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HomeMy WebLinkAboutSanders, Cedric E; 1985-05-07;1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 Office of the City Clerk TELEPHONE: (714) 438-5535 May 10, 1985 Cedric E. Sanders 110 West C Street, Suite 1220 San Diego, CA 92101 Re: License Agreement for Grading On Village E-2 in Calavera Hills The Carlsbad City Council, at its meeting of May 7, 1985, adopted Resolution No. 8004, approving a license agreement for grading on the future Calavera Hills park site. Enclosed is the original document for your signature. After you have executed the document, please return to this office. Also enclosed for your records is a copy of Resolution No. 8004 and the attached agreement. Thank you for your assistance in this matter. Encs. EXHIBIT A to Resolution No.BooLl LICENSE AGREEMENT FOR GRADING ON VILLAGE E-2 IN CALAVERA HILLS This License Agreement (the "Agreement") is made in the City of Carlsbad, County of San Diego, State of California on April 1985, between CEDRIC E. SANDERS, an individual, heremir ("Licenser") and the CITY OF CARLSBAD, a municipal corporation of the State of California hereinafter ("Licensee"). RECITALS A. Licenser is the fee owner of the real property located in the City of Carlsbad, County of San Diego, State of California, more particularly described in the attached Exhibit "A" and depicted on the attached Exhibit "B". B. The Master Plan for Calavera Hills, MP-150(F), provides that Licenser shall dedicate that property de- scribed in Exhibit "A" to Licensee upon the completion of certain acts ("Dedication") and said completion has not as yet taken place. C. Licensee desires to commence grading on the real property described in Exhibit "A" at this time and prior to the Dedication. D. Licenser, as a land owner, developer, and tax payer in the City of Carlsbad recognizes the need for and supports the construction of sufficient parks and other recreational areas for the citizens of Carlsbad. Licenser fully appreciates the importance of such parks for the continued good health and well being of the citizens of Carlsbad. Licenser, in its desire to cooperate with and assist the City in developing adequate public park facil- ities, has previously dedicated approximately 10 gross acres (Village F) to the City. E. Licensee now desires, and Licenser is willing to grant to Licensee, a license over, under, in, through, and across that property described in Exhibit "A" to permit Licensee to grade the License Area described in Exhibit "A" in accordance with plans to be submitted to the Licenser for approval. F. Accordingly, Licenser, without being required to do so, hereby wishes to grant a license for the grading desired to be accomplished by the City of Carlsbad under the following terms and conditions. TERMS AND CONDITIONS 1. Grant of License. Licenser hereby grants to Licensee a License to grade and place fill over, along, across, and through the License Area described in Exhibit "A" for the ultimate purposes of constructing and maintaining a public park and other incidental and ancillary purposes associated therewith when Licenser formally dedicates the park to Licenser. All such grading and other work shall be in conformance with plans approved by Licenser. 2. Term of License. The Licenser and Licensee agree that the Licenser may be required in the future to dedicate the License Area described in Exhibit "A" under the terms of the Master Plan. This License to grade shall terminate automatically upon the dedication of the License Area described in Exhibit "B" or upon the expiration of the period of 24 months from the date of the License, whichever shall first occur. 3. Maintenance. Licensee shall maintain, at Licensee's sole expense, the License Area, and all grading and other improvements made or installed by the Licensee within the License Area, in a sanitary and safe condition, in good repair and in accordance with all applicable laws and regulations. Licensee shall obtain all necessary permits for the grading contemplated by this Agreement and shall not permit, commit or suffer waste upon the License Area. 4. Indemnification. Licensee shall and does indemnify and hold Licenser harmless against and from liabilities and claims of any kind for loss or damage to property of Licensee or any other person, or for any injury to or death of any person, arising out of: (1) Licensee's use and occupancy of the License Area, or any work, recreation, activity, or other things allowed or suffered by Licensee to be done in, on or about the License Area; (2) any breach or default by Licensee of any Licensee's obligations under this Agreement; or (31 any negligent or otherwise tortious act or omission of Licensee, its agents, employees, invitees, or con- tractors. Licensee shall fully defend Licenser in any and all actions or proceedings arising from any such claim and shall indemnify Licenser against all costs, attorneys' fees, expert witness fees and any other expenses incurred in such action or proceeding. -2- 3--- 5. Insurance. Licensee shall, at all times during the term of this Agreement, maintain in full force and effect and at Licensee's sole expense, a policy or policies of casualty insurance and comprehensive public liability and property damage insurance in accordance with prudent business prac- tices to provide reasonable and adequate coverage for casualty claims and liabilities, property damage or personal injury (including death) occurring on, in or about the License Area. Nothing contained in this paragraph shall prevent Licensee from providing self-insurance to comply with the provisions of this paragraph so long as reasonable levels of reserves consistent with prudent business prac- tices are maintained and reasonable and adequate excess coverage in accordance with prudent business practices is provided through a policy or policies of insurance. 6. Liens on the License Area. Licensee shall pay when due all obligations incurred by or for Licensee relating to work on, or use of, the License Area. Licensee shall not cause, suffer or permit any liens relating to mechanics or others to attach to or be recorded against, the License Area, and shall indem- nify, defend and hold Licenser and the License Area harmless from any and all liens, claims, and all expenses (including, without limitation, any attorneys' fees) related to, or arising out of, mechanics or others employed or contracted by Licensee for work on, or use of, the License Area. 7. Successors and Assigns. The terms and conditions contained in this Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, successors and assigns. This License Agreement,and the terms and conditions set forth herein, shall not be recorded. 8. Assignment. This Agreement shall not, nor shall any interest there- in or thereunder, be assigned, mortgaged, hypothecated or transferred by Licensee without first obtaining the written consent of Licenser which consent shall be within the sole and absolute discretion of Licenser. 9. License Subject to Certain Matters. This License is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of -3- title which are of record and affect the License Area. The use of the term "grant of license" as set forth in this Agreement shall not be construed as a covenant against the existence of any such matter of record. Further, in no event shall this License in any way violate nor alter the terms of the Master Plan for Calavera Hills currently in effect. 10. Entire Agreement; Modification. This Agreement contains the entire Agreement between the parties relating to the License. This Agreement may be modified only by a written and recorded agreement, signed by both parties or their respective heirs, successors, or assigns. 11. Attornevs' Fees. In the event of any litigation between the parties to interpret or enforce any of the provisions of this Agree- ment, the prevailing party in the action shall be entitled to recover from the losing party reasonable attorneys' fees and costs. 12. Notices. All notices to be given under this Agreement shall be in writing, delivered in person or by registered or certified mail, postage prepaid and return receipt requested at the addresses provided below, or such other addresses as either party may designate, from time to time, by proper notice under this paragraph. Any notice shall be deemed given only when actually received by the intended party, whether personally served or sent by registered or certified mail. Licenser: Cedric E. Sanders 110 West C Street, Suite 1220 San Diego, California 92101 Licensee: City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Attention: Frank Aleshire, City Manager 13. Exhibits. All exhibits to this Agreement are incorporated in and made a part of this Agreement by reference. -4- ? 14. Severability. If any part of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected and each term and provision of this Agreement shall remain valid and enforceable to the fullest extent permitted by law. 15. Use as a Park. Notwithstanding any provision to the contrary herein, the License Area shall not be used for the construction or operation of a park unless and until fee title to the park has been dedicated to the City of Carlsbad in accor- dance with the terms and conditions of the Master Plan. "LICENSOR" "LICENSEE" CEDRIC E. SANDERS, an individual CITY OF CARLSBAD, a municipal corporation of the State of California By: ' By: -5- EXHIBIT "A" LICENSE AREA A PORTION OF LOT "J" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFOHNIA, ACCORDING TO PARTITION MAP NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 16, 1896, TOGETHER WITH A PORTION OF TAMARACK AVENUE AS DEDICATE3 PER DOCUMENT NO. 82-357616 RECORDED NOVEMBER 19, 1982, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT X POINT ON THE BOUNDARY OF LAND SHOWN ON RECORD OF SURVEY NO. 9336 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON !.!.1\Y 12, 1933, SAID POINT BEING THE EASTEHLY TER- iMINUS OF THAT LINE SHOWN c)N SAID RECORD OF SURVEY AS NORTH 7!d" 57' 54" WEST, 71.22 FEET, SAID POINT BEING ON THE ARC OF A CURVE CONCAVE WESTERLY .I\ND HAVING A RADIUS OF 1000.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 73' 17' 40" EAST; THENCE ALONG THE BOUNDARY OF SAID LAND SHOWN ON RECORD OF SURVEY NO. 9336 AS FOL- LOWS: NORTHEHLY, ALONG THE XRC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 33O 19' 32", 581.64 FEET; NORTH 18' 37' 12" WEST, 273.62 FEET; THENCE LEAVING SAID BOUNDARY OF LXND SHOWN ON RECORD OF SURVEY 9336, NORTH 71" 22' 48" EAST, 611.60 FEET; THENCE SOUTH lS” 37’ 12” EAST, 660.04 FEET TO THE BOUNDARY OF SAID LAND SHOWN ON RECORD OF SURVEY NO. 9336; THENCE ALONG SAID BOUNDARY AS FOL- LOWS: SOUTH 69O 28' 42" WEST, 653.20 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONC.4VE ;JESTERLY AND HAVING A RADIUS OF 1042.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 85" 33' 36" EAST; SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 10" 16' 06", 186.7-i FEET; THENCE LEAVING SAID BOUNDARY, ALONG A RADIAL LINE FROM SAID CURVE, SORTH 75' 17' 40" WEST, 42.00 FEET TO THE POINT OF B;GIN?lING. ‘\ . . - -‘- -gn, -2, m *t- AL) r -qi ~rLt,ucfo-/4 IV t \ ;-\ , \ bA\ 4 -- A! xx * \-J’ EXHIBIT “B” - - Cesco Deve llopn lent Corporation Community Developers One of the Cedric Sanders Companies May 30, 1985 Karen R. Kundtz CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 Dear Ms. Kundtz: Regarding your letter of May 10, 1985, we have enclosed the license agreement for grading on Village E-2 in Cala- vera Hills, and have executed same and are returning to your office. Thank you for your assistance in this matter. Yours very truly, CESCO DEVELOPMENT CORPORATION By: ative Assistant wk Enclosures Executive Offices - 110 West C Street, Suite 1220, San Diego, California 92101 (619) 235-9180 8 7 I tl.3 C 6 9 NO FlEE RecQYdigg.'Requested By and Return To: City Cle-rk' 1206 Elm Abenue C~rlsb~d, CA 92008 ..r EXHIBIT A to Resolution No.Boof LICENSE AGREEMENT FOR GRADING ON VILLAGE E-2 IN CALAVERA HILLS This License Agreement (the "Agreement") is made in the California on an CARLSBAD, a municipal corporation of the State of California hereinafter ("Licensee"). RECITALS A. Licenser is the fee owner of the real property located in the City of Carlsbad, County of San Diego, State of California, more particularly described in the attached Exhibit "A" and depicted on the attached Exhibit "B". 8. The Master Plan for Calavera Hills, MP-150(F), provides that Licenser shall dedicate that property de- scribed in Exhibit "Al1 to Licensee upon the completion of certain acts ("Dedication") and said completion has ’ I . ” z \_ . -- 556 TERMS AND CONDITIONS 1. Grant of License. Licenser hereby grants to Licensee a License to grade and place fill over, along, across, and through the License Area described in Exhibit "A" for the ultimate purposes of constructing and maintaining a public park and other incidental and ancillary purposes associated therewith when Licenser formally dedicates the park to Licenser. All such grading and other work shall be in conformance with plans approved by Licenser. 2. Term of License. The Licenser and Licensee agree that the Licenser may be required in the future to dedicate the License Area described in Exhibit "A" under the terms of the Master Plan. This License to grade shall terminate automatically upon the dedication of the License Area described in Exhibit IlBll or upon the expiration of the period of 24 months from the date of the License, whichever shall first occur. 3. Maintenance. Licensee shall maintain, at Licensee's sole expense, the License Area, and all grading and other improvements made or installed by the Licensee within the License Area, in a sanitary and safe condition, in good repair and in accordance with all applicable laws and regulations. Licensee shall obtain all necessary permits for the grading contemplated by this Agreement and shall not permit, commit or suffer waste upon the License Area. 4. Indemnification. Licensee shall and does indemnify and hold Licenser harmless against and from liabilities and claims of any kind for loss or damage to property of Licensee or any other person, or for any injury to or death of any person, arising out of: (1) Licensee's use and occupancy of the License Area, or any work, recreation, activity, or other things allowed or suffered by Licensee to be done in, on or about the License Area; (2) any breach or default by Licensee of any Licensee's obligations under this Agreement; or (3) any negligent or otherwise tortious act or omission of Licensee, its agents, employees, invitees, or con- tractors. Licensee shall fully defend Licenser in any and all actions or proceedings arising from any such claim and shall indemnify Licenser against all costs, attorneys' fees, expert witness fees and any other expenses incurred in such action or proceeding. -2- . . -, ‘. . . 5. Insurance. Licensee shall, at all times during the term of this Agreement, maintain in full force and effect and at Licensee's sole expense, a policy or policies of casualty insurance and comprehensive public liability and property damage insurance in accordance with prudent business prac- tices to provide reasonable and adequate coverage for casualty claims and liabilities, property damage or personal injury (including death) occurring on, in or about the License Area. Nothing contained in this paragraph shall prevent Licensee from providing self-insurance to comply with the provisions of this paragraph so long as reasonable levels of reserves consistent with prudent business prac- tices are maintained and reasonable and adequate excess coverage in accordance with prudent business practices is provided through a policy or policies of insurance. 6. Liens on the License Area. Licensee shall pay when due all obligations incurred by or for Licensee relating to work on, or use of, the License Area. Licensee shall not cause, suffer or permit any liens relating to mechanics or others to attach to or be recorded against, the License Area, and shall indem- nify, defend and hold Licenser and the License Area harmless from any and all liens, claims, and all expenses (including, without limitation, any attorneys' fees) related to, or arising out of, mechanics or others employed or contracted by Licensee for work on, or use of, the License Area. 7. Successors and Assigns. The terms and conditions contained in this Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, successors and assigns. This License Agreement,and the terms and conditions set forth herein, shall not be recorded. 8. Assignment. This Agreement shall not, nor shall any interest there- in or thereunder, be assigned, mortgaged, hypothecated or transferred by Licensee without first obtaining the written consent of Licenser which consent shall be within the sole and absolute discretion of Licenser. 9. License Subject to Certain Matters. This License is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of -3- 1 558 title which are of record and affect the License Area. The use of the term "grant of license" as set forth in this Agreement shall not be construed as a covenant against the existence of any such matter of record. Further, in no event shall this License in any way violate nor alter the terms of the Master Plan for Calavera Hills currently in effect. 10. Entire Agreement; Modification. This Agreement contains the entire Agreement between the parties relating to the License. This Agreement may be modified only by a written and recorded agreement, signed by both parties or their respective heirs, successors, or assigns. 11. Attorneys' Fees. In the event of any litigation between the parties to interpret or enforce any of the provisions of this Agree- ment, the prevailing party in the action shall be entitled to recover from the losing party reasonable attorneys' fees and costs. 12. Notices. All notices to be given under this Agreement shall be in writing, delivered in person or by registered or certified mail, postage prepaid and return receipt requested at the addresses provided below, or such other addresses as either party may designate, from time to time, by proper notice under this paragraph. Any notice shall be deemed given only when actually received by the intended party, whether personally served or sent by registered or certified mail. Licenser: Cedric E. Sanders 110 West C Street, Suite 1220 San Diego, California 92101 Licensee: City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Attention: Frank Aleshire, City Manager 13. Exhibits. All exhibits to this Agreement are incorporated in and made a part of this Agreement by reference. -4- 7 . 3’ 559 ’ 6.. * \ . l P 14. Severability. If any part of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected and each term and provision of this Agreement shall remain valid and enforceable to the fullest extent permitted by law. 15. Use as a Park. Notwithstanding any provision to the contrary herein, the License Area shall not be used for the construction or operation of a park unless and until fee title to the park has been dedicated to the City of Carlsbad in accor- dance with the terms and conditions of the Master Plan. "LICENSOR" "LICENSEE" CEDRIC E. SANDERS, an individual CITY OF CARLSBAD, a municipal corporation of the State of 1 California c . . . -5- CORPORATE ACKNOWLEDGMENT Statsof California On this the26thdayof February 19=, before me, San Diego 1 SS. County of Karen R. Kundtz I NATIONAL NOTARY ASSOCIATION l 23012 Ventura Blvd. l PO. Box 4625 l Woodland Hilts. CA 91364 7l20 122 c” x L 3 Q E t s .g : E ii ^ 2 z z = h Y co r X’ x- **vvv****v****************~**~ owlclAl.SEAL L $ KAREN R. KWOTZ f - uv ccmm. EXP. SvGl. 27. 1989 ? the undersigned Notary Public, personally appeared Mary H. Casler , II0 personally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) who executed the within instrument as Mayor won behalf of the corporation therein named, and acknowledged to me that the corporation executed it. WITNESS my hand and official seal. ST;T;;o:ALIFORNIA SAN DIEGO lss. I Otl February 18, 1987 ,before me, the undersigned, a Notary Public in and for said State, personally appeared CEDRIC E. SANDERS Personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(s) whose name(s) is/are sub- scribed to the within instrument and acknowledged to me that he/she/they executed the same. ARON WESTERN NOTARY PUBLIC - CAUFORNIA if WITNESS my hand and official seal. ~DtEGOCOUNM expires JAN 31, 1987 Signature W%&, (This area for official notarial seal) EXHIBIT "A" LICENSE AREA A PORTION OF LOT "J" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 16, 1896, TOGETHER WITH A PORTION OF TAMARACK AVENUE AS DEDICATED PER DOCUMENT NO. 82-357616 RECORDED NOVEMBER 19, 1982, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE BOUNDARY OF LAND SHOWN ON RECORD OF SURVEY NO. 9336 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON !IxY 12, 1933, SAID POINT BEING THE EASTERLY TER- MINUS OF THAT LINE SHOWN c)N SAID RECORD OF SURVEY AS NORTH 7LJ" 57' 54" WEST, 71.22 FEET, SAID POINT BEING ON THE ARC OF A CURVE CONCAVE WESTERLY hND HAVING A RADIUS OF 1000.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 7s" 17' 40" EAST; THENCE ALONG THE BOUNDARY OF SAID LAND SHOWY ON RECORD OF SURVEY NO. 9336 AS FOL- LOWS: NORTHERLY, XLONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 33" 19' 32". 581.64 FEET; NORTH 18O 37' 12" WEST, 273.62 FEET; THENCE LEAVING SAID BOUNDARY OF LXND SHOWN ON RECORD OF SURVEY 9336, NORTH 71' 22' 48" EAST, 611.60 FEET; THENCE SOUTH 18O 37' 12" EAST, 660.04 FEET TO THE BOUNDARY OF SAID LAND SHOWN ON RECORD OF SURVEY NO. 9336; THENCE ALONG SAID BOUNDARY AS FOL- LOWS: SOUTH 69O 28' 42" WEST, 653.20 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE %ESTERLY AND HAVING A RADIUS OF 1042.00 FEET, A RADIAL LINE TO SAID POINT BEAKS SOUTH 85" 33' 46" EAST; SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE UF 10" 16' 06", 186.74 FEET; THENCE LEAVING SAID BOUNDARY, ALONG A RADIAL LINE FHO.il SAID CURVE, ?;ORTH 75' 17' 40" WEST, 42.00 FEET TO THE POINT OF BEGINNING. . _ -, *h\ “! t ’ c-\\ . \ r.h’I/f - EXHIBIT “B” I 0 4 \=i & “5 I-- “..Q” y ,---\;+\ 5 N /- ::, kr \ * \ 1. -\- -cc3 f0a \-= ‘& w . . ‘. \. .rulunc \LR\\ . Q u ‘rn _ . . \” “‘.,’ . k.. -\ 1 : -m / 7Y~O/‘fl79/14/ y I 3 72 -- 475m7~ -- \ ~- + --,4’89=‘25V6 W //t/890 25ww 475232’) \ - 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92006 Office of the City Clerk @tt~ of (aarlsba~ February 5, 1987 Vera L. Lyle County Recorder P.O. Box 1750 San Diego, CA 92112 Enclosed for recordation is the following described document: License Agreement for Grading on Village E-2 in Calavera Hills Cedric E. Sanders and the City of Carlsbad Our staff has determined that the recordation of this document is of benefit to the City; therefore, it is requested that the fees be waived. Thank you for your assistance in this matter. TELEPHONE: (619) 438-5535 4 eputy C%ty Clerk Enc. Recording Requested By and Return To: City .Clerk 1200 Elm Abenue Carlsbad, *CA 92008 -- EXHIBIT A to Resolution No.Boo1/ LICENSE AGREEMENT FOR GRADING ON VILLAGE E-2 IN CALAVERA HILLS This License Agreement (the "Agreement") is made in the California on an CARLSBAD, a municipal corporation of the State of California hereinafter ("Licensee"). RECITALS A. Licenser is the fee owner of the real property located in the City of Carlsbad, County of San Diego, State of California, more particularly described in the attached Exhibit "A" and depicted on the attached Exhibit "B". B. The Master Plan for Calavera Hills, MP-150(F), provides that Licenser shall dedicate that property de- scribed in Exhibit "A" to Licensee upon the completion of certain acts ("Dedication") and said completion has not as yet taken place. C. Licensee desires to commence grading on the real property described in Exhibit "A" at this time and prior to the Dedication. D. Licenser, as a land owner, developer, and tax payer in the City of Carlsbad recognizes the need for and supports the construction of sufficient parks and other recreational areas for the citizens of Carlsbad. Licenser fully appreciates the importance of such parks for the continued good health and well being of the citizens of Carlsbad. Licenser, in its desire to cooperate with and assist the City in developing adequate public park facil- ities, has previously dedicated approximately 10 gross acres (Village F) to the City. E. Licensee now desires, and Licenser is willing to grant to Licensee, a license over, under, in, through, and across that property described in Exhibit "A" to permit Licensee to grade the License Area described in Exhibit "A" in accordance with plans to be submitted to the Licenser for approval. F. Accordingly, Licenser, without being required to do so, hereby wishes to grant a license for the grading desired to be accomplished by the City of Carlsbad under the following terms and conditions. . . ” . TERMS AND CONDITIONS 1. Grant of License. Licenser hereby grants to Licensee a License to grade and place fill over, along, across, and through the License Area described in Exhibit "A" for the ultimate purposes of constructing and maintaining a public park and other incidental and ancillary purposes associated therewith when Licenser formally dedicates the park to Licenser. All such grading and other work shall be in conformance with plans approved by Licenser. 2. Term of License. The Licenser and Licensee agree that the Licenser may be required in the future to dedicate the License Area described in Exhibit "A" under the terms of the Master Plan. This License to grade shall terminate automatically upon the dedication of the License Area described in Exhibit ‘VBl’ or upon the expiration of the period of 24 months from the date of the License, whichever shall first occur. 3. Maintenance. Licensee shall maintain, at Licensee's sole expense, the License Area, and all grading and other improvements made or installed by the Licensee within the License Area, in a sanitary and safe condition, in good repair and in accordance with all applicable laws and regulations. Licensee shall obtain all necessary permits for the grading contemplated by this Agreement and shall not permit, commit or suffer waste upon the License Area. 4. Indemnification. Licensee shall and does indemnify and hold Licenser harmless against and from liabilities and claims of any kind for loss or damage to property of Licensee or any other person, or for any injury to or death of any person, arising out of: (1) Licensee's use and occupancy of the License Area, or any work, recreation, activity, or other things allowed or suffered by Licensee to be done in, on or about the License Area; (2) any breach or default by Licensee of any Licensee's obligations under this Agreement; or (3) any negligent or otherwise tortious act or omission of Licensee, its agents, employees, invitees, or con- tractors. Licensee shall fully defend Licenser in any and all actions or proceedings arising from any such claim and shall indemnify Licenser against all costs, attorneys' fees, expert witness fees and any other expenses incurred in such action or proceeding. -2- 5. Insurance. Licensee shall, at all times during the term of this Agreement, maintain in full force and effect and at Licensee's sole expense, a policy or policies of casualty insurance and comprehensive public liability and property damage insurance in accordance with prudent business prac- tices to provide reasonable and adequate coverage for casualty claims and liabilities, property damage or personal injury (including death) occurring on, in or about the License Area. Nothing contained in this paragraph shall prevent Licensee from providing self-insurance to comply with the provisions of this paragraph so long as reasonable levels of reserves consistent with prudent business prac- tices are maintained and reasonable and adequate excess coverage in accordance with prudent business practices is provided through a policy or policies of insurance. 6. Liens on the License Area. Licensee shall pay when due all obligations incurred by or for Licensee relating to work on, or use of, the License Area. Licensee shall not cause, suffer or permit any liens relating to mechanics or others to attach to or be recorded against, the License Area, and shall indem- nify, defend and hold Licenser and the License Area harmless from any and all liens, claims, and all expenses (including, without limitation, any attorneys' fees) related to, or arising out of, mechanics or others employed or contracted by Licensee for work on, or use of, the License Area. 7. Successors and Assigns. The terms and conditions contained in this Agreement shall inure to the benefit of and be binding upon the parties and their respective heirs, successors and assigns. This License Agreement,and the terms and conditions set forth herein, shall not be recorded. 8. Assignment. This Agreement shall not, nor shall any interest there- in or thereunder, be assigned, mortgaged, hypothecated or transferred by Licensee without first obtaining the written consent of Licenser which consent shall be within the sole and absolute discretion of Licenser. 9. License Subject to Certain Matters. This License is subject to all valid and existing contracts, leases, licenses, encumbrances, and claims of -3- title which are of record and affect the License Area. The use of the term "grant of license" as set forth in this Agreement shall not be construed as a covenant against the existence of any such matter of record. Further, in no event shall this License in any way violate nor alter the terms of the Master Plan for Calavera Hills currently in effect. 10. Entire Agreement; Modification. This Agreement contains the entire Agreement between the parties, relating to the License. This Agreement may be modified only by a written and recorded agreement, signed by both parties or their respective heirs, successors, or assigns. 11. Attorneys' Fees. In the event of any litigation between the parties to interpret or enforce any of the provisions of this Agree- ment, the prevailing party in the action shall be entitled to recover from the losing party reasonable attorneys' fees and costs. 12. Notices. All notices to be given under this Agreement shall be in writing, delivered in person or by registered or certified mail, postage prepaid and return receipt requested at the addresses provided below, or such other addresses as either party may designate, from time to time, by proper notice under this paragraph. Any notice shall be deemed given only when actually received by the intended party, whether personally served or sent by registered or certified mail. Licenser: Cedric E. Sanders 110 West C Street, Suite 1220 San Diego, California 92101 Licensee: City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Attention: Frank Aleshire, City Manager 13. Exhibits. All exhibits to this Agreement are incorporated in and made a part of this Agreement by reference. -4- 7 . ’ . . . I .L’ _ 14. Severability. If any part of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected and each term and provision of this Agreement shall remain valid and enforceable to the fullest extent permitted by law. 15. Use as a Park. Notwithstanding any provision to the contrary herein, the License Area shall not be used for the construction or operation of a park unless and until fee title to the park has been dedicated to the City of Carlsbad in accor- dance with the terms and conditions of the Master Plan. "LICENSOR" "LICENSEE" CEDRIC E. SANDERS, CITY OF CARLSBAD, a municipal an individual T-3 corporation of the State of 1 California -5- EXHIBIT "A" LICENSE AHEA A PORTION OF LOT "J" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP NO. 823 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON NOVEMBER 16, 1896, TOGETHER WITH A PORTION OF TAMARACK AVENUE AS DEDICATED PER DOCUMENT NO. 82-35761ti RECORDED NOVEMBER 19, 1982, OFFICIAL RECORDS, DESCRIBED AS FOLLOWS: BEGINNING; AT A POINT ON THE HOUNDABY OF LAND SHOWN ON HECORD OF SURVEY NO. 9336 FILED IN THE OFFICE OF THE COUNTY RECORDEK OF SAN DIEGO COUNTY ON !.l.\Y 12, 19$3, SAID POINT BEING THE EASTERLY 'PER- MINUS OF THAT LINE SHOWN c)N SAID RECORD OF SURVEY AS NORTH 7Y" 57' 54" WEST, 71.22 FEET, SAID POINT BEING ON THE ARC OF A CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 1000.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 75O 17' 40" EAST; THENCE ALONG THE BOUNDARY OF SAID LAND SHOWN ON RECORD OF SURVEY NO. 9336 AS FOL- LOWS: NORTHERLY, ALONG THE ARC OF SAID CUHVE, THROUGH A CENTRAL ANGLE OF 33O 19' 32", 581.tiq FEET; NORTH 18' 37' 12" WEST, 273.62 FEET; THENCE LEAVING SAID BOUNDARY OF LAND SHOWN ON RECORD OF SURVEY 9336, NORTH 71' 22' 48" EAST, 611.60 FEET; THENCE SOUTH 18' 37' 12" EAST, 660.04 FEET TO THE BOUNDARY OF SAID LAND SHOWN ON RECORD OF SURVEY NO. 9336; THENCE ALONG SAID BOUNDARY AS FOL- LOWS: SOUTH 69' 28' 42" WEST, 633.20 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE ;VESTERLY AND HAVING A RADIUS OF 1042.00 FEET, A RADIAL LINE TO SAID POINT BEAKS SOUTH 85' 33' 46" EAST; SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 10" 16' 06", 186.74 FEET; THENCE LEAVING SAID BOUNDARY, ALONG A RADIAL LINE FRO\1 SAID CURVE, ?iORTH 75' 17' 40" WEST, 42.00 FEET TO THE POINT OF BEGINNING. * . -- 1791 Ol’fl79~41 Y It-7