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Home My WebLink About2014-06-03; City Council; 21617; Encroachment Agreement Outdoor Patio Dining Plaza Camino RealCITY OF CARLSBAD - AGENDA BILL 10 AB# 21.617 APPROVING THE TERMS OF AN ENCROACHMENT AGREEMENT FOR OUTDOOR PATIO DINING AT PLAZA CAMINO REAL DEPT. DIRECTOR APPROVING THE TERMS OF AN ENCROACHMENT AGREEMENT FOR OUTDOOR PATIO DINING AT PLAZA CAMINO REAL CITY ATTORNEY DEPT. CA APPROVING THE TERMS OF AN ENCROACHMENT AGREEMENT FOR OUTDOOR PATIO DINING AT PLAZA CAMINO REAL CiTY MANAGER ^\ RECOMMENDED ACTION: Adopt Resolution No. 2014-114 for outdoor dining at Plaza Camino Real. approving the terms of an encroachment agreement ITEM EXPLANATION: At the closed session of March 18, 2014 the City Attorney was given authority by the City Council to enter into negotiations with CMF PCR LLC regarding its request for outdoor dining on the south-east portion ofthe parking lot at the Plaza Camino Real shopping center. The City of Carisbad is the owner of the parking lot for Plaza Camino Real and has negotiated an agreement with Westfield to allow 3700 sq. ft. of City property as an outdoor dining patio area as part of the renovation of the shopping center. FISCAL IMPACT: Westfield estimates restaurant uses will generate approximately $55,000 per year in sales tax revenue to the City. ENVIRONMENTAL IMPACT: Approval of this encroachment agreement is not subject to environmental review as it can be seen with certainty that there is no possibility that the activity in question will have a significant effect on the environment pursuant to CEQA Regulation 15061(b)(3). EXHIBITS: 1. Resolution No. 2014-114. DEPARTMENT CONTACT: Celia A. Brewer 760-434-2891 celia.brewer(%carlsbadca.gov FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC • DENIED • CONTINUED TO DATE UNKNOWN • CONTINUED • RETURNED TO STAFF • WITHDRAWN • OTHER-SEE MINUTES • AMENDED • 21 22 23 24 by the City Council to enter into negotiations with CMF PCR LLC regarding its request for outdoor dining on the south-east portion ofthe parking lot at the Plaza Camino Real Shopping Center; and 1 RESOLUTION NO. 2014-114 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE TERMS OF AN ENCROACHMENT AGREEMENT FOR OUTDOOR DINING AT PLAZA CAMINO REAL 4 5 WHEREAS, at the closed session of March 18, 2014 the City Attorney was given authority 6 7 8 9 WHEREAS, the City of Carlsbad is the owner ofthe parking lot for Plaza Camino Real and 11 has negotiated an agreement with Westfield to allow 3700 sq. ft. of City property as an outdoor 12 dining patio area as part ofthe renovation ofthe shopping center; and 13 WHEREAS, Westfield estimates restaurant uses will generate approximately $55,000 per 14 year in sales tax revenue to the. 15 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carisbad, 16 I y California, as follows that 18 1. The above recitations are true and correct 19 2. That it is in the best interests of the City of Carlsbad to enter into the attached 20 Encroachment Agreement (Exhibit 1) with CMF PCR LLC. 3. That the Mayor is authorized to execute the attached Encroachment Agreement. // // 25 // 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City of Carlsbad on the 3'"'^ day of June, 2014, by the following vote to wit: AYES: NOES: Council Members Hall, Packard, Wood, Schumacher and Blackburn. None. ABSENT: None. MATT HALL, Mayor ATTEST: BARBARA ENGLESON, Clerk RECORDING REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 MAIL TAX EXEMPT STATEMENTS TO: EXEMPT SPACE ABOVE TfflS LINE FOR RECORDER'S USE The imdersigned grantor(s) declare(s): Assessor's Parcel No.: 156-302-24 Documentary transfer tax is $0.00 Project Name: Westfield Carlsbad ( ) computed on full value of property conveyed, or Project No.: SDP 09-04 ( ) computed on fiill value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: (x) City of Carlsbad, and ENCROACHMENT AGREEMENT RECITALS This encroachment agreement ("Agreement") is entered into between the City of Carlsbad, and CMF PCR LLC, as of the date that it is executed by all parties. A. The City of Carlsbad, a chartered municipal corporation of the State of California, ("Property Owner") is the owner of a parking lot for the Plaza Camino Real shopping center located in the City of Carlsbad, County of San Diego, State of Califomia ("City Parcel"). B. CMF PCR LLC, a Delaware limited liability company ("Business Owner") is the ovraer of certain real property adjacent to the City Parcel, as more particularly set forth in Exhibit A, attached hereto and incorporated herein by reference ("CMF PCR Shopping Center Parcel"). Business Owner intends to construct certain renovations to the building located on the Shopping Center Parcel. C. Property Owner has agreed to allow outdoor patio areas for outdoor dining proposed for those certain renovations mentioned above to encroach onto the City Parcel ("Encroachments"), as shown on Exhibit B attached hereto and incorporated herein by reference, from the exterior wall of the renovated buildings. A diagram showing the location of the encroachment area ("Encroachment Area") is attached hereto and incorporated herein by reference as Exhibit B AGREEMENT NOW, THEREFORE Property Owner allows the Encroachments by Business Ovmer subject to the following terms and conditions: 4838-5524-4570.1 4/03/2014 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 Cify 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 fiill 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; and Business Owner shall not charge its tenants for use of the outdoor dining area. The exact location of the Encroachments as shown on Exhibit B will be reflected in the final construction documents for the Encroachments approved by the building department ofthe City of Carlsbad, provided that in all events the Encroachments must be 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 the transfer of either Shopping Center Parcel voluntarily or by operation of law 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 it 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 Business Owner. 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 improvements thereupon) for at least $5,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. The insurance will be obtained firom an insurance carrier admitted and authorized to do business in the State of Califomia. The insurance carrier is required to have a current Best's Key Rating of not less than "A-iVII" OR with a surplus line insurer on the State of California's List of Ehgible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". Business Ovmer may provide the required limits of coverage through a combination of a primary general liability policy and umbrella/excess policies. -2- 4838-5524-4570.1 4/03/2014 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 constmcted, maintained, or permitted on the Encroachment Area, or any portion thereof, by Property Owner or Business Owner, other than wall, fences or barriers surroundmg the outdoor patio areas within the Encroachment Area. Section 7. Indemnification Business Owner shall mdemnify, 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 Business Owner, its agents, representatives, heirs, successors, assigns or invitees arismg out of its use ofthe Encroachment Area, excluding therefirom claims resulting fi-om the negligence or willful misconduct of Property Ovmer 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, retum receipt requested, and addressed to the person and address designated below: If to Property Ovmer: Attn: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 If to Business Owner CMF PCR: CMF PCR LLC c/o Westfield LLC 2049 Century Park East, 41'* Floor Los Angeles, Califomia 90067 Attention: COO - Operations With a copy to: CMF PCR LLC c/o Westfield LLC 2049 Century Park East, 41'* Floor Los Angeles, Califomia 90067 Attention: COO - Office of Legal Counsel -3- 4838-5524-4570.1 4/03/2014 Section 9. Waiver Property Ovmer's consent to or approval of any act or omission by Business Ovmer shall not constitute a waiver of any other default by Business Ovmer and shall not be deemed a waiver or render unnecessary Property Ovmer'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 conceming the same or any other provision of this agreement. Section 10. Miscellaneous This Agreement constitutes the entire agreement between Property Ovmer and Business Ovmer 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 Ovmer or its 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. PROPERTY OWNER: BUSINESS OWNER: CITY OF CARLSBAD, a chartered municipal CMF PCR LLC, corporation of the State of Califomia a Delaware limited liability company By: UXMliiJ&y By: Westfield U.S. Holdings, LLC, a Matt Hall' Mayor Delaware limited liability company, its general partner ATTEST: By: Westfield America Limited Partnership, a Delaw^j:e4imite^^^5^nership, its sole BARBARA ENGLESON me: City Clerk (print name/title) APPROVED AS TO FORM: CELIA A. BREWER, City Attomey Ro »^ A • fWlft^ ssistant City Attomey -4- 4838-5524-4570.1 4/03/2014 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) On and AprH State, { \(£ , , 2014, before me, Lisa M. Shelley, a Notary Public in and for said County personally appeared, RORY A. PACKER who proved to me on the basis of satisfactory evidence to be the person(3) whose name^^ is^e subscribed to the within instrument and acknowledged to me that he/sh//th^ executed the same in his/h^/tljglr authorized capacity^), and that by his/h^/t^feir signaturej^) on the instrument the person(X), or the entity upon behalf of which the person(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is trae and correct. WITNESS my hand and official seal. Signature: Notary Public (Notary Seal) LISA M. SHELLEY^^ Commission # 1931433 t Notary Public - California f Los Angeles County 2 ^ My Comm. Expires Apr 30.2015 ^ Attached to Encroachment Agreement EXHIBIT A LEGAL DESCRIPTION OF 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. EXHIBIT A -1- 4838-5524-4570.1 4/03/2014 EXHIBIT B PROPOSED ENCROACHMENTS AND ENCROACHMENT AREA 4838-5524-4570.1 4/03/2014 EXHIBIT B -1- 4838-5524-4570. V. 1 4838-5524-4570.1 4/03/2014