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2018-312328 DOC# 2018-0312328 111111 IIIII IIIII IIIII IIII 11111111111 IIIII IIIII IIIII IIIII IIIII IIII IIII Jul 31, RECORDING REQUESTED BY AND 2018 04:15 PM WFIEN RECORDED MAIL TO: OFFICIAL RECORDS I I Ernest J. Dronenburg, Jr., eyD 4e- Z�e/-"71 SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 8 A.P.Nos. 255-020-48,257-500-05 SPACE ABOVE FOR RECORDER'S USE L� MAINTENANCE AGREEMENT THIS MAINTANCE AGREEMENT this "Agreement")( g ent ) dated , 2017, is made by d between Open Space Holding, LLC, a California limited liability company, ("OSH"), Enci itas Town Center Associates, II, LLC, a Delaware limited liability company ("ETCA II") and t e City of Encinitas, a municipal corporation, (the "City") with reference to the recitals set forth below. RECITALS A. OSH is the owner of that certain real property located in the City and more particularly described as Parcel 1 in Exhibit "A" attached hereto and incorporated herein by this reference (the "OSH Property"). ETCA II is the owner of that certain real property located in the City and more particularly described as Parcel 2 in Exhibit "A" attached hereto and incorporated herein by this reference (the "ETCA II Property"). The OSH Property and the ETCA II Property are collectively referred to in this Agreement as the "Property." OSH and ETCA II are collectively referred to in this Agreement as "Owner." The City has initiated and is near completion of certain work on the Property (the "Encinitas Creek Restoration Project") which requires approval by the Army Corps of Engineers (the "ACOE"). In order to obtain approval of the Encinitas Creek Restoration Project by the ALOE, the City and Owner desire to provide for the maintenance of the Property in accordance with the provisions of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the City and the Owner agree as set forth below. 1 1. Maintenance Obligations. CA,�" 1.1 Five-Year M intenance. The City shall perform all work required to successfully complete the initial five-year period described in the Final Wetlands Restoration Maintenance and Monitoring Plan for the Encinitas Creek Restoration Project on file at the City Engineering Department and prepared by Dudek and Associates, which was approved by the City and resource agencies, including but not limited to the ACOE. Such work shall be at the City's sole expense. 1.2 Long-Term Maintenance. After the successful completion of the five-year period described in Paragraph 1.1, above, the restoration site on the Property is expected by the parties to function as naturally regenerating and self-sustaining native habitat. Notwithstanding the foregoing, after the successful completion of the five-year period, the City shall be responsible for maintaining the restoration site in generally good condition, including but not limited to keeping the restoration site free from of trash and debris and preventing the invasion of exotic species. The City shall also be responsible for homeless encampment control on the Property. The City's work pursuant to this Paragraph 1.2 shall be at the City's sole expense. 1.3 Maintenance Under Declaration of Restrictive Covenants. City shall satisfy any and all obligations required of City pursuant to the Declaration of restrictive Covenants of even date among OSH, ETCA II, and City, not otherwise specified in the foregoing paragraphs 1.1 and 1.2. 2 Permission to Enter. Owner hereby grants the City permission to enter the Property and perform the work necessary to fulfill the City's maintenance obligations described in Paragraphs 1.1,1.2, and 1.3 above. 3. Indemnity. The City shall defend, indemnify and hold Owner harmless against and from any and all claims, liabilities, losses, damages, suits, costs and expenses of any kind or nature including without limitation reasonable attorneys' fees and costs of any lawsuit arising from or relating to (a) any acts on the Property by the City or the City's agents, employees, or contractors, or (b)the City's failure to perform its maintenance obligations described in Paragraph 1.1 and 1.2, above, or(c) any acts, omissions, or negligence of the City or City's agents, employees, or contractors, with respect to the provisions of this Agreement. 4. Encinitas Ranch Specific Plan. This Agreement shall not limit or affect in any manner the provisions of Section 3.2 of the Encinitas Ranch Specific Plan adopted on September 2 i 28, 1994, by City Ordinance No. 94-07, as amended, (the "Specific Plan") and/or the Single Family Density Transfer table in Section 6.5 of the Specific Plan. 5 General Provisions. 5.1 Severability. The provisions hereof shall be deemed individual and severable and the invalidity or partial invalidity or enforceability of any one provision or any portion thereof shall not affect the validity or enforceability of another provision of this Agreement. 5.2 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. All counterparts shall be construed together and shall constitute one agreement. 5.3 Attorneys' Fees. If either party hereto brings an action at law or in equity to enforce or interpret the provisions of this Agreement,-then the prevailing party in such action shall be entitled to recover all court costs, witness fees and reasonable attorneys' fees, at trial, arbitration or on appeal in addition to all other appropriate relief. 5.4 California Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. 5.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. 5.6 Amendment. The provisions of Paragraph 1, above, cannot be amended without the express written consent of the ACOE. Signatures on next page. 3 IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth above. "Ci " City f Encinitas, a MunJ cipal corporation By: C�e�-P�i' ,�i�e-ctc3r�f�-ubli� lCs hris Magdosku, City Engineer ,4K-IF C�rigFo�pher "OS " Oper Space Holding Company, a Cali bmia limited liability company By: Carltas Company, a California limited partnership Its: Managing Member By: Carltas Management, a California corporation Its: ner Partner B . i pl6Z. Calkins, President "ET A 1I" Eric nitas Town Center Associates, II, LLC, a Del ware limited liability company By: ZRP Encinitas IV, Inc. a Delaware corporation Its: Managing Member I By Brett M. Foy Its: Vice President AT ACH PROPER NOTARIAL ACKNOWLEDGMENT FORMS 4 ALL-PURPOSE ACKNOWLEDGMENT I A notary public or other officer completing this certifcat verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity f that document. State of California County of Sf.V) SS. On -7-7,4—"ZD 12r , before me, 0�0 G' I ma ,Notary Public, DATE ` L - personally appeared C h1 ��S�YJ�e-►� /"'�� ��-�,who proved tome on the basis of atisfactory evidence to be the person(s) whose name(sf;!/are subscribed the within instrument and ackn ledged to me tha she/they executed the Sam is her/their authoriz capacity(ies), and that by his er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the �•+►� ANGELA A. SIMON comml2182396 'p laws of the State of California that the foregoing � s NOTARY KSUC-CAUFMIA =7 paragraph is true and correct. SAN DIEGO COUNTY YY Comm.EXP.YAR.Z 2021"� WITNESS my hand and official seal. PLACE NOTARY SEAL IN ABOVE SPACE NOTARY'S SIGNATURE OPTIONAL INFORMATION The inf rmation below is optional. However,it may prove valuable and could prevent fraudulent attachment of this orm to an unauthorized document. CAPA ITY CLAIMED BY SIGNER(PRINCIPAL) DESCRIPTION OFATTACHED DOCUMENT IVIDUAL C RPORATE OFFICER TITLE OR TYPE OF DOCUMENT P RTNER(S) TITLE(S) A ORNEY-IN-FACT NUMBER OF PAGES GI ARDIAN/CONSERVATOR S SCRIBING WITNESS DATE OF DOCUMENT ❑ O HER: OTHER SIGNE (PRINCIPAL)IS REPRESENTING: RIGHT NAME Of PERSON(S)OR ENTITYJES) THUMB RINT t SIGNER o a 0 APA01/2015 NOTARY BONDS,SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM ©2005-2017 VALLEY-SIERRA INSURANCE 1 i CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A no ary public or other officer completing this certificate verifies only the identity of the individual who signed the docu ent to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State f California ) Count of Gc)n,Dlfo�o ) On before me,AKotitc_;a �- 16ro I,�hr �u ���l►6 , Date Here Insert Name and Title of the Officer perso ally appeared C.C'AkIn5 C Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(&&) whose name(s) is/are subs ribed to the within instrument and acknowledged to me that heYttiu iey executed the same in his it authorized capacity(ies), and that by his/iier/their signature(s)on the instrument the person(&), or th entity upon behalf of which the persort{s)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. S'"''` "''' ` • ''•'��'rY�n�'•��••+YnS••�ti��ti; WITNESS my hand and official seal. { .<; MONICA R.BROWNING '• Ln Commission#2116102 v Notary Public-California ,. San Diego County SignatureL r/ddi My Comm.Expires JULY 16,2019 ti Signature of Nota blic SYlaLSWl.Y.ti:'.';t.S•.:`.`.•.SSSti•:.1L:1:.Yl.V:.•.:•.Y.; Place Notary Seal Above OPTIONAL T ough this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Des ription of Attached Document Title)or Type of Document: fi Document Date: Nu ber of Pages: Signer(s) Other Th Named Above: Cap r) Claimed by Signer(s) Sign,er's Name: Signer's Name: ❑Corporate Officer — Title(s): El Corporate Officer — Title(s): El P; rtner — ❑ Limited ❑ General ❑ Partner — ❑ Limited ❑ General ❑ I dividual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑T�ustee ❑ Guardian or Conservator ❑Trustee ❑ Guardian or Conservator ❑ her: ❑ Other: Sig er Is Representing: Signer Is Representing: 02014 National Notary Association •www.NationalNotary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness,accuracy, or validity of that document. STATE F CALIFORNIA /� l County f On �j 2 O/'7 before me, , Notary Public, Dat nse Name of Notary exactly as it appears on the offs ' I seal persona ly appeared _ , y Names)of Signer(s) who proved to me on the basis of satisfactory evidence to be the person,Wwhose nam�is/are subscribed to the within instrument and acknowledged to me that he/she!#hey executed the same in hisA;e;4h&authorized capacityfies), and that by his e4-signaturetsf on the instrument the person (W, or the entity upon behalf of which the perso9w SAN11A 8 La.6ARAY acted, executed the instrument. Notary 'Los Public-California I certify under PENALTY OF PERJURY under the laws of • 'Los ssion" County the State of California that the foregoing paragraph is true My Commission#216, 510 � g g p g p Comm.Expires Sep 20.2020 and correct. Witness my hand and official seal. Signature Place Notary Seal Above Slgn' re of Notary Publlc 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 the form to another document. Description of Attached Document Title or Type of Document: �p DocurT ent Date: �t� S, Z Number of Pages: -� Signer s)Other Than Named Above: Capa ity(ies) Claimed by Signer(s) Signer's Name: % , Signer's Name: V I d vidual El Individual o orate Officer—Title(s): ❑ Corporate Officer —Title(s): ❑ Pa er ❑Limited ❑General ❑ Partner ❑Limited❑General ❑ Att mey in Fact ••- ❑ Attorney in Fact :•• ❑ Tru tee ❑ Trustee • SIGNER ❑ Gu rdian or Conservator Top of thumb here ❑ Guardian or Conservator Top of thumb here ❑ Ott er: ❑ Other: Signerl is Representi g: Signer is Representing: ' M Exhibit"A" THA r CERTAIN REAL PROPERTY LOCATED IN THE CITY OF ENCINITAS, STATE OF CALIFORNIA DESCRIBED AS FOLLOWS: PARCEL 1 THA PORTION OF THE SOUTH HALF OF SECTION 2, TOWNSHIP 13 SOUTH, RANGE 4 ST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STA E OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, APP ' OVED APRIL 19, 1881, MORE PARTICULARLY DESCRIBED AS FOLLOWS: CO NC1NG AT A CONCRETE MONUMENT WHICH DESIGNATED THE SOUTH QU �RTER CORNER OF THE ABOVE MENTIONED SECTION 2, AND MEASURING NO TH A DISTANCE OF 996.28 FEET; THENCE NORTH 86 046' EAST A DISTANCE OF 16.6 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 455.97 FEET; THE CE EAST A DISTANCE OF 425 FEET TO THE CENTER LINE OF THAT CERTAIN RO D KNOWN AS THE GREEN VALLEY ROAD; THENCE SOUTH 4 036'20" EAST, A DIS ANCE OF 431.39 FEET ALONG CENTER LINE; THENCE SOUTH 86 046' WEST, A DIS ANCE OF 460.37 FEET TO THE TRUE POINT OF BEGINNING. PA EL 2 LOT 4 OF AMENDED MAP OF ENCINITAS MAP NO. 13258, CITY OF ENCINITAS TRACT NO. 94-066, UNITS I, II AND III, IN THE CITY OF ENCINITAS COUNTY OF SAN DIE O, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13333, FILED IN I HE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 3, 1996 5