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2004-7401 TE .y. SOIL mansrslnc consviucamn, February 19, 2002 0\/D TO: Director of Community Services Department, City of Encinitas FROM: John W. Niven Soil Engineering Construction, Inc. SUBJECT: Contractor Responsibility This correspondence is provided to acknowledge that Soil Engineering Construction, Inc. (SEC), will be liable for any costs to correct damages to the beach or adjacent areas resulting from permit work undertaken by SEC for Coastal Development Permit No. 6- 01-166-G,bluff repairs at 1066 & 1070 Neptune Avenue. In addition, SEC recognizes that construction debris washing onto the beaches (during the period of time that SEC is constructing this project) within one-mile north or south of the work site shall be the responsibility of SEC and shall be removed at no expense to the City of Encinitas. Construction debris is defined as any lumber, piling, crates, boxes, containers and other objects which, could be used for construction identical to that being used on the project site. Debris also includes any pre-existing items excavated at the site such as reinforcing steel, concrete and bricks. . Niven, P.E. Date Soil Engineering Construction, Inc. 560 N. Highway 101 Suite 5, Encinitas California 92024 • (760) 633-3470 • FAX (760) 633-3472 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ������ �r� �� �� ��r�( v- State of CALIFORNIA C County of SAN DIEGO r� On MARCH 12 , 2002 before me, LAURA LYNNE, NOTARY PUBLIC Date Name and Title of Officer(e.g.,"Jane Doe,Notary Public") personally appeared JOHN W N I V EN P. Name(s)of Signer(s) <� ki personally known to me–OR–;]-proved to-ree on-the basis,-of satisfaetory-evider+ee to be the person(s) whose namett) is/are subscribed to the within instrument and acknowledged to me that he/sl 04y executed the r, same in his/he0t0fir authorized capacity(1A), and that by , _ his,(h906dir signature(* on the instrument the person(A, IAUR�A LYNNE or the entity upon behalf of which the person(Ps) acted, r ?: Comlellsdw#1256182 executed the instrument. KA Z Noby PtM-Caffomio Son Dk80 County WITNESS my hand and official seal. r' �� ,�yc�rn.r�s�la�oo4 �;. Signatu f Notary Public ;s 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 this form to another document. 6 t� Description of Attached Document Title or Type of Document: Pages: Number of Pa Document Date: g Signer(s) Other Than Named Above: Ca p acity(ies) Claimed by Signer(s) r5 Signer's Name: Signer's Name: T ❑ Individual ❑ Individual ❑ Corporate Officer El Corporate Officer Title(s): Title(s): 2 ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General T4 ❑ Attorney-in-Fact ❑ Attorney-in-Fact r: ❑ Trustee ❑ Trustee :•- ❑ Guardian or Conservator ❑ Guardian or Conservator r4 Top of thumb here ❑ Other: Top of thumb here S ❑ Other: h X Signer Is Representing: Signer Is Representing: S 5 Cv<%, ©1995 National Notary Association•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 SOIL Enaniiislnc consciucamc February 19, 2002 Department of Engineering City of Encinitas 505 S. Vulcan Avenue Encinitas, California RE: McInnis & Blanchard Residences Lower Bluff Repairs 1066 & 1070 Neptune Avenue Concrete Mix Design Submittal Attention: Mr. Greg Shields, P.E. Attached, please find concrete mix designs (68P, SH-6875P & 375PAE) for the seawall which are submitted for your review and approval. All mix designs meet or exceed the minimum concrete design specifications for this project. If you should have any questions or require additional information, please contact us at (760) 633-3470. Very truly yours John .Niven, P.E. Soil Engineering Construction, Inc. C: Engineering Inspection 560 N. Highway 101 Suite 5, Encinitas California 92024 • (760) 633-3470 • FAX (760) 633-3472 ent by: zJPERIOR READY MIX L.P. 7607409557; 02/19/02 10:42AM;J*ffm #916;Page 2/10 Superior Ready Mix 1508 W . Mission Rd Escondido , CA 92029 ( 760 )74S-0585 MT X TD 5000 PSI SOIL. ENGINF'"ERING PAOIECT OTT? Or ENCTNITw , 1,070 NFPTUNI:7 s;i 0RC:E OF C:ONCRFTE £:l_IF?ERI OR READY MT X. CONCRETE , K .P . CONSTRUCTION TYPE ; .HOTCRETE PI AGEME'NT VARIOUS WEIGHTS PER CUalC YARD ( 5ATURATED , SURFICE -ORY ) YIELD , CU .=T AS TM-C150 TYPE ll/V CEMENT ( MITSUBISHI ) , L.3 8 4 . 13 r^ ! i i I, t 4 WASHED (;ONC"• . SAND (SUPERIOR ) , 1...8 1984, = 09 A TM--(:C:? 4$ ROCK ( SUPERIOR ) , LR Stir' 6 .1.%i TOTAL, 27 . 00 KON: RF7F UNIT WEIGHT , PCP 147 's ent by: SUPERIOR READY MIX L.P. 7007409557; 02/19102 10:43AM;jajEy #916;Pege 3(10 MIX FiNALYS7- Ma x VCLUMF , c.`U FT 27 0 00APSENESS. CU Q h J_fi% WORKABILI..I_.Y sy 4}. W - ADJUST 61. PERCENT MORTAR 1 4 "C: TAL FINENESS MODULUS 1 .60 45 1 1 I - I i '1 i t 5 I 3 1 1 I 1 t l t 7 ! t 1 7 t l 1 I I 1 x .., TVA1. MZY, 20 I -` I r t 100 80 60 40 24 'D t STONE: SAND DENSITY , SP G 2 .62 2 .63 PASSING 3/8 SIG VI= sI ,.0 100 .0 PASSING 4 H SIFVE 1 .0 8VO 1='CNFNEAS MODULUS 5 -84 20:3 PFRC: .:NT OF AGGREGATE 30 .0 70_0 NO SEVER` EXPOSURE ent by: SUPERIOR READY MIX L.P. 7607409557; 02119/02 10:43AM jejEax #916;Page 4110 MTX #g,H-6875 FULL, Cal;{§C" A I' IOM ANALYSIS, E:vk: Si ONE SAW') f'A��TL. TOTAL 0GGR 1 100 -0 100.c 1/2 3.00 '.0 100 0 100.e) 9E _0 1O0 _0 99 .0 98 .5 # 4 20 .0 98.0.0 83 .c 74 :6 #1 1 .0 F13 .0 7'' .4 8 .4 44 1 '12.t k 100 6 , C) ' j 7 4 .2 CRAI)ATI C',N CHART t 1 I { I I I I 7 ! { I I S I I I 1 I X f f It 7 S t f I X if t I t I r ): � ! 1 ( I ! 1 1 I I I L IEVF / f r //•��1 4 2 E J /5� O O Y. i �s �it_L_. C.)MRONEN'l S — fiiGGREGATE,::� — BOTH ent by: SUPERIOR READY M1IX L.P. 7607409557; 021119102 10:43AM;Jgff" #916;Page 5/10 �lJ r.?Y'iOT RL;lady / MAX 1508 W . Escondido , 92029 ( 76,0 )745-0556 C:UP,IC: FTF M'.0< 4000 FMS C 02r'l1 t::Cl;��rf��CTr?;•, • SC7=L C=N(��:rdlFi�:.R7NG Fr �, C.T C:i CEF f rtC.T.lJ2TF2S , 107/0 IFEPT;UNE 011 CONCRETE- S1JPFk'J R PEADY ivd: ( ti.=ONC:RLZTE,.:` t' Irk#: 'rP,l3G"TION TYPE: `.'ApICius '. �aC"EMENT 3J6 " �'1.NuiF WEIGHTS PFR CUBIC YAPD SATURATED , r. LJRFAC-F- RY � t'7EL.D TYPE 111'x! CEMENT , LB 752 � a ' r• ., t h1 _:? ' WA.SHFD t,ONC: . AND ( SUPEF;IC),; j ,, I..sp, 66 1'H i..... ) {8 [;(.IC.K � �CE�E.1�I�1Z i y LS 951 S .82 'I C)TAL 2�1 00 M =.T F.F; F{LJTL DF-cIRS w 22 322N ; Oz-U5 .tO.os rtt:;TFi<lt:.FMENT RA710 , L_SS/L_B 0 .50 )Cvt_:,•R , . UN7 W`-T.(3,1-t PC 141_ _ k`S ACHY MIX %,UNCP''ETE , L .P . ent by: SUPERIOR READY MIX L.P. 7607409557; 02/19/02 10:44AM;]cffaz #916;P'age 6/10 MIX AN 4,,Ly'a T a H TX VOLOME , CL), FT 2�1 .00 COARSENESS (Q � ( � + I ) } 3 s W(.)F KA8ILl7Y 54 �2 w — ADjUS j s19 T'CTAIL FINENZS MC)DiJILU '. i I I I I 40 T I I I 1 I I t l t f i i i i x 1"0TAL MIX a '- ,E30TH I COO so 60 11+0 20 O c to Al Eti S E N E r (Yl f l CJ + 1 MATERIALS CHARACTERISTICS STONE: SAND PASS!:ttr !3/z3 11 SIEVE 9S ,G 103 ..o PASSING # 3 SIEVE 1 - 0 C:,!_Q FINENESS MODUI,_US a .84 2 PF,(::E:NT OF' ACa(.;RELATE :35 . :t 64 .9 NO SEVER'17 EXPOSURZ i . ent hy: SUPERIOR READY PRIX L.P. 7507409557; 02/19/02 10:44AM;j*tFax #9l6;Page 7/10 MIX 4661p FULL GRADA1 ON ANALYSIS S.1'..EVE_ STONE.. SAND PASTE TOTAL A GR 1-1 /2 1007 .G Z.OQ 0 1. t0 0 1.Oa,c / h 4 20 .0 98 "'.) 82 ,0 70 -6, # 1 .G 82 .0 11 .9— 54 :.� #; 1 o0 7 6 .' 41 .0 :3 ..7 0 32S 94 .5 Liquid _ - 63 .3 24 .4 GRADATION CHART ! ! I 1 l 1 ! C t I I 1 I t t f I t I t I I t x t i x .- 1 # # 1 2 3 L_ x AI._L- COMPONENT$ c5 — AAQREGA'Y FS ' ' . E3 TH ent by: SUPERIOR READY MIX L.P. 7607409557; 02/19102 10:45AM;Jgffa -#916;Page 9110 rII T X Ml,< ANALYSIS c0ARSE NESS ( Q ✓ (Q t 1 ) ? 54. 7 WORK AS, I,I.,.Z Ty 37 .� F,FRRCENT MC)�TAR 58 .9 70TAL. FTNENIZ-GS 1`30DULLiS T, .U1� 1 i 1 I 1 t I t n I •f 1 f I I C l 0`` it ` 1 �.. _.....-._i - . . . S 1 ( 7 1r I . . . . « . . . . . 1 TOTAL HTX AGGREUATES 1 I BOTH ' ' I 100 00 60 40 20 MA`r�RIALS CHARZA :TFRISTIC: STDNE 1 STQNE ' SAND t PASSINIG, nag SIEVF. r:4 ,.0 9S .0 100 .0 t; PP S S.1 NG # {3 SIEVE 1. .0 1-0 E13 .0 FINENESS 'M0DtJ_.U5 7 .3.;L 5 ;84 9::1 PI RC5N-, OF AGGREGATE E 44 . 0 11 .0 45 .0 NO BFVFRF FXP,0SLJRF ent by: allPERIOR READY MIX L.P. 7607409557; 02/19/02 10:45AM;o Fax #916;Psge 10110 MIX #3'r 5F,A.E F UL-L (,hAC)AT'-f.0iN ANr-iLYSY 'F ;TF,VE '7f,JF.E 1. NONE 2 SA,,VL) PASTL T'O74,L rA:sL��; 1 99 ,4 5 , '� L!2 34 .0 :1,0]0 ./0� y y80y .8 /'1 .0 3/ s ` :24 .0 l .0 A03 G �1J .x.5.1' 66. .0 7r, 4 2 .QJ 2-0 0 ? .0 6S .0 47 .2 .4 .:3 3 .0 1. 0 x :1 .,0 S :9 31-11 .9 c.3 ,cJ 52 ,6 28' 4 4 0 fl X6 ,4 17 .6 M 50 — 1.3 .C) 3'; 2- 8, . 'L # 100 - - 1S .0 3Gi 2 .7 #� 200 :2..9 100 .0 '34 .7 1 3 4 325 - - - 94 . 1 31 P-1 L .'pct 6'D_7 20 E - C R-ADAT TI C) ! CHART ! I ! I 1 I I I S r 1 t 1 r r I s r r r r i r I I I 1 1 I 1 1 I I 1 I C. !V l 1 I q•,•• ! I I � I I t 1 i 1 I q X E)(,1 i •_' I 1 -^ - j - 1 ----y(---" I ----.... I -...- S .... ....I ..,,�..... tl - I -....,- I X I 1 7 i I I t 1 I 1 I I I x. I i - 7 I I I 1 I I r I I s f 1 S 1 f 1 I I I I I 1 I I I C1 2 :3 L 4 $ a 3 5 0 0 2 Y. �L 4 2 8 is O C3 0 0 6 4t x fir,,.L C+Jh'tP4t'wl�hf7>•a •� - +`i<aC RF_..GAT�:S �+•. -� glt�'f-{ ent by: SUPERIOR READY MIX L.P. 7607409557; 02/19102 10:44AM; gffA #916;Page 8/10 `~u.PeV ic�•r Ready Mir Rd 4.000 PSI 02/19x02 'l -CT0f-R SC�II. ENi_,INFE, INt� CITY OF FNC T'yTTA-5 , 7.070 NF-FI-TUNE r)1�PCn CAF CIONCRFTF StUPFRIOR 'RF:Ai-)Y f4TX CONCRFTF , L .P - t:()N`., RL;CT'ICiN 'i'Y11E' VARIOUS {,t.1=MENI WFTC; !T S PFf: CCIJRTC YARD ( 5;ATLJlRATFO SURFACE--CORY' ) YIELD , CU FT TYPE' T","/V CF'ME=NT , Ls 705 S 5� WASHED CONC . SAND ti `aUPCRIOR ) „ LB 1320 3..04 .4.57 ROCK ( SUPEFRIOIR ) , LE3 1286 �,�:.; �f�i-t:. �; � �� Jh i.>4!� ( `>i..+`a=Er h.Z�?f� ) , t.,� 3 -':I 1 •�r In.l.i T L.;� r �..i:. 1, +L.i rt�.._':..L.�,`.�. s', •T) `. _ 2 S ^,w 4 7:71 f (_>7fAl_ , Ip 3-0 1 ..C. TOTAL 27 :00 IytA`:.T fit', I3L.1ILOERS POZZ 322N , OZ-US F-UTLDE PS MT..C:R() AI2 , OZ—US RA-;TO a ,._P. C3 .4 irk 4 .00 .INCRE%-T17 UNIT WEIGF',T , PGF 14.9; t FADY fillX CONCRETEa L .f' ATTACHMENT B TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [George L. and Theresa L. Gonzalez] LOCATION: PUBLIC BEACH RECREATIONAL AREA f 1 z �W- N• C 1 Z:J `�(_c ^'Q LLI+ 1 _Ql0 � I I _ U Z J Z O 2 Z n I Z w Co•c _cD 10 Ei I R I l I ak - � /NK Bfu "1 i. P I .9.D9 - �- w 50.25 ti 5025 -- — I It i 0'2/22.'2002 14: 19 6192988215 ICI L BIDX S ETC #33130 FF;IaE 01 l� W �dSR � � �,. M '.,,✓vl 4tb�,•* 1 ,6:ri[ 11 w. ,er fi `!�a Iq4,'� �, ,��, ,} i f f 4� , ,�7n++�ut�' I'y :y I� AI°ri i' a• ll c.y <l.fir f ,R r, �f< it+ i +• I y��t� M Nei i ��iitk � I Mtn >- PX r �.���� 'MAi� I�I' •�� ,�,•" � � ��4^ � �ra 'WC'�\T.R F'�" i %.�; j � -' Ja1�� 'Qj`4�r:'}' y��i1Y ►y�S► 'a7�-ft1.�k1�7'4`I� .� �� 'I , �y�...{,u,y�.��r tl,,. t I J,,. I c 'f�-,! r Y'�1"N•4 v"7tl� l. F r 5270 � � ♦ ., `'" t `Y , 4p+4CG lltTbv0 `ti& dll ai 4 SEtI r :r. ChN'1s �ti`;Z C� CUIV1TAtiI� �FIASCS` .l�wY 1Y.,Ysr ' `r , i 'S ��- > +F11CorKp+��ri oh lFkt�ri,4frerr*MWr w1er o>~pKO�+lrYy�grSvrHa ',s5 tam tcr�'; oast br 'I , +taf �lrix�ha G'Ctr76i�fidY{ v lid 19 116ft� r a, r r` Cyr. §,P, ( 11MWkE,,df D�+�ibrd .bt I ��c.y�y�1. . �I r �.�,,.....• _..-„.,,,,_... � _ ) �jErY1 t�t�'f#fl rtt�+l3'flF•itFh t`71�fi7iPr � '�a t 'x” I , ; GRANT 0981, 'A-V xL w - 0048fblEkATICN, r C6ipt;of vdi,ibh is he.r�txya�lcr nwl d ed, 7-A, �ir� �tti•�t� d jc5 r ,• tt7S"h+V.E. le�,t Trlr CECY)3E+Ji� �si`�^_r 'L�FrR�xS•la '�i�53.T.Z�T.,�;� .�'PtM��.'�' 'z`�:U:�`'£ C)�!�1'T . .�'u�l� 1'�: �.9�t9 r , ttt l iro:reriy r trc Olt nr F1 GiTi's f s 044d—� LIZ � ti�t(y cif S�rr :Zs.1 t�� . Skate bt'�airftlrni�, cles�rFfS�d A��� �,/k . � I r a r � 1 I �'CJ1i T�f�3f A: '��''rT�TB V 4�r�rSlr apy �yp argc� L"�EL3 1r G�1�7rAiL.EZ - � lfy 4tvwn o me,[br troi io nWon the t*asis ill r I . � aat�f�ctary, I wla�it*04 bheEh+�perSOrt��7�hose'n r,�yfa);fa/ireBLbscrrbedt4lNaewlltin'. �� t fi,�Tf�riieht and eC}}AOW1LVecf to rryeZS�r Kc�9ahp/f{td�li�LChttEYd rin�X�C}1d rn', r" S �T ►1k�"( �s� 1Gt j `r I •� IiJ�+ri�Wlkne]r etr��fle+rd-�pacr�y{i��f attd brat,try 1v51r1erRh�fr algtMaYuH�(r?� 'c td ic�3�i41Us><1�c eALrFp��itq��` I'', � c+rrfh�ir5srrurnc�tthe o �r rai�:k�ir�bpUM;rY C! pCr3r ta(ii)�rrdh�trntit�ruanr+tibehwllafiv�skntlr��rydn' , � � ;�Ju(,{r14:2d0�1 "�; r N r t '��E2(,I�x�drR��iEfac,�ltstrty►isEhl, r a. �y1 I r�d1Th,FS3rn�rhar>kfah G�II ! � Z I ,t kS{�hatlii C I e :' r r �7hts�rp�a<�r tifliG1'($I he�Btini,}�'cltj' ,� r t �I��,�I fVF, tG 7 T�NfEN,S �9;V9:- - >,: 02/22/2002 14:19 5152988215 h9AIL BO-XES ETC #3GO PAGE 02 t�F f��� �! n5?'r �,�na v/'�� �[ �"nL��'�71 q 4r f�. 1 7�,.v�J?� i'� aY.�j 11 �. •.i P, ?s -..i Y h � C I t, ;,T-,. is i t ✓'� r7;+r F a a( 'Y� a u rh Gkr a , � �'� r r i � k •w��y � J 'J 1 Lb. t f tip I,. xt cd ;-t��`xt.� , rt , 's'; 6,o 77lly} yq y y A 1� x/1+1" 1)F b�1 E*F,••:�4J Y^_4J l.J .� v :r y r1 � :.!4 u.}}n iv�.deµ�ld. 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Stake o Ca,Lxsaa, acc� ciic� _� 4 Mai Ncs, 1 �Rr Count}t, 5e�.aternY 2I, r � ig wtih 'n 2i: ekr'i et Ord 4 ' ti it ws.cC 1�, Lh� c�3i :s 7e � kie! g �x gibed . - a �� ,. CO t l 1�x�7G' at the ox�tzeas�ek]y corner c �,`;J F r :3X18;- tYr trce r� t�' ; .d�gr � �.,, ' Pest:, 7:8 S Fie L rer.:1'y �.::>:x.La of �:bek• 7�, . E } xrlelizesf ,$a oz�i� f Yr �i t' b� raed. �x sicr: ncd" z t to rnirlat6 ri the- estexu, ; ��Irze: a said,:t lac a� 11• n }�, ' bTeia`Ln •:�].y :2a.n :.n�� Sari. . P'a�c�1. 1 �� r 1 02/22/2002 14:19 6192988215 MAIL BOXES ETC #360 PAGE 81 TIl APAttAWOVCllYHfV zil tj ee C OF Wed bA le 02/22/2002 14:19 6192988215 MAIL BOXES ETC #360 PAGE 02 low pq All ths i2S JIA 134-­20-771 drid .24 Zvi lip AM CAI NOW WAS to Wto Ou sh am fKah Otto 16) the j I MIT - -- '--'^-~—'-- - Recording Requested By: ) City Engineer ) When Recorded Mail To : ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [George L. Gonzalez and Theresa L. Hesse Gonzalez] Assessor' s Parcel No. 254-291-27-01 W.O. No. 7401TE WHEREAS, George L. and Theresa L. Gonzalez , ( "PERMITTEES" hereinafter) are the owners of bluff top, ocean front real property which is commonly known as 1064 Neptune Avenue ( "DOMINANT ESTATE" hereinafter) and which is described as follows : See Attachment A, which is attached hereto and made a part hereof. WHEREAS, the City of Encinitas ( "CITY" hereinafter) , a municipal corporation, holds an interest in beach property ( "PUBLIC BEACH RECREATIONAL AREA" hereinafter) located in the vicinity of the DOMINANT ESTATE and more fully described as follows : See Attachment B which is attached hereto and made a part hereof. WHEREAS, PERMITTEES desire to construct a seawall at a location immediately seaward of the DOMINANT ESTATE ( "PROJECT SITE" hereinafter) and must cross and otherwise use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall on the PROJECT SITE, WHEREAS, PERMITTEES desire an entitlement to use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall; NOW THEREFORE, it is agreed as follows : A. CITY hereby grants to PERMITTEES an encroachment permit in respect to the PUBLIC BEACH RECREATIONAL AREA in accordance with the following: See Attachment C which is attached hereto and made a part hereof. B . PERMITTEE covenants and agrees to exercise the entitlements herein conveyed in accordance with the following: See Attachment C which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties . D. PERMITTEES agree that PERMITTEE ' s duties and obligations under this Covenant are a lien upon the DOMINANT ESTATE. Upon notice and opportunity to respond, CITY may add to the property tax bill of the DOMINANT ESTATE any past due financial obligation owing to CITY by way of this Covenant . E. By accepting the benefits of this Covenant, PERMITTEES acknowledge that PERMITTEES have no title to the PUBLIC BEACH RECREATIONAL AREA and waive all right to that title. F. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys ' fees, from the other party. G. Failure of PERMITTEES to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant . H. PERMITTEES recognize and understand that this Covenant may create a possessory interest subject to property taxation and that the PERMITTEES may be subject to the payment of property taxes levied on such interest . I . As conditions precedent to PERMITTEE' s right to go upon the PUBLIC BEACH RECREATIONAL AREA: 1 . This Covenant must first be signed by the PERMITTEES and notarized; and then executed by the CITY and recorded with the County Recorder of the County of San Diego. Any recording fee shall be paid by PERMITTEES; 2 . PERMITTEES must fully satisfy each and every condition precedent to the exercise of PERMITTEE ' s entitlement to go upon the PUBLIC BEACH RECREATIONAL AREA; and 3 . PERMITTEES must first comply with the State Coastal Act by either obtaining the approval of the State Coastal Commission, obtaining a waiver thereof, or qualifying for an exemption therefrom, as needed to construct the seawall on public property and traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall . J. This Covenant does not preclude PERMITTEES from taking emergency, protective measures as approved by CITY. K. PERMITTEES agree to provide written disclosures, and require written consent from, any and all future owners, partners, successors, heirs, personal representatives, transferees and assigns of PERMITTEE' s interest in the PROPERTY to the effect that this Covenant is acceptable . Provided, however, if such consent is not rendered, it shall in no way affect the enforceability of this Covenant against such party. The consent shall expressly state that the party has received a copy of this Covenant and shall abide by the terms hereof . L. Upon PERMITTEE' s transfer of the PROPERTY to a successor in interest, PERMITTEES may apply to the CITY for a release of PERMITTEE' s personal obligations set forth in this Covenant . The CITY shall execute the requested release if it is demonstrated that the successor in interest has fully assumed the obligations herein. M. As delegated by the State Lands Commission, the City hereby conveys State Lands Commission permission to the PERMITTEES to traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall and to construct the seawall on public property. ACCEPTED AND AGREED: PERMITTEE l Ax- Dated -3-S--O L -�A�&� Dated 3 - j (Notarization of PERMITTEES 40 re is attached. ) �- I certify on behalf of the City Council of the City of Encinitas, pursuant to the authority conferred by said City Council, that the City is authorized to execute this Covenant . Dated Z By Leroy Bo as, P.E. Director of Engineering Services (Notarization not required) CALIFORNIA ...... .... ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF e 5 On 02- before me, NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NU I AAY PUBLIC DATE personally known to me (or proved to me on the basis of satisfactory evidence)to be the person(s) bscribed to the within instrument and acknowledged to me that-he�she� they executed the same in hi~their authorized capacity(ies), and that by *9�1�helr signature(s)on the instrument the person(s),or the entity upon behalf of which the person(s)acted, executed the instrument. STEPHEN A. S1 COMM.#1309383 WITNESS my hand and official seal. JULY I /NOTARY PUBLIC SIGNATURE OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT NUMBEROFPAGES 3 ,0/1,1 eX4,4,'-k5 DATE OF DOCUMENT SIGNER(S)OTHER THAN NAMED ABOVE le"" ;j - ATTACHMENT A TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [7401TE] PROPERTY DESCRIPTION: DOMINANT ESTATE The land referred to is situated in the County of San Diego, city of Encinitas, State of California, and is described as follows : A CONDOMINIUM COMPOSED OF: PARCEL 1: An undivided M interested in and to Parcel 1 of Parcel Map No. 13318, the City of Encinitas, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, June 4, 1984 as File No. 84-207776 of Official Records. EXCEPTING THEREFROM Living Units and Garages 1 and 2, as shown on the certain Condominium Plan entitled Ocean View Townhouses, recorded July 27, 1984 as File No. 84-285683 of Official Records. ALSO EXCEPTING THEREFROM the exclusive right to use all Balconies, Driveways, Entries, and Yards as shown on said Condominium Plan. PARCEL 2 : Unit L-1 and Garage G-1, as shown on that certain Condominium Plan referred to in Parcel 1 above. PARCEL 3 : The exclusive right to use the correspondingly numbered Balcony B-1, Driveway D-1, Entry E-1, and Yard Y-1 appurtenant to Parcel 2 as set forth on that certain Condominium Plan referred to in Parcel 1 above. PARCEL 4 An easement for pedestrian access over that portion of Lot 12, in Block 12 and Block "D" of South Coast Park No. 2 in the City of South Coast Park No. 2, in the City of Encinitas, County of San Diego, State of California, according to Map thereof NO. 1859, filed in the Office of the County Recorder of San Diego County, September 21, 1925, lying within a strip of land 4 feet in width, the center line being described as follows: COMMENCING at the Northeasterly corner of Parcel 1 of Parcel Map 13318; thence South 74 degrees 16'30" West, 78.35 feet to the Westerly line of said Block D. The sidelines of said strip of land to be prolonged or shortened to terminate in the Westerly line of said Block "D" in the Northerly line of said Parcel 1. ATTACHMENT B TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [George L. and Theresa L . Gonzalez] LOCATION: PUBLIC BEACH RECREATIONAL AREA V► z %J Z C u 1 O Cj Z C Z° I __ L u Z U 2 r-�I -----------'I 00 e I I I A I 1 CE) -II e1 9 D9 J X U rt nso �Q N �� ATTACHMENT C TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [George L. and Theresa L. Gonzalez] DESCRIPTION OF ENCROACHMENT PERMIT AND PERMITTEE Is DUTIES AND OBLIGATIONS 1 . 0 LOCATION OF ENCROACHMENT AREA The location of the beach access encroachment area is depicted on the map which is contained in Attachment B to this Covenant . 2 . 0 PURPOSE OF ENCROACHMENT: The purpose of the beach access encroachment permit is to entitle PERMITTEE to use the PUBLIC BEACH RECREATIONAL AREA as required for the construction of the seawall at the PROJECT SITE . 3 . 0 USE OF PUBLIC BEACH RECREATIONAL AREA 3 . 1 PERMITTEE shall submit to the City Engineer a written proposal setting forth the day [s] , hour [s] and safety conditions in accordance with which PERMITTEE proposes to use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 2 The CITY' s Engineer shall expeditiously issue written direction setting forth the day [s] , hour [s] and safety conditions reasonably necessary to protect the public from PERMITTEE' s use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 3 PERMITTEE agrees not to go upon or use the PUBLIC BEACH RECREATIONAL AREA for any purpose involving the construction of the seawall at the PROJECT SITE on any day or at any hour, except in complete conformance with the terms and conditions of this Covenant which includes the written directions signed by the CITY' s Engineer. 4 . 0 TERM OF ENCROACHMENT PERMIT This COVENANT shall be effective upon its execution by the CITY and shall remain in effect until canceled by the CITY. 5 . 0 OTHER PROVISIONS In consideration of CITY' s execution of this Covenant : 5 .1 PERMITTEE waives the right to object to the formation of any geologic hazard abatement district, assessment district or maintenance district which includes within its boundaries the DOMINANT ESTATE and which concerns sand replenishment or the stabilization of the DOMINANT ESTATE property. 5 . 2 PERMITTEE agrees that if and when the CITY or a special district determines that it is necessary for the DOMINANT ESTATE to participate in a project which addresses the stabilization of the DOMINANT ESTATE property, the PERMITTEE shall either construct the project or pay PERMITTEE' s fair share of the cost to construct such project . 5 .3 PERMITTEE agrees not to develop in any manner the DOMINANT ESTATE except as authorized by CITY' s ordinances and then only in accordance with issued permits . Among other things, but without limitation, this shall prohibit the alteration of land forms and the erection of structures of any type, except as permitted or authorized by CITY. 6 . 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : WAIVERS 6 . 1 ASSUMPTION ON RISKS BY PERMITTEE. PERMITTEE acknowledges and assumes the risk that : a. the design, construction, maintenance, or functioning of the seawall may not result in the stabilization of the DOMINANT ESTATE and may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or other property; b. The use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or property in the vicinity; and C . Aspects of the seawall project may be judicially challenged by third parties . 6 . 2 WAIVER OF CLAIMS AGAINST CITY. For claims that are alleged to have arisen, directly or indirectly, from the plans, design, construction, maintenance, functioning or failure of the seawall or from the use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, PERMITTEE unconditionally waives all present and future claims against CITY and CITY' s officers, officials, employees, and agents . 6 .3 PERMITTEE' s waiver herein includes, but is not limited to, claims concerning PERMITTEE' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall; alleged injury to persons or property allegedly caused by, or in any way related to, the seawall or PERMITTEE ' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad waiver set forth in Section 6 . 2 . 6 .4 PERMITTEE agrees that for claims that are alleged to have arisen, directly or indirectly, from the CITY' s efforts to assist PERMITTEE in constructing a seawall or using the PUBLIC BEACH RECREATION AREA, PERMITTEE unconditionally waives all present and future claims against CITY and CITY' s officers, officials, employees, and agents . 6 .5 PERMITTEE ' s waiver set forth in Sections 6 . 2 , 6 . 3 and 6 .4 does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 6 .6 It is further understood and agreed that all of PERMITTEE ' s rights under § 1542 of the Civil Code of the State of California and any similar law of any state or territory of the United States are hereby expressly waived with respect to claims against CITY and CITY' s officers, officials, employees, and agents relating to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Section 1542 reads as follows : 1542 . Certain claims not affected by general release . A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 7 . 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : INDEMNIFICATION AND HOLD HARMLESS 7 . 1 PERMITTEE TO INDEMNIFY AND HOLD CITY HARMLESS. PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of PERMITTEE or PERMITTEE Is agents, employees, subcontractors, officials, officers or representatives in respect to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Upon demand, PERMITTEE shall, at its own expense, defend CITY and CITY' s officers, officials, employees and agents, from and against any and all such liabilities, claims, demands,' causes of action, losses, damages y' and costs . 7 .2 PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, the CITY' s efforts or actions to assist PERMITTEE in the seawall construction. 7 .3 PERMITTEE ' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning alleged defects in the plans, specifications and design of the seawall; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the PERMITTEE ' s proposed plans, specifications or design so long as such change is objected to, in writing, by PERMITTEE, and the writing is filed with the City Engineer more than ten days prior to the commencement of work. 7 .4 PERMITTEE ' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning PERMITTEE ' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall; alleged injury to persons or property allegedly caused by, or in any way related to the seawall or PERMITTEE ' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad indemnification and hold harmless provisions set forth in Sections 7 . 1, 7 .2 and 7 . 3 . 7 . 5 By approving the improvement plans, specifications and design or by inspecting or approving the seawall or the use of the PUBLIC BEACH RECREATION AREA, CITY shall not have waived the protection afforded herein to CITY and CITY' s officers, officials, employees and agents or diminished the obligation of PERMITTEE who shall remain obligated in the same degree to indemnify and hold CITY and CITY' s officers, officials, employees and agents, harmless as specifically provided above . 7 . 6 PERMITTEE ' s obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of CITY' s intentional wrongful acts, CITY' s violations of law, or CITY' s sole active negligence . 7 . 7 The CITY herein expressly does not waive any defenses, immunities or other protections from liability afforded to the CITY by the laws of the United States or the State of California, to include without limitation, the California Government Code . Recording Requested By: ) City of Encinitas ) - When Recorded Mail To: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE Assessor's Parcel No. 254-291-27-01 Project No.: 7401 TE A. George L. and Theresa L. Gonzalez, ("OWNER's" hereinafter) is the owner of real property which is commonly known as 1064 Neptune Avenue, ("PROPERTY" hereinafter) and which is described as follows: See Attachment A which is attached hereto and made a part hereof. B. In consideration of a Major Use Permit by the City of Encinitas ("CITY" hereinafter), OWNER hereby covenants and agrees for the benefit of CITY, to do the following: See Attachment B which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties. D. OWNER agrees that OWNER's duties and obligations under this Covenant are a lien upon the PROPERTY. Upon notice and opportunity to respond, CITY may add to the property tax bill of the PROPERTY any past due financial obligation owing to CITY by way of this Covenant. E. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. F. Failure of OWNER to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant. ACCEPTED AND AGREED: OWNER j�EZRS�k L. SSE - Dated � S Dated 3 -_757 (Notarization of OWNER signature is attached.) CITY OF ENCINITAS Dated 2S O� by (Notarization not required) Interim Director of Engineering Services Leroy C. Bodas CALIFORNIA .12 ALL—PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF ii On before me, 14 . So,Aflo. 04'W"'A'& DATE NAME,TITLE OF OFFICER E.G., "JANE DOE', NOTARY PUB... personally appeared, 6t eo 5e (!;,v Al Z4 le 7- e4,r4l _1_1W?14 personally known to me (or 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-heisheA they executed the same -in 49tsilgerftheir authorized capacity(ies), and that by-44sfheritheir 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. STEPHEN A. SINDONI COMM.S 1309383 NOTARY PUBLIC•CAUFORNIA RIVERSIDE COUNTY (SEAL) Comm Exp.JULY 14 2005 NOTARY PUBLIC SIGNATURE OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT , NUMBER OF PAGES � l SIGNER(S)OTHER THAN NAMED ABOVE '04 ee 2 �A �T%W`7 WNW:, 11�1�� tit 11'F ..A" . %A ..........•A, ATTACHMENT A TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401 TE PROPERTY DESCRIPTION The land referred to is situated in the County of San Diego, City of Encinitas, State of California, and is described as follows: A CONDOMINIUM COMPOSED OF: PARCEL 1: An undivided Y/2 interested in and to Parcel 1 of Parcel Map No. 13318, the City of Encinitas, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, June 4, 1984 as File No. 84-207776 of Official Records. EXCEPTING THEREFROM Living Units and Garages 1 and 2, as shown on the certain Condominium Plan entitled Ocean View Townhouses, recorded July 27, 1984 as File No. 84- 285683 of Official Records. ALSO EXCEPTING THEREFROM the exclusive right to use all Balconies, Driveways, Entries, and Yards as shown on said Condominium Plan. PARCEL 2: Unit L-1 and Garage G-1, as shown on that certain Condominium Plan referred to in Parcel 1 above. PARCEL 3: The exclusive right to use the correspondingly numbered Balcony B-1, Driveway D-1, Entry E-1, and Yard Y-1 appurtenant to Parcel 2 as set forth on that certain Condominium Plan referred to in Parcel 1 above. PARCEL 4 An easement for pedestrian access over that portion of Lot 12, in Block 12 and Block "D" of South Coast Park No. 2 in the City of South Coast Park No. 2, in the City of Encinitas, County of San Diego, State of California, according to Map thereof NO. 1859, filed in the Office of the County Recorder of San Diego County, September 21, 1925, lying within a strip of land 4 feet in width, the center line being described as follows: COMMENCING at the Northeasterly corner of Parcel 1 of Parcel Map 13318; thence South 74 degrees 16'30" West, 78.35 feet to the Westerly line of said Block D. The sidelines of said strip of land to be prolonged or shortened to terminate in the Westerly line of said Block "D" in the Northerly line of said Parcel 1. ATTACHMENT B TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401 TE OWNER'S DUTIES AND OBLIGATIONS 1. For claims that are alleged to have arisen, directly or indirectly, from any bluff failure or erosion associated with the PROPERTY or the plans, design, construction or maintenance of OWNER' s improvements, OWNER unconditionally waives all present and future claims against CITY and CITY's officers, officials, employees, and agents. This waiver does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 2. It is further understood and agreed that all of OWNER'S rights under 01542 of the Civil Code of, the State of California and any similar law of any state or territory of the United States are hereby expressly waived. 9 1542 reads as follows: 1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 3. OWNER agrees to indemnify and hold CITY and CITY's officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of OWNER or OWNER's agents, employees, subcontractors, officials, officers or representatives. Upon demand, OWNER shall, at its own expense, defend CITY and CITY's officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs. OWNER' s obligation herein includes, but is not limited to, alleged defects in the plans, specifications and design of the improvements; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the OWNER's proposed plans, specifications or design so long as such change is objected to, in writing, by OWNER, and the writing is filed with the City Engineer more than ten days prior to the commencement of work. OWNER's obligation herein includes, but is not limited to, alleged defects in the construction of the improvements; alleged defects in the materials furnished in the construction of the improvements; alleged injury to persons or property; and any alleged inverse condemnation of property as a consequence of the design, construction, or maintenance of the improvements. By approving the improvement plans, specifications and design or by inspecting or approving the improvements, CITY shall not have waived the protections afforded herein to CITY and CITY's officers, officials, employees and agents or diminished the obligation of OWNER who shall remain obligated in the same degree to indemnify and hold CITY and CITY's officers, officials, employees and agents, harmless as provided above. OWNER's obligation herein does not extend to liabilities, claims, demands causes of action, losses, damages or costs that arise out of the CITY's intentional wrongful acts, CITY's violations of law, or CITY's sole active negligence. 4. OWNER hereby agrees not to develop in any manner the PROPERTY except as authorized by CITY's ordinances and then only in accordance with issued permits. Among other things, but without limitation, this shall prohibit the alteration of land forms, removal of vegetation and the erection of structures of any type, except as permitted or authorized by CITY. 5. This Covenant does not Preclude OWNER taking emergency, protective measures as approved by CITY. Recording Requested By: ) City of Encinitas ) When Recorded Mail To: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE Assessor's Parcel No. 254-291-26 Project No.: 7401 TE A. James B. McInnis, an unmarried man, ("OWNER" hereinafter) is the owner of real property which is commonly known as 1070 Neptune_("PROPERTY" hereinafter) and which is described as follows: See Attachment A which is attached hereto and made a part hereof. B. In consideration of a Major Use Permit by the City of Encinitas ("CITY" hereinafter), OWNER hereby covenants and agrees for the benefit of CITY, to do the following: See Attachment B which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties. D. OWNER agrees that OWNER's duties and obligations under this Covenant are a lien upon the PROPERTY. Upon notice and opportunity to respond, CITY may add to the property tax bill of the PROPERTY any past due financial obligation owing to CITY by way of this Covenant. ATTACHMENT A TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401 TE PROPERTY DESCRIPTION Lot 11 and 12 in Block 12 of South Coast Park No. 2 in the County of San Diego, State of California, according to Map thereof No. 1859, filed in the office of the county recorder of San Diego County, September 21, 1925. Also all that portion of Block"D", South Coast Park No. 2, in the County of San Diego, State of California, according to Map thereof No. 1859, filed in the office of the county recorder of San Diego County, September 21, 1925, described as follows: Beginning at the Northwesterly corner of Lot 12, Block 12 of said South Coast Park No. 2, thence Westerly along the Westerly prolongation of the Northerly line of said Lot 12, Block 12 to its intersection with the Easterly line of that tract of land conveyed to the County of San Diego by deed recorded February 11, 1930, in Book 1731, Page 258 of deeds; thence Southerly along said Easterly line to its intersection with the Westerly prolongation of the Southerly line of Lot 11, Block 12, thence Easterly along said Westerly prolongation to the Southeasterly corner of Lot 11, Block 12; thence Northerly along the Westerly along the Westerly lines of said Lots 11 and 12, Block 12 to the point of beginning. THIS TRANSFER IS MADE TO A REVOCABLE INTER VIVOS TRUST WHICH IS EXEMPT FROM RE-APPRAISAL PURSUANT TO AB 1488 CHAPTER 2 SECTION 62 (a). E. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. F. Failure of OWNER to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant. ACCEPTED AND AGREED: OWNER Dated Dated J-4w1 E S3. ^'I C.1 IJAJ I S (Notarization of OWNER signature is attached.) CITY OF ENCINITAS Dated —q 2S/D� by (Notarization not required) Leroy C. Bodas Interim Director of Engineering Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 I State of County of before me lL 2�L 2__,� - DA4E NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC" t personally appeared tz"o 9, ' NAME(S)OF SIGNER(S) ❑ personally known to me - OR - proved to me on the basis of satisfactory evidence t to be the person(-s) whose name(-s� is/aye subscribed to the within instrument and ac- knowledged to me that he/s.14efthay executed the same in his/h-er/t reir authorized CQRNIJAA t�lt�gl� capacity(i�, and that by his/t er/t4eir corrt►r0s on#1 2.-S signature(a) on the instrument the person(4, Notay Pub;C—Galttr mia Z sano �� or the entity upon behalf of which the c or> ,.ExplirmD.M04 person(sy acted, executed the instrument. WITN S m hand and official seal. SIGNA E OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATT�G-HED DOCUMENT ( ❑ INDIVIDUAL ❑ CORPORATE OFFICER LE OR TYPE OF DOCUMENT TITLE(S) i ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR i ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S)OR ENTITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 ATTACHMENT B TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401 TE OWNER'S DUTIES AND OBLIGATIONS 1. For claims that are alleged to have arisen, directly or indirectly, from any bluff failure or erosion associated with the PROPERTY or the plans, design, construction or maintenance of OWNER' s improvements, OWNER unconditionally waives all present and future claims against CITY and CITY's officers, officials, employees, and agents. This waiver does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 2. It is further understood and agreed that all of OWNER'S rights under §1542 of the Civil Code of, the State of California and any similar law of any state or territory of the United States are hereby expressly waived. 9 1542 reads as follows: 1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 3. OWNER agrees to indemnify and hold CITY and CITY's officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of OWNER or OWNER's agents, employees, subcontractors, officials, officers or representatives. Upon demand, OWNER shall, at its own expense, defend CITY and CITY's officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs. OWNER' s obligation herein includes, but is not limited to, alleged defects in the plans, specifications and design of the improvements; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the OWNER's proposed plans, specifications or design so long as such change is objected to, in writing, by OWNER, and the writing is filed with the City Engineer more than ten days prior to the commencement of work. OWNER's obligation herein includes, but is not limited to, alleged defects in the construction of the improvements; alleged defects in the materials furnished in the construction of the improvements; alleged injury to persons or property; and any alleged inverse condemnation of property as a consequence of the design, construction, or maintenance of the improvements. By approving the improvement plans, specifications and design or by inspecting or approving the improvements, CITY shall not have waived the protections afforded herein to CITY and CITY's officers, officials, employees and agents or diminished the obligation of OWNER who shall remain obligated in the same degree to indemnify and hold CITY and CITY's officers, officials, employees and agents, harmless as provided above. OWNER's obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of the CITY's intentional wrongful acts, CITY's violations of law, or CITY's sole active negligence. 4. OWNER hereby agrees not to develop in any manner the PROPERTY except as authorized by CITY's ordinances and then only in accordance with issued permits. Among other things, but without limitation, this shall prohibit the alteration of land forms, removal of vegetation and the erection of structures of any type, except as permitted or authorized by CITY. 5. This Covenant does not preclude OWNER taking emergency, protective measures as approved by CITY. Recording Requested By: ) - City Engineer ) - When Recorded Mail To: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [James B. McInnis] Assessor' s Parcel Case No. No. 254-291-26 Permit No. 7401 TE W.O. No. 7401 TE WHEREAS, James B. McInnis, ( "PERMITTEE" hereinafter) is the owners of bluff top, ocean front real property which is commonly known as 1070 Neptune ( "DOMINANT ESTATE" hereinafter) and which is described as follows : See Attachment A which is attached hereto and made a part hereof. WHEREAS, the City of Encinitas ("CITY" hereinafter) , a municipal corporation, holds an interest in beach property ("PUBLIC BEACH RECREATIONAL AREA" hereinafter) located in the vicinity of the DOMINANT ESTATE and more fully described as follows : See Attachment B which is attached hereto and made a part hereof. WHEREAS, PERMITTEE desires to construct a seawall at a location immediately seaward of the DOMINANT ESTATE ("PROJECT SITE" hereinafter) and must cross and otherwise use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall on the PROJECT SITE. WHEREAS, PERMITTEE desires an entitlement to use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall; NOW THEREFORE, it is agreed as follows : A. CITY hereby grants to PERMITTEE an encroachment permit in respect to the PUBLIC BEACH RECREATIONAL AREA in accordance with the following: Page 1 See Attachment C which is attached hereto and made a part hereof. B. PERMITTEE covenants and agrees to exercise the entitlements herein conveyed in accordance with the following: See Attachment C which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties . D. PERMITTEE agrees that PERMITTEE ' s duties and obligations under this Covenant are a lien upon the DOMINANT ESTATE. Upon notice and opportunity to respond, CITY may add to the property tax bill of the DOMINANT ESTATE any past due financial obligation owing to CITY by way of this Covenant . E. By accepting the benefits of this Covenant, PERMITTEE acknowledges that PERMITTEE has no title to the PUBLIC BEACH RECREATIONAL AREA and waives all right to that title . F. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys ' fees, from the other party. G. Failure of PERMITTEE to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant . H. PERMITTEE recognizes and understands that this Covenant may create a possessory interest subject to property taxation and that the PERMITTEE may be subject to the payment of property taxes levied on such interest . I . As conditions precedent to PERMITTEE ' s right to go upon the PUBLIC BEACH RECREATIONAL AREA: 1 . This Covenant must first be signed by the PERMITTEE and notarized; and then executed by the CITY and recorded with the County Recorder of the County of San Diego. Any recording fee shall be paid by PERMITTEE; 2 . PERMITTEE must fully satisfy each and every condition precedent to the exercise of PERMITTEE ' s entitlement to go upon the PUBLIC BEACH RECREATIONAL AREA; and 3 . PERMITTEE must first comply with the State Coastal Act Page 2 by either obtaining the approval of the State Coastal Commission, obtaining a waiver thereof, or qualifying for an exemption therefrom, as needed to construct the seawall on public property and traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall . J. This Covenant does not preclude PERMITTEE from taking emergency, protective measures as approved by CITY. K. PERMITTEE agrees to provide written disclosures, and require written consent from, any and all future owners, partners, successors, heirs, personal representatives, transferees and assigns of PERMITTEE ' s interest in the PROPERTY to the effect that this Covenant is acceptable . Provided, however, if such consent is not rendered, it shall in no way affect the enforceability of this Covenant against such party. The consent shall expressly state that the party has received a copy of this Covenant and shall abide by the terms hereof . L. Upon PERMITTEE ' s transfer of the PROPERTY to a successor in interest, PERMITTEE may apply to the CITY for a release of PERMITTEE ' s personal obligations set forth in this Covenant . The CITY shall execute the requested release if it is demonstrated that the successor in interest has fully assumed the obligations herein. M. As delegated by the State Lands Commission, the City hereby conveys State Lands Commission permission to the PERMITTEE to traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall and to construct the seawall on public property. ACCEPTED AND AGREED: PERMITTEE Dated z- 2? - 0'2- -IJ DES NlG 1 Nn�r s Dated (Notarization of PERMITTEE signature is attached. ) I certify on behalf of the City Council of the City of Encinitas, pursuant to the authority conferred by said City Council, that the City is authorized to execute this Covenant . Dated By Leroy Bodas, P.E . Director of Engineering Services (Notarization not required) Page 3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 I State of County of - On 14,e Z before me, DOE NAME,TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC" personally appeared P /J NAME(S)OF SIGNER(S) El personally known Ptome - OR - proved to me on the basis of satisfactory evidence to be the persons) whose name(.&) is/ens- subscribed to the within instrument and ac- knowledged to me that he/sba/they-executed the same in his/hey-/th2iT- authorized capacity(Lesj, and that by his/h-e-F/th-efir CORNWA A. E111SOR signature(*) on the instrument the person(s}, Commissw#1225 Z or the entity upon behalf of which the "Otay Pubk— erson c acted, executed the instrument. sore DkW car P (-s) Poly Ca=.E.grs Doc 27,2C1(}4 WITNE S m hand and official seal. SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent ' fraudulent reattachment of this form. ti CAPACITY CLAIMED BY SIGNER DESCRIPTION ATTACHED DOCUMENT 1 ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED /Xi� El GENERAL ❑ ATTORNEY-IN-FACT / NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR / ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRESENTING- SIGNER OF PERSON SIGNER(S)OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 ATTACHMENT A TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [James B. McInnis] PROPERTY DESCRIPTION: DOMINANT ESTATE PROPERTY DESCRIPTION Lot 11 and 12 in Block 12 of South Coast Park No. 2 in the County of San Diego, State of California, according to Map thereof No. 1859, filed in the office of the county recorder of San Diego County, September 21, 1925. Also all that portion of Block "D", South Coast Park No. 2, in the County of San Diego, State of California, according to Map thereof No. 1859, filed in the office of the county recorder of San Diego County, September 21, 1925, described as follows: Beginning at the Northwesterly corner of Lot 12, Block 12 of said South Coast Park No. 2, thence Westerly along the Westerly prolongation of the Northerly line of said Lot 12, Block 12 to its intersection with the Easterly line of that tract of land conveyed to the County of San Diego by deed recorded February 11, 1930, in Book 1731, Page 258 of deeds; thence Southerly along said Easterly line to its intersection with the Westerly prolongation of the Southerly line of Lot 11, Block 12, thence Easterly along said Westerly prolongation to the Southeasterly corner of Lot 11, Block 12; thence Northerly along the Westerly along the Westerly lines of said Lots 11 and 12, Block 12 to the point of beginning. THIS TRANSFER IS MADE TO A REVOCABLE INTER VIVOS TRUST WHICH IS EXEMPT FROM RE-APPRAISAL PURSUANT TO AB 1488 CHAPTER 2 SECTION 62 (a). Page 4 ATTACHMENT B TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [James B. McInnis] LOCATION: PUBLIC BEACH RECREATIONAL AREA 1' 50 I —I W� Z W j I I Z I I I C n o w w c Z J I I C ox z o C �z'a IUQ� Z U Z �7� I Zz X , d tt• L Q I \j C G Z G v I I I I L Q UUU Li ? .I I II I l i I I X� � '• r Imo_-i I d� X � � � I °x I ❑ am _ X �� I I I l I I I I I — ry e5 I So 0 —_-- rf .9.09 O _ N '— SD 25 ATTACHMENT C TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [James B. McInnis] DESCRIPTION OF ENCROACHMENT PERMIT AND PERMITTEE' s DUTIES AND OBLIGATIONS 1 . 0 LOCATION OF ENCROACHMENT AREA The location of the beach access encroachment area is depicted on the map which is contained in Attachment B to this Covenant . 2 . 0 PURPOSE OF ENCROACHMENT: The purpose of the beach access encroachment permit is to entitle PERMITTEE to use the PUBLIC BEACH RECREATIONAL AREA as required for the construction of the seawall at the PROJECT SITE. 3 . 0 USE OF PUBLIC BEACH RECREATIONAL AREA 3 . 1 PERMITTEE shall submit to the City Engineer a written proposal setting forth the day [s] , hour [s] and safety conditions in accordance with which PERMITTEE proposes to use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 2 The CITY ' s Engineer shall expeditiously issue written direction setting forth the day [s] , hour [s] and safety conditions reasonably necessary to protect the public from PERMITTEE ' s use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 3 PERMITTEE agrees not to go upon or use the PUBLIC BEACH RECREATIONAL AREA for any purpose involving the construction of the seawall at the PROJECT SITE on any day or at any hour, except in complete conformance with the terms and conditions of this Covenant which includes the written directions signed by the CITY ' s Engineer. 4 . 0 TERM OF ENCROACHMENT PERMIT This COVENANT shall be effective upon its execution by the CITY and shall remain in effect until canceled by the CITY. Page 6 5 . 0 OTHER PROVISIONS In consideration of CITY' s execution of this Covenant : 5 . 1 PERMITTEE waives the right to object to the formation of any geologic hazard abatement district, assessment district or maintenance district which includes within its boundaries the DOMINANT ESTATE and which concerns sand replenishment or the stabilization of the DOMINANT ESTATE property. 5 . 2 PERMITTEE agrees that if and when the CITY or a special district determines that it is necessary for the DOMINANT ESTATE to participate in a project which addresses the stabilization of the DOMINANT ESTATE property, the PERMITTEE shall either construct the project or pay PERMITTEE' s fair share of the cost to construct such project . 5 . 3 PERMITTEE agrees not to develop in any manner the DOMINANT ESTATE except as authorized by CITY ' s ordinances and then only in accordance with issued permits . Among other things, but without limitation, this shall prohibit the alteration of land forms and the erection of structures of any type, except as permitted or authorized by CITY. 6. 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : WAIVERS 6. 1 ASSUMPTION ON RISKS BY PERMITTEE. PERMITTEE acknowledges and assumes the risk that : a . the design, construction, maintenance, or functioning of the seawall may not result in the stabilization of the DOMINANT ESTATE and may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or other property; b. The use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or property in the vicinity; and C . Aspects of the seawall project may be judicially challenged by third parties . 6 . 2 WAIVER OF CLAIMS AGAINST CITY . For claims that are alleged to have arisen, directly or indirectly, from the plans, design, Page 7 construction, maintenance, functioning or failure of the seawall or from the use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, PERMITTEE unconditionally waives all present and future claims against CITY and CITY' s officers, officials, employees, and agents . 6 .3 PERMITTEE ' s waiver herein includes, but is not limited to, claims concerning PERMITTEE ' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall ; alleged injury to persons or property allegedly caused by, or in any way related to, the seawall or PERMITTEE' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad waiver set forth in Section 6 . 2 . 6 .4 PERMITTEE agrees that for claims that are alleged to have arisen, directly or indirectly, from the CITY' s efforts to assist PERMITTEE in constructing a seawall or using the PUBLIC BEACH RECREATION AREA, PERMITTEE unconditionally waives all present and future claims against CITY and CITY' s officers, officials, employees, and agents . 6 . 5 PERMITTEE ' s waiver set forth in Sections 6 . 2 , 6 . 3 and 6 .4 does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 6 .6 It is further understood and agreed that all of PERMITTEE ' s rights under § 1542 of the Civil Code of the State of California and any similar law of any state or territory of the United States are hereby expressly waived with respect to claims against CITY and CITY' s officers, officials, employees, and agents relating to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Section 1542 reads as follows : 1542 . Certain claims not affected by general release . A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 7 . 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : INDEMNIFICATION AND HOLD HARMLESS 7 . 1 PERMITTEE TO INDEMNIFY AND HOLD CITY HARMLESS. PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, Page 8 employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of PERMITTEE or PERMITTEE ' s agents, employees, subcontractors, officials, officers or representatives in respect to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Upon demand, PERMITTEE shall, at its own expense, defend CITY and CITY' s officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs . 7 .2 PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, the CITY' s efforts or actions to assist PERMITTEE in the seawall construction. 7 .3 PERMITTEE ' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning alleged defects in the plans, specifications and design of the seawall; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the PERMITTEE ' s proposed plans, specifications or design so long as such change is objected to, in writing, by PERMITTEE, and the writing is filed with the City Engineer more than ten days prior to the commencement of work. 7 .4 PERMITTEE ' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning PERMITTEE' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall ; alleged injury to persons or property allegedly caused by, or in any way related to the seawall or PERMITTEE ' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad indemnification and hold harmless provisions set forth in Sections 7 . 1, 7 . 2 and 7 . 3 . 7 . 5 By approving the improvement plans, specifications and design or by inspecting or approving the seawall or the use of the PUBLIC BEACH RECREATION AREA, CITY shall not have waived the protection afforded herein to CITY and CITY' s officers, officials, employees and agents or diminished the obligation of PERMITTEE who shall Page 9 remain obligated in the same degree to indemnify and hold CITY and CITY' s officers, officials, employees and agents, harmless as specifically provided above . 7 . 6 PERMITTEE ' s obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of CITY' s intentional wrongful acts, CITY' s violations of law, or CITY' s sole active negligence. 7 . 7 The CITY herein expressly does not waive any defenses, immunities or other protections from liability afforded to the CITY by the laws of the United States or the State of California, to include without limitation, the California Government Code . Page 10 Recording Requested By: ) City of Encinitas ) When Recorded Mail To: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE Assessor's Parcel No. 254-291-27-01 Project No.: 7401 TE A. Anita Blanchard, ("OWNER" hereinafter) is the owner of real property which is commonly known as 1066 Neptune Avenue ("PROPERTY" hereinafter) and which is described as follows: See Attachment A which is attached hereto and made a part hereof. B. In consideration of a future Major Use Permit by the City of Encinitas ("CITY" hereinafter), OWNER hereby covenants and agrees for the benefit of CITY, to do the following: See Attachment B which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties. D. OWNER agrees that OWNER's duties and obligations under this Covenant are a lien upon the PROPERTY. Upon notice and opportunity to respond, CITY may add to the property tax bill of the PROPERTY any past due financial obligation owing to CITY by way of this Covenant. E. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys' fees, from the other party. F. Failure of OWNER to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant. ACCEPTED AND AGREED: OWNER 4 Dated 14A),7-4 L,4A) -#AV Dated (Notarization of OWNER signature is attached.) CITY OF ENCINITAS Dated zS/- 0- by (Notarization not required) Leroy Bodas Director of Engineering Services CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of County of . Z�4 On /�41 - " %� before me, DATE AMU TITLE OF OFFICER-E.G.."JANE DOE,NOTARY PUBLIC" personally appeared ' V/Proved OF SIGNER(S) El lYd personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(al whose name.(s-) is/a+e subscribed to the within instrument and ac- knowledged to me that be/she/they executed the same in his/her/tleef-r authorized capacity(h�_ , and that by "/her/t-hre-ir signature(,&) on the instrument the person(s), CORNELIAA ELUSOR or the entity upon behalf of which the Comrnhm1or1#12&Wj6 Nota,ryNbk—CclltMIC persons' acted, executed the instrument. km Diego County ,Wy CAmn.rxpkw cEr 27,2M4 WITNES my hand and official seal. 7V ti t i� SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL / ❑ CORPORATE OFFICER lTLE OR TYPE OF DOCUMENT TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRES NG: NAME OF PERSON(S)OR ITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION•8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 ATTACHMENT A TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401TE PROPERTY DESCRIPTION Parcel 1: An undivided '/2 interest in and to Parcel 1 of Parcel Map No. 13318, in the City of Encinitas, County of San Diego, State of California, filed in the County Recorder of San Diego County, June 4, 1984, as File No. 84-207776 and more particularly described in the attachment marked Exhibit "A" and made a part hereof. ATTACHMENT B TO COVENANT REGARDING REAL PROPERTY: HOLD CITY HARMLESS FOR BLUFF FAILURE PROJECT NO. 7401TE OWNER'S DUTIES AND OBLIGATIONS 1. For claims that are alleged to have arisen, directly or indirectly, from any bluff failure or erosion associated with the PROPERTY or the plans, design, construction or maintenance of OWNER' s improvements, OWNER unconditionally waives all present and future claims against CITY and CITY's officers, officials, employees, and agents. This waiver does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 2. It is further understood and agreed that all of OWNER'S rights under §1542 of the Civil Code of, the State of California and any similar law of any state or territory of the United States are hereby expressly waived. 9 1542 reads as follows: 1542. Certain claims not affected by general release. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 3. OWNER agrees to indemnify and hold CITY and CITY's officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of OWNER or OWNER's agents, employees, subcontractors, officials, officers or representatives. Upon demand, OWNER shall, at its own expense, defend CITY and CITY's officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs. OWNER' s obligation herein includes, but is not limited to, alleged defects in the plans, specifications and design of the improvements; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the OWNER's proposed plans, specifications or design so long as such change is objected to, in writing, by OWNER, and the writing is filed with the City Engineer more than ten days prior to the.commencement of work. OWNER's obligation herein includes, but is not limited to, alleged defects in the construction of the improvements; alleged defects in the materials furnished in the construction of the improvements; alleged injury to persons or property; and any alleged inverse condemnation of property as a consequence of the design, construction, or maintenance of the improvements. By approving the improvement plans, specifications and design or by inspecting or approving the improvements, CITY shall not have waived the protections afforded herein to CITY and CITY's officers, officials, employees and agents or diminished the obligation of OWNER who shall remain obligated in the same degree to indemnify and hold CITY and CITY's officers, officials, employees and agents, harmless as provided above. OWNER,s obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of the CITY's intentional wrongful acts, CITY's violations of law, or CITY's sole active negligence. 4. OWNER hereby agrees not to develop in any manner the PROPERTY except as authorized by CITY 's ordinances and then only in accordance with issued permits. Among other things, but without limitation, this shall prohibit the alteration of land forms, removal of vegetation and the erection of structures of any type, except as permitted or authorization by CITY. 5. This Covenant does not Preclude OWNER taking emergency, protective measures as approved by CITY. Recording Requested By: ) City Engineer ) When Recorded Mail To: ) City Clerk ) City of Encinitas ) 505 South Vulcan Avenue ) Encinitas, CA 92024 ) SPACE ABOVE FOR RECORDER' S USE COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [Anita May Blanchard] Assessor ' s Parcel Case No. No. 254-291-27-01 Permit No. 7401TE W.O. No. 7401TE WHEREAS, Anita Blanchard ("PERMITTEE" hereinafter) are the owners of bluff top, ocean front real property which is commonly known as 1066 Neptune Avenue ("DOMINANT ESTATE" hereinafter) and which is described as follows : See Attachment A which is attached hereto and made a part hereof. WHEREAS, the City of Encinitas ("CITY" hereinafter) , a municipal corporation, holds an interest in beach property ( "PUBLIC BEACH RECREATIONAL AREA" hereinafter) located in the vicinity of the DOMINANT ESTATE and more fully described as follows : See Attachment B which is attached hereto and made a part hereof. WHEREAS, PERMITTEE desires to construct a seawall at a location immediately seaward of the DOMINANT ESTATE ("PROJECT SITE" hereinafter) and must cross and otherwise use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall on the PROJECT SITE. WHEREAS, PERMITTEE desires an entitlement to use the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall; NOW THEREFORE, it is agreed as follows: A. CITY hereby grants to PERMITTEE an encroachment permit in respect to the PUBLIC BEACH RECREATIONAL AREA in accordance with the following: Paae 1 See Attachment C which is attached hereto and made a part hereof. B. PERMITTEE covenants and agrees to exercise the entitlements herein conveyed in accordance with the following: See Attachment C which is attached hereto and made a part hereof. C. This Covenant shall run with the land and be binding upon and inure to the benefit of the future owners, encumbrancers, successors, heirs, personal representatives, transferees and assigns of the respective parties . D. PERMITTEE agrees that PERMITTEE' s duties and obligations under this Covenant are a lien upon the DOMINANT ESTATE. Upon notice and opportunity to respond, CITY may add to the property tax bill of the DOMINANT ESTATE any past due financial obligation owing to CITY by way of this Covenant . E. By accepting the benefits of this Covenant, PERMITTEE acknowledges that PERMITTEE has no title to the PUBLIC BEACH RECREATIONAL AREA and waives all right to that title. F. If either party is required to incur costs to enforce the provisions of this Covenant, the prevailing party shall be entitled to full reimbursement of all costs, including reasonable attorneys ' fees, from the other party. G . Failure of PERMITTEE to comply with the terms of this Covenant shall constitute consent to the filing by CITY of a Notice of Violation of Covenant . H. PERMITTEE recognizes and understands that this Covenant may create a possessory interest subject to property taxation and that the PERMITTEE may be subject to the payment of property taxes levied on such interest . I . As conditions precedent to PERMITTEE' s right to go upon the PUBLIC BEACH RECREATIONAL AREA: 1 . This Covenant must first be signed by the PERMITTEE and notarized; and then executed by the CITY and recorded with the County Recorder of the County of San Diego. Any recording fee shall be paid by PERMITTEE; 2 . PERMITTEE must fully satisfy each and every condition precedent to the exercise of PERMITTEE' s entitlement to go upon the PUBLIC BEACH RECREATIONAL AREA; and 3 . PERMITTEE must first comply with the State Coastal Act Page 2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907 State of L County of �" �/ On , (,rig[1� /� before me, DAJrE NAM TITLE OF OFFICER-E.G.,"JANE DOE,NOTARY PUBLIC- personally ppeared Y NAME(S)OF SIGNER(S) ❑ personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person* whose name(-e-} is/-ere subscribed to the within instrument and ac- knowledged to me that he/she/th-ey executed the same in ha&/her/their authorized capacity(.ies), and that by Its/her/t -f&r cORriiMA A. EWSOR signature(&) on the instrument the personal, Comff sdM#12&WA WtayMbOC—CallMIO or the entity upon behalf of which the San°k)g°county erson/� acted, executed the instrument. My CaaM.E pees Dec 7l,2W person( WITNES y and and official seal. 416 1 SIGNATURE OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) f a ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT i' NUMBER OF PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER: DATE OF DOCUMENT SIGNER IS REPRES ING: NAME OF PERSON(S),OR TY(IES) SIGNER(S)OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184 by either obtaining the approval of the State Coastal Commission, obtaining a waiver thereof, or qualifying for an exemption therefrom, as needed to construct the seawall on public property and traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall . J. This Covenant does not preclude PERMITTEE from taking emergency, protective measures as approved by CITY. K. PERMITTEE agrees to provide written disclosures, and require written consent from, any and all future owners, partners, successors, heirs, personal representatives, transferees and assigns of PERMITTEE' s interest in the PROPERTY to the effect that this Covenant is acceptable. Provided, however, if such consent is not rendered, it shall in no way affect the enforceability of this Covenant against such party. The consent shall expressly state that the party has received a copy of this Covenant and shall abide by the terms hereof. L. Upon PERMITTEE' s transfer of the PROPERTY to a successor in interest, PERMITTEE may apply to the CITY for a release of PERMITTEE ' s personal obligations set forth in this Covenant . The CITY shall execute the requested release if it is demonstrated that the successor in interest has fully assumed the obligations herein. M. As delegated by the State Lands Commission, the City hereby conveys State Lands Commission permission to the PERMITTEE to traverse the PUBLIC BEACH RECREATIONAL AREA to construct the seawall and to construct the seawall on public property. ACCEPTED AND AGREED: /.-PERMI TTE Dated AJ,T44 4Aja444D Dated (Notarization of PERMITTEE signature is attached. ) I certify on behalf of the City Council of the City of Encinitas, pursuant to the authority conferred by said City Council, that the City is authorized to execute this Covenant . Dated ��25/02 BY Leroy B das, P. E. Director of Engineering Services (Notarization not required) Page 3 ATTACHMENT A TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [Anita May Blanchard] PROPERTY DESCRIPTION: DOMINANT ESTATE Parcel 1 : An undivided '-z interest in and to Parcel 1 of Parcel Map No. 13318, in the City of Encinitas, County of San Diego, State of California, filed in the County Recorder of San Diego County, June 4 , 1984 , as File No. 84-207776 and more particularly described in the attachment marked Exhibit "A" and made a part hereof. Page 4 ATTACHMENT B TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [Anita May Blanchard] LOCATION: PUBLIC BEACH RECREATIONAL AREA 1 � w � - .GSM -� -S0.•.3' r-/"-"-�yl I 1 1 Q z I i 1 zw _ W ---11 I < I < I C W d N n W W w J l 1 O Z O Z C O � C� X ZQ �C L Q I cn� U Q d C w Z=Z 14— U < \ 0—D Oj Z;J c I I T CQ w�a 7Qi`O mOO I ! CD9— I —C Z z z O r Z O EY ©�l Cerc II I O � m � .c I / - 1111 I I FI FII I I` Ali, rl I - m 1 y I I I I m � � as I•` I 1 X9.09' 50 25 ATTACHMENT C TO COVENANT REGARDING GRANT OF BEACH ACCESS ENCROACHMENT PERMIT FOR ACCESS ACROSS PUBLIC BEACH TO SEAWALL CONSTRUCTION SITE [Anita May Blanchard] DESCRIPTION OF ENCROACHMENT PERMIT AND PERMITTEE' s DUTIES AND OBLIGATIONS 1 . 0 LOCATION OF ENCROACHMENT AREA The location of the beach access encroachment area is depicted on the map which is contained in Attachment B to this Covenant . 2 . 0 PURPOSE OF ENCROACHMENT: The purpose of the beach access encroachment permit is to entitle PERMITTEE to use the PUBLIC BEACH RECREATIONAL AREA as required for the construction of the seawall at the PROJECT SITE. 3 . 0 USE OF PUBLIC BEACH RECREATIONAL AREA 3 . 1 PERMITTEE shall submit to the City Engineer a written proposal setting forth the day [s] , hour [s] and safety conditions in accordance with which PERMITTEE proposes to use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 2 The CITY' s Engineer shall expeditiously issue written direction setting forth the day [s] , hour [s] and safety conditions reasonably necessary to protect the public from PERMITTEE' s use of the PUBLIC BEACH RECREATIONAL AREA during the construction of the seawall . 3 . 3 PERMITTEE agrees not to go upon or use the PUBLIC BEACH RECREATIONAL AREA for any purpose involving the construction of the seawall at the PROJECT SITE on any day or at any hour, except in complete conformance with the terms and conditions of this Covenant which includes the written directions signed by the CITY ' s Engineer. 4 . 0 TERM OF ENCROACHMENT PERMIT This COVENANT shall be effective upon its execution by the CITY and shall remain in effect until canceled by the CITY. Page 6 5 . 0 OTHER PROVISIONS In consideration of CITY' s execution of this Covenant : 5 . 1 PERMITTEE waives the right to object to the formation of any geologic hazard abatement district, assessment district or maintenance district which includes within its boundaries the DOMINANT ESTATE and which concerns sand replenishment or the stabilization of the DOMINANT ESTATE property. 5 . 2 PERMITTEE agrees that if and when the CITY or a special district determines that it is necessary for the DOMINANT ESTATE to participate in a project which addresses the stabilization of the DOMINANT ESTATE property, the PERMITTEE shall either construct the project or pay PERMITTEE ' s fair share of the cost to construct such project . 5 . 3 PERMITTEE agrees not to develop in any manner the DOMINANT ESTATE except as authorized by CITY' s ordinances and then only in accordance with issued permits . Among other things, but without limitation, this shall prohibit the alteration of land forms and the erection of structures of any type, except as permitted or authorized by CITY. 6 . 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : WAIVERS 6. 1 ASSUMPTION ON RISKS BY PERMITTEE. PERMITTEE acknowledges and assumes the risk that : a . the design, construction, maintenance, or functioning of the seawall may not result in the stabilization of the DOMINANT ESTATE and may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or other property; b. The use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, may result in the destabilization of the DOMINANT ESTATE and may otherwise cause damage to the DOMINANT ESTATE, the public beach, persons, adjacent public or private property, or property in the vicinity; and C. Aspects of the seawall project may be judicially challenged by third parties . 6 . 2 WAIVER OF CLAIMS AGAINST CITY. For claims that are alleged to have arisen, directly or indirectly, from the plans, design, Page 7 construction, maintenance, functioning or failure of the seawall or from the use of the PUBLIC BEACH RECREATION AREA as set forth in Part 3 . 0 herein above, PERMITTEE unconditionally waives all present and future claims against CITY and CITY ' s officers, officials, employees, and agents . 6. 3 PERMITTEE' s waiver herein includes, but is not limited to, claims concerning PERMITTEE' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall; alleged injury to persons or property allegedly caused by, or in any way related to, the seawall or PERMITTEE' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad waiver set forth in Section 6. 2 . 6. 4 PERMITTEE agrees that for claims that are alleged to have arisen, directly or indirectly, from the CITY' s efforts to assist PERMITTEE in constructing a seawall or using the PUBLIC BEACH RECREATION AREA, PERMITTEE unconditionally waives all present and future claims against CITY and CITY ' s officers, officials, employees, and agents . 6. 5 PERMITTEE' s waiver set forth in Sections 6. 2, 6. 3 and 6. 4 does not apply to claims that are alleged to have arisen out of the sole, active negligence or deliberate, wrongful act of CITY. 6. 6 It is further understood and agreed that all of PERMITTEE' s rights under § 1542 of the Civil Code of the State of California and any similar law of any state or territory of the United States are hereby expressly waived with respect to claims against CITY and CITY ' s officers, officials, employees, and agents relating to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Section 1542 reads as follows : 1542 . Certain claims not affected by general release . A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. 7 . 0 ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS AND POSSIBLE CONSEQUENCES : INDEMNIFICATION AND HOLD HARMLESS 7 . 1 PERMITTEE TO INDEMNIFY AND HOLD CITY HARMLESS . PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, Page 8 employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, any acts or omissions of PERMITTEE or PERMITTEE' s agents, employees, subcontractors, officials, officers or representatives in respect to the seawall or the use of the PUBLIC BEACH RECREATION AREA. Upon demand, PERMITTEE shall, at its own expense, defend CITY and CITY' s officers, officials, employees and agents, from and against any and all such liabilities, claims, demands, causes of action, losses, damages and costs . 7 . 2 PERMITTEE agrees to indemnify and hold CITY and CITY' s officers, officials, employees and agents harmless from, and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof including attorneys ' fees, arising out of, or in any manner connected directly or indirectly with, the CITY' s efforts or actions to assist PERMITTEE in the seawall construction. 7 . 3 PERMITTEE ' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning alleged defects in the plans, specifications and design of the seawall; but does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of a defect in the plans, specifications or design that is a result of a change required by CITY to the PERMITTEE ' s proposed plans, specifications or design so long as such change is objected to, in writing, by PERMITTEE, and the writing is filed with the City Engineer more than ten days prior to the commencement of work. 7 . 4 PERMITTEE' s indemnification and hold harmless obligation herein includes, but is not limited to, claims concerning PERMITTEE' s use of the PUBLIC BEACH RECREATION AREA; alleged defects in the plan, design, construction, maintenance, or functioning of the seawall; alleged defects in the materials furnished in the construction of the seawall; alleged injury to persons or property allegedly caused by, or in any way related to the seawall or PERMITTEE' s use of the PUBLIC RECREATION AREA; or any alleged inverse condemnation of property as a consequence of the design, construction, maintenance or functioning of the seawall . This Section is expressly not intended to act as a limitation to the broad indemnification and hold harmless provisions set forth in Sections 7 . 1, 7 . 2 and 7 . 3 . 7 . 5 By approving the improvement plans, specifications and design or by inspecting or approving the seawall or the use of the PUBLIC BEACH RECREATION AREA, CITY shall not have waived the protection afforded herein to CITY and CITY ' s officers, officials, employees and agents or diminished the obligation of PERMITTEE who shall Page 9 remain obligated in the same degree to indemnify and hold CITY and CITY ' s officers, officials, employees and agents, harmless as specifically provided above. 7 . 6 PERMITTEE ' s obligation herein does not extend to liabilities, claims, demands, causes of action, losses, damages or costs that arise out of CITY' s intentional wrongful acts, CITY' s violations of law, or CITY' s sole active negligence. 7 . 7 The CITY herein expressly does not waive any defenses, immunities or other protections from liability afforded to the CITY by the laws of the United States or the State of California, to include without limitation, the California Government Code . 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