2017-371331 DOC# 2017-0371331
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Recording Requested by: ) Aug 15, 2017 04:24 PM
OFFICIAL RECORDS
City Engineer ) J SAN DIEGO COUNTYbRECORDER
When Recorded Mail To: ) FEES: $36.00
PAGES. 8
City Clerk )
City of Encinitas )
505 S. Vulcan Avenue )
Encinitas CA 92024
SPACE ABOVE FOR RECORDER'S USE
MAINTENANCE AGREEMENT FOR PRIVATE MAINTENANCE OF PRIVATE STORM
DRAIN SYSTEM WITHIN PUBLIC RIGHT-OF-WAY
1
APN: 258-111-18� Grading Plan: 13322-G/I
Case No: 15-292 TPM/DR/CDP
THIS MAINTENANCE AGREEMENT ("Agreement") for the maintenance and
repair of drainage and storm drain facilities, the description and depiction of which are
set forth in Exhibit "B" which is attached hereto and made a part hereof, is hereby
agreed to by Land Holdings, LLC., hereinafter referred to as "Subdivider", for the
benefit of future subdivision lot Owners who will benefit from the private stormdrain
system within the public right-of-way known as Pacific View Ln., hereinafter referred to
as "Owner(s)", which shall include the Subdivider to the extent the Subdivider retains
any Ownership interest in any lot or lots in the Property (defined below), and the City of
Encinitas, hereinafter referred to as "City".
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, Subdivider is the Owner of certain real Property being developed as
15-292 TPM/DR/CDP that will use and enjoy the benefit of stormdrain facilities. 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 Subdivider that said drainage and storm drain
facilities be maintained in a safe and usable condition by the Owners as originally
designed on Grading Plan 13322-G which are on file as a permanent record in the City
of Encinitas, collectively known as the "Improvements"; and
WHEREAS, it is the desire of the Subdivider to establish a method for the
maintenance and repair of said Improvements and for the apportionment of the
expense of such maintenance and repair among existing and future Owners of the
Property; and
WHEREAS, it is the intention of the Subdivider 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 Improvements 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: reasonable and normal maintenance work to
adequately maintain said Improvements and to permit all-weather access and
conveyance of storm flows. Repairs and maintenance under this Agreement
shall include, but are not limited to repairing and maintaining drainage
structures, trench resurfacing, removing debris, and other work reasonably
necessary and proper to repair and preserve the improvements as designed
and installed pursuant to Grading Plan 13322-G.
4. Any extraordinary repair required to correct damage to said Improvements 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 Improvements to substantially the same condition
existing prior to said damage.
5. It is agreed that Subdivider 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. Subdivider further agrees that the agent
may at any time be replaced at the direction of a majority of the Owners.
Repair and maintenance work of the Improvements shall be commenced
immediately as deemed necessary by the Homeowners Association (defined
below) or the City of Encinitas. 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.
6. 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 of lots in
the Property shall be entitled without further notice to institute legal action for
the collection of funds advanced on behalf of such lot Owner, 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.
7. 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 on an equal basis. Each Owner shall
be responsible for and maintain his own insurance, if any. By this Agreement,
the Subdivider 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.
8. 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 public streets or private improvements
within the public streets , 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.
9. 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.
10. 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.
11. 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.
12. 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
herein, 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.
13.The terms of this Agreement may be amended in writing upon majority
approval of the Owners and consent of the City.
14. 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.
15.The Property constitutes a "Common Interest Development" as defined in
California Civil Code Section 1351(c) and shall include membership in an
"Association" as defined in Califomia 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 public roads) is managed and
controlled by an Association:
(a) The Association, through its Board of Directors, shall repair and
maintain the Improvements in accordance with the terms and provisions of the
Declaration requested against the Property, and shall be deemed the "agent" as
referred to in Paragraph 6 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 paid to the Association
as set forth in the Declaration.
(b) Provisions in the Declaration shall provide for assessment liens in
favor of the Association and enforcement thereof. 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:
SUBDIVIDER:
Robert A. Mueller Date
for The RMCI Group, Inc.,
Managing Member of Land Holdings, LLC.
(Notarization of SUBDIVIDER signature is attached).
CITY
,Xign for City of Encinitas Date
Print Name Title e ��—
EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
THE SOUTHERLY 180 FEET OF THE NORTHERLY 950 FEET OF THE EAST HALF OF THE EAST HALF
OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 15, TOWNSHIP 13
SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT
SURVEY APPROVED APRIL 19, 1881.
EXHIBIT "B"
PLAT OF PRIVATE DRAINAGE FACILITIES
' — I MAP NO. 14944
/ I
PARCEL 2 PARCEL 1 LOT 3
I P I LOT 2
PRIVATE 12" RCP — C
STORM DRAIN (EP)
PRIVATE CURB INLET (EP) PACIFIC VIEW LANE_
PRIVATE 4- PVC STORM DRAIN EP)
n TPM 15-292 ,_
PRIVATE 12' RCP V
/ STORM DRAIN (EP) MAP N0. 14944
i I I
LOT 7 LOT 6
I PARCEL 3
PARCEL 4 b
II
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(EP) = ENCROACHMENT WITHIN PROPOSED RIGHT OF WAY
bI�A, �nc.
land planning, cMl engineering, surveying
5115 AVENIDA ENCINAS
SUITE "L"
CARLSBAD, CA. 92008-4387 SCALE. 1"=50'
(760) 931-8700
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
[Anotary 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 I )
On 1 -I L.I l before me, l r n bi
Date Here Insert Name and Title o e Officer
personally appeared E!A xJf A _rn U c I l ev
�Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the personayvvhose name-(s)'Is/Xe-
subscribed to the within instrument and acknowledged to me that he/,shre/they executed the same in
his/h r/thei(authorized capacity(ie<and that by his/hsr/fhWsignature($yon the instrument the persor1w,
or the entity upon behalf of which the persorpKacted, 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.
-SAMIRA SOLTANI WITNESS my hand and official seal.
Commission•2138437
Notary Public -California
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❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General ❑ Partner — ❑ Limited General
❑ Individual ❑Attorney in Fact C Individual ❑Attorney in Fact
n Trustee ❑ Guardian or Conservator
__1 Trustee ❑ Guardian or Conservator
❑ Other: ❑ Other:
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