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1997-550943 DCC 4 1997-0550943 RECORDING REQUESTED BY HOV 03 , 1997 10:05 AM Gary M. and Debra D. Bergman 5.09 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE WHEN RECORDED MAIL TO GREGORY JJE� SMITH, COUNTY RECORDER FEES: 47.00 NAME Gary M. and Debra D. Bergman C o ADDRESS Le t ucaadia, California 92024 /�(" lllilll VIIIIIilllillll�97�5EO�dSlulllulllullllllllll �V v A.P.N. 254-302-18 SPACE ABOVE THIS LINE FOR RECORDER'S OFFICE Easement Agreement With Covenant and Indemnity Provisions Preamble and Recitals This Agreement is entered into on February�'g 1997, by and between Gary M. Bergman and Debra D. Bergman, Co-Trustees or their successors in Trust, under the Bergman Family Trust dated December 16, 1992, herein referred to as "Grantor," and Gregory T. Johnson, who is also known as Greg Johnson, a married man, herein referred to as "Grantee." A. Grantor is the owner of that certain real property situated in the City of Encinitas, California, herein referred to as the "Servient Tenement," commonly known as 145 Diana Street, and more particularly described in Exhibit "A" which is attached to this Agreement and herein by incorporated by reference. B. Grantee is the owner of certain real property located in the City of Encinitas, commonly known as 159 Diana Street, and more particularly described in Exhibit "B," which is attached to this Agreement and hereby incorporated by reference. C. Grantee desires to acquire certain rights from the Servient Tenement, and is prepared to make certain covenants, promises, and assurances in order to acquire those rights. Grant of Easement 1. In consideration of the various covenants described hereinafter, Grantor grants to Grantee an easement, subject to the terms of this Agreement. Character of Easement 2. The easement granted in this Agreement is appurtenant to the Dominant Tenement. Description of Easement 3.A. The easement granted in this Agreement shall be for a right-of-way along a portion of the westerly edge of the Servient Tenement, and commencing 31' from the southerly terminus of such westerly edge, then proceeding northerly to the intersection of such property line with Diana Street, having a width of five feet six inches, subject to the further restrictions and limitations described herein, for the sole purpose of the construction and the maintenance of a retaining wall, to be constructed and maintained by Grantee, which retains not more than nine feet (9') of earth, and which is not more than nine feet (9') in height. 3.B. The patties to this agreement understand and agree that it may be difficult or impossible to accurately determine to true legal boundary between their properties due to the inherent difference between measurements of record, and the "as built" configuration of their properties. Thus the parties agree that the "Agreed Boundary" between their parcels shall be a straight line which is drawn between the right-angle corner.of the existing concrete block wall near the northerly end of the coterminous boundary, and the easterly edge of the existing concrete block situated along the southerly 31 feet of the coterminous boundary. To commemorate these two points the parties shall cause metal monuments to be driven into the ground at each of these two points, to serve as a permanent reminder of their locations in the future, and neither party shall ever disturb these two monuments. Although the line drawn between these two points is less than the full distance of the coterminous boundary, northerly and southerly extensions of this straight line shall complete the Agreed Boundary between the two properties. Covenant Re: Construction and Maintenance of Retaining Wall and Repair of Driveway 4.A. Upon delivery of this Deed of Easement, Grantee shall, within two (2) months, commence the construction of the retaining wall described herein, and shall complete the construction within four (4) months. Such retaining wall shall be constructed of concrete block, with all cells filled. The wail shall be mechanically connected in a good workmanlike manner to the existing block wall at its south terminus. The footing of such wall may key at right angles toward the Servient Tenement, so long as that footing does not impose beyond the margins of the easement right-of-way described in Paragraph 3, above. 4.B. The retaining wall shall be constructed parallel to the Agreed Boundary described in paragraph 3.B., above, and its easterly surface shall not be contracted any further east of the Agreed Boundary than 40 inches. 4.C. The construction of such retaining wall shall be completed entirely at Grantee's expense. Grantee shall keep Grantor's property free and clear of all liens and encumbrances, including, but not limited to Mechanic's Liens. 4.D. Grantee shall, before commencement of construction, obtain from the City of Encinitas a building permit for all such construction associated with such retaining wall. 4.E. Such retaining wall shall be reinforced with steel rebar, set in intervals of not more than four feet (4'), continuous from the footing through all filled cells of the block wall. Grantee shall comply with all requirements imposed by the City of Encinitas for the construction of such block wall, including, but not limited to the insertion of steel reinforcement. 4.F. All work on such wall shall be completed within one hundred twenty (120) days of the issuance of the building permit. If the wall is not completed within that time, and 2 unless this Agreement is extended in writing by the parties, this easement shall lapse. 4.G. Grantee shall thoroughly waterproof the earthward side of such block wall before back-filling with a waterproofing emulsion acceptable to Grantor, and compliant with good trade practices. Grantee shall insert protection board against such waterproofing emulsion before back-filling the wall. The wall shall be constructed with a perforated drainpipe to be laid behind it so that the top of the drainpipe, to be not less than four inches (4") in diameter, shall be at least six inches (6") lower than the intersection of the top of the footing and the bottom of the first course of concrete block. Such drainpipe shall be connected to vertical collection pipes with field drains replaced at the height of the surface of the earth back-filled against the wall. The perforated drain pipe shall be sleeved with anti-silting membrane, and the termini of the drainpipe shall be connected to a drainage connection acceptable to Grantor so as to export water collected behind such retaining wall. The entire wall should be back-filled with rock, with not more than twelve inches (12") of topsoil placed on the surface of such rock. 4.11. The retaining wall shall be constructed in three different typical wall sections, including "Wall A," "Wall B," and "Wall C." A site plan drawing of the situation of such three retaining wall sections is attached hereto and marked as Exhibit "C." Except, however, and notwithstanding the site plan drawings, no new wall shall be constructed along the southerly thirty-one (31') feet of the Agreed Boundary, and in this area the parties shall instead utilize the \preexisting concrete block wall. Typical construction drawings of each of the three wall sections, A, B, and C are attached hereto and marked as Exhibits "D," "E," and "F," respectively. A drawing of the proposed sub-drain detail to be included in the construction of such wall sections is attached hereto and marked as Exhibit "G." 4.I. Grantee shall deliver to Grantor, for Grantor's written approval, copies of the approved and permitted plans for such wall not less than twenty (20) days before the commencement of construction. 4.J. Notwithstanding any tern or provision of this Agreement to the contrary, such wall and footing shall be constructed in such a manner as to not interfere with any improvements already existing on the Servient Tenement, including, but not limited to any eaves, footing, walls, or other structural members of structures or improvements existing on a Servient Tenement at the time of this Agreement. 4.K. The driveway of Grantor's property, commencing at the public street and. proceeding to the garage of Grantor's property, is old, partially deteriorated and raveled. During the course of Grantee's construction it is anticipated that the driveway will be further degraded. Accordingly, and in consideration of the other terms of this Agreement, Grantee shall, upon the completion of the other improvements described by this Agreement, but before the completion of the one hundred twenty (120) days described in Paragraph 4.E. of this Article, remove the existing asphaltic emulsion and install a concrete driveway in the same location which is reasonably fit for similar residential use, and to the full margins of the existing driveway, plus the extension caused by the removal of the existing planter. In the event that the workman-like completion of this driveway requires the removal of existing base, emulsion or aggregate, and/or if such workman-like construction requires the addition of new base material, Grantee shall 3 X12 remove such existing materials and/or apply new base at Grantee's sole expense, and in the way most likely to preserve the continued use of such driveway. Indemnity Agreement 5. Grantee shall indemnify, hold and save the Grantor, and the Grantor's successors and assigns in the Servient easement, safe and harmless from any claims of injuries or properly loss associated with the construction, maintenance, or existence of such retaining wall structure, including, but not limited to all damages, claims of damages, legal actions, arbitrations, and attorney's fees. Secondary Easement 6. This easement granted in this Agreement includes the incidental right to come on the Servient Tenement for the purpose of constructing the easement described herein.. Grantee shall not, however, stockpile or store any materials on the Servient Tenement during the course of construction, except for the temporary placement of earth excavated in connection with construction of the footing. In such event, however, all excavated dirt shall be removed from the Servient Tenement within five (5) days. In the event that there is any damage or defacement to Servient Tenement between the course of construction, Grantee shall, within five (5) days of written notice from Grantor, cause such despoliation to be repaired, replaced or corrected. Term 7. Except as provided in Paragraph ya above, the easement granted by this Agreement shall continue in effect for so long as such retaining wall is maintained in accordance with the terms of the Agreement by Grantee. If such wall is ever removed for any reason, and/or if the wall is not reasonably maintained by Grantee, then such easement shall lapse. Non-Exclusive Easement 8. The easement granted in this Agreement shall be non-exclusive. Grantor retains the right to make any use of the Servient Tenement, including the right to make concurrent easements in the Servient Tenement to third parties, that does not interfere unreasonably with Grantee's free use and enjoyment of the easement. Assignment 9. This Agreement, including any interest in the Agreement, shall not be assigned by the Grantee without the prior written consent of the Grantor. Attorney's Fees 10. If any legal action or proceeding arising out of.or relating to this Agreement is brought by either party to this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to any other relief that may be granted, the reasonable attorney's fees, 4 0 513 costs, and expenses incurred in the action or proceeding by the prevailing party. Entire Agreement 11. This Agreement constitutes the entire Agreement between the Grantor and Grantee relating to the above easement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to the Agreement shall be of no force and effect unless it is in writing, and signed by the Grantor and Grantee. Binding Effect 12. This Agreement shall be binding on and shall enure to the benefit of the heirs, executors, administrators, successors, and assigns of Grantor and Grantee. Executed on J`'S��1� 1997. Grantor: 11Pct � 1 Y`�y` Gary ergman,Urustee Debra D. Bergman, Trustee Grantee: 4APlai^ �- Qd,�,D — Grego y . loh s n CONSENT OF GRANTEE'S SPOUSE The undersigned, as the spouse of Grantee, Gregory T. Johnson, without asserting that she has an ownership interest in any of the property described above, consents to her husband's execution of the foregoing agreement and, to the extent that such terms of agreement may affect her, agrees to be bound by them. Executed on _ M Q U 1997 //Ltd--�-�-j�• / / l�'�� t.��' ,'G��t�;�,�e`�^�-� (/ Linda C. McCallister Johnson 5 514 State of California SS. County of San Diego n On �1 1997, before me, �D0.nn �' ejP may-) the undersigned, a No ry Public in and for said State, personally appeared Gary M. Bergman, personally known to me to be the person w4ow.name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. JOANN M•REDMAN CO M. 1016456 Notary PubH0—CaSfarr�a .. �-+-� . My Comm.Ekes FE666.1996 ZL(f a l SV nature of Notary State of California 1 ly ss. County of San Diego On 1997, before me, �3-w-n l'11"` the undersigned, Notar Public in and for said State, personally appeared.Debra D. Bergman, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. JOANN M.REDMAN Co MM.i 1016456 R Notary Pubtic—Collforrio SAN DIEGO COUNTY Ir MY Comm.Expires FE66.1996 k4- nature of Notary State of California 1 ss. County of, 5 2 I e On 1997, before me, the undersigned, a Notary Public in and for said State, personally appeared Gregory T. Johnson and Linda C. McCallister Johnson, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signature on the instrument the persons or the entities upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. PA7RMM.HANSEN flan a 1128936 w `ce Ar,7,,Je c ry`—cuntV 0 Signature of Notary roOa;toot 516 . Legal Description Of 145 Diana Street, Encinitas, California PARCEL 1: LOT 6, BLOCK 7 OF SOUTH COAST PARK NO. 2, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1859, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 21, 1925. EXCEPTING THE SOUTHERLY 90.00 FEET, MEASURED ALONG THE WESTERLY LINE THEREOF. ALSO EXCEPTING THE EASTERLY 15.00 FEET THEREOF. PARCEL 2: AN EASEMENT AND RIGHT OF WAY FOR ROAD, SEWER, WATER, GAS, POWER AND TELEPHONE LINE, AND APPURTENANCES THERETO, OVER, UNDER, ALONG AND ACROSS THE NORTHERLY 100.53 FEET OF THE EASTERLY 15.00 FEET OF SAID LOT 6. Exhibit W Legal Description Of 159 Diana Street, Encinitas, California LOT 8, BLOCK 7 OF SOUTH COAST PARK NO. 2, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1859, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 21, 1925. Exhibit W 4 � a 3 I — r �o- r $m 6 Q Ic a IF �. 0 . . -rvm Q� aS t5 P � V _ s- -- R poi 6 -n v"\ O r- ���l 1•. h �P _ Exhibit "C" ,F�. .�fl";^°•�''� Sig Z� 06 J O z ui G 0 0 . 0 7 � S2ts) o �t- VS Lr ml iA N . � o � Exhibit "D" l 520 w VI • . . C3 tJ3a xs x'dYV „Q,S e � I c� e . z N v (49 �- J < . Exhibit "E" . b F IVUEER 5utuµ-A.c�vE 521 n t7;:�,� p5 \✓rte\` G2 !a 0 i W L7 j `I w ra M j`;U , "• p/ w �} 4 0 �c v GA L�o •3�r G[ K `_` i 24 WALL C ,. Exhibit "F" n `r• �— QRCNlTECT$ SP�C(P/CAT/OrVS. UWARld BETWEEN ROCKY SOIL. d/B�'-1"LRU6f/60 ROCK OR MlRAORQ(N6W 6 OX EQUldQC6NT � T Sm.�T/ig.rr. Q"p/A. (MINI PERfORATEO . P/PE GY/TN 20Ut[�t M/rY. " \ ° ao Diu\\�/n\\\giU�TiRC—' • � r• p ///\ fi'>�'TAINING ofd 1(V 06MIL • - �tv' .p .'pis 'C �•r 5. w 1 7 .25404 G E p.3-31• ofl OF L N% e Exhibit "G"