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2018-465036 D O C# 2018-0465036 RECORDING REQUESTED BY: 111111 11111 11111 11111 1111 111111 11111 11111 11��1 1101 11111 11111 11il lill Nov 06, 2018 04:26 PM City Engineer OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER WHEN RECORDED MAIL TO: FEES: $47.00 (SB2 Atkins: $0.00) PAGES: 12 City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 SPACE ABOVE THIS LINE FOR RECORDER'S USE SECOND AMENDED AND RESTATED PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 89-031 \1 Assessor's Parcel Nos. 264-591-1,/through 1/ Project No. TM 89-031 264-590-1 through 18 W.O.No. 6242 FM This SECOND AMENDED AND RESTATED PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT FOR TM 89-031 ("Agreement") is made this Pf day of Nov ten 6e/` , 2018, by SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership,its heirs,successors,and assigns,(collectively,"Developer"),with the consent of the CITY OF ENCINITAS ("City") as evidenced by the Consent of City attached hereto. RECITALS: A. Developer is the owner of that certain property located in the City of Encinitas, County of San Diego, State of California ("property"), more particularly described on Exhibit A attached hereto and incorporated herewith, which is planned to be developed as the residential community commonly known as "One Oak". The property consists of single family residential lots and private streets, which private streets are located on Lot 33 of the Property ("Community Private Streets"). B. Within the boundaries of One Oak, access to the residential lots within One Oak is provided by the Community Private Streets. C. Outside of the boundaries of One Oak, access to the residential lots within One Oak and the Community Private Streets is provided by certain private road easements("Offsite Private Road Easements"). D. The residential lots within the property are subject to that certain Amended Private Road and Drainage Facilities Maintenance Agreement for TM 89-031, recorded on January 25, 2011 as Instrument No. 2011-0047036 in the Official Records of San Diego County ("First Amended Agreement") which was made by Torrey Pacific Corporation, the original developer of the property ("Original Developer"). As provided in the First Amended Agreement, the First -1- One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 0WZ9-222499 A Amended Agreement replaced and superseded the Private Road and Drainage Facilities Maintenance Agreement recorded on September 6, 2000 as Instrument No. 2000-0478511. E. The First Amended Agreement imposes private road and drainage maintenance obligations on future owners of lots within the property and Developer(as successor in interest to the Original Developer), to the extent Developer retains an ownership interest in any of the lots within the property, or an Association formed to manage and govern the property. F. Pursuant to Section 14 of the First Amended Agreement, the First Amended Agreement may be amended in writing upon majority approval of the owners of the lots within the property and the City. Developer is the owner of all lots within the property. G. Developer, with the consent of the City, is recording this Agreement to correct technical errors in the exhibits and to make other necessary changes and revisions. Upon recordation of this Agreement, the First Amended Agreement shall automatically terminate. H. This Agreement for the maintenance and repair of those certain road and drainage improvements located within the Community Private Streets and the Offsite Private Road Easements in the areas depicted on Exhibit B attached hereto and made part hereof(hereinafter collectively referred to as "Road and Drainage Facilities Maintenance Areas"), is entered into by Developer for the benefit of future subdivision lot owners who will use the Community Private Streets and Offsite Private Road Easements (hereinafter referred to as "lot owners", which shall include the Developer to the extent the Developer retains any ownership interest in any lot or lots). I. 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. J. It is the desire of the Developer that said Road and Drainage Facilities Maintenance Areas be maintained in a safe and useable condition by the lot owners. I. It is the desire of the Developer to establish a method for the maintenance and repair of the Road and Drainage Facilities Maintenance Areas and for the apportionment of the expense of such maintenance and repair among existing and future lot owners. J. 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 a lot that is part 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 Road and Drainage Facilities Maintenance Areas shall be divided equally among the parcels created in the subdivision and paid by the lot owner or the heirs, assigns and successors in interest or each such owner. -2- One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 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 expenses 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 subdivisions thereof as described in Paragraph 3 above: reasonable and normal road improvement and maintenance work to adequately maintain said Road and Drainage Facilities Maintenance Areas to permit all-weather access and conveyance of storm flows. Repairs and maintenance under this Agreement shall include, but is 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 Road and Drainage Facilities Maintenance Areas for all-weather road purposes. 5. If there is a covenant, agreement, or other obligation imposed as a condition of subdivision approval to make private road improvements to the Road and Drainage Facilities Maintenance Areas, 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. 6. Any extraordinary repair required to correct damage to said Road and Drainage Facilities Maintenance Areas that results from action taken or contracted for by lot 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 Road and Drainage Facilities Maintenance Areas 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. Developer further agrees that the agent may at any time be replaced at the direction of a majority of the lot owners. Repair and maintenance work on the Road and Drainage Facilities Maintenance Areas shall be commenced when a majority of the lot 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 repair 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 advanced on behalf of such lot owner in -3- One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 0WZ9-222499 accordance with the provisions of California Civil Code Section 845, or other applicable law, 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, including reasonable attorneys 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 person, 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 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. 10. Lot 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 lot owner, any contractor, any subcontractor, any user of the Road and Drainage Facilities Maintenance Areas, 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 Road and Drainage Facilities Maintenance Areas. 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 acknowledgment of a responsibility for any such matter, and City, City's engineer and its consultants, and each of its officials. directors. officers, and 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 lot 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 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 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. _4_ One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 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. 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 Community Private Streets) is managed and controlled by an Association: (a) The Association, through its Board of Directors, shall repair and maintain the Road and Drainage Facilities Maintenance Areas 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. 17. In addition to the rights described in this Agreement, the lot owners and/or Association shall have the right to seek contribution from other nonparty individuals or entities who should or are obligated to contribute to the maintenance of one or more of the Road and Drainage Facilities Maintenance Areas depicted on Exhibit A. See California Civil Code § 845. In addition,the parties retain any and all rights they may have for enforcement and/or contribution under the terms of preexisting or future road easements. 18. The Private Road and Drainage Facilities Maintenance Agreement recorded on September 6,2000 as Instrument No. 2000-0478511 and the Amended Private Road and Drainage Facilities Maintenance Agreement for TM 89-031, recorded on January 25, 2011 as Instrument No. 2011-0047036 in the Official Records of San Diego County shall automatically terminate and be of no further force and effect when this Agreement has been recorded. _ One Oak/Second Amended and Restated SMRH:484004790.5 -5 Maintenance Agreement 110118 OWZ9-222499 IN WITNESS WHEREOF, Developer has executed this Agreement as of the date first above written. SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership By: a Nam : k.4 Title: ((.,5+. 5 ec.r{rrw-I Name: UA aQJ' Title: , \ � -6- One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 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 San-Die& ) On ■ ovemkoer I, 02D I' , before me, j4E Ien R. 4fl z-,t�a?iouy , a Notary Public, personally appeared,3 kn \an&e.ayo lennis&hro&b O 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 ltefshe/they executed the same in his/her/their authorized capacity(ies), and that by homer/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. ,� , HELEN A. ANAYA-RIOUX ., ,��, Notary Public -California z •-•s]p San Diego County z Z '9, Commission # 2153589 1_ My Comm.Extres May 19,2020 j Signature ' �� .,L€ "" f 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 _ ) On , before me, , a Notary Public, 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. Signature _7_ One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 CONSENT OF CITY The undersigned consents to the recordation of the foregoing Agreement and further approves the Agreement as to form and content. CITY OF ENCINITAS: 4 ' I - ,� _ I1/ 4l amil g City Engineer Date City of Encinitas 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 San Diego ) On i 1— g , before me, C1�10_ A. S)(bOtl ,the undersigned, a notary public for the state,personally appeared £warc1 3", 1i.);rune r , proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity on behalf of which the person 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. ag .,,...v..;47._.1__ i .w°.,wi^ ANGELA A. SIMON rn CoMM.# 2182396 '^ UI x r 3 NOTARY PUBLIC•CAUFORNIA N $AN DIEGO COUNTY �, ' Mr Coats Ezv.MAR.2,2021 � -8- One Oak/Second Amended and Restated SMRH:484004790.5 _g Maintenance Agreement 110118 0WZ9-222499 EXHIBIT "A" PROPERTY DESCRIPTION Lots 1 through 28, inclusive, and 33 of City of Encinitas Tract No. 89-031, in the City of Encinitas, County of San Diego, State of California, according to Map thereof No. 14032, filed in the Official of the County Recorder of San Diego County, on September 7, 2000. Exhibit"A" One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 EXHIBIT B" DEPICTION OF ROAD AND DRAINAGE FACILITIES MAINTENANCE AREAS [Attached] Exhibit"B" One Oak/Second Amended and Restated SMRH:484004790.5 Maintenance Agreement 110118 OWZ9-222499 . . EXHIBIT B PAGE 1 OF 2 DEPICTION OF ROAD AND DRAINAGE FACILITES MAINTENANCE AREAS _ _ COUNTY OF SAN DIEGO - / — CITY OF ENCINI TAS 27 28 / � I I °%r 0 J STA . 52+87. 05 ‘ 25 ?'O SUMMIT DR. 22 PER IMPROVEMENT ■ '�.-, ��///�,/,, PLAN #6242-G 29 /go I ■ MAP NO. 14032 I ., 20 23 V LEGEND ■ ■ 19 8I0 ROAD AND %���� 18 A DRAINAGE FACILITIES // 11110 MAINTENANCE AREAS 30 w w I - 12 16 Qt)\ <9A ,•, ■ \ q Q. 9 11 % o r i I X o4 8 10 / I ■1 , 1 N , 111111111i/ COURT I ©_ '% I I / 1 ∎ ii I MAP NO. 14032 31 I % I I 6 / I NOT TO SCALE - 4 i RIM / �.,,,� L — — — 2'Z=���i„ii�iiiiiii���ii� i % I W ���� 'ANWew 44 WILLIAMS TERRACE %3 - - a I STA . 23+23. 18 1 PER IMPROVEMENT ' EXHIBIT B PAGE 2 OF 2 DEPICTION OF ROAD AND DRAINAGE FACILITES MAINTENANCE AREAS 1 5 4 3 io 2 1 I ----- ... MAP NO. 14032 WILLIAMS TERRACE %s 1 STA . 23+23. 18 IMPROVEMENT PER j PLAN #6242-G - LEGEND n 264-450-07 / 264-450-08 rY ROAD AND O �% DRAINAGE FACILITIES MAINTENANCE AREAS 0 O - - - - - - - - - 0 — — — — — — - --f d264-450-13 A 264-450-09 — -7- oe 1p / 4p.4 ,/'We 264-451-07 264-451-28 ��ii�����ii� ''✓l NOT TO SCALE °�%j d 264-451-07 o,''o t ;r _ _i_ _ _ _ 4_ 264-451-03 264-451-31 ► 264-451-11 \ 264-451-08 1264-451- 64-451-33 \ R A14Cx iiiiiiii ���� I, �' �z /� 1 \\\ \ 264-451-34 — — ,b'/P \ 264-451-09 1 \\\ 1 - - - _r0• p \ � 264-451-12 -- ., 264-451-32 264-451-10 \ 1 + ' 1 COUNTY OF i I STA. 15+58.86 DIEGO 1 264-101-351 1264-101-361 1264-451-10 PER IMPROVEMENT I I I I I i 1,i PLAN #6242-G