1991-145992I•.:
RECORDING REQUESTED BY
G,P�aR y B. M � camp
AND WHEN RECORDED MAIL TO:
SHANNAHAN, SMITH & STIPANOV
7855 Ivanhoe Avenue, Suite 420
La Jolla, California 92037
Attn: Kenneth J. Stipanov, Esq,
2050 DOC #• 19KA14992
02- APR -1991 09 :13 AN
5AN OIE00 COUNTY f,ECDRDEF.'S OFFICE
ANNETTE EVANS, COUNTY RECORDER
RF: 9.00 FEES i7.00
AF: 7.00
NF: 1.00
SPACE ABOVE FOR RECORDER'S USE ONLY
DECLARATION OF ESTABLISHMENT OF
DRIVEWAY EASEMENT AND MAINTENANCE AGREEMENT
This DRIVEWAY EASE
( "Declaration ") is executed
GREGORY BRADFORD McCORD and
joint tenants (collectively,
following facts:
MENT AND MAINTENANCE AGREEMENT
as of November 19 , 1990 by
PATTI LU MCCORD, husband and wife as
"Declarant "), with reference to the
RECITALS
A. This Declaration is required as a condition of
approval by the City of Encinitas ( "City ") of a subdivision
project as defined in Section 21065 of the Public Resources Code
and pursuant to the City of Encinitas and Municipal Code Section
24.16.060 and Section 24.29.040,
B. Declarant has applied for a final map for the
property described on the attached Exhibit "A" (the "Property ")
which final map will subdivide the Property into four legal lots
(the "Lots "), Such final map has been applied for pursuant to
Tentative Parcel Map 88 -341 in the City of Encinitas, County of
San Diego, California.
C. Declarant desires to create a private driveway
easement across the Property in the location described on the
attached Exhibit "B" (the "Easement "), It is the purpose of this
Declaration to establish the Easement.
D. It is desire of the Declarant that the Easement be
maintained in a safe and usable condition by the existing and
future owners of the Property, and to establish a method for the
maintenance and repair of the Easement and for the apportionment
KJ3 :I: \PEPM \KJS \KJ302D.W5:040290 I
of the expense of such maintenance and repair among the existing
and future owners of the Property.
E. It is the intention of the Declarant that this
Declaration constitute a reciprocal easement agreement and
covenant running with the land, binding upon Declarant and each
successor owner of all or any portion of the Property,
F. As used in this Declaration, the term "Owner" shall
mean the then - current owner of any Lot or other portion of the
Property. "Owners" shall means collectively all or some of the
Owners, as the context so requires.
DECLARATION
NOW, THEREFORE, Declarant hereby declares that the
Property and every part there of is and shall be benefited and
burdened by, and shall be subject to, this Declaration, and that
Declarant and any and all persons having or acquiring any right,
title or interest in and to all or any portion of the Property
are and shall be expressly benefited and bound hereby for the
benefit of the Property. This Declaration and the easement and
agreements established, granted and set forth herein shall run
with the land and shall be binding on and shall inure to the
benefit of Declarant and any and all persons having or acquiring
any right, title or interest in and to all or any portion of the
Property, and their respective heirs, legal representatives,
successors and assigns,
10 Declarant hereby establishes and grants in favor
of all future Owners of the Property a non - exclusive Easement for
private driveway purposes over and across that portion of the
Property depicted as comprising the Easement on Exhibit "B ". The
Easement shall be used solely for pedestrian and vehicular access
to the Lots by the Owners and their family members, tenants,
guests and invitees. The Easement is not intended to be used by
any Owner for more than one single family residence on any one
Lot.
2, The Easement shall be constructed by Declarant or
Declarant's agent and shall be initially surfaced with asphalt.
The Owners shall maintain, repair and replace the improvements to
the Easement. The repairs and maintenance to be performed under
this Declaration shall be as follows:
(a) Reasonable and normal driveway improvement
and maintenance work to adequately maintain the Easement and
related drainage facilities to permit all- weather access,
Including, but not limited to, filing of chuckholes, repairing
cracks, repairing and resurfacing of the roadbed, repairing and
"S:1:\PEnn\RJs \RJs02D.w5:040290 2
:2051
of the expense of such maintenance and repair among the existing
and future owners of the Property.
E. It is the intention of the Declarant that this
Declaration constitute a reciprocal easement agreement and
covenant running with the land, binding upon Declarant and each
successor owner of all or any portion of the Property,
F. As used in this Declaration, the term "Owner" shall
mean the then - current owner of any Lot or other portion of the
Property. "Owners" shall means collectively all or some of the
Owners, as the context so requires.
DECLARATION
NOW, THEREFORE, Declarant hereby declares that the
Property and every part there of is and shall be benefited and
burdened by, and shall be subject to, this Declaration, and that
Declarant and any and all persons having or acquiring any right,
title or interest in and to all or any portion of the Property
are and shall be expressly benefited and bound hereby for the
benefit of the Property. This Declaration and the easement and
agreements established, granted and set forth herein shall run
with the land and shall be binding on and shall inure to the
benefit of Declarant and any and all persons having or acquiring
any right, title or interest in and to all or any portion of the
Property, and their respective heirs, legal representatives,
successors and assigns,
10 Declarant hereby establishes and grants in favor
of all future Owners of the Property a non - exclusive Easement for
private driveway purposes over and across that portion of the
Property depicted as comprising the Easement on Exhibit "B ". The
Easement shall be used solely for pedestrian and vehicular access
to the Lots by the Owners and their family members, tenants,
guests and invitees. The Easement is not intended to be used by
any Owner for more than one single family residence on any one
Lot.
2, The Easement shall be constructed by Declarant or
Declarant's agent and shall be initially surfaced with asphalt.
The Owners shall maintain, repair and replace the improvements to
the Easement. The repairs and maintenance to be performed under
this Declaration shall be as follows:
(a) Reasonable and normal driveway improvement
and maintenance work to adequately maintain the Easement and
related drainage facilities to permit all- weather access,
Including, but not limited to, filing of chuckholes, repairing
cracks, repairing and resurfacing of the roadbed, repairing and
"S:1:\PEnn\RJs \RJs02D.w5:040290 2
2052
maintaining drainage structures, removing debris, and maintaining
signs, markers, striping and lighting, if any.
(b) Any other work reasonably necessary and
proper to repair and preserve the Easement for all- weather
driveway purposes.
Any additional work of repair or improvement shall require the
written consent of all Owners.
3. The Easement shall be maintained in good repair by
the Owners at the Owners' collective expense. The Owners shall
bear the cost and expense of the maintenance of the Easement pro
rata in accordance with the number of Lots owned by each such
Owner. If any Owner or Owners determine that it is necessary or
desirable to undertake any repairs and /or maintenance of the
Easement in accordance with this Declaration, such Owner or
Owners shall give notice thereto to all other Owners of such
determination. Within twenty (20) days after such notice, the
Owners shall attempt to reach mutual agreement as to the method
by which such repairs and /or maintenance will be performed and
paid for. If such mutual agreement is not reached or if any
Owner fails to respond within such time, any Owner may proceed
with such repair and maintenance, pay the costs therefor, and to
seek contribution from the other Owners for such other Owners'
respective shares of such costs, which shall be payable within
thirty (30) days of demand therefor. Nothing contained in this
Section shall be construed to require any Owner to pay for
repairs or maintenance of the Easement not required pursuant to
the terms of this Declaration, unless such Owner shall have
consented or agreed thereto.
4. Each Lot Owner shall be responsible for and shall
Indemnify, defend and hold each other Owner harmless from its own
negligence, willful misconduct, errors and omissions arising out
of the maintenance and repair of the Easement. Any costs,
expenses, suits, damages or liability for personal injury or
property damage with respect to the Easement not caused by the
negligence, willful misconduct, error or omission of any
particular Owner or Owners shall be borne pro rata by the Owners
In accordance with the number of Lots owned. Nothing contained
in this Declaration is intended to provide for the sharing of
liability with respect to personal injury or property damage not
arising out of the repairs and maintenance of the Easement.
5, Each Owner shall be responsible for and shall
indemnify defend and hold each other Owner harmless from any
extraordinary maintenance, repair or replacements of the
improvements to the Easement arising out of the actions of such
Owner or the misuse or overuse of such improvements on the
Easement by such Owner.
KJS:I:\PKRM \KJS\KJS02D.VP5:0 40290 3
1I
6. Nothing contained in this Declaration shall
constitute any express or implied dedication of the Easement or
the Property, y part thereof, to the
p ty, or an public or any other.
person (other than an Owner) for any use whatsoever.
7. Notice to any party hereunder shall be in writing
and either personally delivered or sent by certified mail,
postage prepaid, return receipt requested, addressed to the party
to be notified at the address specified herein. Any such notice
shall be deemed received on the date of personal delivery to the
party (or such party's authorized representative) or three (3)
business days after deposit in the U.S. Mail, as the case may be.
The address for each Owner shall be the address shown on the
latest tax assessor roll for San Diego County as the address to
which property tax statements are to be mailed.
81 Any amounts due from one Owner to any other Owner
hereunder and not paid when due shall bear interest from the date
due at the highest non - usurious rate allowed to be charged by
non - exempt lenders for business purpose loans.
91 Should any suit be brought to enforce or interpret
any term of this Agreement, the prevailing party shall be
entitled, in addition to all other relief, to reasonable
attorneys' fees.
100 No modification, waiver, amendment, discharge or
j change of this Declaration shall be valid unless the same is in
writing and signed by the party against which the enforcement of
such modification, waiver, amendment, discharge or change is or
may be sought.
II. This Declaration shall be interpreted and enforced
in accordance with the laws of the State of California.
12. The Owners shall jointly and severally defend,
indemnify and hold harmless the City, the 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 attorneys' fees, to the agent
hereunder or to any Owner, contractor, subcontractor, user of the
Easement, or 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 Easement. Nothing in this Declaration,
the specifications or other contract documents or the 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 the City, the City's
engineer and its consultants, and each of its officials,
directors, officers, employees and agents, shall have no
responsibility therefor.
EJs :1: \PEnM\xae\E.7902D.W5:040290 4
IN WITNESS WHEREOF, Declarant has executed this
Declaration as of the date first above written.
1
GREGOR 13EM45FORO MaCORD
ATTI LU McCORD
STATE OF CALIFORNIA )
2054
} ss
COUNTY OF SAN DIEGO )
On 1990,- before me, the undersigned,
a Notary Public i and for said State, personally appeared
GREGORY BRADFORD McCORD, personally known to me or proved to me
on the basis of satisfactory evidence to be the person whose name
is subscribed to this instrument, and acknowledged to me that he
executed it,
WITNESS my hand and official seal.
o�rcluNOr�wr sent .
GLORIA J.00Tv _
n — cailacYa otary Public -i a for S tate
swaecocouNTV
by Comm. E�ptw OCT 16,7991
STATE OF CALIFORNIA )
ss
COUNTY OF SAN DIEGO )
On Z/ /? , 1990, before me, the undersigned,
a Notary Public in and for said State, personally appeared PATTI
LU McCORD, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed
to this instrument, and acknowledged to me that she executed it,
WITNESS my hand and official
KJ9: x: \P[MM \"S \"30MWP5: o1o290
Notary Public iry'cpfd for
T
u
IN WITNESS WHEREOF, Declarant has executed this
Declaration as of the date first above written.
1
GREGOR 13EM45FORO MaCORD
ATTI LU McCORD
STATE OF CALIFORNIA )
2054
} ss
COUNTY OF SAN DIEGO )
On 1990,- before me, the undersigned,
a Notary Public i and for said State, personally appeared
GREGORY BRADFORD McCORD, personally known to me or proved to me
on the basis of satisfactory evidence to be the person whose name
is subscribed to this instrument, and acknowledged to me that he
executed it,
WITNESS my hand and official seal.
o�rcluNOr�wr sent .
GLORIA J.00Tv _
n — cailacYa otary Public -i a for S tate
swaecocouNTV
by Comm. E�ptw OCT 16,7991
STATE OF CALIFORNIA )
ss
COUNTY OF SAN DIEGO )
On Z/ /? , 1990, before me, the undersigned,
a Notary Public in and for said State, personally appeared PATTI
LU McCORD, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed
to this instrument, and acknowledged to me that she executed it,
WITNESS my hand and official
KJ9: x: \P[MM \"S \"30MWP5: o1o290
Notary Public iry'cpfd for
T
i
LEGAL DESCRIPTION
2055
That portion of Lot 3. in Block "X" of Seaside Gardens Annex, in the County
of San Diego, State of California, according to NaD thereof Now 1801. filed
in the Office of the County Recorder of San Diego County, August 6, 1924,
described as follows:
Beoinnino at the Northwesterly corner of said Lot 3; thence along the Westerly
line of said Lot, South 04'28'40" East, 32.08 feet to the Northwesterly corner
of land described in Deed to Daniel F. vote, Jr., et ux, recorded January 8,
1960 as File No. 4028: thence alona the boundary of said Note's land as
follows: Parallel with the Northerly line of said Lot 3, South 89'30030"
East. 148.00 feet to the Northeasterly corner of said land: and Darallel with
the Westerly line of said Lot 3, South 04028'40" East. 68.00 feet to the
Northeasterly corner of land described in Deed to Ernest H. Buck, et ux.
recorded January 26. 1967 as File No. 11412: thence along the Easterly line
of said Buck's land. Darallel with the Westeriy line of said Lot 3. South
0402£'40" East, 68.00.feet to the Southerly line of land described in Deed
to Charles S. PhilliDS, et ur., recorded October 16, 1957 in Book. 6794.
Pace 138 of Official Records: thence along said Southerly line, South 89'30'
30" East. 457.64 feet, more or less, to the Easterly line of said Lot 3:
thence along said Easterly line, North 00'54'00" West, 161.50 feet to the
Northeasterly corner of said Lot 3: thence along the Northerly line of said
Lot: North 89'30'30" West. 616.13 feet to the POINT OF BEGINVING.
EXCEPTING THEREFROY., that Dortion described in Deed to the State of
California. for freeway purposes, recorded November 12, 1963 as File No.
201683.
13
�O r�
EXHIBIT "B"
THE EASEMENT
LEGAL. DESCRIPTION
THAT PORTION OF LOT 3, IN BLOCK "X" OF SEASIDE GARDENS ANNEX, IN
THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO, 1801, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 6, 1924, DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF' SAID LOT 3; THENCE
SOUTH 040 28' 40" EAST 2.01 FEET TO THE POINT OF BEGINNING;
THENCE SOUTH 89" 34' 05" EAST 198.98 FEET TO A POINT OF TANGENCY
OF A 40 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE
SOUTHEASTERLY ALONG THE ARC OF SAID CURVE 56.55 FEET THROUGH A
CENTRAL ANGLE OF 81° 00' 00 "; THENCE SOUTH 080 34' 05" EAST 17.61
FEET TO A POINT OF TANGENCY OF A 20 FOOT RADIUS CURVE, CONCAVE
NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE
28.27 FEET THROUGH A CENTRAL ANGLE OF 810 00' 00 "; THENCE SOUTH
890 34' 05" EAST 133.50 FEET; THENCE SOUTH 000 25' 55" WEST 20.00
FEET; THENCE NORTH 890 34' 05" WEST 95.21 FEET TO A POINT OF
TANGENCY OF A 20 FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY; THENCE
SOUTHWESTERLY ALONG THE ARC OF SAID CURVE 31.42 FEET THROUGH A
CENTRAL ANGLE OF 900 00' 00 "; THENCE SOUTH 000 25' 55" WEST 25.00
FEET; THENCE NORTH 890 34' 05" WEST 20.00 FEET; THENCE NORTH 000
25' 55" EAST 29.06 FEET TO A POINT OF TANGENCY OF A 20 FOOT
RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG
THE ARC OF SAID CURVE 24.01 FEET THROUGH A CENTRAL ANGLE OF 68v
47' 21" TO A POINT OF INTERSECTION OF A REVERSING 40 FOOT RADIUS
CURVE, CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC
OF SAID CURVE 41.74 FEET THROUGH A CENTRAL ANGLE OF 590 47' 210;
THENCE NORTH 060 34' 05" WEST 17.61 FEET TO A POINT OF TANGENCY
OF A 20 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE
NORTHWESTERLY ALONG THE ARC OF SAID CURVE 28.27 FEET THROUGH A
CENTRAL ANGLE OF 810 00' 00 "; THENCE NORTH 890 34' 05" WEST
197.26 FEET; THENCE NORTH 040 28' 40" WEST 20.07 FEET TO THE
POINT OF BEGINNING.