HomeMy WebLinkAboutCT 99-02; North San Diego County Transit Development Board; 2002-0288690; EasementRECORDING REQUESTED BY:
And when recorded mail to:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attention: City Clerk
APR 05s 2002 4:28 PM
WTCIAL RECORDS
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NtJ3 EASEMENT AGREEMENT BY AND BETWEEN NORTH COUNTY TRANSIT DEVELOPMENT BOARD
AND THE CITY OF CARLSBAD
@ 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
233.72-1101-CA
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WHEREAS, NCTD has considered and analyzed the plans of the Grantee for
the location and installation of storm drain facilities and found the same to be adequate,
feasible and in the public interest; and
WHEREAS, the storm drain 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 storm drain 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.
233.72-1101-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
233.72-1101-CA
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petroleum product, lead, asbestos, or any substance known by the State of California to
cause cancer and/or 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.
11. 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
233.72-1101-CA
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Relocation Assistance Act (42 U.S.C. § 4601 et seq.) andlor the California Relocation
Assistance law (Cat. Gov. Code 3 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
233.72-1101-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.
233.72-1101-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.
233.72-1101-CA
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.
233.72-1101-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 Diego County Transit City of Carlsbad
Development Board
Name: MARTIN C. MINK0 OND R. PATCHETT
Title: CITY MANAGER
Attest:
LCMAIN~ WOOD
CITY CLERK
9
EXHIBIT 'A'
LEGAL DESCRIPTION
FOR
DRAINAGE EASEMENT
PR 99-79
BEING PORTIONS OF THE EAST HALF OF THE NORTHEAST QUARTER AND LOT 3 OF
FRACTIONAL SECTION 29 IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFI-
CIAL PLAT THEREOF ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE INTERSECTION OF THE NORTHERLY 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. 74-227600 OF
OFFICIAL RECORDS, WITH THE WESTERLY RIGHT-OF-WAY LINE OF THE SAN DIEGO
NORTHERN RAILWAY RIGHT-OF-WAY (FORMERLY KNOWN AS THE ATCHISON, TOPEKA AND
SANTA FE RAILROAD) RECORDED DECEMBER 15, 1992 AS DOCUMENT NO. 1992-0802206
OF OFFICIAL RECORDS; THENCE ALONG SAID WESTERLY RAILROAD RIGHT-OF-WAY LINE
1. NORTH 20"27'52" WEST 179.91 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID
RIGHT-OF-WAY
2. NORTH 20"27'52" WEST 28.24 FEET; THENCE LEAVING SAID RIGHT-OF-WAY
3. SOUTH 65"33'38" EAST 97.40 FEET; THENCE
4. NORTH 69"32'08" EAST 9.34 FEET; THENCE
5. SOUTH 20"28'21" EAST 184.74 FEET TO A POINT ON THE NORTHERLY LINE
OF THE STORM DRAINAGE EASEMENT
PER PR 99-82; THENCE ALONG SAID
NORTHERLY LINE
6. SOUTH 76"49'34" WEST 20.16 FEET; THENCE LEAVING SAID NORTHERLY
LINE
7. NORTH 20"28'21" WEST 164.57 FEET; THENCE
PAGE 1 OF 2
8. NORTH 65"33'38" WEST 82.35 FEET; TO THE TRUE POINT OF BEGINNING.
CONTAINS 5,372 SQUARE FEET, MORE OR LESS.
PAGE 2 OF 2
UGAl DFS-
BEING PoRnms OF THE EAST HALF OF THE NORTHEAST
QUARTER AND LOT 3 OF FRACTIONAL SECTION 29 IN
TOHUSHP 12 SOUTH, RANGE 4 KST, IN THE CITY OF CARLSBAD. COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE IN
LYlNG WHIN THE SAN DIEGO NORTHERN RAILWAY THE MCE OF THE COUNTY RECORDER OF SAID COUNV
RIGHT-OF- WAY (FORMERLY KNOW AS THE ATCHISON,
TOPEKA AND SANTA FE RAILROAD RIGHT-"WAY).
QmE
NORTH SAN DIEGO COUNTY TRANSIT DEMLOPMENT BOARD. A PUBLIC ENTITY EXISTING UNDER THE AUTHORITY OF SECnON 125000 ET SEQ. OF THE CALIFORNIA PUBLIC unum CODE.
bEGE)\ID:
INDICA TES DRAINAGE EASEMENT AREA = 0.123 ACRES OR 5,372 S.F.
P.O.B. INDICA TES POINT OF BEGINNING
T.P.O.B. INDICATES TRUE POINT OF BEGINNING
( ) INDICATES RECORD DATA PER ROS 13326
BAYS of BEARINGS-
PoRnm OF THE EAST LINE OF RECORD w THE BASIS OF BEARINGS FOR THIS SURMY IS A
OFFICIAL RECORDS OF SAN DIEGO COUNTY.
SURMY NO. 13326, RECORDED AUGUST 2, 1991,
LE., N2027'52-W
VICINITY MAP
NO SCALE
EXHIBIT 'B'
20' DRAINAGE EASEMENT PLA T-CITY OF CARLSBAD 9EETlff2
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7ELDSTONE POlNSETllA COM, LLC
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PROJECT DESIGN CONSUL TAN TS 701 'B' SlREE7; SUITE 800
;UITE 250 SAN DIEGO, CA 92101 PR 99-79
;AN DIEGO, CA 92121 (619) 235-6471 CT 99-02
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214-150-12
Apr 12, 2000 - . 7121an -
FIELDSTONE POlNSETTlA COM, LLC
5465 MOREHOUSE DRlM 701 'B' SlREE7; SUITE 800
CT 99-02 (619) 235-6471 SAN DIEGO, CA 92121
PR 99-79 SAN DIEGO, CA 92101 SUITE 250
214-150-12 PROJECT DESIGN ColvsuL TAN Ts
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Apr 07, 2000 - 10109an
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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personw, or the entity upon behalf of which the persow acted, executed the instrument.
WITNESS my hand and official seal
OPTIONAL /
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