RANGE 4 WEST, SAN BARNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF
EXCEPTING THEREFROM THE WESTERLY 920 00 FEET THEREOF
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS
THE SOUTHERLY 610 00 FEET OF THE EASTERLY 360 00 FEET OF THE SOUTHEAST QUARTER
OF THE NORTHEAST QUARTER OF SECTION 23, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN
BARNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN PARCEL 1 OF DEED RECORDED
SEPTEMBER 19, 1962 AS INSTRUMENT NO 161482 OF OFFICIAL RECORDS
ALSO EXCEPTING THEREFROM THAT PORTION DESCRIBED IN DEED RECORDED JANUARY 14,
1963 AS INSTRUMENT NO 7582 OF OFFICIAL RECORDS
APN. 262-080-21
THE SOUTHERLY 300 00 FEET OF THE NORTHERLY 720 00 FEET OF THE WESTERLY 921 08
FEET OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 23,
TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BARNARDINO MERIDIAN, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL
PLAT THEREOF
EXCEPTING THEREFROM THE NORTHERLY 150 00 FEET OF THE EASTERLY 230 00 FEET
THEREOF
ALSO EXCEPTING THEREFROM THE EASTERLY 436 00 FEET OF THE WESTERLY 691 08 FEET
OF THE NORTHERLY 280 00 FEET THEREOF
APNS. 262-080-22&262-080-24
THE EASTERLY 436 00 FEET OF THE WESTERLY 691 08 FEET OF THE SOUTHERLY 300 00 FEET
OF THE NORTHERLY 720 00 FEET OF THE SOUTHEAST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 23, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BARNARDINO
MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF
EXCEPTING THEREFROM THE SOUTHERLY 20 00 FEET THEREOF
Page 1 of 2
APN. 262-080-23
THE NORTHERLY 150 00 FEET OF THE EASTERLY 386 00 FEET OF THE SOUTHERLY 300 00 FEET
OF THE NORTHERLY 720 00 FEET OF THE WESTERLY 921 08 FEET OF THE SOUTHEAST
QUARTER OF THE NORTHEAST QUARTER OF SECTION 23, TOWNSHIP 13 SOUTH, RANGE 4
WEST, SAN BARNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF
EXCEPTING THEREFROM THAT PORTION DESCRIBED AS FOLLOWS
THE EASTERLY 436 00 FEET OF THE WESTERLY 691 08 FEET OF THE SOUTHERLY 300 00 FEET
OF THE NORTHERLY 720 00 FEET OF THE NORTHEAST QUARTER OF SECTION 23, TOWNSHIP
13 SOUTH, RANGE 4 WEST, SAN BARNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF
Page 2 of 2
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i LOT 5 � LOT 4 � LOT 3 � LOT 2 � LOT 1
TM 01-239
ENCLAVE COURT 1
LOT 6 /
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PRIVATE ACCESS DRIVE AREA
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PRIVATE DRAINAGE FACILITIES AREA
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EXHIBIT "B"
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