2005-346424
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Recording Requested By:
City Engineer
When Recorded Mail to:
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas. CA 92024
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Assessor's Parcel No. 254-040-10
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DOl 2005-0346424
11111111111111111 11111111111111111111111111111111111111111111111111
APR 26,2005
11 :07 AM
OFFICIAL RECOROS
S.IIN DIEGO COUNW RECORDER'S OFFICE
GREGORY.J SMITH. COUNT'i RECORDER
FEES 29.00
P.6.GES 8
SPACE ABO\
11111111111111111111111111111111111111111111118111111111111181111111111111111
MAINTENANCE AGREEMENT
For PRIVATE PEDESTRIAN ACCESS FACILITIES
ProjectNo.: 01-171 TPM/DRlCDP
W.O.No.: 9058 G
THIS AGREEMENT for the periodic maintenance and repair of that certain Pedestrian Access facilities,
the legai description and/or plat of which is set forth in Exhibit "B" attached hereto and made a part hereof,
is entered into by Jay Refold, and Debra Refold trustees of the Refoid Family Trust
(hereinafter referred to as "Developer") for the benefit of future owners who will use the Pedestrian
Accessfacilities (hereinafter referred to as "owners"), which shall include the Developer to the extent the
Developer retains any ownership interest in any iand covered by this agreement.
WHEREAS, this Agreement is required as a condition of approval by the City of Encinitas and in
consideration of Grading Permits 9058-G, 01-171 TPM/DRlCDP and Planning Commission Resolution PC
2003-48; and
WHEREAS, Developer is the owner of certain real property described in Exhibit "A" that will use and
enjoy the benefit of said storm water treatment facilities(s) (Said real property is hereinafter referred to as
the "property"); and
WHEREAS, it is the desire of the Developer that said Pedestrian Access system 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 periodic maintenance and
repair of said Pedestrian Access facilities and for the apportionment of the expense of such maintenance
and repair among existing and future owners; and
WHEREAS, there exists a benefit to the public the Pedestrian Access facilities be adequately
maintained on a regular and periodic basis; 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 benefited by this Agreement, and present and successive 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 Pedestrian Access facilities shall be paid by the
owner of the heirs, assigns and successors in interest of each such owner.
3. In the event any of the herein described parcels of land are subdivided further, the
owners, heirs, assigns and successors in interest of each such newly created parcel shall be liable under
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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: reasonable and improvements and maintenance work to adequately maintain said
Pedestrian Access facilities to permit Pedestrian Access to said facilities. Repairs and maintenance under
this Agreement shall include, but are not limited to, repairing Pedestrian Access travel ways, repairing and
maintaining drainage structures, stairs, removing debris, if any, and other work reasonably necessary and
proper to repair and preserve the Pedestrian Access facilities for their intended purposes.
5. If there is a covenant, agreement, or other obligation imposed as a condition of the
deveiopment, the obligation to repair and maintain the Pedestrian Access facilities as herein set forth shall
commence when improvements have been completed and approved by the City.
6. Any extraordinary repair required to correct damage to said Pedestrian Access facilities
that resuits from action taken or contracted for by the 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 Pedestrian Access facilities to the condition existing prior
to said damage.
7. Any liability of the owners for personal injury to an 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, by the
owners as they bear the costs and expenses of such repairs and maintenance. Owners shall be
responsible for and maintain their 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.
8. 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, iosses, expenses, personal injury and other costs, inciuding costs of
defense and attorney's fees, to the agent hereunder or to any owner, any contractor, any subcontractor,
any user of the Pedestrian Accessfacilities, 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 Pedestrian
Accessfacilities.
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 inciude a review, inspection
acknowledgement of a responsibility for any such matter, and City, City's engineer and its consultants, and
each of its officiais, directors, officers, employees and agents, shall have no responsibility or liability
therefore.
11. The foregoing covenants shall run with the iand and shall be deemed to be for the benefit
of the land of the owners and each and every person who shall at anytime own ali 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 entitied to enforce the terms of this Agreement to
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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 ali 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 written consent of the City.
15. This Agreement shali be governed by the iaws of the State of Caiifornia. 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 vaiidity, 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
foliowing provisions shali 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 Pedestrian Access facilities) is managed and controlied by an Association:
(a) The Association, through its Board of Directors, shali repair and maintain the Pedestrian
Access facilities and shali be deemed the "agent" as referred to in Paragraph 7 above. The Association,
which shali not be replaced except by amendment to the Declaration, shali receive no compensation for
performing such duties. The costs of such maintenance and repair shali be assessed against each owner
and his subdivision interest in the Property pursuant to the Declaration. The assessments shali be
deposited in the Association's corporate account.
(b) The provisions in the Declaration which provide for assessment iiens in favor of the
Association and enforcement thereof shali supersede Paragraph 8 of the Agreement in its entirety. No
individual owners shali 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 aliowed by the Declaration.
(c) This Agreement shali not be interpreted in any manner, which reduces or limits the
Association's rights and duties pursuant to its Bylaws and Declaration.
IN WITNESS WHEREOF, the parties have executed this Agreement
This-.9nt daYOfFe~VAI<..'1 ,2005
Developer:
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Signature of DEVELOPER must be notarized. Attach the appropriate acknowledgement.
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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County of ~.....'" ~ \-l.,,<:>
, On t<~(,..'i "\., ;'00 <; before me, 9..01.,..,\ r.. \l..,\\ I lVohv'j f),i,c.
personally appeare:te;_..... ~<:;o\~ l O~~~:ame~:~\~HiCer(e.g_,"JaneDoe,NotaryPUbliC") 1
Name(s)of Signsr(s) '" I
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C personally known to me
''is( proved to me on the basis of satisfactory
evidence
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6) ROBERT M. NEill
_ Commission # 1296654 J
i ~ Notary Public - California i
~ Son Diego County f
MyO-mm. EJ<Pires Mcr211,:;ros
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to be the persor@) whose name€> it@>
subscribed to the within instrument and
acknowledged to me that ~/s'~executed
the same in ~/I'bo@ authorized
capacit1Q, and that by hl\;/~~
signatur~on the instrument the perso~ or
the entity upon behalf of which the persor@
acted, executed the instrument.
WITNESS my hand and official seal.
~ M I\..wl
Signalureof Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: ~.,," t~" CA." (~ ..."........A ~
Docu ment Date: tJ
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Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
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~ :gl:::d::~e Top :flhcmb he" I
I". [J Corporate Officer - Title(s): ~.,'
C Partner - 0 Limited 0 General ~
, C Attorney-in-Fact ~
"" 0 Trustee ~
~. 0 Guardian or Conservator ~
~ 0 Other: ~
~ Signer Is Representing: ~
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1999 National Notary AS$oc;alion . 9350 De SOlO Ave , PO, Bo~ 2402. Chat$wcrth. CA 91313.2402' www,nalionalnotary_org
Prod. No. 59{l7
Remder: Call Toll-Free 1-800-876-6827
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Exhibit A: Legal Description of Property
APN 254-040-10
PROJECT NO. tPM 01-171
The Northerly 100 feet of the Southerly 200 feErt of all that portion of Lot 2; in the
Northeast Quarter of Section 5, in Township 13 South, Range 4 West, San Bernardino
Meridian, in the City of Enclnitas, County of San Diego, Stilte of California, according to
the United States Government Survey approved April 19, .1881, described as follows:
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'Beginning at a point on the Westerly line of Neptone Avenue as said 'avenue. is shown oil
.Map No. 2078 of South Coast Park NO.5 filed N.ovember 21; 1927 in the Office of the '
'County Recorder 6f San Diego county, distant thereon'North 19026'45"West 193.27 feet
" fromthl;llntersectlonof the Westerly 'prolongation of the center line of Avocado Street
.'with the said W~sterlY line of Neptune Avenue as said streets are s!1own on said Map No., ' '
2078; said p-ointof beginning being further Identified as the most Easterly cornl;lr of land
described ,in Deed to Herbert R. Hall et ux dErted May 8; 1934, recorded May 11, 1934 in
Book 290, Page 315 of Official Records, thence South 700,33'15" West 201.63 feet along'
the Southerly line of said Halllarid tQ a point on the Easterly line, of land described In Deed -
to the County of San Diego,' dated Januilry 10, 1930 andrElcorded iri Bool< 1731, Page
, '254 of Deeds, records ofsaldCollnty; thence So'uth21 006'45" East 250.10feet along'
, said Easterly !!neto the most Westerly corner of land d,escribed In Deed 19 Robert W. '
, Kenny dated May 3, 1933, recordlild May,16,~93~lnElook 218, Page 1 of Official
Records; thence North 70'033'15" Eilst 194.35 feet along the Northerly line of said Kenny
, laridto a point on the Westerly line of Neptune Avenue; thence Nor-thi9 026'45" West
250..00 feet along said Westerly line t6 the point Qf Begirining, as Per Record Survey Map
,No. 1116 filed in the Office of the County Recorder of San Diego County July 24; 1944,
excepting therefrom that portion if any, now lying, below the ordinary high tide line of the
Pacific Ocean. .
,Assessor's Parcel No:254~040-10
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01-075.1
REFOLD
2/3/05
EXHIBIT 'B'
LEGAL DESCRIPTION
FOR
ACCESS MAINTENANCE AGREEMENT
APN: 254-04Q.10
THAT PORTION OF LAND DESCRIBED IN DEED TO THE REFOLD FAMILY TRUST RECORDED AS DOCUMENT NO, 2002-
0179002 AT THE OFFICE OF THE COUNTY RECORDER, SAN DIEGO COUNTY MARCH 4, 2002 MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF NEPTUNE AVENUE AS SAID AVENUE IS SHOWN ON MAP NO, 2078
OF SOUTH COAST PARK NO, 5 FILED NOVEMBER 21. 1927 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY. DISTANT THEREON NORTH 18'41'55" WEST (NORTH 19'26'45" WEST) 43.26 FEET MORE OR LESS FROM
THE INTERSECTION OF THE WESTERLY PROLONGATION OF THE CENTERLINE OF AVOCADO STREET WITH SAID
WESTERLY LINE OF NEPTUNE AVENUE AS SHOWN ON SAID MAP NO, 2078, SAID POINT BEING FURTHER DESCRIBED
AS THE SOUTHEAST CORNER OF LAND AS DESCRIBED IN SAID DEED TO REFOLD FAMILY TRUST; THENCE
1, SOUTH 71' 18'06" WEST
(SOUTH 70'33'15" WEST)
(BEARING PER SAID DEED)
2, NORTH 05' 10'00" WEST
3, NORTH 01' 37'00" WEST
4, NORTH 18' 42'00" WEST
149.24 FEET
46.28 FEET;
41.85 FEET;
15.00 FEET
5. SOUTH 71' 18'06" WEST 10.00 FEET;
(SOUTH 70'33'15" WEST)
6. SOUTH 18' 42'00" EAST 13.50 FEET;
7. SOUTH 01' 37'00" EAST 43.42 FEET;
8. SOUTH 05' 10'00" EAST 36.00 FEET;
9. SOUTH 71' 18'06" WEST 1.85 FEET;
10. NORTH 34' 15'00" WEST 31.06 FEET;
11. NORTH 58' 35'00" WEST 50.01 FEET
12. SOUTH 20'21'55" EAST
(SOUTH 21 '06'45" EAST)
16.16 FEET:
13. SOUTH 58'35'00" EAST
35.16 FEET;
ALONG THE SOUTHERLY LINE OF SAID LAND DESCRIBED IN
DEED TO A POINT ON SAID SOUTHERLY LINE BEING THE
TRUE POINT OF BEGINNING; THENCE
THENCE
THENCE
TO A POINT ON THE NORTHERLY LINE OF SAID LAND
DESCRIBED IN DEED; THENCE WESTERLY ALONG SAID
NORTHERLY LINE
THENCE
THENCE
THENCE
THENCE
THENCE
THENCE
TO A POINT ON THE WESTERLY LINE OF SAID LAND
DESCRIBED IN DEED; THENCE SOUTHERLY ALONG SAID
WESTERLY LINE
THENCE
THENCE
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01-075.1
REFOLD
2/3/05
PAGE 2
14. SOUTH 34.15'00" EAST
36.50 FEET
TO A POINT ON THE SOUTHERLY LINE OF SAID LAND
DESCRIBED IN DEED; THENCE EASTERLY ALONG SAID
SOUTHERLY LINE
15. NORTH 71.18'06" EAST
(NORTH 70.33'15" EAST)
17 .50 FEET
TO THE TRUE POINT OF BEGINNING.
CONTAINS 1848 SQUARE FEET, MORE OR LESS.
01075.1..LGL
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SOUTH COAST
MAP No.
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EXHIBIT "B"
ACCESS MAINTENANCE
AGREEMENT PLA T
APN: 254-040-10
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2075
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No.5
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20 20
R/W
NEPTUNE A VENUE
(N/9'26'4S'W)
N/B'4/ 'sS'W 100.00'
55.00' 45.00'
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_ AREA OF ACCESS MAINTENANCE AGREEMENT
(NOO"OO'OO''E) BEARING PER OEm OOCUMENT
NO. 2002 - 0/79002
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SOUTH EASTERL Y CORNER
LAND DESCRIBED IN DEED:
DOC. NO. 2002 - 0179002
R/W EASEMENT DA TA TABLE :
# BEARING DISTANCE
LI N05"10'00''w 46.28'
L2 NOI'37'00''w 41.85'
L3 NI8'42'OO''w 1500'
L4 N7,.,8 '06 "E 10. 00'
L5 N18 '42 '00 ''w 13.50'
L6 NOI'37'00''w 43.42'
L7 N05 '10 '00 'W 36.00'
L8 N7,.,8'06"E 1.85'
L9 N34'15'00''w 31.06'
LlO N58'J5'00"W 6.62'
L11 N58'35 '00 ''w 43.39'
Ll2 N20 '21'55 "w 16.16'
Ll3 N58'35 '00 ''w 22.34'
Ll4 N58'J5'00''w 12.82'
Ll5 N34'15'OO'W 36.50'
Ll6 N7,.,8'06"E 17.50'
Ll7 N7,.,8'06"E 30.52'
Ll8 N20'21 'SS''w 62.17'
Ll9 N20'21 '5S''w 21.71'
L20 N71'18'06"E 64.05'
L21 N7,.,8'06"E 22.84'
L22 N58 '35 '00 ''w 50.01'
L23 N58'35'00''w 3516'
JOB No. 01-075.1 2.3.05
SOWARDS & BROWN ENGINEERING
CONSULTING ENGINEERS
~1e7 NeWCASTLE AVENUE SUITE 103
CARDIFF BY THE SEA. CA.. 92007
TEL. 780/'l3(1-815OO FAX 7801436-seoo