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2019-333363 T• x DOC# 2019-0333363 _ IIIII IIIII IIIII IIIII III I II I IIIII I II IIIII I III II II II II II III Recording Requested By: ) Aug 08, 2019 01:04 PM OFFICIAL RECORDS Engineer Ernest J. Dronenburg, Jr., City g ) SAN DIEGO COUNTY RECORDER FEES: $110.00 (SB2 Atkins: $75.00) When Recorded Mail to: ) PAGES: 8 City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 Space above for recorders use only PRIVATE ROAD MAINTENANCE AGREEMENT FOR 18-118 TPM/CDP A.P.N.: 254-413-18 Parcel Map: 13083-PM Address: 710 Wood Drive Case No: 18-118 TPM THIS AGREEMENT for the maintenance and repair of that certain private access drive, the plat of which is set forth in Exhibit "B" attached hereto and made a part hereof, is entered into by Christopher Clevenger and Athanasia Clevenger, Husband and Wife as Community Property, 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 Map 18-118 located at 710 Wood Drive 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 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 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: 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 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 to permit all-weather access. . Repairs and maintenance under this Agreement shall include, but are not limited to, filling of chuckholes, repairing cracks, repairing and resurfacing of roadbeds, repairing, 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 that results from action taken or contracted for b y 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 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 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. 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 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: DEVEL PER., VI Ch ' opher e nger, Owner Da e 3a At nasia Clevenger, Owner Date fee- (Notarization of DEVELOPERs signature is attached). ACKNOWLEDGMENT 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 'S 6y\ On ���T,?,T � beforeme, �f\�a[�Arw (insert name and title of the officer) personally appeared Ven r• who proved to me on the basis of batisfactory eviden to be the erson s whos ame(s 4s/6r subscribed to the within instrument and acknowledged to me that heishe@je executed the same in he' authorize. capacty(ie , and that by er/ eir i nature s on the instrument the erson , or the entity upon behalf of which the erson(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. . �////tf/tftttft/f/Ifft//f/fft///ttt/f� . WITNESS my hand and official seal. - LETICIAGONZALEZ a,���•, COMM.#2169562 NOTARY PUBLIC•CAUFORMA SAN DIEGO COUNTY My Co urfton Expin3s 10/25/2020 7///f/0/ Signature (Seal) EXHIBIT "A" LEGAL DESCRIPTION OF REAL PROPERTY Real property in the City of Encinitas, County of San Diego, State of California, described as follows: Parcel A: THAT PORTION OF LOT 3, BLOCK J OF SOUTH COAST PARK ANNEX, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1760, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 29, 1924, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF SAID LOT 3 DISTANT THEREON SOUTH 11°04' EAST, 306.83 FEET FROM THE NORTHWESTERLY CORNER; THENCE CONTINUING ALONG SAID WESTERLY LINE SOUTH 11°04' EAST, 130.00 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 68 004'40" EAST, 431.00 FEET; THENCE SOUTH 11°04' EAST, 40.00 FEET; THENCE NORTH 68 004'40" EAST, 30.00 FEET; THENCE NORTH 11°04'WEST, 40.00 FEET TO THE BEGINNING OF A TANGENT 30 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 79°08'40" A DISTANCE OF 41.44 FEET; THENCE ON A NON-TANGENT CURVE SOUTH 68°04'40" (WEST, 20.42 FEET; THENCE NORTH 13°19'40"WEST, 90.00 FEET; THENCE SOUTH 68 004'40"WEST, 40.00 FEET; THENCE SOUTH 68 042'22"WEST, 371.21 FEET TO THE POINT OF BEGINNING. PARCEL B: AN EASEMENT FOR ROAD PURPOSES OVER THE FOLLOWING DESCRIBED PORTION OF SAID LOT 3. BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 3; THENCE RUNNING NORTH 68 004'40" EAST, 431 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 11 004' WEST, 40 FEET TO A POINT; THENCE NORTH 68 004'40" EAST PARALLEL TO THE SOUTHEASTERLY LINE OF SAID LOT, 245 FEET MORE OR LESS TO THE EASTERLY LINE OF SAID LOT; THENCE SOUTH 5 003'55" EAST TO THE SOUTHEASTERLY CORNER OF SAID LOT; THENCE SOUTH 68 004'40"WEST ALONG THE SOUTHEASTERLY LINE OF SAID LOT TO THE TRUE POINT OF BEGINNING. APN: 254-413-18 SHEET 1 OF 1 "EXHIBIT B" PRIVATE ROAD MAINTENANCE AGREEMENT 710 WOOD DR. - ENCINITAS, CA I PARCEL 2 O I N1o2-w 299 1' 1 I z z rn rn w cD � N � O m I fl W I� o PARCEL 1 2 I I z rn 0 I � N1026'00,, I cn 40.00' 3'05"%. � so 0.00 9 ' O N68'41'15"E O 30.00' N68'41'15"E °- 20.42' Ni0*27 5»W R=30.00' L=41.44' D=79'08'40" 01 PRIVATE ROAD MAINTENANCEAGREEMENT, } INCLUDING DECORATIVE PAVERS,FOR FIRE TRUCK TURNAROUND. O PRIVATE ROAD MAINTENANCEAGREEMENT, SCALE: 1"=50' INCLUDING DECORATIVE PAVERS,FOR EASEMENT ACCESS TO PROPERTY 50 0 50 EXHIBIT'B"