Loading...
1994-341937 - -1Y~4 OFFiCiaL RECORDING REQUESTED BY & Stiff D~E60 COUNTY R£~ WHEN RECORDED RETURN TO: G~EGO~Y S~TN, COUNT¥ FEES: O, OO City Clerk City of Encinitas 505 South Vulcan Avenue Encinitas, CA 92024 GRANT OF EASEMENT FOR RECREATIONAL TP~ILS (Within an easement of the Olivenhain Municipal Water District) A. RECITALS. Ray H. Wakemam and Patricia Wakeham, Trustees of the Wakeham Family Trust dated 9/16/89 (hereinafter "Owners") represent and warrant that they are the owners of approximately 4.90 gross 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 recreational trail easement to the City of Encinitas (hereinafter "City") within a thirty (30) 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"). B. GRANT OF EASEMENT. Owners hereby grant to the City, for the benefit of City, an easement across the property described in Exhibit "A" for public recreational trail purposes, as more particularly described in Exhibit "C," attached hereto and incorporated herein by reference. This trail easement includes, without limitation, use by members of the public 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 emergency and maintenance vehicles. The District hereby consents to the foregoing easement subject to all terms and conditions contained herein. C. CONSTRUCTION OF RECREATIONAL TRAIL. 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 respective heirs, successors, or assigns shall not be entitled to construct 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. The District shall be entitled to deny this consent as the District may determine in its sole discretion. BW/hz/MS27-2647wp51 (03-28-94) 1 117 Ail 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 excavation 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 construction or improvements within the recreational trail easement, and Owners and the City jointly and severally 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 District, 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 and all real or personal property 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 responsibility 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. BW/hz/MS27-2647wp51 (03-28-94) 2 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 location. 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 and liability 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. H. PRIOR RIGHTS. This easement 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 and shall have priority over this trail easement. I. INDEMNITY OF OWNERS. The City agrees to defend, indemnify, and save free and hold harmless Owners, and any subsequent 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; or (2) the use of the trail easement by any person or entity for any purpose; or (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, any real or personal BW/hz/MS27-2647wp51 (03-28-94) 3 119 property, or their animals as a result of any District facilities within the trail easement. EXCEPT: The CITY's obligation to the DISTRICT does not extend to claims, liabilities, penalties, or fines for personal injury or death or any damage to personal property, real property, or animals, caused by, or to have resulted from an intentional wrongful act of DISTRICT in constructing, maintaining, repairing, using or improving the DISTRICT's easement. Owners and Owners' heirs, successors, and assigns hereby agree 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 resulting 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 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, counsel for the CITY shall jointly represent both the CITY and the DISTRICT unless and until such time that the defense strategy does not coincide. At such time, DISTRICT shall be entitled to appoint independent counsel of its choosing, subject to approval by the CITY of the hourly compensation rate. Such approval shall not be unreasonably withheld. The attorney representing the DISTRICT shall provide a monthly itemized bill to the CITY during the term of such litigation, and the CITY shall pay bills within thirty (30) days of receipt. Any bills in question shall be reviewed by the CITY and the DISTRICT. DISTRICT shall retain final right to approve or disapprove of the bill as it would if the attorney were being paid by the DISTRICT. In the event the District is named as a party in any litigation covered by the Owners' indemnity, the District shall be entitled 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 BW/hz/MS27-2647wp51 (03-28-94) 4 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, enforce challenge, or invalidate 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. "Owners" (see attached notary S~atement): Dated: Dated: / · "District": Dated: OLIVENHAIN ~NICIPAL WATER DISTriCT, a Public David C. McCollom General Manager AOCEPT~CE BY CITY OF 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. BW/hz/MS27-2647wp51 (03-28-94) 5 " ' 121 CALIFORNIA ALL-PURPO CKNOWLEDGMENT No. 5907 State of ~ ~-~,~,x, ,4- County of '5,e~.~ "~l~"~'u On ~///~/q~/ beforeme, /../~..~.~'~ ~..~,/0~,~ DATE AME, TITLE OF OFFICER - E,G. "JANE DO~', NOTARY PUBLIC" personally appeared ~ /-~g° ~ NAME(S) OF S~GNER(S) [] personally known to me - OR - [~"oproved to me on the basis of satisfactory evidence to be the person~")'~whose name(.~s ..... subscribed to the within instrument and ac- knowledged to me that he~,he~ executed the same in his~r authorized capacity/~J.e~), and that by his~ signature(,~on the instrument the person(~, or the entity upon behalf of which the person(.~acted, executed the instrument. WITNF~SS my hand and official seal. ~NOT~BL[C CALi~N~E/ SIGNATURE OF NOTARY UIEGO COUN OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent mattachment of this form. vAPACITY CLAIMED BY SIGNER DESCRIPTION 0F A~ACHED DOCUMENT IDUAL ~ CORPORATE OFFICER TITLE(S) TITLE OR TYPE OF DOCUMENT ~ PARTNER(S) ~ LIMITED ~ GENERAL ~ ~ A~ORNEY-IN-FACT NUMBER OF PAGES ~ TRUSTEE(S) ~ GUARDIAN/CONSERVATOR ~ OTHER: ~ DATE Of DOCUMENT SIGNER IS REPRESENTING: ~l~ ~ ~' ~ ~ NAME OF PERSON(S) OR ENTI~(IES) ~/C/~ ~e ~'~ SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION · 8236 Remmet Ave., P.O. Box 7184 · Canoga Park, CA 91309-7184 C~, L I FO~'_~_ _u_rL~?_ _~_ ~_~ OW L E DG M E N T-- ~ "'"'"'""" --~ ~ No. s~s3 "State ~ ~'~\~'.~ !\ ~'~ ~, ~\ "~ ~ OPTIONAL SECTION f'~-'-, \\~ -~".' - - _ (~. CAPACITY CLAIMED BY SIGNER Countyof~-, ,~..~q."~ ~')[.~},(') / ^ Though statute does not re~uire the Notary to v . fill in the data below, doing so may prove ~n , -- -~, / beforeme,~ ~\.~/-~-'t i~-,~,~t~-.~ ~,,iw~,.~,~ DATE ~'- NAME TITLE OF OFFICER-- ~[~ 'JANE DOE' NoTARY PUBLI~'~TM kJ NUVUUAL .. . , ' ,,,,~f ' ' rj c'~, ,~- %, ,I ~ ~-~, ~ ~,~., ~ [] CORPORATE OFFiCER(S) personally appeare'~'- ~ t.~..~^-~ . "~ ' NAME(S) OF S~GNERISl ' [] personally known to me - CP, -a~proved to me on the basis of satisfactory evidence [] PARTNER(S) [] LIMITED to be the person(s) whose name(s)L,~are [] GENERAL subscribed to the within instrument an~ ac- [] A'FFORNEY-IN-FACT knowledged to me that he,they executed [] TRUSTEE(S) I!/~ ~ the same in his~thelr authorized OFt~IAL ~F. AL [] GUARDIAN/CONSERVATOR LAURAA. AGUIRRE capacity(les), and that by his~their ~ Ne{my PuUl~,Cam. ml. ,~ signature(s) on the instrument the p~son(s), [] OTHER: person(s) acted, executed the instrument. SIGNER IS REPRESENTING: W[TN ESS my hand and official seal. NAME O~ ~ERSON(E)O~ ENT~TY(~ES) SIGNATURE OF NOTARY OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT ~; THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is nol required by it could prevent fraudulent reattachrnent of this form. SIGNER(S) OTHER THAN NAMED AeOVE ©lgg3 NATIONAL NOTARY ASSOCIATION · 8236 Remmet Ave,, P.O. Sox 7184 · Ca. noga Park, CA 91309-7184 Sta;~ of C,,~'f---/~,,~ CAPACITY CLAIMED BY SIGNER County } [] ,NO,V,DUA.S [~ CO R PO RAT L:(..,~ ~..~- On/~r---- f-"// /'~:~4/~ before me, /~, p,/~-~~/' OFF,CER(S) DATE NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBUC" TiTLE(S) personally appeared P/"~ ~. ,,~,~ ~t_.~,r,f~, [-IPARTNER(S) · [] ATTORNEY-IN-FACT NAME(S) OF SIGNER(S) ./ [] TRUSTEE(S) J~ personally known to me - OR - [] proved to me on the basis of satisfactory evidence to be the person(.~ whose name(~ is/am-- [] SUBSCRIBING WITNESS [] GUARDIAN/CONSERVATOR subscribed to the within instrument and ac- knowledged to me that he/shelley executed [] OTHER: the same in his/tm+C'~he+r authorized _~__~___ --~-~_~--~ and that his/h~ir capacity(i~', by ¢o O, ~ ! signature(~'f'6n the instrument the person(6-~, I~,~~ ! ortheentityuponbehaltofwhiohtheperson(~ SIGNER IS REPRESENTING: I~ ~ ~ [ acted, executed the instrument. NAME OF PERSON(S) OR ENTITY(IES) _--__/~__tS_,_l_~6__ i ' ss nd and official seal. -/"/'~-'~' SIGNATURE OF NOTARY ATTENTION NOTARY: Adhough the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages Date of Document ~'~.(.- ~ DESCRIBED AT RIGHT: Signer(s) Other Than Named Above © 1991 NATIONAL NOTARY ASSOCIATION · 8236 Hemmer Ave · P.O Box 7184 · Canoga Park, CA 91304-7184 ! 23 91-118.2 EXHIBIT "A" LEGAL DESCRIPTION FOR PROPERTY THAT PORTION OF COLONY OLIVENHAIN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JULY 08, 1885, DESCRIBED IN FULL AS FOLLOWS: LOT 91 AS SHOWN ON SAID MAP, TOGETHER WITH THAT PORTION OF THE EASTERLY HALF OF "N" STREET AS SHOWN ON SAID MAP, WHICH ADJOINS SAID LOT 91 ON THE WEST, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF 13TH STREET AS SHOWN ON SAiD MAP, WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF "N" STREET ON THE SOUTH, AND ALSO TOGETHER WITH THAT PORTION OF THE WESTERLY HALF OF "O" STREET AS SHOWN ON SAID MAP, WHICH DOES NOT LIE WITHIN LOT 17 OF RANCHO LAS ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 848, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, AND WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF 13TH STREET ON THE EAST. EXCEPTING THEREFROM THE NORTHERLY 2.00 ACRES THEREOF. 124 5113/94 EXHIBIT 'B' LEGAL DESCRIPTION FOR EXISTING 30' WIDE WATER EASEMENT IN FAVOR OF OLIVENHAIN MUNICIPAL WATER DISTRICT (RECORDED 3111190 AS FILE NO. 90-111406 OF O.R.) ALL THAT PORTION OF THE EASTERLY 30.00 FEET OF THAT PORTION OF COLONY OLIVENHAIN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JULY 08, 1885, DESCRIBED IN FULL AS FOLLOWS: LOT 91 AS SHOWN ON SAID MAP, TOGETHER WITH THAT PORTION OF THE EASTERLY HALF OF "N" STREET AS SHOWN ON SAID MAP, WHICH ADJOINS SAID LOT 91 ON THE WEST, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF 13TH STREET AS SHOWN ON SAID MAP, WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF 'N" STREET ON THE SOUTH, AND ALSO TOGETHER WITH THAT PORTION OF THE WESTERLY HALF OF "O" STREET AS SHOWN ON SAID MAP, WHICH DOES NOT LIE WITHIN LOT 17 OF RANCHO LAS ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 948, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, AND WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF 13TH STREET ON THE EAST. EXCEPTING THEREFROM THE NORTHERLY 2.00 ACRES THEREOF. LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE SOUTHWESTERLY CORNER OF PARCEL 4 OF PARCEL MAP NO. 9771, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, MARCH 6, 1980, BEING A POINT ON THE CENTER LINE OF 'O' STREET AS SHOWN ON SAID MAP NO. 326; THENCE ALONG SAID CENTER LINE, SOUTH 12°26'49" WEST 70.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 77°33'11" WEST TO THE WESTERLY LINE OF SAID EASTERLY 30.00 FEET. 91-116.2 5113/94 EXHIBIT "C" LEGAL DESCRIPTION FOR 10' WIDE PUBLIC RECREATIONAL TRAIL EASEMENT ALL THAT PORTION OF THE EASTERLY 10.00 FEET AND THE NORTHERLY 12.00 FEET OF THE WESTERLY 20.00 FEET OF THE EASTERLY 30.00 FEET OF THAT PORTION OF COLONY OLIVENHAIN, IN THE CITY OF ENClNITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 326, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JULY 08, 1885, DESCRIBED IN FULL AS FOLLOWS: LOT 91 AS SHOWN ON SAID MAP, TOGETHER WITH THAT PORTION OF THE EASTERLY HALF OF "N" STREET AS SHOWN ON SAID MAP, WHICH ADJOINS SAID LOT 91 ON THE WEST, TOGETHER WITH THAT PORTION OF THE NORTHERLY HALF OF 13TH STREET AS SHOWN ON SAID MAP, WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF "N" STREET ON THE SOUTH, AND ALSO TOGETHER WITH THAT PORTION OF THE WESTERLY HALF OF "O" STREET AS SHOWN ON SAID MAP, WHICH DOES NOT LIE WITHIN LOT 17 OF RANCHO LAS ENCINITAS, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 948, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, JUNE 27, 1898, AND WHICH ADJOINS SAID LOT 91 AND SAID PORTION OF 13TH STREET ON THE EAST. EXCEPTING THEREFROM THE NORTHERLY 2.00 ACRES THEREOF. LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE: COMMENCING AT THE SOUTHWESTERLY CORNER OF PARCEL MAP NO. 9771, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, MARCH 6, 1980, BEING A POINT ON THE CENTER LINE OF "O" STREET AS SHOWN ON SAID MAP NO. 326; THENCE SOUTH 87030'39" WEST TO THE WESTERLY LINE OF SAID EASTERLY 10.00 FEET. ALL SHOWN FOR CLARITY ON EXHIBIT "D" ATTACHED, THEREBY MADE A PART OF THIS BY REFERENCE. ~MINOO~L iCON, IlO ~ POF,~ LO-F 91 ~ .IX/JAp '~','-" ¢i ~ IM Fd ¢0~ OF 0 L I ~Hffd IH Md~ldl~dt ~ ~ t0~ ~10~ ?U~LI~ ~EC~V~TIO~ T~I~ ~-~-9~ ~ Job MO. 91-11b. p ~ 80w~O~ ~ BRO~ ENgINEErINg, INO ' I 2187 N~ A~UE ~l~ 202 C~ BY ~E ~ ~ g2~7 (5lg) 438 ~