2022-271500Recording Requested By:
City Engineer
DOC# 2022-0371500
IIIII III II I III I III II I II II i III II III I III I IIII III
Sep 21, 2022 01:57 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $110.00 (SB2 Atkins: $75.00)
When Recorded Mail to: ) PAGES:
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
APN: 256-040-76 Plan #: LDEV-013502-2020
Address: 806 Hygeia Avenue Case #: MULTI-003363-2019
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 810 HYGEIA AVE. LLC a
California 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 Map SUB-003365-2019, 806 Hygeia Avenue that will use and enjoy the
benefit of said access drive and drainage 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 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
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.
ff9M:j2j:jlXAjk I NXAT
DEVELOPER/OWNER:
-ByzTT-m'othy Barzal, Manager Date
810 HYG E A AVE. LLC
(Notarization of DEVELOPERs signature is attached).
-1-1-T-1
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 San Diego
On M �� ( t t7 , 2A2-2- before me, Toan Tran, Notary Public
(insert name and title of the officer)
personally appeared Ro r:� o �
who proved to me on the basis of satisfactory evidence to be the person�"hose name are
subscribed to the within instrument and acknowled ed to me that le she/they executed the same in
her/their authorized capaci�, and that byu/her/their signature n the instrument the
personks ror the entity upon behalf of which the persop¢sr 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
(Seal)
5� o rfs TOAN•TRAN�s �•
w.' Notary Public - California z
a W San Diego County
a r Commission 12389310
My Comm. Expires Jan 3, 2026
EXHIBIT 'A"
DESCRIPTION
PARCEL B OF CERTIFICATE OF COMPLIANCE RECORDED FEBRUARY26, 2019 AS INSTRUMENT NO.2019-0069033
OF OFFICIAL RECORDS, BEING ALL THAT PORTION OF LOT 6 OF LEUCADIA ACRES, IN THE CITY OF ENCWITAS,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING THE MAP THEREOF NO. 1704, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY, JUNE 5,1918; ALSO EUROPA STREET (NORTH HALF) VACATED BY
ORDER OF THE BOARD OFSUPERVISORS OF SAN DIEGO COUNTY, AS DESCRIBED IN DEED DOCUMENT TO ROY
TATSUO SAKAUYE RECORDED MARCH 26, 1958 IN BOOK 7008, PAGE 597.
BEGINNING AT THE INTERSECTION OF THE CENTER LINE OF HYGEIA AVENUE WITH THE NORTHEASTERLY
PROLONGATION OF THE NORTHWESTERLY LINE OF LOT 9 OF LEUCADIA ACRES AS SHOWN ON MAP NO. 1704;
THENCE ALONG SAID NORTHWESTERLY LINE SOUTH 74 056,511, WEST 339.87 FEET TO THE CENTER LINE OF
HERMES AVENUE (VACATED); THENCE ALONG SAID CENTERLINE NORTH 15°03'25" WEST 90.00 FEET TO ALINE
PARALLEL WITH AND 90.00 FEET NORTHWESTERLY OF SAID NORTHWESTERLY LINE OF LOT 9, THENCE ALONG
SAID PARALLEL LINE NORTH 74 °56'51" EAST 339.81 FEET TO SAID CENTERLINE OF HYGEIA AVENUE, THENCE
ALONG SAID CENTERLINE SOUTH 1500541 EAST 90.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE SOUTHWESTERLY 45.00 FEET AS MEASURED PERPENDICULAR TO THE CENTERLINE
OF SAID HERMES AVENUE (VACATED) AND THE NORTHEASTERLY 119.37 FEET AS MEASURED PERPENDICULAR
TO THE CENTERLINE OF HYGEIA AVENUE.
APN: 256-040-76-00
PASCO LARET SUITER I PRIVATE ROAD MAINTENANCE
a ASSOUATES AGREEMENT
San Diego I Encinitas I Orange County PLSA2241 SHEET 1 OF
Phone 858.259.8212 I www.plsaengineering.com
EXHIBIT "B"
PRIVATE ROAD AND DRAINAGE FACILITIES MAINTENANCE AGREEMENT
HYGEIA AVENUE
O
BIOFIL TRA TION BMP AREAS FOR
STORM WATER TREATMENT
O
PRIVATE ROAD
O
STORM DRAIN PIPE TO CONVEY
DRAINAGE TO STORM WATER BASIN
PASCO LARET SU ITER SCALE = 1" = 40' PRIVATE ROAD MAINTENANCE
.18 ASSOC
�ATIES z ( AGREEMENT
San Diego I Encinitas I Orange County PLSA 2241 SHEET 2 OF 2
Phone 858.259.82121 www.pisaengineering.com