1991-470297RECORDIN~ REQ~IESTED BY &
WHEN RECORDED RETURN TO:
1679
City Engineer
City of Encinitas
537 Encinitas Boulevard
Encinitas, CA 92024
TA ~ -~-~-~ THIS DOCUMENT IS BEING RECORDED TO CORRECT
'~~ DOCUMENTLNOi 91-0470297, WHICH RECORDED ON
SEPTEMBER 13, 1991 ~/'~O~ ~H?~l~ ~ ,~.'~
~'" ~RANT OF EASEmenT ~'uK K~R~AT~O~AL TRAIL~ ' //L~
A. RECITALS. Mansour Heidari; Roger Q. McFarland; Philip G.
Decarion; Alvin F. Mayo, Trustee; Nanette Mayo, Trustee; Jesse R.
Oakley; and Diana M. Oakley (hereinafter "Owners") represents and
warrants that they are the owners of approximately 70 (±) acres of
property in the City of Encinitas as more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference
(hereinafter the "Property"). Owners desire to convey a recre-
ational trail easement to the City of Encinitas (hereinafter
"City") within a twenty (20) foot easement held by the Olivenhain
Municipal Water District (hereinafter "District"). The District's
easement is more particularly described in Exhibit "B" attached
hereto and incorporated herein by reference (hereinafter "District
Easement"). Owners and the City hereby expressly acknowledge the
continuing validity of the District Easement. The City has agreed
to accept the recreational trail easement from Owners, and the
District has agreed to consent to the trail easement over the
District Easement subject to all terms and conditions contained
herein.
B. GRANT OF EASEMENT. Owners hereby grants to the City, for
the benefit of City, an easement across the property described in
Exhibit "A" for public recreational trail purposes, as more par-
ticularly described in Exhibit "C," attached hereto and incorpor-
ated herein by reference. This trail easement includes, without
limitation, use by members of the public, and the lot owners within
the Ocean View Estates project, to walk, jog, run, ride horses, and
operate non-motorized bicycles. However, no motorcycles or other
motorized vehicles shall be permitted on the easement except for
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.emergency and maintenance vehicles. The District hereby consents
to the foregoing easement subject to all terms and conditions
contained herein.
C. CONSTRUCTION OF RECREATIONAL TRAIT.. Owners shall be
solely responsible for all fees, costs, and expenses of whatever
type or nature associated with original construction of the
recreational trails within the easement. This construction shall
be limited to grading and compaction of the trails, provided this
grading and/or compaction does not change the existing elevations
on any part of the easement. The City, Owners, and their respec-
tive heirs, successors, or assigns shall not be entitled to con-
struct any other improvements or structures or to plant any tree or
trees within the District Easement without the express prior
written consent of the District. All District facilities within
the trail easement shall be protected by Owners and the City in
connection with construction of the trails. The District shall be
notified at least thirty-six (36) hours in advance of any excava-
tion within the easement and shall be permitted to inspect and
approve all construction within the trail easement. Owners and the
City jointly and severally agree not to allow any mechanic's liens
or other claims of any kind or description to be filed upon all or
any portion of the District Easement as a result of any construc-
tion or improvements within the recreational trail easement, and
Owners and the City agree to promptly remove such claims at their
sole cost and expense upon demand from the District.
D. MAINTENANCE OF TRAILS AND RELATED IMPROVEMENTS. Upon
completion of construction and improvements within the trail
easement by Owners to the satisfaction of the City and the Dis-
trict, the City shall accept the trail easement by formal action of
the City Council. The City agrees to properly and safely maintain
the trail easement and all construction and improvements within the
trail easement at all times in a manner which protects all District
facilities in the trail easement and in a manner which avoids any
harm or damage to any member of the public or adjoining landowners
from any District facilities or any trail improvements within the
trail easement. It is understood by the parties that the District
shall have no liability or responsibility whatsoever for any claim,
harm, or injury of any type or character to any person or agency
.arising. from use of the trail easement, this liability and respon-
sibility being the sole obligation of the City.
E. CITY LIABLE FOR ALL DAMAGES AND EXPENSES TO DISTRICT
EASEMENT AND FACILITIES. As a material part of this Grant of
Easement, the City agrees to pay for all damages of whatever type
or nature which may occur to the District Easement or to any
District facilities within the trail easement arising from any use
whatsoever of the trail easement or as a result of the maintenance,
improvement, repair, removal, or relocation of the trails or any
trail improvements or construction.
F. RIGHT TO CHANGE DISTRICT FACILITIES AT ANY TIME. The
District shall have the right, at any time, to alter, expand, or
relocate any of its existing facilities within the District
Easement and the trail easement and the further right to add, at
any time, additional District facilities within any portion of the
District Easement and the trail easement as the District shall
determine, in its sole discretion. These changes may be made at
any time by the District without the consent or approval of the
City or Owners.
G. DISTRICT NOT LIABLE FOR CHANGES TO DISTRICT FACILITIES.
The District shall not be liable for any damages, fees, losses, or
costs, of whatever type or nature, to the trail easement or any
construction or facilities within the trail easement as a result of
the District's use of the District Easement, or as a result of the
construction, use, repair, replacement, relocation, expansion, or
alteration of any District facilities within the District Easement
or the trail easement, or as a result of any decision by the
District to abandon the District Easement or to change its loca-
tion. The District agrees to notify the City at least thirty-six
(36) hours in advance of any excavation by the District within the
trail easement. Upon the giving of such notice, it shall be the
sole responsibility of City to protect and/or restore the trail
easement and any improvements within the trail easement (other than
the District's improvements) during and after completion of the
work by the District. The sole responsibility of the District
shall be to protect the public from work being performed by the
District on the trail easement during the period of time this work
is being performed.
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H.. 'PRIOR RIGHTS. Thi~ment shall not alter, modify, or
terminate, in any way, any of the prior rights of the District to
use, enjoy, maintain, and improve the District Easement in
accordance with its terms. All prior rights of the District in the
District Easement are hereby expressly reserved.
I. INDEMNITY OF OWNERS. The City agrees to defend,
indemnify, and save free and hold harmless Owners, and any sub-
sequent fee owners of the Property, from and against all claims,
liabilities, penalties, fines, or any damage to goods, properties,
or effects of any person whatsoever, and for personal injuries or
death caused by or resulting from, or claimed to have been caused
by or resulting from, the negligence or intentional act of the
City.
J. INDEMNITY OF DISTRICT. The City and its heirs,
successors, and assigns, hereby agrees to defend, indemnify, and
save free and hold harmless the District and its agents, servants,
employees, consultants, and officers from and against all claims,
liabilities, penalties, fines, or any damage to goods, properties,
or effects of any person whatsoever, and for personal injuries or
death caused by or resulting from, or claimed to have been caused
by or resulting from, each of the following: (1) the District's
consent to this trail easement; (2) the use of the trail easement
by any person or entity for any purpose; (3) the maintenance,
construction, repair, or improvement of all or any portion of the
trail easement by Owners or the City. It is the express intention
of the parties that this indemnity shall extend to claims of
persons or entities using the trail easement who claim any injuries
or damages to themselves or their animals as a result of any
District facilities within the trail easement.
Owners and Owners' heirs, successors, and assigns hereby
agrees to defend, indemnify, and save free and hold harmless the
District and its agents, servants, employees, consultants and
officers from and against all claims, liabilities, penalties,
fines, or any damage to goods, properties, or effects of any person
or entity, and for personal injuries or death caused by, or result-
ing from, or claimed to have been caused by, or resulting from any
design or construction of the trails by Owners or Owners' agents or
contractors until the easement has been accepted by formal action
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.of the City Council. The indemnity of Owners to the District shall
cease upon formal acceptance of the easement by the City Council.
In the event that the District is named as a party in any
action covered by the City's indemnity, the District shall be
entitled to appoint independent counsel of its own choosing, and
the City agrees to pay all fees and costs incurred by the District
in the proceeding, including all attorney's fees and court costs
incurred by the District. The attorney selected by the District
shall provide a monthly bill to the City during the term of such
litigation, and the City agrees to pay all such bills within thirty
(30) days of receipt.
In the event the District is named as a party in any litiga-
tion covered by the Owners' indemnity, the District shall be enti-
tled to appoint independent counsel of its own choosing and Owners
agree to pay all fees and costs incurred by the District in the
proceeding, including all attorney's fees and court costs incurred
by the District.
K. COVENANT RUNNING WITH THE LAND AND BINDING ON SUCCESSORS.
The parties expressly agree that this trail easement shall also be
construed as a valid and binding equitable servitude and covenant
running with the land and shall be binding upon the heirs, personal
representatives, successors, assigns, or transferees of any of the
parties. The parties expressly waive the right to challenge the
enforceability of this trail easement as a legal and binding
equitable servitude and covenant running with the land during any
subsequent arbitration or litigation between the parties or their
successors.
L. VENUE. In the event of any legal or equitable proceeding
to interpret or enforce this trail easement, the parties agree that
venue shall lie only in the federal or state courts in or nearest
to the North County Judicial District, County of San Diego, State
of California.
M. ATTORNEY'S FEES. In the event any action or proceeding
is filed challenging the grant of this trail easement or the
District's consent, or to interpret or enforce any of the terms or
provisions of this trail easement, the prevailing party shall be
entitled to all attorney,s fees and court costs in addition to all
other relief afforded by applicable law.
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"Owners":
Dated:
Diana M. .ey
Dated: "City":
CITY OF ENCINITAS
,[
Dated: "District":
OLIVENHAIN MUNICIPAL WATER
DISTRICT, a Public Agency
General Manager
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ACCEPTANCE BY CITY OF ENCINIT~R
I accept, on behalf of the City Council of the City of
Encinitas, pursuant to the authority conferred by Resolution 87-72
of said City Council, adopted on July 27, 1987, the foregoing trail
easement and consent to the recordation thereof by its duly
authorized officer.
Warren H. Schafer
City Manager
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO SS.
O~ ~1 ~'~ ~/4(/'.~T'- /q~/ before me,
[
th~ u~ndersigned, a Notary Public in and for said County and State, [ ro~ NOTARY SEAl. O~ STAM!~
~Iv ~n~eared//' ~ ~ [
personally know~o me to be the persons who executed this
~~ of the OLIVENHAIN
MU~IC[PA[ WATER DISTRICT and
acknowledged to me that the OLIVENHAIN MUNICIPAL
WATE ecu '
~ig~turO ] ~~or ~d Counw and State
16S8
EXHIBIT "A"
PROPERTY DESCRIPTION
ALL THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF
SECTION 8, TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, LYING NORTHERLY OF
THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WEST LINE OF THE SAID NORTH HALF OF THE
SOUTHEAST QUARTER OF SECTION 8, DISTANT THEREON SOUTH 4°09'12"
WEST, 831.16 FEET FROM THE NORTHWEST CORNER THEREOF, BEING A POINT
ON A NON-TANGENT 5826.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY, A
RADIAL BEARING TO SAID POINT BEARS NORTH 15°12'16'' EAST; THENCE
EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3°39'57'', A
DISTANCE OF 372.75 FEET; THENCE SOUTH 71°07'47'' EAST, 771.06 FEET
TO THE BEGINNING OF A 1949.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY;
THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
4°20'43'', A DISTANCE OF 147.81 FEET; THENCE SOUTH 75°28'30'' EAST,
A DISTANCE OF 688.22 FEET TO A POINT IN THE SOUTH LINE OF THE SAID
NORTH HALF OF THE SOUTHEAST QUARTER.
16 9
EXHIBIT "B"
THE NORTHERLY 1629.00 FEET OF THE EASTERLY 20.00 FEET OF THE
SOUTHEAST QUARTER OF SECTION 8 TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA AS GRANTED IN A DEED TO THE OLIVENHAIN
MUNICIPAL WATER DISTRICT RECORDED ON JANUARY 31, 1962 AS DOCUMENT
NO. 18553 ·
EXHIBIT "C"
PROPERTY DESCRIPTION
THE EASTERLY 20.00 FEET OF THE NORTH HALF OF THE SOUTHEAST QUARTER
OF SECTION 8, TOWNSHIP 13 SOUTH, RANGE 3 WEST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, LYING NORTHERLY OF
THE FOLLOWING DESCRIBED LINE:
BEGINNING AT A POINT ON THE WEST LINE OF THE SAID NORTH HALF OF THE
SOUTHEAST QUARTER OF SECTION 8, DISTANT THEREON SOUTH 4°09'12''
WEST, 831.16 FEET FROM THE NORTHWEST CORNER THEREOF, BEING A POINT
ON A NON-TANGENT 5826.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY, A
RADIAL BEARING TO SAID POINT BEARS NORTH 15°12'16'' EAST; THENCE
EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 3°39'57'', A
DISTANCE OF 372.75 FEET; THENCE SOUTH 71°07'47'' EAST, A DISTANCE OF
771.06 FEET TO THE BEGINNING OF A 1949.00 FOOT RADIUS CURVE,
CONCAVE NORTHERLY, THENCE EASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 4°20'43'', A DISTANCE OF 147.81 FEET; THENCE SOUTH
75°28'30'' EAST, A DISTANCE OF 688.22 FEET TO A POINT IN THE SOUTH
LINE OF THE SAID NORTH HALF OF THE SOUTHEAST QUARTER.
31-OCT-1991 08:54
OFFICIAL RECORDS
SAN OIEGO COUNTY RECOROER'S O[-F~ICE
ANNETTE EVANS~ COUNTY RECORDER
FEES: O. O0