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2003-132225RECORDING REQUESTED BY AFTER RECORDING MAIL TO: Michael T. Pines, Esq. 732 North Highway 101 Suite B Encinitas, Ca. 92024 MAIL TAX STATEMENTS T0: 9 10 DOC # 0003 - 0130005 FEB 05, 2003 10:22 AM I IIIIII VIII VIII VIII IIII IIIIII VIII VIII VIII VIII VIII VIII IIII IIII 2003 -0132225 60 . OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 54.00 EASEMENTS, MAINTENANCE, AND INDEMNIFICATION AGREEMENT RECITALS This EASEMENTS, MAINTENANCE AND INDEMNIFICATION AGREEMENT ( "Agreement') is entered into by and between DIANNE M. PONS, Successor Trustee under Declaration of Trust dated November 11, 1993 ( "Lemak Trust') on the one hand; and, M. HARRY B. ROESENER and JO ANN B. ROESENER, Trustees, Roesener Family Trust dated 07- 30 -87, (collectively "Roesener Trust') on the other, for the grant of an easement from the Lemak Trust to the Roesener Trust; and, by and between the Lemak Trust and the Roesener Trust collectively on the one hand, and KENDALL ROBERT LANG, Trustee of The Cascade Professional Trust dated August 29, 1989 ( "Cascade Trust') on the other, for the grant of an easement from the Cascade Trust to the Lemak Trust and the Roesener Trust jointly. ( Lemak Trust, Roesener Trust, and Cascade Trust, are collectively referred to herein as the "Parties') A. Cascade Trust is the owner of real property located in San Diego County, California which is described as Parcel 1 of Parcel Map No. 14474, in the City of Encinitas, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County, September 19, 1986, as File Number 86- 415214 of Official Records. ( "Cascade Trust Property') B. Lemak Trust is owner of real property contiguous to the Cascade Trust Property which is described as Parcel 3 of Parcel Map. No. 1829, in the City of Encinitas, County of San Diego, State of California, filed in the Office of the County recorder of San Diego County, August 16, 1973, as File No. 73- 230150 of Official Records. (the " Lemak Trust Property') C. Roesener Trust is the owner or real property contiguous to the Lemak Trust Property ( "Roesener Trust Property'). D. Roesener Trust desires an easement over the Lemak Trust Property ( "Easement I ") and in addition over the Cascade Trust Property ('Basement 11 ") to construct a sewer lateral to reach a public street to connect to the public sewer system. Rev. 1/31/03 Page 1 of 8 8057 E. Lemak Family Trust desires an easement over the Cascade Trust Property so it can reach a public street to connect to the public sewer system. F. Lemak Family Trust and Roesener Trust desire to jointly acquire and use Easement R to construct and maintain two separate sewer lateral pipes to connect to the public sewer system. GRANT OF EASEMENT I 1. Subject to the covenants and conditions expressed in this agreement, and in consideration of the mutual covenants and conditions made herein, Lemak Trust grants to Roesener Trust an easement more specifically described as: A PERMANENT RIGHT -OF -WAY AND EASEMENT UNDER, OVER, AND THROUGH THE EASTERLY 5.0 FEET OF PARCEL 3 OF PARCEL MAP. NO. 1829, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 16, 1973, AS FILE NO. 73- 230150 OF OFFICIAL RECORDS TO CONSTRUCT, PLACE, OPERATE, MAINTAIN, AND REPAIR ANe BERGREWAMSANITARYSEWERLATERALPIPF .LINE,INCLUDINGANY MANHOLES, PIPES, CONDUITS, CLEAN OUTS, AND OTHER APPURTENANCES. SAID EASEMENT RIGHTS SHALL INCLUDE THE RIGHT OF ACCESS, INGRESS AND EGRESS TO AND FROM THE HEREIN DESCRIBED PREMISES FOR EXERCISING ANY OF THE PURPOSES OF THIS RIGHT -OF -WAY AND EASEMENT GRANT. Secondary Easements to Easement I 1.1 The Easement I, granted in this Agreement, includes the right for adjacent access on the Lemak Trust Property for construction and/or maintenance vehicles, devices or laborers; and for the temporary stockpiling of earth during periods of excavation, provided that the Roesener Trust, or its successor, shall be responsible for minimizing the impact on adjacent Lemak Trust Property, for avoiding any improvements on that Property, and for returning the Lemak Trust Property to its original condition immediately after such construction or maintenance of the pipeline in the Easement I right -of -way. In all respects the Grantee must use reasonable care, and may not unreasonably increase the burden on the Lemak Trust Property or make any material changes to the Lemak Trust Property in utilizing this secondary easement. Character of Easement 1 2. Easement I, granted in this Agreement, is appurtenant to the Roesener Trust Property. This easement shall only constitute a private easement for the benefit of those individuals specifically described, or contemplated as successors according to the terms of this Agreement. It shall not constitute an easement, or offering to make an easement for the benefit of the public, or any portion thereof. Rev. 1/31/03 Page 2 of 8 MW---J Description of Easement I 3. Easement I granted in this Agreement shall be constructed in substantial conformance with the plan submitted to the City of Encinitas, Drawing Number 7751 -I, and in conformance with any modifications of such, standards, and requirements imposed by the City Of Encinitas, the County of San Diego Health Department, and any sewer district to which a connection is planned. Easement I granted in this agreement is an easement for the construction, installation, maintenance, and repair of a lateral sanitary sewer pipeline. Except with respect to the construction, maintenance and repair of the pipeline, Roesener Trust shall not be entitled to any surface right of use, and Lemak Trust reserves, and shall be entitled to use the surface of the property for any and all other purposes, including, but not limited to the planting of trees or shrubs so long as such use does not interfere with the Roesener ability to construct, maintain, and repair the pipeline. Easement I Nonexclusive 4. Easement I granted in this agreement is nonexclusive. Lemak Trust retains the right to make any remaining use of Easement I, including the right to grant concurrent easements in Easement I to third parties, that does not interfere unreasonably with the Roesener Trust's free use and enjoyment of the easement. Easement I Maintenance 5. Roesener Trust or their successors, agents, representatives or employees, shall be solely and exclusively responsible for the maintenance and repair ofthe underground sanitary sewer lateral pipeline, including any manholes, pipes, conduits, clean outs, and other appurtenances. Roesener Trust shall restore the surface to substantially the same condition it was in just prior to performing any maintenance or repairs. Agreement For Easement I Nonassienable 6. This Agreement shall not be assigned for use in conjunction with any other property, save for the Roesener Trust Property. It is appurtenant to the Roesener Trust Property and Lemak Trust Property and it shall apply at all times to the respective owners of each, and shall be enforceable against such owners personally. Indemnity Related To Easement I 7. Roesener Trust or their successors shall defend, indemnify, hold and save the Lemak Trust, and its successors, harmless from any and all costs, expense, damages, claim lien, action, judgement, liability of any kind, or attorney's fees incurred by the Lemak Trust or their successors as a result of Roesener Trusts construction of improvements, maintenance, repair, and/or arising from anyand all use of the Easement by the Roesener Trust. Such defense and indemnity shall include but not be limited to anycosts, expense, damages, claim lien, action,j udgement, liabilityofanykind, or attorney's fees resulting from, or in anywayrelated to, (a) the actions of surveyors, engineers and others on acting on behalf of Lemak Trust and Roesener Trust in the construction, maintenance or repair of the lateral sewer line across the Easement, and (b) personal injury and property damage caused by Roesener Trust or any of their employees, agents or independent contractors relating to the construction, maintenance or repair of the lateral sewer line across Easement II. Roesener Trust shall, at their expense, including the payment of reasonable Rev. 1/31/03 Page 3 of 8 MW attorney's fees, resist and defend any action, suit, or proceeding or cause arising from the actions or injuries set forth in this paragraph. GRANT OF EASEMENT II 8. Subject to the covenants and conditions expressed in this agreement, and in consideration of the mutual covenants and conditions made herein, and further in consideration of the sum of $200 paid byLemak Trust and Roesener, to Cascade Trust, receipt of which is acknowledged, Cascade Trust grants to Lemak Family Trust and Roesener Trust Jointly: A PERMANENT RIGHT -OF -WAY AND EASEMENT UNDER, OVER AND THROUGH THE WESTERLY 15.00 FEET OF PARCEL 1 OF PARCEL MAP NO. 14474, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 19, 1986, AS FILE NO. 86- 415214 OF OFFICIAL RECORDS, TO CONSTRUCT, PLACE, OPERATE, MAINTAIN, AND REPAIR UNDERiSROefD SANITARY SEWER PIPELINE INCLUDING ANY MANHOLES, PIPES, CONDUITS AND OTHER APPURTENANCES. SAID EASEMENT RIGHTS SHALL INCLUDE THE RIGHT OF ACCESS, INGRESS AND EGRESS TO AND FROM THE HEREIN DESCRIBED PREMISES FOR EXERCISING ANY OF THE PURPOSES OF THIS RIGHT -OF -WAY AND EASEMENT GRANT. Secondary Easements to Easement II 8.1 The Easement 11, granted in this Agreement, includes the right for adjacent access on the Cascade Trust Property for construction and/or maintenance vehicles, devices or laborers, and for the temporary stockpiling of earth during periods of excavation, provided that the Roesener Trust and Lemak Trust, or their successors, shall be responsible for minimizing the impact on adjacent Cascade Trust Property, for avoiding any improvements on that Property, and for returning the Cascade Trust Property to its original condition immediately after such construction or maintenance of the pipeline in the Easement II right -of -way. In all respects the Roesener Trust and Lemak Trust must use reasonable care, and may not unreasonably increase the burden on the Cascade Trust Property or make any material changes to the Cascade Trust Property in utilizing this secondary easement. Character of Easement II 9. Easement II, granted in this Agreement, is appurtenant to the Lemak Trust Property and the Roesener Trust Property. This easement shall only constitute a private easement for the benefit of those individuals specifically described, or contemplated as successors according to the terms of this Agreement. It shall not constitute an easement, or offering to make an easement for the benefit of the public, or any portion thereof. Description of Easement II 10. Easement II granted in this Agreement shall be constructed in substantial conformance with the plan submitted to the City of Encinitas, Drawing Number 7751 -I, and in conformance with any modifications of such, Rev. 1/31/03 Page 4 of 8 standards, and requirements imposed by the City Of Encinitas, the County of San Diego Health Department, and any sewer district to which a connection is planned. Easement II granted in this agreement is an easement for the construction, installation, maintenance, and repair of two underground lateral sanitary sewer pipelines. Except with respect to the construction, maintenance and repair of the pipelines, Lemak Trust and Roesener Trust shall not be entitled to any surface right of use, and Cascade Trust reserves, and shall be entitled to use the surface of the property for any and all other purposes, including, but not limited to the planting of trees or shrubs so long as such use does not interfere with the Lemak Trust or Roesener Trust's ability to construct, maintain, and repair the pipelines. Easement II Nonexclusive 11. Easement II granted in this agreement is nonexclusive. Cascade Trust retains the right to make any remaining use of Easement II, including the right to grant concurrent easements in Easement II to third parties, that does not interfere unreasonably with the Lemak Trust's, and Roesener Trust's free use and enjoyment of the easement. Easement II Construction 12. Lemak Trust and Roesener Trust or their successors, agents, representatives or employees, shall be solely and exclusively responsible for the construction of the sewer laterals and all related improvements which serve the Roesener Trust Property and Lemak Trust Property. Lemak Trust and Roesener Trust shall immediately restore the surface of the Cascade Trust Property to substantially the same condition it was in immediately prior to construction. Easement If Maintenance 13, Rocscncr Trust and Lemak Trust, or their successors, agents, representatives or employees, shall each be solely and exclusively responsible for the maintenance and repair of the underground sanitary sewer lateral pipelines which serve the Roesener Trust Property or the Lemak Trust Property respectively, including any manholes, pipes, conduits, clean outs, and other appurtenances. RoesenerTrust and Lemak Trust shall immediately restore the surface to substantially the same condition it was injust prior to performing any maintenance or repairs. Agreement For Easement II Nonassignable 14. This Agreement shall not be assigned to any other property owner, or for the benefit of any other property. It is appurtenant to the Roesener Trust Property and Lemak Trust Property and it shall apply at all times to the respective owners of each, and shall be enforceable against such owners personally. Indemnity For Cascade Trust Related To Easement II 15. Lemak Trust and Roesener Trust or their successors shall jointly and severally defend, indemnify, hold and save the Cascade Trust, and its successors, harmless from any and all costs, expense, damages, claim lien, Rev. 7131/03 Page 5 of 8 10 action, judgement, liability of any kind, or attorney's fees incurred by the Cascade Trust or their successors as a result of Lemak Trust or Roesener Trusts respective construction of improvements, maintenance, repair, and/or arising from any and all of the respective use of Easement II by Lemak Trust or Roesener Trust. Such defense and indemnity shall include but not be limited to any costs, expense, damages, claim lien, action, judgement, liability of any kind, or attorney's fees resulting from, or in any way related to, (a) the actions of surveyors, engineers and others on acting on respective behalf of Lemak Trust and Roesener Trust in the respective construction, maintenance or repair of the lateral sewer line across the Easement, and (b) personal injury and property damage caused by Lemak Trust or Roesener Trust or any of their respective employees, agents or independent contractors relating to the construction, maintenance or repair of the lateral sewer line across the Easement. Lemak Trust and Roesener Trust shall, at their expense, including the payment of reasonable attorney's fees, resist and defend any action, suit, or proceeding or cause arising from their respective actions or injuries set forth in this paragraph. Indemnity Between Lemak Trust and Roesener Trust Related To Easement 11 16. In the event Lemak Trust or Roesener Trust are required to jointly indemnify and/or defend Cascade Trust pursuant to paragraph 15 above, and if such indemnity and defense to Cascade Trust, results from the use, maintenance or repair, only by Lemak Trust or only by Roesener Trust, or is related solely to one or the other of the sewer lateral pipes, then the Trust whose actions or sewer lateral pipe were not the cause of providing indemnity or defense to Cascade Trust, shall be entitled itself to indemnity, defense, and reimbursement from the Trust whose actions or pipe was the cause of indemnity and/or defense being provided to Cascade Trust. Shared Costs and Exclusive Costs For Creatine Easement 11 and Constructing Improvements For Easement 11 17. Lemak Trust and Roesener Trust have entered into a separate agreement of even date herewith concerning the costs of creating Easements I and 11 and for the construction of improvements for Easement I and IL Shared Costs and Exclusive Costs For Maintenance and Repairs Concerning Easement Il 18. The Lemak Trust and Roesener Trust shall each maintain their own sewer lateral pipes in Easement tl and neither shall be responsible for maintaining or repairing the others. In the event either sewer lateral pipe leaks, or breaks, then the Trust whose pipe leaked or broke will be solely responsible for any damages which result therefrom and Lemak Trust and Roesener Trust shall defend and indemnify one another for any costs, expense, damages, claim lien, action, judgement, liability of any kind, or attorney's fees, resulting form the leakage or breakage of such pipe. However, any needed maintenance or repair caused by any occurrence or condition that is not attributable to one pipeline or the other, shall be born equally by the Lemak Trust and Roesener Trust, each bearing one half the cost to perform such maintenance or repair. Rev. 1/31/03 Page 6 of 8 .{W PROVISIONS APPLYING TO BOTH EASEMENTS I AND 11 Arbitration Of Disputes 19. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS' panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non - discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or 45 days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. The provisions of this Clause may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an a ward o f a 11 c osts, f ees a nd e xpenses, i ncluding attorneys fees ,tobcp aid bythep arty againstwhom enforcement is ordered. Any dispute, claim or controversy arising out ofor relating to this Aereement or the breach, termination, enforcement, interpretation or validity thereof including the determination of the scope or applicabilit!ofthis Agreement to arbitrate shall be determined by arbitration in San Diego County, before a sole arbitrator, in accordance with the laws of the State of CaUt ornia for agreements made in and to be performed in that State. The arbitration shall be administered by JAMSpursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator shall in the Award allocate all of the costs of the arbitration (and the mediation, if applicable) including the fees ofthe arbitrator andthe reasonable attorneys 'feesofthe prevailing pgMagainst the party_who did not prevail. Entire Aereement 20. This Agreement and the agreement of even date herewith concerning the costs of creating and improving Easements I and H, constitute the entire agreement between the Parties relating to the above casement. Any prior agreements, promises, negotiations, or representations not expressly set forth in this agreement are of no force and effect. Any amendment to this agreement shall be of no force and effect unless it is in writing and signed by the Parties or their successors. Rev. 1/31/03 Page 7 of 8 O Bindine Effect 21. This agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of each of the Parties hereto. IT IS SO AGREED. Executed on �, Jan 3 _W I 2003 DIANE M. PONS, Trustee LL ROBjWr Lytt,, Trustee M. HARRY B. ROESENER, Trustee (:Do 44, --"qp 7eA�e'tz'L- JO ANN B. ROESENER, Trustee Rev. 1/31/03 Page a of 8 ALL - PURPOSE ACKNOWLEDGEMENT State of California County of San Diego Ss. On /5�/�1' before me, wn[i personally appeared lY.114kIt,,I f .lfo exepez ❑ personally known to me - OR - OFFICIAL SEAL NEAL GANZ NOTARY PUBLIC - CALIFORNIA s COMM. NO. 1309685 SAN DIEGO COUNTY MY COMM. EXP. JULY 14 2005 1 Neal Ganz ,proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their sionatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. HVr�I 'S SIGNATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PMCIPAL) DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER ❑ PARTNER(S) ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF RWR 0 151 OR ENTITYIIESI TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT RIGHT THUMBPRINT OF SIGNER APA 51N VAI.LEKS(r RRA. 81O.W 3169 E 2 8 ALL- PURPOSE ACKNOWLEDGEMENT State of California Countyof Ooaklpl!�b I SS. On ai ATF personally appeared ❑ Vrrsmaffy- -flowr M& toOFRGAL sEAL JOHNNAFOUST NOTARY NNAFOUSTM SAN NEW C1OUMY MY COMM. EXP. JULY 22.20M IG evidence to be the person(s) whose name(s)' ar subscribed to the within instrument and ac nowledged to me that the executed the same in hikXl{@a/ el authoriz capacity(ies), and that by hVir'�/ et signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. U��n /fig /�vT I NOTARY'S SIGNATGRE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) ❑ NRPORATE OFFICER ❑ nttE PARTNE j`SS) ❑ ATTORNEY- St N -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CO VATO ❑ OTHER: SI F,R IS.REPRESENTINC: N E OF PERSON(S) 0R ENTITY(IESI DESCRIPTION OF ATTACHED DOCUMENT C4Srmfn�5)tvlaiv) +"cnCe 3 ihfA{,rYtni�ICN(1Dn �iGJI''Lt.vnlin -j� TITLE OR TYPE OF DOCUMENT Spc,c)eS NUMBER OF PAGES x/311�o 3 DATE OF DOCUMENT RIGHTTHUMBPRINT OF SIGNER APA SAN VALLEY- SIERRA. 900-362-3369 OTHER