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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.