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HomeMy WebLinkAboutSDP 09-04; City of Carlsbad; 2015-0593948; Encroachment AgreementSection 2 thereof, and the parties are entering into this Agreement to replace the Prior Agreement. AGREEMENT NOW, THEREFORE Property Owner allows the Encroachments by Business Owner subject to the following terms and conditions: Section 1. Encroachments Property Owner hereby allows Encroachments over a portion of the City Parcel as more particularly described above as the Encroachment Area, subject to all matters and encumbrances of record affecting the City Parcel, on the terms and conditions set forth in this Agreement. The City's rights with respect to the ownership of the City Parcel shall remain and continue in full force and effect and shall in no way be affected by City's grant of permission to construct and maintain the encroachment structures. This Agreement does not authorize or approve any encroachments not identified above, nor any additional usable space for the Plaza Camino Real shopping center. The exact number and locations of the Encroachments are reflected in the final construction documents for the Encroachments approved by the building department of the City of Carlsbad, and the Encroachments have been located entirely within the Encroachment Area. Section 2. Term The Agreement will automatically terminate on the demolition or destruction of the shopping center structure on which the Encroachment exists or upon notice from the City pursuant to Paragraph 5, below. Upon termination of this Agreement, Business Owner will have the obligation to remove the Encroachments and restore the City Parcel to its condition as of the date that this document is recorded. Section 3. Maintenance and Repair Business Owner will be solely responsible to conduct such maintenance and repair of the Encroachments and improvements thereon as to their respective parcels as Business Owner deems necessary or advisable to maintain the Encroachments in good condition and repair. Property Owner shall have the right from time to time to inspect the Encroachments to ensure that Business Owner's maintenance and repair obligations are met. Property Owner shall also have the right, but not the obligation, to undertake any maintenance or repair if such obligations are not met in Property Owner's sole discretion within a reasonable period of time following written notice thereof to a Business Owner. That Business Owner will be solely responsible for the cost of such maintenance and repair. Section 4. Insurance Business Owner must obtain and keep in full force and effect at all times extended commercial general liability insurance covering public liability for personal injury, death, or property damage, arising out of its use or maintenance of the Encroachment Area (including -2- improvements thereupon) for at least $3,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-: VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". Business Owner may provide the required limits of coverage through a combination of a primary general liability policy and umbrella/excess policies. Section 5. Removal Obligation After receipt of notice from the City Engineer, and only if necessary for public health or safety reasons, Business Owner will have the obligation to remove or relocate any part of the Encroachments within a reasonable time as specified in the notice, or the City Engineer may cause such work to be done and the reasonable cost thereof shall constitute a lien upon the Shopping Center Parcel. Section 6. No Impediment to Use During the term of this Agreement, no walls, fences or barriers of any sort or kind whatsoever that prevent or impair the use of the Encroachment Area will be constructed, maintained, or permitted on the Encroachment Area, or any portion thereof, by Property Owner or Business Owner. Section 7. Indemnification Business Owner shall indemnify, defend and hold harmless Property Owner, its agents, representatives, heirs, successors and assigns, against any and all claims, actions, or demands, costs or expense, including reasonable attorney's fees, arising out of or in any way connected to any activities of that Business Owner, its agents, representatives, heirs, successors, assigns or invitees arising out of its use of the Encroachment Area, excluding therefrom claims resulting from the negligence or willful misconduct of Property Owner or its agents, representatives, employees, heirs, successors or assigns. Section 8. Notices All notices given pursuant to this Agreement must be in writing and by personal delivery, U.S. Mail or established express delivery service, such as Federal Express, with postage or delivery charge prepaid, return receipt requested, and addressed to the person and address designated below: If to Property Owner: Attn: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 -3- If to Business Owner: RPI Carlsbad, L.P. c/o Rouse Properties, Inc. 1114 Avenue ofthe America, Suite 2800 New York, New York 10036-7703 Attention: Susan Elman Section 9. Waiver Property Owner's consent to or approval of any act or omission by Business Owner shall not constitute a waiver of any other default by Business Owner and shall not be deemed a waiver or render unnecessary Property Owner's consent for approval to any subsequent act by Business Owner. Any waiver by Property Owner of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this agreement. Section 10. Miscellaneous This Agreement constitutes the entire agreement between Property Owner and Business Owner relating to the Encroachment. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement will be of no force and effect unless it is in writing and signed by Property Owner and Business Owner or their respective successors or assigns. This Agreement will be effective upon the date it is recorded. Section 11. Signature/Counterparts This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. -4- EXHIBIT A LEGAL DESCRIPTION OF SHOPPING CENTER PARCEL CMF PCR Shopping Center Parcel: LOT 12 OF CARLSBAD TRACT NO. CT-76-18 (PLAZA CAMINO REAL SHOPPING CENTER) IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 8956, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 11, 1978. Westfield Shopping Center Parcel: LOT 13 OF CARLSBAD TRACT NO. CT-76-18 (PLAZA CAMINO REAL SHOPPING CENTER) IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 8956, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 11, 1978. EXHIBIT A -1- EXHIBITB ENCROACHMENTSANDENCROACHMENTAREA [Attached] EXHIBIT B -1-