1991-396306
. ' . tiE ORIGIHAL OF THIS OOCUMEHT
AS RECOROED OH 07-AUG-1991,
DOCUMEHT HUMBER 1991-0396306.
AHHETTE EVAHS, COUHTY RECOROER
SAH DIEGO COUHTY RECOROER'S OFFICE
:Recording Requested By:
State of California
fucument Entitled to Free :Recordation
Pursuant to Govt. Code Section 6103
Not Subject to California fucumentary
Stamp Act.
When :Recorded Mail To:
Department of Parks and Recreation
Acquisition Division
Post Office Box 942896
Sacramento, California 94296-0001
Attention: Thomas Loewen
Space above for Re=rder"s Use
ENCROACHMENT AGRm1ENT
BE'lWEEN
City of Encinitas
AND
State of California
Department of Parks and Recreation
Dated:
July 8, 1991
.'::;;' \ (. \ '~.c a
" . .
1 ENCROACHMENT AGREEMENT
i
2 j CARDIFF STATE BEACH
i:
3 '
d
Ii
ii
5 Ii Thi s AGREEMENT, made and entered into thi s -.fu.. day
r \
6 II of ...)tJl,.'( , 19.9.l, by and between STATE OF CALIFORNIA, acting through
71 the Department of Parks and Recreation (hereinafter referred to as "STATE"),
8 II and the CITY OF ENCINITAS (here i nafter referred to as "CITY"),
9 !i
II
10 Ii The STATE desires to encroach into the public right-of-way as
11 ~ described in Paragraph 3, Attachment "A", which is under the control of the
r
12:; CITY and hereinafter is sometimes referred to as "premises", for the purpose
13 ~ described in Paragraph 4, Attachment "A".
14 Ii
Ii
15 II NOH, THEREFORE, in cons i derati on of the mutua 1 covenants here in
Ii
16 ~ contained, the parties hereto do hereby covenant and agree as follows:
¡;
17 i
18 1, CITY hereby grants to STATE designated in Paragraph 1,
19 Attachment "A", as the owner of the Benefited Property described in
20 Paragraph 2, Attachment "A", to encroach upon CITY Property described in
21 Paragraph 3, Attachment "A", as detailed in the diagram, Attachment "B".
22 Attachments "A" and "B" are hereby incorporated herein by this reference as
23 though fully set forth at length.
24
25, 2. This AGREEMENT shall run with the land ,and be binding upon and inure
¡,
26 Ii to the benefit of the future owners, encumbrancers, successors, hei rs,
;:
27 ~ personal representatives, transferees, and assigns of the respective parties.
Ii
:OURT PAPER 1'1
,.'TA" O. CAL"OO'" i.
;TD. 113 'REV. ..", '
U7$ II
, ;. .
,
1 Ii 3. STATE sha 11 use and occupy the CITY Property on ly i n the manner and
21i for the purposes described in Paragraph 4, Attachment "A".
31
4 I 4. STATE, at no cost or expense to CITY, may undertake new development,
1
51 construction, or improvements to enhance public recreational facilities at this
61 park area. All plans and specifications for improvement and development on
711 CITY proRerty shall be approved by CITY to ensure that such plans comply with
811 CITY's requi rements. No such i mprovement or deve 1 opment, i nc 1 ud i ng beach
9 I erosion control and protection, shall be commenced by STATE's own forces or by
I'
10 Ii Its contractors without prior written CITY approval of such plans and
1111 specifications. CITY agrees to communicate Its approval or disapproval of such
121 plans and specifications, in writing, within forty-five (45) days of receipt
13 ii. of same (disapprovals shall be accompanied with written explanation of reasons I
1411 for such disapproval). CITY, however, agrees not to unreasonably withhold
15 i said approval, and if CITY fails to so approve or specify changes, then
Ii
161: approval is deemed to be given at the end of the forty-five (45) day period.
1711
I'
ii
18 Ii 5. STATE agrees, upon written notice from CITY, to diligently pursue
19!i the funding for the furnishing and installing of a traffic signal.
20
21 6. Upon termination of this AGREEMENT, all improvements constructed
22 shall become part of the realty, and title to said improvements shall vest in
23 CITY. For all improvements erected on the premises by STATE, a Notice of
24 Completion shall be filed with the CITY.
25
26 7. During the term of this AGREEMENT, STATE, at no cost or expense to
27 CITY, shall provide for upkeep and maintenance of the premises in a safe, good
OCURT PAPER
~;~:'I~; '7:.'¡':o~~;~,
-- 2
. .
1 condItion, and in substantIal repair, and all improvements of any kind which
2 may be erected, installed, or placed thereon.
3
4 8. CITY is entitled to remove all or a portion of the improvements
5 constructed by STATE in order to repair, replace, or install public
6 improvements. CITY shall have no obligation to pay for or restore STATE's
7 improvements.
8
9 9. Any development, beach erosion control, or protection work which may
10 be undertaken by CITY or the United States of America, along or on the
11 premises, in the manner provided by law or under the rules of CITY, shall not,
12 in any way be construed as constituting a termination of this AGREEMENT or in
13 any way affecting same.
14
15 STATE shall have the right to enter into agreements for such work
16 during the term hereof and to go upon the premises or to authorize any person,
17 firm, or corporation to go upon the premises for the purposes of such construc-
18 tion, beach erosion control, or protection work, or the doing of other public
19 work for the improvement or development of the premises, provided that STATE
20 except for emergency repair, shall give CITY three (3) months prior written
21 notice of its intention to do any of the work herein mentioned. CITY sha 11 be
22 given the opportunity to review and comment on plans and specifications before
23 such work is undertaken. STATE agrees to repair, at its sole cost and
24 expense, any damage to CITY's improvements caused by such hereinabove
25 described work.
26 ---
27 ---
:OURT PAPER
'TATE.' CA."""OA
;TO. 1f3 'REV. e.'" 3
;5"'"
. .
1 10. If the premises or any portion thereof is taken by proceedings in
2 eminent domain, CITY shall receive the entire award for such taking except
3 STATE shall receive out of said award the fair market value of any
4 improvements then existing and constructed by STATE, except for:
5 (a) improvements erected with funds realized through income from the premises,
6 and (b) improvements the costs of which STATE has been paid or reimbursed by
7 CITY through grants or other sources. Fair market value shall be determined
: I by said proceedings taking into consideration the terms of this AGREEMENT.
!i
10 Ii 11. STATE agrees, at its sole expense, to maintain in force during the
11 I term of this AGREEMENT comprehensive general liability insurance, insuring
1
12 i against claims for injuries to persons or property occurring in, upon, or
I
13 ~ about premises. Said insurance shall have limits of not less than $500,000
1411 and $1,000,000 for injuries to person or persons, respectively; not less than
1511 $150,000 for property damage; and said limits shall be adjusted annually to I
1611 reflect changes in the prior year's Consumer Price Index (CPI) for Los Angeles
h
17 ~ - Anaheim - Riverside (all urban consumers - all items), promulgated by the
II
18!i Bureau of Labor Statistics of the U.S. Department of Labor. CITY agrees that
I
19 F STATE, at STATE's option, may self-insure the coverages required by this
20 paragraph.
21
22 12. STATE hereby waives all claims and recourse against the CITY for
23 loss or damage to persons or property arising from, growing out of, or in any
24 way connected with or incident to this AGREEMENT. STATE agrees to indemnify,
I
25 save harmless, and defend the CITY, its officers, agents, and employees i
26:1 against any and all claims, demands, or causes of action that may be brought
27 Ii against the CITY, its officers, agents, and employees arising out of or in any
II
';'A';.. R~:~~'~'N¡A II
TO 1f3"Ev,a,'"
5 "'" II 4
/ II
"
. .
1 way connected with or incident to the use or occupancy of said premises by the
2 STATE or the exercise by STATE of the rights or privileges herein granted,
3 except those arising out of the sole negligence of the CITY. insofar as it is
4 legally able to do so, and subject to the availability of funds.
5
6 13. Either party may terminate this AGREEMENT for any reason. The party
7 who wishes to terminate the AGREEMENT shall give written notice of its
8 intention no later than one hundred eighty (180) days before the scheduled
9 termination date. Such notice shall be given in writing and shall be effective
10 on the date given in the notice as the scheduled date for the termination of
11 the AGREEMENT. In the event that the CITY is the party choosing to terminate
12 the AGREEMENT, the CITY shall pay to STATE on the termination date a sum of
13 money equal to the depreciated cost of the improvements installed or
14 constructed upon the public right-of-way.
15
16 Depreciated costs shall be computed in the following manner:
17
18 A. Upon completion of improvements, or within sixty (60) days
19 of opening for public use, whichever is later, STATE will submit verified cost
20 statements accompanied by substantiating invoices and bills of labor, material,
21 or any other reasonable construction costs to CITY. These costs, plus such
22 future construction costs when expended shall represent the cost of
23 improvements.
24
25 8. The cost of improvements shall be depreciated on a
26 straight line basis over twenty (20) years of life. The depreciated cost
27 shall be determined by dividing the cost of improvements by two hundred forty
:OURT PAPER
'TAT< o' ."""DA."
>TO, 113 'REV. "m 5
""",
. .
1 (240) months and multiplying the results by the number of whole months
2 remaining in the term of the AGREEMENT at the scheduled termination date.
3
4 C. CITY may not commence termination proceedings until such
5 ,time as the funds required for such termination and reimbursement have been
6 obtained through appropriations by the Legislature and through the normal
7 budgeting process.
8
9 It is expressly understood that the above-described reimbursement
10 provisions are not applicable where CITY terminat~s this AGREEMENT for any
11 breach on the part of STATE.
12
13 In the event of breach, bankruptcy, insolvency, abandonment, or
14 termination of AGREEMENT upon STATE's request, the above-described
15 reimbursement provision shall not apply and shall not be considered an
16 obligation of the CITY.
17
18 14. Either party may terminate this AGREEMENT for breach by the other
19 party upon giving the other party written notice at least sixty (60) days
20 prior to said termination date.
21
22 In the event of any breach of this AGREEMENT by STATE, CITY shall
23 notify STATE in writing of such breach, and STATE shall have thirty (30) days
24 in which to initiate action to cure said breach.
25 ---
26 ---
27 ---
'CURT PAPER
TATE or CALoroO."
'TO, >13 "'V.'."," 6
,53"69
. .
1 In the event of any breach of this AGREEMENT by CITY, STATE shall
2 notify CITY in writing of said breach, and CITY shall have thirty (30) days in
3 which to initiate action to cure said breach.
4
5 15,. All written notices pursuant to this AGREEMENT shall be addressed as
6 set forth below or as either party may hereafter designate by written notice
7 and shall be personally delivered or sent through the United States mail:
8
9 STATE: State of California
10 Department of Parks and Recreation
11 Development Division
12 P.O. Box 942896
13 Sacramento, CA 94296-0001
14
15 Nith Copy to:
16
17 Southern Region Headquarters
18 1333 Camino Del Rio South, Suite 200
19 San Diego, CA 92108
20
21 CITY: City Manager
22 City of Encinitas
23 527 Encinitas Boulevard, Suite 100
24 Encinitas, CA 92024
25
26 16. This AGREEMENT contains and embraces the entire AGREEMENT between
27 the parties hereto and neither it nor any part of it may be changed, altered,
:OURT PAPER
.TAT< °' CA"""'.
'To. 113 ,".v, 0.", 7
""769
"" . .
1 modified, limited, or extended orally, or by any agreement between the parties
2 unless such agreement be expressed in writing, signed, and acknowledged by
3 both the CITY and the STATE.
4
:1 17. CITY or its authorized representative shall have the right at all
reasonable times to inspect the improvements to determine if the provisions of
7 this AGREEMENT are being complied with.
8
9 18. If any term, covenant, condition, or provision of this AGREEMENT is
10 held by a court of competent jurisdiction to be invalid, void, or
11 unenforceable, the remainder of the provisions hereof shall remain in full
12 force and effect and shall in no way be affected, impaired, or invalidated
13 thereby.
14
15 19. The failure of STATE or CITY to insist upon strict performance of
16 any of the terms, conditions, and covenants in this AGREEMENT shall not be
17 deemed a waiver of any right or remedy that STATE or CITY may have, and shall
18 not be deemed a waiver of any right or remedy for a subsequent breach or
19 default of the terms, conditions, and covenants herein contained.
20
21 '
20. If STATE fails to restore the CITY property, the CITY shall have the i
22 right to enter upon the CITY property, after notice to the STATE, delivered at
23 the Benefited Property, and restore the CITY property to its pre-permit
24 condition to include the removal and destruction of any improvements, and
25 I
STATE agrees to reimburse the CITY for the costs incurred.
26 ---
27 ---
'CURT PAPER
,TAT< o' "'CO'ORN"
'TD. ". ,.,v.e,m
,534769 8
""" . .
1 21. If either party is required to incur costs to enforce the provisions
2 of this covenant, the prevailing party shall be entitled to full reimbursement
3 for all costs, including reasonable attorney's fees.
4
5 22. STATE waives the right to assert any claim or action against the
6 CITY arising out of or resulting from the revocation of this permit or the
7 removal of any improvements or any other action by the CITY, its officers,
8 agents, or employees taken in a non-negligent manner, in accordance with the
9 terms of the permit.
10
11 23. As a condition precedent to STATE's right to go upon the CITY
12 property, this AGREEMENT must first be signed by authorized agent of the
13 STATE, notarized, executed by the CITY, and recorded with the County Recorder
14 of the County of San Diego.
15
16 Approved and executed by the City of Encinitas, California, this
17 ~~ day of :Su\y , 193L.
18 'oy: W~-t-\ ~~
19 c.ì ~ 7' tv\o,...-t:>..cy...J
20 :STATE OF CALIFORNIA
DEPARTMENT OF PARKS AND RECREATION
21 HENRY R. AGONIA, DIRECTOR
22
23 BY~~
24
25
26
27 D-1701Q
. PER
STAn °' CAe"'"N'A
STO.113,"'.a.'" 9
" ,.",.
. . I
1 ATTACHMENT "A"
2,
I,
3li PARAGRAPH ONE:
I: P. tt
411 erml ee
5 'I' State of California
Ii Department of Parks and Recreation
6 I P.O. Box 942B96
,i Sacramento, CA 94296-0001
7 Ii
I:
8 Ii PARAGRAPH TWO:
911 Benefi ted ProDertv
Ii
10111. Lots 1, 18, and 19 of Page 001, Map 263 on file with County Recorder
,: (commonly known as Cardiff State Beach).
11 i!
1211 PARAGRAPH THREE:
I.
13: Citv Propertv
"
141; Old Highway 101, abutting the Benefited Property consisting of
I: 1,600 feet long frontage of various widths (20.:!: to 60.:!: feet wide).
15 II
¡i
16 i PARAGRAPH FOUR:
17'; ~
18 Encroachment shall be used for state beach access, pedestrian use,
parking, landscaping, sewer line, and related facilities.
19
20
21 !
22 !
23
24
25
26
27 D-1701Q
:OURT PAPER
~~T~ ~; ';'.L~~O~~;~,
"34769 " 10
Ii