HomeMy WebLinkAboutCT 97-22; North San Diego County Transit Development Board; 2002-0288688; Easement.. . .I
RECORDING REQUESTED BY:
And when recorded mail to:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attention: City Clerk
ClPR 052 2002 4-28 PM
Fb NO FEES DUE - FOR BENEFIT OF PUBLIC AGENCY (Space above this line for County Recorders Use Only) \* APN: 214-150-12
2vJ
rJp ),A ‘(2 EASEMENT AGREEMENT BY AND BETWEEN
AND THE CITY OF CARLSBAD I. P NORTH COUNTY TRANSIT DEVELOPMENT BOARD
@ 1. Purpose and Intent
THIS EASEMENT AGREEMENT (the “Agreement”) is made and entered into
as of the effective date of November 30, 2001, (the “Effective Date”) by and between
the North San Diego County Transit Development Board (“NCTD), and the City of
Carlsbad (hereinafter referred to as “Grantee”); and
WHEREAS, NCTD owns a Right-of-way for railroad purposes which it uses for
public transit and freight; and
WHEREAS, NCTD has policies regulating and governing the use of its Rights-
of-Way; and
WHEREAS, the Grantee has applied for the issuance of a Easement in
accordance with such policies; and
WHEREAS, NCTD has analyzed fully and considered the technical ability,
financial condition, and legal qualifications of the Grantee; and
WHEREAS, NCTD, after such consideration, analysis and deliberation has
approved and found sufficient the technical, financial and legal qualifications of the
Grantee; and
233.76-1101-CA
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WHEREAS, NCTD has considered and analyzed the plans of the Grantee for
the location and installation of sewer facilities and found the same to be adequate,
feasible and in the public interest; and
WHEREAS, the sewer facilities have been located so as to minimize the chance
that they will interfere with NCTD's future use of the property for public transit purposes;
and
WHEREAS, NCTD and the Grantee have agreed to be bound by the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties agree as follows:
2. Grant of Easement
2.1 There is hereby granted by NCTD to the Grantee, in perpetuity, the right to
construct, use, operate, own and maintain the sewer facilities (the "Facilities") on
NCTD's property described in Exhibit "A and depicted on Exhibit "B" (the "Premises")
subject to applicable local, state and federal law and this Agreement.
2.2 Without reducing its power to adopt and enforce ordinances and
regulations necessary to the health, safety and welfare of the public, NCTD hereby
grants to Grantee authority to use certain public rights-of-way. The Facilities are
described in and shall be installed as is illustrated in Improvement Drawings: 380-5,
366-7 and, 382-5 on file in City of Carlsbad Engineering Department.
2.3 Grantee shall not increase or decrease or permit to be increased or
decreased the ground elevations of the Premises existing at the time this Easement is
executed.
3. Easement Not Exclusive
This Easement conferred in Section 2 above is non-exclusive. The Grantee shall
respect the rights and property of NCTD and other authorized users and owners of
rights-of-way, easements, power poles, street light poles, vaults, and conduits. Except
as otherwise required by applicable law, disputes between the Grantee and parties
other than NCTD over the use of the easements, power poles, street light poles, vaults,
conduits and other rights-of-way shall be submitted to NCTD for resolution. Grantee
expressly agrees the Facilities shall not interfere with any and all uses of the surface
property.
233.76-1 101-CA
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4. Relocation
The Grantee shall, after receiving written notice from NCTD, in a time and
manner mutually agreed upon, remove and relocate any Facility(ies) that NCTD
determines interferes with NCTD's current or future use of its property for public transit
purposes. Said Facility(ies) may be relocated within NCTD's right-of-way if it is feasible
to do so.
5. Amendment of Easement Agreement
Nothing shall preclude the parties from amending this Agreement in accordance
and consistent with the Policy.
6. Compensation
From and after the Effective Date of this Agreement and throughout the full term
of the Easement, the Grantee shall not be subject to an annual fee.
7. Compliance with Policies; Other Laws; Contracts; Severability
7.1 The Grantee agrees to comply with all applicable terms, conditions and
requirements of NCTD's policies regarding rights-of-way and other NCTD ordinances,
rules and regulations, unless specifically amended herein; and to comply with all
applicable laws and regulations of the federal, state, county, local governments and all
administrative agencies thereof, including but not limited to judicial orders.
7.2 If any provision of this Agreement or any related agreement is held by any
court or by any federal, state, or county agency of competent jurisdiction to be invalid as
conflicting with any federal, state or county law, rule or regulation or contract now or
hereafter in effect, or is held by such county or agency to be modified in any way in
order to conform to the requirements of any such law, rules and regulations or contract,
said provision shall be considered as a separate, distinct and independent part of this or
such other Agreement, and such holding shall not affect the validity and enforceability of
all other provisions hereof or thereof. In the event that such law, rules and regulations
or contract, is subsequently repealed, rescinded, amended or otherwise changed, so
that the provision hereof or thereof which had been held invalid or modified is no longer
in conflict with the law, rules and regulations or contract then in effect, said provision
shall thereupon return to full force and effect and shall thereafter be binding on the
parties hereto, provided that NCTD shall give the Grantee sixty (60) days' written notice
of such change before requiring compliance with said provision.
7.3 Grantee shall not use, generate, store, release or dispose of any
hazardous material or substance on, under, about or within the Premises in violation of
any law or regulation. Hazardous material or substance shall mean petroleum or any
233.76-1101-CA
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petroleum product, lead, asbestos, or any substance known by the State of California to
cause cancer andlor reproductive toxicity, and/or any substance, chemical or waste that
is described as hazardous, toxic or dangerous in any applicable federal, state or local
law or regulation.
8. Indemnification
Grantee agrees to protect, save, defend and hold harmless NCTD and its Board
and each member of the Board, the San Diego Northern Railroad, the National Railroad
Passenger Corporation (“AMTRAK), the Southern California Regional Rail Authority
(“SCRRA”, “Metrolink), and the Burlington Northern Santa Fe Railway Company
(“BNSF), their officers, agents and employees from any and all claims, liabilities,
expenses and damages of any nature, including attorneys’ fees, for injury or death of
any person, or damage to property, or interference of use of property, arising out of or in
any way connected with the negligent acts, errors, or omissions or wilful misconduct by
Grantee, Grantee’s agents, officers, employees, subconsultants, or independent
consultant‘s hired by Grantee. The only exception to Grantee’s responsibility to protect,
save, defend and hold harmless NCTD, is due to the sole negligence, wilful misconduct
or active negligence of NCTD. This hold harmless agreement shall apply to all liability
regardless of whether any insurance policies apply. Any policy limits shall not limit the
amount of indemnification to be provided by Grantee.
9. Taxes
Nothing contained in this Agreement shall be construed to exempt the Grantee
from any tax levy or assessment which is or may be hereafter lawfully imposed. Notice
is hereby given pursuant to Revenue and Tax Code Article 107.6 that this Easement
may create a property interest subject to property taxation and may subject Grantee to
the payment of property taxes levied on such interest.
IO. Condemnation
If all or part of the Premises is acquired by eminent domain or purchase in lieu
thereof, Grantee acknowledges that it will have no claim to any compensation awarded
for the taking of the Premises or any portion thereof, including Grantee’s interest in the
Premises. Grantee also acknowledges that it will have no claim to any compensation
paid as severance damages, or for loss of or damage to Grantee’s improvements.
1 1. Relocation Assistance Waiver
Grantee is hereby informed and acknowledges the following:
11 .I By entering into this Easement, Grantee may become entitled to receipt of
“relocation assistance benefits” (“Relocation Benefits”) pursuant to the Federal Uniform
233.76-1101-CA
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Relocation Assistance Act (42 U.S.C. § 4601 et seq.) and/or the California Relocation
Assistance law (Cal. Gov. Code § 7260 et seq.) (collectively, the “Relocation Statutes”),
if NCTD makes use of the Premises in such a way as to ‘displace’ Grantee from the
Premises. Pursuant to the Relocation Statutes, NCTD may become obligated to make
relocation benefit payments to Grantee even when displacement of Grantee does not
otherwise constitute a default of NCTD’s obligations pursuant to this Easement.
11.2 Relocation Benefits payments to “displaced persons” may include
payment of (i) the actual and reasonable expense of moving himself or herself and a
family, business, or farm operation, including personal property, (ii) the actual cost of re-
establishing a business or farm operation, but not to exceed Ten Thousand Dollars
($10,000) or (iii) payment in lieu of moving expenses of not less than One Thousand
Dollars ($1,000) or no more than Twenty Thousand Dollars ($20,000).
11.3 In consideration of NCTD’s agreement to enter into this Easement,
Grantee hereby waives any and all rights it may now have, or hereafter obtain, to
Relocation Benefits arising out of its occupancy of the Premises pursuant to this
Easement and releases NCTD from any liability for payment thereof. Grantee, further,
shall in the future execute any further documentation of the release and waiver provided
hereby as NCTD may reasonably require.
12. Vibration and Noise From Train Operations
Grantee hereby recognizes and acknowledges that railroad tracks are located on
or adjacent to the Premises, and that the operation of trains over the tracks does and
will produce vibrations and noise levels which may be considered objectionable by the
employees, agents, tenants, or invitees of the Grantee. With knowledge and
understanding of these facts, Grantee by execution of this Agreement, accepts the
Premises and agrees that no legal action or complaint of any kind whatsoever shall be
instituted against NCTD by Grantee or on Grantee’s behalf as result of vibrations and
noise levels or as a result of the use of the railroad tracks in general. Grantee also
agrees to indemnify and save harmless NCTD against any loss, damage, liability or
expense which might occur as a result of such action being taken by Grantee, its
employees, agents, tenants or invitees or anyone on Grantee’s behalf. The term
“NCTD as used in this Section includes any railroad company operation on said tracks.
13. Construction
13.1 Any work performed or caused to be performed by Grantee on the
Premises shall be performed (a) at Grantee’s sole cost and expense; (b) in accordance
with any and all applicable laws, rules and regulations (including NCTD’s rules and
regulations) and (c) in a manner that is satisfactory to NCTD and which meets or
exceeds the then applicable standards of the industry for such work. Grantee shall
submit work plans to NCTD for review and approval prior to commencement of any
233.76-1101-CA
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construction, reconstruction, installation, restoration, alteration, repair, replacement or
removal (other than normal maintenance) (hereinafter, “Work”) on the Premises.
Except in cases of emergency, Work must be carried out pursuant to work plans
approved in writing by NCTD. In addition, Grantee shall provide NCTD and all holders
of underground utility facilities located with the Premises with at least 7 calendar days
written notice prior to commencement of any Work on the Premises pursuant to Section
15 below. In the event of an emergency, Grantee shall notify NCTD’s representative
personally or by telephone prior to commencing any Work. Upon completion of any
Work, Grantee shall restore the NCTD property to its condition immediately preceding
the commencement of the Work, unless otherwise requested by NCTD.
13.2 Non-interference. Grantee agrees that no Work by itself or its authorized
agent will interfere with any railroad operations on the right-of-way.
13.3 Reimbursement of NCTD. Grantee shall reimburse NCTD, within 30 days
of invoice, for all cost and expense incurred by NCTD (including a 7.2% administrative
fee) in connection with any Work. These costs include, but are not limited to,
consultants fees, mark out of railroad facilities, the expense of furnishing inspectors,
security and flag protection as NCTD deems necessary, the installation and removal of
false work beneath tracks, equipment rentals and restoration of NCTD right-of-way to
the same condition as when Grantee entered thereon.
13.4 Flag Protection. Flag Protection shall be required when Grantee’s
operations on or adjacent to the railroad right-of-way present a danger to NCTD’s rail
facilities. NCTD in its sole discretion, shall determine the need for Flag Protection.
Prior to entry on the railroad right-of-way, Grantee shall complete NCTD’s “Flag
Protection Right-of-way Work Request” form. Grantee agrees to execute time cards as
required by NCTD personnel providing Flag Protection services.
13.5 Crossing Right-of-way. No vehicular crossing over NCTD’s tracks shall
be installed or used by Grantee without prior written permission of NCTD.
13.6 No object which can be moved by two persons shall be left on the right-of-
way unattended. This requirement also applies to objects above and/or outside the
right-of-way on the uphill side which can be thrown or rolled downhill onto the track@).
13.7 NCTD shall have the right to enter the Premises to post notices of non-
responsibility. Grantee shall not permit any mechanics’ or other liens to be filed against
the Premises or against its interest herein by reason of labor and materials furnished to
the Premises at Grantee’s insistence or request. If any such lien is filed against the
Premises, Grantee shall cause the lien to be discharged of record, either by payment of
the claim or by posting and recording a bond pursuant to California Civil Code 3143,
within twenty (20) days after demand by NCTD. Grantee shall indemnify, hold harmless
and defend NCTD from and against any such lien.
233.76-1101-CA
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13.8 The Grantee shall pay for any grade crossing protection and safety
devices that NCTD is required to install as a result of this Easement pursuant to the
safety rules, regulations and laws of the State of California, the California Public Utilities
Commission or any other governmental agency having jurisdiction over railroad safety
requirements.
13.9 If required by NCTD, Grantee shall, at its sole cost and expense, install
barrier fencing, K-rail and/or landscaping to shield the railroad track area from public
access and/or the improvements thereon from public view. NCTD shall have the right to
review and approve fencing and/or landscaping plans prior to installation. Grantee shall
not install or use any underground storage tanks on the Premises.
13.10 Grantee shall provide NCTD with the results of all tests and studies
conducted on NCTD property.
13.1 1 Notice of Construction. At least 7 days prior to the start of any work on the
right-of-way, Licensee shall provide notice to NCTD at (760) 967-2828 (810 Mission
Ave., Oceanside, CA 92054).
13.12 Notice of Excavation. Grantee shall provide notice to Cory St. Clair of MCI
Telecommunications Corporation at 8933 Complex Drive, San Diego, CA 92123 ((800)
724-3624 pin 1430453) prior to any excavation in the right-of-way.
14. Maintenance and Repair
Grantee shall, at its sole expense, maintain the Premises in a condition
satisfactory to NCTD during the term of this Agreement including performance of all
maintenance and clean-up of the Premises and any improvements thereon as
necessary to keep both in good order and condition, in accordance with applicable
governmental codes. Grantee shall be responsible for any citations issued by any
agency having jurisdiction as a result of Grantee's failure to comply with local codes.
15. Service of Notice
15.1 Except as otherwise provided in Article 15, all notices required or
permitted to be given to either party by the other party under any provisions of this
Agreement shall be in writing and shall be deemed served:
a) When delivered by hand or by Federal Express or similar service to
that party's address set forth below during normal business hours; or
b) When mailed to any other person designated by that party in writing
herein to receive such notice, via certified mail, return receipt requested.
233.76-1101-CA
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16.2 Notice shall be given to the following:
a) If to NCTD:
North San Diego County Transit Development Board
810 Mission Avenue
Oceanside, CA 92054
Attn: Real Estate Department
b) If to Grantee:
City of Carlsbad:
Lloyd Hubbs, PW Director
1635 Faraday Avenue
Carlsbad, CA 92008
17. Laws, Venues, and Attorneys’ Fees
This Agreement shall be interpreted in accordance with the laws of the State of
California. If any action is brought to interpret or enforce any term of this Agreement,
the action shall be brought in a state or federal court situated in the County of San
Diego, State of California. In the event of any claim, legal action or proceeding between
the parties arising under or concerning this License, the prevailing party shall be entitled
to reasonable attorneys’ fees and expenses as part of the judgment resulting therefrom.
233.76-1101-CA
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18. Acknowledgment that Terms are Understood
The Grantee acknowledges that it has read and fully understood the terms of
both the agreement and the ordinance and agrees to be bound by the same.
IN WITNESS THEREOF, the parties have signed below, effective as of the
Effective Date, by their duly authorized representatives.
North San Dieao County Transit City of Carlsbad
Development Board
Name: MARTIN C. Name: RHMOND R. PATCHETT
Title: EXECUTIVE Title: CITY M4rSJAGER
Attest:
NINE WOOD %% CLERK d
233.76-1101-CA
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EXHIBIT 'A'
LEGAL DESCRIPTION
SEWER EASEMENT
PR 99-81
BEING A PORTION OF LOT 3 OF FRACTIONAL SECTION 29, TOWNSHIP 12 SOUTH,
RANGE 4 WEST IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALI-
FORNIA, ACCORDING TO OFFICIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, LYING WITHIN THE SAN DIEGO NORTHERN RAILWAY
RIGHT-OF-WAY (FORMERLY KNOWN AS THE ATCHISON, TOPEKA AND SANTA FE RAILROAD
RIGHT-OF-WAY), MORE PARTICULARLY DESCRIBED AS FOLLOWS:
A 20.00 FOOT WIDE STRIP OF LAND LYING 10.00 FEET ON EACH SIDE OF THE FOL-
LOWING DESCRIBED CENTER LINE:
BEGINNING AT THE INTERSECTION OF THE SOUTHERLY RIGHT-OF-WAY LINE OF THE
102.00 FOOT WIDE ROAD KNOWN AS POINSETTIA LANE AS DESCRIBED IN DEED TO THE
CITY OF CARLSBAD RECORDED AUGUST 21, 1974 AS FILE/PAGE NO. 74-227601 OF
NORTHERN RAILWAY RECORDED DECEMBER 15, 1992 AS DOCUMENT NO. 1992-0802209 OF
OFFICIAL RECORDS, WITH THE WESTERLY RIGHT-OF-WAY LINE OF SAID SAN DIEGO
OFFICIAL RECORDS; THENCE ALONG SAID WESTERLY RAILWAY RIGHT-OF-WAY LINE
1. SOUTH 20"28'21" EAST 108.28 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING SAID RAILWAY
RIGHT-OF-WAY
2. NORTH 69O42'50" EAST 200.00 FEET TO THE EASTERLY LINE OF SAID
RAILWAY RIGHT-OF-WAY AND THE
POINT OF TERMINUS.
THE SIDE LINES OF SAID 20.00 FOOT WIDE STRIP SHALL BE PROLONGED OR SHORT-
ENED SO AS TO BEGIN AND TERMINATE AT THEIR NEAREST INTERSECTION WITH THE
WESTERLY AND EASTERLY BOUNDARY LINES OF SAID RAILWAY RIGHT-OF-WAY.
CONTAINS 4,000 SQUARE FEET, MORE OR LESS.
PAGE 1 OF 1
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1
a
Jan 26. 2000 - 7:30am T \ENGR\1466\0ffsitePlats\PA&SWR
DL DFSCRIPTION;
BEING A PORTION OF LOT 3 OF FRACTIONAL SECTION 29
IN TOWSHIP 12 SOUTH, RANGE 4 ESZ IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE IN
THE OF-FICE OF THE COUNTY RECORDER OF SAID COUNTY, LVNG WHIN THE SAN DIEGO NORTHERN RAILWAY
RIGHT-OF- WAY (FORMERLY KNOW AS THE ATCHISON,
TOPEKA AND SANTA FE RAILROAD RIGHT-OF-WAY).
OIMVER:
NORTH SAN DIEGO COUNTY TRANSIT DEMLOPEMENT BOARD, A PUBLIC ENTITY EXISTING UNDER THE AUTHORITY OF SECTION 125000 ET SEQ. OF THE CALIFORNIA PUBLIC ununEs CODE.
LEGEND:
INDICATES SEER EASEMENT AREA = D.092ACRES OR 4,000 S.F.
P. O.B. INDICATES POINT OF BEGINNING
T. P. O.B. INDICATES TRUE POINT OF BEGINNING
( ) INDICA TES RECORD DATA PER ROS 13326
EMIS OF ~EARiNGS:
THE BASIS OF BEARINGS FOR THIS SURKY IS A
PORTION OF THE EAST LINE OF RECORD OF
SURMY NO. 13326, RECORDED AUGUST 2. 1991,
OFFICIAL RECORDS OF SAN DIEGO COUNTY.
LE., N20'27'52"W
VICINITY MAP
NO SCALE
EXHIBIT 'B'
20' SEWR EASEMENT PLAT-CITY OF CARLSBAD SIET1 w2
4PPLICW PREPARED BY: IA&&
SHEA HOMES PROJECT DESIGN CONSUL TANK 10721 TREENA STREET
214-150-12
PR 99-81
SAN DIEGO, CA 92131 (619) 235-6471 CT 97-22
701 'B' STREEK SUITE 800
SUITE 200 SAN DIEGO. CA 92101
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I I I I I I I I I I I I
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\ \ \ \ GRAPHIC SCALE
( IN FEET )
1 inch = 200 ft.
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20' SEKR EASEMENT PLAT-CITY OF CARLSBAD WET2 W2
APPIICANE
701 i9' SlREE7; SUITE 800 10721 TREENA STREET
214-150-12 PROJECT DESIGN CONSULTANTS SHEA HOMES
PREPARED BY;
SAN OIEGO, CA 92131 (619) 235-6471 SUITE 200 SAN DIEGO. CA 92101 PR 99-81
CT 97-22
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Jan 26, 2000 - 8:04arn
EXHIBIT 'B'
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:ALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
F ersonally known to me
proved to me on the basis of satisfactory evidence
to be the personwwhose namew isksubscribed to the
within instrument and acknowledged to me that hekhe/they
executed the same in hish@heu authorized capacityh
and that by his/h$r(hr signatureNon the instrument the
personior the entity upon behalf of which the person\rs),
acted, executed the instrument.
WITNESS my hand and official seal.
a. PAS-
iQnalure of Nobly Public
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.
Description of Attached Document
Title or Type of Document: . T4 N 0 G E C 0 COwnn-Y TKfl NSZi' DE0 ELO~V?,GNT Bo4flv Amp
Document Date: fv0llErnBEfi 30 aoor Number of Pages: YLVJ P,?Hz&Z~~#
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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Signer's Name: Jh ,4' mk6 kiTWK0 I=
0 Individual
Vorporate Officer
0 Partner - 0 Limited 0 General
0 Attornev-in-Fact
Title@): E XEP.UT8UE PTzECTO
0 Trustee
0 Guardian or Conservator 0 Other:
0 Trustee-
0 Guardian or Conservator
0 Other: \
Signer Is Representing:
1998 NBIiOnsl NMBryAS8MiiaIiOn -82% Remmel Am P.O. Box 7164. CanOQa Park. CA91309-7184 Pmd. No. 5907 Reorder: CSIITOII-Free 1-800-8766827