2016-435263 DOC# 2016-0435263
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Aug 23, 2016 03:40 PM
Recording Requested By: ) OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
City Engineer ) SAN DIEGO COUNTY RECORDER
FEES $33.00
When Recorded Mail to: ) PAGES: 7
City Clerk )
City of Encinitas )
505 South Vulcan Avenue )
Encinitas. CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY
PRIVATE ACCESS AND UTILITY AND DRAINAGE FACILITIES
MAINTENANCE AGREEMENT
FOR TPM 15-004
Assessor's Parcel No.: 254-252-24✓ Project No.: 15-004 TPM
C. Plan No.:
THIS AGREEMENT for the maintenance and repair of that certain private access
and utility easement, and those private drainage facilities, all set forth in the legal
description of which is set forth in Attachment "A" attached hereto and incorporated
herein, is entered into by KOPION GROUP LLC, hereinafter referred to as "Developer")
for the benefit of future subdivision parcel owners who will use the private access and
utility easement and drainage facilities (hereinafter referred to individually as a "parcel
owner" and collectively as "parcel owners", which shall include the Developer to the
extent the Developer retains any ownership interest in any parcel or parcels).
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 subdivided and
developed as TPM 15-004 that will use and enjoy the benefit of said access and utility
easement. A complete legal description of said real property is attached hereto as
Attachment "A". Said real property is hereinafter referred to as the "property'; and
WHEREAS, it is the desire of the Developer that said private access and utility
easement and drainage facilities be maintained in a safe and usable condition by the
parcel owners; and
WHEREAS, it is the desire of the Developer to establish a method for the
maintenance and repair of said private access and utility easement and drainage
facilities and for the apportionment of the expense of such maintenance and repair
among existing and future parcel owners; and
WHEREAS, it is the intention of the Developer that this Agreement constitute a
covenant running with the land, binding upon each successive parcel owner of all or any
portion of the property. NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. The property is benefitted by this Agreement, and present and successive
parcel owners of all or any portion of the property are expressly bound hereby for the
benefit of the land.
2. If there is a covenant, agreement, or other obligation imposed as a
condition of subdivision approval to make private access and utility improvements to the
private access and utility easement, the obligation to repair and maintain the private
access and utility easement as herein set forth shall commence when the private access
and utility improvements have been completed.
3. The cost and expense of ordinary repairs and maintenance for the private
access and utility easement and drainage facilities shall be divided equally among the
subdivided parcels created in the subdivision and paid by the parcel owner or the heirs,
assigns and successors in interest of each such parcel owner.
4. In the event any of the herein described parcels of land are subdivided
further, the parcel 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.
5. The ordinary 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 majority vote of the lot owners owning 100% of the number of parcels,
including subdivisions thereof as described in Paragraph 4 above: reasonable and
normal access and utility improvements, repairs, and maintenance work to adequately
maintain said private access and utility easement and drainage facilities to permit all-
weather access and conveyance of storm flows. Ordinary repairs and maintenance
under this Agreement shall include, but are not limited to, filling of chuckholes, repairing
cracks, repairing surface blemishes, repairing failed pavement structures, repairing
joints, repairing and resurfacing of road beds, repairing and maintaining proper and
adequate drainage, repairing and maintaining water run-off flows, repairing and
maintaining grading elevations, removing debris, maintaining signs, markers, striping
and lighting, if any, and other work reasonably necessary and proper to repair and
preserve the access and utility easement and drainage facilities for all-weather
purposes.
6. If and when any parcel owner determines that an ordinary repair or
maintenance work for the private access and utility easement or drainage facilities is
necessary, that parcel owner shall prepare a writing that enumerates the work to be
done and deliver it to each other parcel owner for execution. All ordinary repair or
maintenance work on the private access and utility easement and drainage facilities
shall be commenced only upon a majority of the parcel owners agreeing in writing that
such work is necessary. Prior to commencing any ordinary repair and maintenance
work, the parcel owners shall obtain three bids from licensed contractors and shall
accept the lowest of said three bids and shall then initiate the work.
7. Any extraordinary repair required to correct damage to the access and
utility easement or drainage facilities that results from an action or omission taken by an
individual parcel owner or their successor in interest shall be paid for by the individual
parcel owner or their successor in interest whose action or omission caused the
necessity for the extraordinary repair (hereinafter referred to as the "responsible parcel
owner"). Damage requiring extraordinary repairs under this Agreement shall include but
is not limited to: (i) damage caused by the action or omission of an individual parcel
owner or their agent, heir, assign, successor in interest, or any other person or entity
acting on their behalf (each a "parcel owner party"); (ii) damage caused by the use of a
vehicle or equipment by or at the direction of a parcel owner party; and (iii) damage
caused by or incidental to the delivery of construction materials, construction equipment,
or other goods to the property by or at the direction of a parcel owner party. The
responsible parcel owner shall contract for all extraordinary repairs by no later than thirty
(30) calendar days after the date the damage is incurred. The responsible parcel owner
shall ensure the extraordinary repair is made promptly thereafter and that such
extraordinary repair shall restore the access and utility easement or drainage facilities to
the condition existing prior to incurring the damage.
8. Should a dispute arise or exist between any parcel owners regarding the
necessity or adequacy of an ordinary repair or maintenance work, the necessity or
adequacy of an extraordinary repair, the payment of costs or expenses under this
Agreement, or any other dispute arising out of or related to this Agreement, the parcel
owners agree to attend a mediation to attempt to resolve such dispute. Should the
parcel owners fail to resolve such dispute at mediation, each parcel owner shall be
permitted to pursue all other remedies available to them as provided in this Agreement
or at law.
9. Should any parcel owner fail to pay their share of costs and expenses as
provided in this Agreement, then any parcel owner or owners shall be entitled to institute
legal action for the collection of funds advanced on behalf of such parcel 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.
10. Any liability of the parcel owners for personal injury to any worker
employed to make repairs or provide maintenance under this Agreement, or to third
persons, as well as any liability of the parcel owners for damage to the property of any
such worker, or of any third persons, as a result of or arising out of repairs and
maintenance under this Agreement, shall be bome, as between the parcel owners in the
same percentages as they bear the costs and expenses of such repairs and
maintenance. Each parcel owner shall be responsible for and maintain his own
insurance, if any. Each of the parcel owners agrees to indemnify the others from any
and all liability for injury to itself or damage to its property when such injury or damage
results from, arises out of, or is attributable to any maintenance or repairs undertaken
pursuant to this Agreement.
11. There shall be no parking of vehicles on any portion of the private access
and utility easement by any parcel owner party or any other person. There shall be no
unreasonable obstruction or restriction to the passage of vehicles or pedestrians over
and across any portion of the private access and utility easement by any parcel owner
party or any other person. Other than as provided by the approved plans for the
property or as agreed to in writing by all parcel owner parties, there shall be no buildings
or other improvements erected upon the private access and utility easement.
12. The foregoing covenants shall run with the land and shall be deemed to be
for the benefit of the land of each of the parcel owners and each and every person who
shall at anytime own all or any portion of the property referred to herein.
13. 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 parcel owners.
14. 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 9 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.
15. The terms of this Agreement may be amended in writing upon majority
approval of the parcel owners.
16. 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.
[Remainder of Page Intentionally Left Blank; Signature Line(s) on Following Page]
ACCEPTED AND AGREED BY:
DEVELOPER
Eric; Gilmer, Managing Member and Au horized Agent Date
Kopion Group, LLC
Signature of DEVELOPER must be notarized. Attach the appropriate
acknowledgement.
ATTACHMENT A TO
Covenant Regarding Real Property
PROJECT NO. 15-004 TPM, Plan No.
APN 254-252-24
Leal Description
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN DIEGO,STATE OF
CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
PARCEL 1:
THE WESTERLY 85 FEET OF LOT 15 IN BLOCK 5 OF SOUTH COAST PARK, IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO,STATE OF CALIFORNIA,ACCORDING TO MAP THEREOF NO.
1776,FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,JANUARY 11,
1924.
PARCEL 2:
ALSO AN EASEMENT FOR WATER LINE PURPOSES OVER THE NORTHERLY 5 FEET OF THE
SOUTHERLY 55 FEET OF THE EASTERLY 140 FEET OF LOT 15 IN BLOCK S OF SOUTH COAST PARK,
ACCORDING TO MAP THEREOF NO. 1776, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY,JANUARY 11, 1929.
ASSESSOR'S PARCEL NUMBER: 254-252-24-00
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF Cq� l� coo }S.S.
On � . \U , 2 0\� before me,
personally appeared M . k-g\vvncev'
who 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 he/she/they 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
LA� TIFFANYREID
—� COMYi.i 2741122
Signature (Seal) M0T^1O^�'0•M O"""
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