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2016-669079 DOC# 2016-0669079 11111111111 IIIII IIIII IIII 111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII Dec 06, 2016 04:03 PM p p RECORDS Recording Requested By: ) ErnnestlJl Dronenburrg, Jr., V ) SAN DIEGO COUNTY RECORDER City Engineer ) FEES $36.00 PAGES 8 When Recorded Mail to: ) 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 15-294 TPM/CDP 'a V APN: 260-430.20-00V/ Grading Plan: 12894-G/I 260-430-78-00 Case No: 15-294 TPM/CDP 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 Buffalo/Birmingham Investors, LLC. A Delaware Limited Liability Company, 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 Tentative Parcel Mao 15-294 1231 Birmingham Dr. 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 r 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: 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: Y:� 'Brad Termini, Manager Date Buffalo/Birmingham Investors, LLC. (Notarization of DEVELOPERs signature is attached). CALIFORNIA ALL PURPOSE ACKNOWLEDGMENT FAnotan,public or other officer completing this certificate verifies only the identity of the indiaidual who signed ocument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that ment. STATE OF CALIFORNIA ) COUNTY OF f pr r On 4� �L- hn before me , ,` Notary Public, Date ,- (here insert name and title of officer) personally appeared 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. AMANDA L. MILLER Commission •2028954 a .0. Notary Public-California = San Diego County My Comm.Expires Jun 14,2017 J Signatur (Seal) OPTIONAL Description of Attached Documen �� Title or Type of Document.O�t l r4 w-) 1- ' r(k on t YP Number of Pages: Document Date: Other: 201 S Aro,(illc Scnicc 707 X992-sfsl wkAAk.( ahlbrniaApostille.11s (,difoinia Mobile Aofm N oc il, kmNk ANiNN to EXHIBIT'A' LEGAL DESCRIPTION Real property in the City of Encinitas, County of San Diego, State of California, described as follows: PARCEL B AS SHOWN ON CERTIFICATE OF COMPLIANCE NO: 02-061 AS EVIDENCED BY DOCUMENT RECORDED SEPTEMBER 2, 2003 AS INSTRUMENT NO: 2003-1069344 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEING A PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 23, TOWNSHIP 13 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED APRIL 19, 1888, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER; THENCE SOUTHERLY ALONG THE EASTERLY LINE OF SAID SOUTHEAST QUARTER SOUTH 010 04' 01" WEST(SOUTH 0° 21' 21" WEST RECORD PER RECORD OF SURVEY MAP NO. 1705 RECORDED JANUARY 19, 1948 AS F/P 5346 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY) 654.11 FEET; THENCE NORTH 891 42' 18" WEST, 318.50 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 890 42' 18" WEST, 327.72 FEET TO THE EASTERLY LINE OF THE WESTERLY 19.00 FEET OF SAID HALF PER FINAL ORDER OF CONDEMNATION RECORDED APRIL 25, 1977 AS F/P 77-152884 IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG SAID EASTERLY LINE NORTH 010 13' 19" EAST, 584.45 FEET TO THE BEGINNING OF A TANGENT 20.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 890 04' 24", AN ARC DISTANCE OF 31.09 FEET TO THE SOUTHERLY LINE OF THE NORTHERLY 50.00 FEET OF SAID EAST HALF,THENCE WESTERLY ALONG SAID SOUTHERLY LINE NORTH 89° 42' 18" WEST, 38.68 FEET TO THE WESTERLY LINE OF SAID EAST HALF; THENCE NORTHERLY ALONG SAID WESTERLY LINE NORTH 010 13' 19" EAST, 50.01 FEET TO THE NORTHWEST CORNER OF SAID HALF; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID HALF SOUTH 890 42' 18" EAST, 344.96 FEET; THENCE SOUTH 010 04' 01" WEST, 654.11 FEET TO THE TRUE POINT OF BEGINNING. APN: 260-430-20-00 and 260-430-78-00 PRIVATE ROAD & DRAINAGE FACILITIES MAINTENANCE AGREEMENT EXHIBIT'B' BIRMINGHAM DRIVE a I LOT2 �1 HATCH REPRESENTS DESIGJA TED LOT 1 2 INTEGRATED MANAGEA£NT Nf' I PRACTICE" A�FOR STORM WATER r O PRIVATE ROAD INCLLDING - POROUS PAVERS AND I REIWO4CEM31IT OF 'M PARKING' RESTRICTION O3 REINFORCED GRAVEL ACCESS ROAD TO STORM WATER BASIN �4 GRASSPAVE2 ACCESS ROAD TO STORM WATER BASIN 0 PRIVATE PARCING AREAS 5 2 5 ©STORM DRAIN PIPE TO CONVEY ORUARGE TO STORM r - WATER BASIN r; r . I � I 117� 4 LOT 4 LOT 3 I I ❑ U u PROJECT SITE 6 � 6 I APN: 260-430-20 & -� 260-430-78 , SCALE: 1'=80'