HomeMy WebLinkAboutWP Golf and Equestrian LLC, Cantarini LLC and WSL Dos Colinas R/E LLC (WP, Cantarini and WSL); 2022-03-28;RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT ("Agreement") is made as of March 28, 2022
("Effective Date"), by and between WP GOLF AND EQUESTRIAN, LLC, a California limited
liability company ("WP"), CANT ARINI, LLC, a California limited liability company
("Cantarini"), WSL DOS COLINAS R/E, LLC, a California limited liability company ("WSL")
(WP, Cantarini, and WSL collectively, the "Licensor") and the CITY OF CARLSBAD, a
municipal corporation ("City") and CR ASSOCIATES, INC., a California corporation ("CRA")
(City and CRA collectively, the "Licensee").
RECITALS
A. WP is the owner of that certain real property situated in the City of Carlsbad,
County of San Diego, State of California comprised of Assessor Parcel No. 209-060-71-00 and
Assessor Parcel No. 209-060-72-00 (the "WP Property").
B. Cantarini is the owner of that certain real property situated in the City of Carlsbad,
County of San Diego, State of California comprised of Assessor Parcel No. 209-070-13-00 (the
"Cantarini Property").
C. WSL is the owner of that certain real property situated in the City of Carlsbad,
County of San Diego, State of California comprised of Assessor Parcel No. 209-060-68-00 and
209-060-70-00 ("WSL Property") (the WP Property, the Cantarini Property and the WSL Property
collectively, the "Property").
D. Licensee desires to enter onto a portion of the Property for the purpose of
conducting preliminary design and environmental studies for a future segment of College
Boulevard between Sunny Creek Road and Cannon Road adjacent to a portion of the Property,
(the "Study and Design Work"). The goal of the Study and Design Work is to develop preliminary
plans, a cost estimate for construction and funding options.
NOW, THEREFORE, the parties hereto agree as follows:
1. License to Enter Property. Licensor hereby grants Licensee and its duly authorized
employees, agents, contractors, consultants and subcontractors (collectively, "Representatives") a
nonexclusive license to enter upon a portion of the Property for the sole purpose of undertaking
the Study and Design Work at Licensee's sole cost and expense. The Study and Design Work may
include a topographical survey, geotechnical investigations and site visits related to engineering
design and environmental surveys but shall not include any other tests, studies, review or
investigations without the prior written consent of Licensor. Each of Licensee's or its
Representatives' entries onto the Property shall be made in such a manner so as to not unreasonably
interfere with the use of the Property by Licensor, shall be limited to the areas of the Property as
reflected by the green lines on Exhibit A and areas within 200 feet of either side of the green lines
on Exhibit A and areas within 200 feet of the existing 102' right-of-way for the future segment of
College Boulevard (the "Access Area") and shall be limited to undertaking the Study and Design
Work with no other activities, testing, reviews, studies or investigations being permitted, except
for those other activities authorized in writing by Licensor. Licensee and its Representatives shall
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provide Licensor (at no cost to Licensor) with copies of all documents produced for License as a
result of, arising out of, or in connection with, the Study and Design Work.
2. Notice of Entry. Licensee shall notify Licensor of the proposed commencement
date of the Study and Design Work and shall provide a schedule of its activities relative to the
Study and Design Work, with such notice occurring at least forty-eight (48) hours in advance of
any proposed access to the Property. Licensee shall notify Licensor of any substantial change in
the schedule as soon as such change becomes known.
3. No Authority or Rights Outside of Access Area. Notwithstanding anything to the
contrary contained in this Agreement, Licensee and its Representatives shall not have any right or
authority to access, use or occupy any portion of the Property outside of the Access Area, to
conduct any of the Study and Design Work on any portion of the Property outside of the Access
Area or to conduct any tests, studies, reviews or investigations on any portion of the Property
outside of the Access Area.
4. Government Regulations. In connection with any activities undertaken pursuant to
this Agreement, Licensee and its Representatives shall comply with all applicable laws, rules,
regulations, ordinances and covenants conditions and restrictions that pertain to the Property
("Applicable Laws"). Licensee and its Representatives shall perform all of the Study and Design
Work in accordance with professional standards.
5. Liens. Licensee shall not suffer or permit to be enforced against the Property any
mechanics', materialmen's, contractors' or subcontractors' liens or any claim for damage arising
from the actions or omissions of Licensee or its Representatives on or about the Property, and
Licensee shall pay or cause to be paid, or bond over, all of said liens, claims or demands before
any action is brought to enforce the same against the Property. The terms and conditions of this
Section 5 shall survive the termination or cancellation of this Agreement.
6. Insurance. At all times when this Agreement remains in effect, Licensee shall
maintain in full force and effect, at the sole cost of Licensee the following insurance: (A)
comprehensive commercial general liability insurance for personal injury (including wrongful
death) and damage to property covering any occurrence on the Property and any act or omission
by Licensee and its Representatives arising out of Licensee's or its Representatives' entry onto the
Property (with a combined single limit of liability for bodily injury and property damage of not
less than $2,000,000 per occurrence); and (B) worker's compensation and employers' liability
insurance in accordance with Applicable Law. The general liability insurance policy shall.contain
an endorsement naming Licensor as an additional insured. Licensee shall provide thirty (30) days'
written notice to Licensor of any non-renewal or cancellation of any such policy without
replacement of the required coverage or of any changes to such policy that would make such
coverage non-compliant with this Section 7. Licensee shall provide Licensor with evidence of such
insurance prior to its entry onto the Property. City shall be exempt from the requirements of this
paragraph if no City employee enters any portion of the Property.
7. Termination. Licensee's rights granted by this Agreement shall terminate
automatically upon the earliest of: (i) upon receipt of written notice of termination from Licensor
to Licensee informing Licensee of an uncured default as described in Section 11; or (iii) two years
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after the Effective Date. At Licensor's request, Licensee shall execute a document to terminate this
Agreement.
8. Nature of Licensee's Rights. Licensee acknowledges that: (i) this Agreement grants
Licensee a revocable nonexclusive license, and (ii) Licensee has no rights as an owner, purchaser
or tenant by virtue hereof. Upon termination of this Agreement, Licensee shall promptly vacate
the Property.
9. Maintenance and Condition of Property. Licensee agrees to have its
Representatives' repair any damage, to at least as good condition as existed before Licensee's
entry, to the Property (whether inside or outside of the Access Area) that is caused by or results
from the Study and Design Work.
10. Default. An event of default under this Agreement shall be any violation of the
terms of this Agreement or the breach of any covenant by Licensee that is not cured within 30
days' notice from Licensor. Licensee shall have no rights under this Agreement if and for so long
as Licensee is in default under this Agreement. If Licensee fails to cure a violation or breach of
this Agreement within 30 days' notice of the alleged violation or breach, Licensor shall have the
right, in addition to any other right or remedy, to immediately, and without prior notice, cancel
this Agreement and to prohibit access to the Property or any further use by Licensee of the Access
Area.
11. Assignability. This Agreement may not be assigned, whether voluntarily or by
operation of law and Licensee shall not permit the use of the Property, or any part thereof, except
in strict compliance with the provisions hereof: and any attempt to do so shall be null and void.
12. Binding Effect. Except as limited by the provisions of Section 12, the provisions
of this Agreement are binding upon and shall inure to the benefit of the parties and their respective
heirs, personal representatives, successors and assigns.
13. Applicable Law. This Agreement shall be construed according to California law.
14. Notices. Any notice to be given or served upon any party hereto in connection with
this Agreement must be in writing and shall be deemed to have been given upon delivery if given
by personal service or commercial delivery service, or three (3) business days following deposit
in the United States Postal Service if mailed to the party to whom notice is to be given by first
class mail, certified or registered, postage prepaid, return receipt requested and properly addressed
to Licensor or Licensee, or if given by email, upon the earlier of: (a) the date the recipient actually
received and read the notice as evidenced by the recipient's (non-automatic) reply to such notice
or other competent evidence of actual receipt, or (b) the deemed given date of duplicate notice
given by the sender by any mode of transmission allowed above other than email; provided
however, any notice of default sent by email must be also delivered by one of the other methods
of delivery set forth in this Section in order to be effective. The inability to deliver a notice because
of a changed address of which no notice was given, or any rejection or other refusal to accept any
notice, shall be deemed to be the receipt of the notice as of the date of such inability to deliver or
rejection or refusal to accept. However, notwithstanding the foregoing, an inoperative or incorrect
email address shall not have a deemed receipt effect. Any notice to be given by any party hereto
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may be given by legal counsel for such party. The initial notice addresses for the parties are below,
but any party may from time to time, by written notice to the other, designate a different address
which shall be substituted for that specified below.
To Licensor:
with a copy to:
To City:
with a copy to:
ToCRA:
4854-1554-7145.l
WP Golf and Equestrian, LLC
Cantarini, LLC
WSL Dos Colinas R/E, LLC
Attn: Kurt Wickham
5 800 Armada Drive, Suite 100
Carlsbad, CA 92008
Telephone: (760) 602-5827
e-mail: kwickham@westdevllc.com
Koley Jessen, P.C., L.L.O.
Attn: Matthew D. Maser
1125 South 103rd Street, Suite 800
Omaha, NE 68124
Phone No.: (402) 343-3710
e-mail: matt.maser@koleyjessen.com
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Attention: Paz Gomez
Phone No.: 442-339-2751
e-mail: paz.gomez@carlsbadca.gov
City of Carlsbad
1635 Faraday Ave.
Carlsbad, CA 92008
Attention: Tom Frank
Phone No.: 442-339-2766
e-mail: tom.frank@carlsbadca.gov
CR Associates
3900 Fifth Avenue, Suite 310
Attention: Matthew Capuzzi
Phone No.: 610-405-3929
e-mail: mcapuzzi@cramobility.com
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with a copy to: CR Associates
Attention: Kevin Roque
Phone No.: 213-394-2006
e-mail: kroque@cramobility.com
15. Entire Agreement. This Agreement constitutes the entire agreement between the
parties pertaining to the subject matter contained herein. All prior and contemporaneous
agreements, representations and understandings of the parties, oral or written, are superseded by
and merged in this Agreement. No supplement, modification or amendment of this Agreement
shall be binding unless in writing and executed by Licensor and Licensee. This Agreement may
be executed in any number of counterparts, each of which shall be an original, but all of which
shall constitute the same instrument.
16. No Licensor Responsibility. Licensor shall not have any responsibility, obligation
or liability whatsoever to Licensee or its Representatives, for any occurrence on or about the
Access Area or the Property or with respect to any property of Licensee or its Representatives,
including, without limitation, any loss, injury or damage to Licensee, its Representatives or their
property. Licensee acknowledges and understands that Licensor makes no representation or
warranty whatsoever, express or implied, with respect to the Property or the Access Area,
including any hazards or dangers found at the Access Area. Licensor understands and
acknowledges that it enters the Property and uses the Access Area and performs the Study and
Design Work at its own risk.
17. No Recordation. Neither Licensor nor Licensee shall record this Agreement or any
memorandum of this Agreement.
(Signature page follows. Remainder of page intentionally blank.)
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Matthew Capuzzi
Authorized Representative
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
4854-1554-7145. l
LICENSOR:
WP GOLF AND EQUESTRIAN, LLC, a California
limited liability company
By: ___________ _
Its: _____________ _
CANT ARINI, LLC, a California
limited liability company
By: _____________ _
Its: --------------
WSL DOS COLINAS R/E, LLC, a California
limited liability company
By:--------------
Its: --------------
By:_+----=i!l!:~--;.-:;;1r----.-:---=----=---
Its: _ _::::::::::.~~f_j~~~~~-
CR ~Cf ~ES, INC., a ~alifornia corporation
By: ✓·p~
Its : ·
Matthew Capuzzi
Authorized Representative
)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
4854-1554-7145.l
LICENSOR:
WP GOLF AND EQUESTRIAN, LLC, a California
limited liabi!j~~
B~~~
Its: lu1a W1C-?fM:W'l
tJin-Hb-,e.,,/~ 0z-9~ Af' ~
CANT ARIN!, LLC, a California
:~~
Its: ~ ,z_[ )1/ ,~nr-,
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WSL DOS COLINAS R/E, LLC, a California
~~ Its:= ---
~~#~ :t:20 ~~'¢:1' /"4:
LIC
, a municipal corporation
TES, INC., a California corporation
By:---i-:....::::...r::::..__L~~~'U--'------Its: _____________ _
4854-1554-7145. l
EXHIBIT "A"
[See Attached]
LEGEND:
-PRIVATE PROPERTY LINE/LIMITS A
-PROPOSED ACCESS ROUTE FOR PROFESSIONAL SERVICES N
NOTTO SCALE
COLLEGE BOULEVARD REACH A-RIGHT OF ENTRY EXHIBIT
C R
-2-
4854-1554-7145. l
APN: 209-060-72-00
I . 1·--
1
I I
LEGEND:
-PRIVATE PROPERTY LINE/LIMITS
-PROPOSED ACCESS ROUTE FOR PROFESSIONAL SERVICES
\ \
c~ f
I I
I I I i
COLLEGE BOULEVARD REACH A-RIGHT OF ENTRY EXHIBIT
C R
4854-1554-7145. l
A N
NOTTO SCALE
LEGEND:
-PRIVATE PROPERTY LINE/LIMITS !
-PROPOSED ACCESS ROUTE FOR PROFESSIONAL SERVICES N
NOTTO SCALE
COLLEGE BOULEVARD REACH A-RIGHT OF ENTRY EXHIBIT
C R
4854-1554-7145.1
LEGEND:
-PRIVATE PROPERTY LINE/LIMITS
-PROPOSED ACCESS ROUTE FOR PROFESSIONAL SERVICES
NOTTO SCALE
COLLEGE BOULEVARD REACH A-RIGHT OF ENTRY EXHIBIT
C R
4854-1554-7145. l
LEGEND:
--,
i J I I f-:_
••1,: .':, l,!··,if-••,t,
-PRIVATE PROPERTY LINE/LIMITS
APN: 209-070-13-00
J I I
~-J I ··1; ""(
• _/ l_.
i ·'i
-PROPOSED ACCESS ROUTE FOR PROFESSIONAL SERVICES
COLLEGE BOULEVARD REACH A-RIGHT OF ENTRY EXHIBIT
C R
4854-1554-7145. l
NOTTO SCALE