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2019-23339 DOC# 2019-0023339 WHEN RECORDED MAIL O� G v�cQ� IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII r Jan 22, 2019 04:42 PM City Clerk OFFICIAL RECORDS City of Encinitas Ernest J. Dronenburg, Jr., 505 South Vulcan Ave. SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) Encinitas, CA 92024 PCOR: N/A L PAGES: 11 OFFICAL STATE BUSINESS-EXEMPT FROM RECORDING FEES PURSUANT TO GOVT.CODE SECTION 27383 AND DOCUMENTARY TRANSFER TAX PURSUANTTO REVENUE AND TAXATION CODE SECTION 11922 SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT AND GRANT OF NON-EXCLUSIVE EASEMENT Agency:Department of Parks and Recreation PUBLIC STORM DRAIN PIPELINE Project:South Carlsbad State Beach Encinitas Beach Resort-011163 TT= SO File:652-2019-001 Assessor Parcel No.:216-041-25-00,San Diego County For valuable consideration, this AGREEMENT AND GRANT OF EASEMENT is made and entered into by and between the STATE OF CALIFORNIA, acting by and through the DEPARTMENT OF PARKS AND RECREATION, hereinafter called State, and City of Encinitas, a Municipal Corporation, hereinafter called Grantee. State, pursuant to the provisions of Public Resources Code Section 5012 hereby grants unto Grantee, its successors and assigns forever, beginning on the date of recordation of this instrument, an easement(the Easement)to locate, relocate, construct, reconstruct, alter, use, maintain, inspect, repair and remove an underground pipeline for storm water drainage, together with appurtenant manholes and other facilities reasonably deemed necessary therefor by Grantee, over, on, under and across that certain real property situated in the City of Carlsbad, County of San Diego, State of California, as described in the attached Exhibit"A"and depicted on the attached Exhibit"B" (the Premises), consisting of one page and two pages respectively, and by this reference made a part hereof. THE PROVISIONS ON THE FOLLOWING 5 PAGES HEREOF CO STITU A PART OF THIS AGREEMENT a Dated �Kc -;� 16% "T �/� Cdwe�rali 5 . ;v►�rw e♦ Do.�-G GRANTOR: I hereby certify at all conditions for exemption have STATE OF CALIFORNIA been complied with and this document is exempt Department of Parks and Recreation from the Department of General Services approval. By By Name: Brian Dewey Name: Brian Dewey Title: Assistant Deputy Direc r Title: Assistant Deputy Dire or Acquisition and Development Acquisition and Development 652-2019-001 GRANTEE: This is to certify that the interest in real property conveyed by deed or grant to the City of Encinitas, a Municipal Corporation, is hereby accepted by the undersigned agent on behalf of the City Council of the City of Encinitas pursuant to authority conferred by Resolution 94-107 of the City Council of the City of Encinitas adopted on November 9, 1994-and the grantee consents to recordation thereof by its duly authorized officer. Edward J. Wfminer Datei City Engineer Development Services Department City of Encinitas 652-2019-001 ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 50-\A -D i e!a0 SS. On 1 — 16 — Zc 1 , before me, P OA� A • S i m 0 n ,Notary Public, DATE 1 personally appeared ��W a rj ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s is/ re subscribed the within instrument and acknedged to me tha e he/they executed the s is er/their authorize capacity(ies), and that b)(h' /her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the «•� ANGELA A. SIMON� person(s) acted, executed the instrument. �* comm#2182396 . N e NOT SAND EGO CUNTYRNu A I certify under PENALTY OF PERJURY under the MY COMM.EV_MAR.2,2021 laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. /L OL"_' �- PLACE NOTARY SEAL IN ABOVE SPACE NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is optional. However,it may prove valuable and could prevent fraudulent attachment of this form to an unauthorized document. CAPACITY CLAIMED BY SIGNER(PRINCIPAL) DESCRIPTION OFATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT ❑ PARTNER(S) TITLE(s) ❑ ATTORNEY-IN-FACT NUMBER OF PAGES ❑ GUARDIAN/CONSERVATOR ❑ SUBSCRIBING WITNESS ❑ DATE OF DOCUMENT OTHER: OTHER SIGNER(PRINCIPAL)IS REPRESENTING: RIGHT NAME OF PERSON(S)OR ENTITY(IES) THUMBPRINT D OF E s SIGNER o a 0 APA01/2015 NOTARY BONDS,SUPPLIES AND FORMS AT HTTP://WWW.VALLEY-SIERRA.COM ©2005-2017 VALLEY-SIERRA INSURANCE PROVIDED, this Grant of Easement is subject to the following terms and conditions: 1. This Easement is subject to existing contracts, leases, licenses, easements, encumbrances, and claims which may affect said Premises and the use of the word "Grant' herein shall not be construed as a covenant against the existence of any thereof. 2. Grantee waives all claims against State, its officers, agents, and/or employees for any and all loss, injury, death or damage caused by, arising out of, or in any way connected with the Premises or Grantee's implementation or exercise of the Easement rights granted herein. Grantee shall protect, save, hold harmless, indemnify, and defend State, its officers, agents, and/or employees, from and against any and all loss, damage, claims, demands, liability, and costs, including, without limitation, all legal fees, expert witness fees, consultant fees, and expenses related to the response to, settlement, and/or defense of any claims, legal actions, or liability, which may be suffered or incurred by State, its officers, agents and/or employees, caused by, arising out of, or in any way connected with this Agreement and Grant of Easement, Grantee's use or occupation of the Premises, or implementation or exercise by Grantee of the Easement rights hereby granted, except those arising out of the sole active negligence or willful misconduct of State. Further, Grantee shall cause such indemnification and waiver of claims in favor of the State to be inserted in each contract Grantee executes in connection with Grantee's exercise of the rights granted herein. The obligations contained in this section shall survive termination of the Easement. 3. State reserves the right to use said Premises in any manner, provided such use does not unreasonably interfere with Grantee's Easement rights hereunder. 4. This Easement shall automatically terminate in the event Grantee fails for a continuous period of 18 months to use this Easement for the purposes herein granted. Within 180 days after receiving written , notice of such termination from State, Grantee shall deliver to State a fully executed quitclaim deed to all of Grantee's right, title and interest hereunder, in a form approved by State, and shall, without cost to State, remove all personal property and improvements placed by or for Grantee upon said Premises and restore the Premises as nearly as possible to the same condition they were in prior to the execution of this Easement, unless otherwise agreed to in writing by State. In the event Grantee should fail to remove the property and improvements and restore the Premises within 180 days, State may, at its sole discretion, do so at the risk of Grantee, and all costs of such removal and restoration shall be paid to State by Grantee within 30 days of receiving written demand by State. The obligations to quitclaim this Easement, remove all personal property and improvements, restore the Premises, and reimburse State for any costs incurred by State for removal and/or restoration, shall survive termination of this Easement. 5. State may terminate this Easement in the event of a breach or default of the terms of this Agreement and:Grant of Easement by Grantee if such breach or default continues for more than 180 days after State has given Grantee written notice of such breach or default. However, if the nature of Grantee's breach or default is such that more than 180 days is required for its cure, then Grantee shall not be deemed to be in breach or default if Grantee commences such cure within such 180-day period and diligently proceeds with such cure to completion. A failure of State to enforce any term, covenant, or provision of this Agreement and Grant of Easement against Grantee shall not constitute a waiver of that term, covenant, or condition. A waiver by State of any breach or default by Grantee or any term, covenant or provision of this Agreement and Grant of Easement shall not be deemed a waiver of any other breach or default or any term, covenant or provision in any other instance. Any waiver by State shall not be effective unless in writing and signed by an authorized State representative. 6. Grantee understands that said Easement is within South Carlsbad State Beach, a state park, and Grantee agrees to abide by certain restriction and conditions concerning Grantee's access to and use of said Easement as follows: 652-2019-001 a. Except in the case of emergencies, at least two (2) days prior to any entry upon the Premises for any of the purposes herein set forth, Grantee shall notify State by written or oral notice to the authorities in charge of said state park. b. Grantee shall restrict travel to such roads or routes within said state park as authorities in charge of the park may reasonably designate. C. Use of said roads or routes by Grantee shall be restricted to that use reasonably necessary for access to the Premises for Easement purposes. . d. Grantee shall not consent to the use of any of said roads or routes by members of the public without approval of State. e. Any work or excavation on State property outside of the Premises shall require a Right of Entry Permit from State. f. Except as otherwise provided herein, Grantee shall refrain from interfering with the.public's use and State's operation of the state park and shall comply with all state park regulations. g. Grantee shall keep and maintain the Premises, including all improvements, in good order and repair, and in a clean, safe condition. No disturbance of soil, pesticide application or dumping of refuse shall be permitted in any portion of the state park unless Grantee obtains the prior written approval of State. Grantee shall not commit or suffer to be committed any waste or nuisance on the Premises. Grantee shall at all times exercise due diligence in the protection of the Premises against damage or destruction by fire or other causes. h. Grantee shall not cut or remove any trees or brush except as necessary for Easement purposes and approved in writing by State. Pruning of all trees shall comply with American National Standards Institute A300, Part 1 pruning standards, as may be amended. L State shall not be responsible for losses or damage to Grantee's personal property, equipment or materials. 7: In making any excavation on the Premises, Grantee shall make all excavation activities available to the State archaeologist for observation and monitoring. During excavation, the State archaeological monitor may observe and report to the State on all excavation. State archaeological monitor shall be empowered to stop construction activities in the event the monitor determines that significant cultural .resources are being disturbed. In the event that significant cultural resources are being disturbed, all work within thirty feet(30') of the find shall be immediately halted. Should Grantee or its contractors find any cultural or historical resources, or suspected cultural or historical resources, in the absence of a State archaeologist, Grantee shall halt ail work within thirty feet (30') of the find and immediately notify the State archaeologist or a State park ranger. Cultural resources include, but are not limited to, prehistoric deposits containing bone, flaked stone, or ground stone, historic deposits, and any other historical or archaeological artifacts. Grantee shall not resume work in the area of the find until authorized by the State archaeologist. Should human bone or bones of questionable appearance be disturbed during excavation, Grantee shall immediately notify the District Superintendent of the state park and halt ALL excavation until Health and Safety Code section 7050.5, Public Resources Code sections 5097 et seq. and 5097.9 et seq, and any applicable protocols, guidelines and channels of.communication outlined by the California Native American Heritage Commission, have been complied with and the State archaeologist has authorized work to resume. The Grantee or Grantee's contractor shall provide a work schedule to State so that the State archaeological monitor can arrange to be on site on the necessary days; Grantee agrees to include the State archaeologist in any preconstruction meetings with the prime contractors or subcontractors. The Grantee shall provide the State archaeologist with notice at least two weeks prior to the work start date. 652-2019-001 8. Notices a. All written notices or other communications required or permitted hereunder shall be personally delivered (including by means of professional messenger service) or sent by overnight courier, or sent by registered or certified mail, postage prepaid, return receipt requested, to the addresses set forth below. b. All written notices or other communications shall be deemed received upon the earlier of(1) if personally delivered or sent by overnight courier, the date of delivery to the address of the person to receive such notice, or(2) if mailed as provided above, on the date of receipt or rejection, when received by the other party if received Monday through Friday between 6:00 a.m. and 5:00 p.m. Pacific Time so long as such day is not a state or federal holiday and otherwise on the next day provided that if the next day is Saturday, Sunday, or a state or federal holiday, such notice shall be effective on the following business day. C. Oral notices shall be effective upon receipt. Contact: TO GRANTOR: California Department of Parks and Recreation San Diego Coast District—South Carlsbad State Beach District Superintendant 4477 Pacific Highway San Diego, CA 92110 Telephone: (760) 720-7001 With a copy to: California Department of Parks and Recreation Acquisition and Real Property Services Division One Capitol Mall, Ste. 410 Sacramento, CA 95814 (916) 327-7302 TO GRANTEE: City of Encinitas Development Services Director 505 South Vulcan Ave. Encinitas, CA 92024 (760) 633-2770 9. Grantee shall be solely responsible for obtaining all applicable authorizations necessary to enjoy this Easement and shall comply with all applicable laws, including, but not limited to, all state and federal environmental laws, and all laws and government orders applicable to the use, storage, transportation and disposal of any hazardous substance. The release of non-pesticide petrochemicals on the Premises or state park lands is prohibited. All refueling operations shall have a spill plan signed by a registered engineer and shall use a liner in the secondary container design. Grantee shall immediately notify State in writing in the event of any spill or other incident involving hazardous substance contamination or violation of law, and shall undertake the appropriate remedial actions. 10. Grantee may grant a license or permit with respect to the use or occupancy of said Premises consistent with the uses permitted herein or any operation thereof, without further consent of State to divisions of the Grantee or owner of the real property located at 2100 North Coast Highway 101, 652-2019-001 Encinitas, California, and their successors, assigns, and lenders. Further grants of license or permit by Grantee shall only occur with the written consent of the State. This Easement shall not be assigned, mortgaged, hypothecated or transferred by Grantee, except as described in this Section 10, whether voluntarily or involuntarily by operation of law, except as expressly provided herein or with the express written consent of State. 11. This Agreement and Grant of Easement will be governed and construed by the laws of the State of California. 12. If any term, condition or provision of this Agreement and Grant of Easement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement and Grant of Easement shall not be affected thereby, and shall remain valid and enforceable to the fullest extent permitted by law. 13. If any party brings an action to enforce or interpret the terms of this Agreement and Grant of Easement or to declare rights under this Agreement and Grant of Easement, including any action in bankruptcy court, and together with the appeal of any such action, the prevailing party shall be entitled to its reasonable attorney fees and costs as fixed by the court. 14. Time is of the essence in this Agreement and Grant of Easement and each and all of its terms or conditions in which performance is a factor. 15. The person signing on behalf of Grantee warrants that he/she has authority to accept this Agreement and Grant of Easement on behalf of Grantee and to bind the Grantee to the terms and conditions of this Agreement and Grant of Easement. 652-2019-001 EXHIBIT A PUBLIC STORM DRAIN EASEMENT THAT PORTION OF THE SOUTHWEST QUARTER OF SECTION 33, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: A STRIP OF LAND 20.00 FEET WIDE, LYING 10.00 FEET ON EACH SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: BEGINNING AT MOST NORTHEASTERLY CORNER OF PARCEL 1, OF PARCEL MAP NO. 18587, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, RECORDED NOVEMBER 21, 2000 AS FILE NO. 2000-0635224, THE NORTHERLY LINE OF SAID PARCEL MAP BEING THE BOUNDARY LINE BETWEEN THE CITY OF ENCINITAS AND SOUTH CARLSBAD STATE BEACH, SAID NORTHEASTERLY CORNER BEING ON THE WESTERLY RIGHT OF WAY OF NORTH COAST HIGHWAY 101, A VARIABLE WIDTH PUBLIC ROAD; THENCE LEAVING SAID WESTERLY RIGHT OF WAY, ALONG SAID NORTHERLY BOUNDARY LINE, SOUTH 47 043'25" WEST (RECORD SOUTH 47°42'29" WEST), 17.14 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID NORTHERLY BOUNDARY LINE, NORTH 47°58'51" WEST, 83.62 FEET TO THE TERMINUS OF THE HEREIN DESCRIBED CENTERLINE. THE SIDELINES OF SAID EASEMENT ARE TO BE PROLONGED OR SHORTENED SO AS TO TERMINATE IN THE SOUTH ON SAID NORTHERLY BOUNDARY LINE OF SAID PROPERTY AND IN THE NORTH, PERPENDICULAR TO SAID TERMINUS. CONTAINING 1672.44 SQUARE FEET, MORE OR LESS. THE BASIS OF BEARINGS FOR THIS PLAT, IS THE CALIFORNIA COORDINATE SYSTEM CCS NAD83, ZONE 6, QUOTED BEARINGS HEREON, MAY OR MAY NOT BE IN THE TERMS OF RECORD MAPS. THIS LEGAL DESRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYORS ACT. 19 ��LAND SUR L r EASEMENT AREA SEE DETAIL SHEET 2 acv J� 0@070 C�LQG3d�DLQD 937A 1N A.P.N. 216-041-25-00 �o C� pl1G°3C�CEd fl �� A.P.N. 216-041-26-00 M,/Zp ago. 72D4 0 VER VI E W AREA I THE BASIS OF BEARINGS FOR THIS PLAT, IS THE CALIFORNIA COORDINATE SYSTEM CCS NAD83, ZONE 6, QUOTED BEARINGS HEREON, MAY OR MAY NOT BE IN THE TERMS OF RECORD MAPS LANIX Nr & 76$2 HALE a � I N E E R I N G SHEET 1 OF 2 7910 CONVOY COURT SAN DIEGO, CA 92111 (858) 715-1420 H.E. JOB NO. 18015 PUBLIC STORM DRAIN EASEMENT CITY OF ENCINITAS APPLICANT P EPAR B - PROJECT: A.P.N. 216-041-25-00 ENCINITAS BEACH HOTEL VENTURE, ENCINITAS BEACH EXHIBIT B LLC DALE . ROSS PLS 7632 RESORT 30 0 30 60 SCALE 1" = 30' MOST NE L Y L5 COR PAR 1 L 1 3. 94' 3.15' L6 T NI) a 10.05' T.P.0.B lR �� — L1 MOST NE'LY COR PAR 1 DETAIL 'A' T.P. 0.B SCALE 1" = 10' Cl L3 DETAIL 'A ' 0@uIym C�aG°3a� LaD \ A.P.N. 216-041-25-00 SipC. l:AidD SU� �, 782 A.P.N. 216-041-26-00 cA ° EASEMENT AREA SCALE 1" = 30' LINE DA TA LINE DA TA CURVE DA TA NO. BEARING LENGTH NO. BEARING LENGTH NO. LENGTH RADIUS DELTA L1 S47° 43' 25"W 17.14' L5 N42° 01' 09"E 20.00' Cl 3.81' 219.50' 0°59'38" L2 N47' 58' 51"W 83.62' L6 S47° 58' 51"E 84.62' L3 S47° 43' 25"W 6.24' L4 S47° 58' 51"E 82.65' HALE AREA OF EASEMENT = 1672.44 S.F., MORE OR LESS I N E E R I N G SHEET 2 OF 2 7910 CONVOY COURT SAN DIEGO, CA 92111 (858) 715-1420 H.E. JOB NO. 18015 PUBLIC STORM DRAIN EASEMENT CITY OF ENCINITAS APPLICANT.• P EPAN55 PROJECT: A.P.N. 216-041-25-00 ENCINITAS BEACH HOTEL VENTURE, ENCINITAS BEACH EXHIBIT B RESORT LLC DALE C. GROSS PLS 7632 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of 5GICrG7i'1 e!t3tc; ) On 1 /ly I19 before me, SVSCIh �• Sa�f�urn; n<..v I I Date Here Insert Name and Title of the Officer personally appeared Cyr i a h DQ'we u Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. SUSAN N.SAETEURN WITNESS rn hand and official seal. NotaryPublic-California Z z Sacramento County n Commission#2211534 My Comm.Expires Aug 26,2021 Signature Signature of ublic Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: A=rP!C!hnQ`r%+ CAr%d Grari♦ of Y10r1—exclugiye ecsernen f Document Date: I LI/Iq Number of Pages: q Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Ehicarl I owc-" Signer's Name: El Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑ Guardian or Conservator XOther: ❑ Other: Signer Is Representing: CA S 3+0 ��' Signer Is Representing: ©2016 National Notary Association •www.Nationa[Notary.org • 1-800-US NOTARY(1-800-876-6827) Item#5907