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HomeMy WebLinkAboutCT 02-24; Real Estate Collateral Management Co; 2004-0586679; Encroachment AgreementDOC # 2004-0586678 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 OFFICIAL RECORDS M DIEW COUNTY RECORDER'S OFFICE GREGORY J. SHITH, COUNTY RECORDER FEES: 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: PROJECT NO. & NAME: CT 02-24 CT02 - 20 213-112-05 & 06 -. -- Village of La Costa - Greens PR 04-17 RIGHT-OF-WAY PERMIT NO.: ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Real Estate Collateral Management Company, a Delaware Corporation ("Owner"), in accordance with Chapter 11 .I6 of the Carlsbad Municipal Code. 1. The Property. Owner is the owner of that certain real property located in Villages of La Costa - Greens, CT 99-03 (Development) within the City of Carlsbad, San Diego County, California, and more particularly described in Exhibit "A", attached hereto and incorporate herein by reference (the "Benefited Property"). 2. The Easement. City currently owns an existing easement over, under, and across Owner's property for public street and public utility purposes as dedicated on the final subdivision tract maps and is described in Exhibit "B" attached hereto and incorporated by reference. 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow private underground storm water quality treatment units and appurtenant facilities to remain in a portion of the easement to serve the water quality treatment requirements for this Development. The encroachment consists of, but is not limited to vortechnics units, RCP laterals, manhole lids, etc (refer to Exhibit "C" for plat describing the private underground storm water quality treatment units). A plat showing the location of the encroachment is attached as Exhibit "D" attached hereto and incorporated by reference. These private underground storm water quality treatment units are constructed in accordance with the improvement plans on file with the City Engineer as drawing numbers 397-2. This Agreement is subject to the following terms and conditions: a. The encroachment shall be installed and maintained in a safe and sanitary condition at the sole cost, risk, and responsibility of the Owner and its successors in interest. The private underground storm water quality treatment 1 H./DEVELOPMENT SERVlCESllPROJECTSlCTOZ-ZZAGREEMENTS REV. 04-07-04 units and appurtenances are privately owned, operated and maintained. b. C. d. e. f. 9. The private underground storm water quality treatment units and appurtenances shall be maintained, repaired and replaced pursuant to the terms of this Agreement at the sole cost and expense of Owner initially, until transfer to the La Costa-Greens Community Homeowner’s Association (“HOA), or other successors-in-interest (collectively “Owner/HOA) of the Benefited Property, which shall take over all such obligations set forth in this Agreement. Owner/HOA agree to pay all necessary regulatory fines if Owner/HOA fail to maintain the private underground storm water quality treatment units and appurtenances to ensure their effectiveness at removing pollutants-of-concern from the 85’” percentile storm and meeting flow-based criteria set forth by the Regional Water Quality Control Board. Owner/HOA agree to maintain, repair, replace, reconstruct, or perform any other necessary work to maintain the private underground storm water quality treatment units and appurtenances in a safe and operational condition to the satisfaction of the City Engineer. No less than forty-eight (48) hours after Owner/HOA discovery of a non-operating or damaged private underground storm water quality treatment units or after receiving written notification by the City of Carlsbad, whichever occurs first, Owner/HOA shall replace or repair the private underground storm water quality treatment units to a safe and operational condition to the satisfaction of the City Engineer. If Owner/HOA fail to maintain, repair, replace, reconstruct, or perform any other necessary work to improve a non-operating or damaged private underground storm water quality treatment units to a safe and operational condition in accordance with the terms set forth above, the City shallhave the right, but not the duty, to repair, replace or maintain the privatestorm water quality treatment units and appurtenances, for public safety or for any other reason, and City shall have the right to recover all reasonable costs in doing so, directly from the Owner/HOA, which if not paid within forty-five (45) days of written receipt from the City, shall become a lien on the Owner/HOAs common property subject to enforcement and foreclosure in accordance with California State law. The Owner/HOA hereby agree to indemnify and hold the City free and harmless from any and all claims, demands, losses, damages, or expenses resulting from the construction, maintenance, use, repair or removal of the encroachment installed hereunder, including any loss, damage, or expense arising out of (1) loss or damages to property and (2) injury to or death of persons. Owner/HOA shall provide City Engineer with the name, telephone number and address of its designated maintenance company and shall advise the City Engineer, in writing, if any contact information changes regarding the private streetlights maintenance company. A private storm water quality treatment unit maintenance company performing the maintenancehepairs of these private street lights shall not excuse any Owner/HOA obligations of terms set forth herein. 2 H:/DEVELOPMENT SERVICES//PROJECTS/CTOZ-22/AGREEMENTS REV. 04-07-04 h. i. j. k. Owner/HOA shall obtain all necessary permits required to perform repair, maintain, replace, or reconstruct the private underground storm water quality treatment units and appurtenances in City right-of-way. Owner/HOA shall provide proof of insurance prior to any work being performed in the City right-of- way. The insurance requirements shall meet the minimum qualifications as required by the right-of-way permit and the Municipal code, in effect at the time the work is proposed pursuant to this Agreement. The City of Carlsbad shall be listed as additionally insured on the insurance binder and supported by the insurance endorsement. Whatever rights and obligations were acquired by the City with respect tothe easement shall remain and continue in full force and effect and shall in no way be affected by City's grant of permission to construct and maintain the encroachment. Nothing in this agreement is intended to, nor shall be construed to grant or authorize the installation of any other facilities or equipment (including but not limited to cellular communications, signage, or other facilities) other than the streetlight and necessary appurtenances thereto specifically approved by the City pursuant to this Agreement. Owner must remove or relocate any part of the encroachment within ninety (90) days or such other time as specified in the notice after receipt of it from the City Engineer, or the City Engineer may cause such work to be done and the reasonable cost thereof shall constitute a lien upon the property. 4. Entire Aareement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all other agreements, oral or written, between the parties with respect to the subject matter. 5. Notices. Any notice which is required or may be given pursuant to this Agreement shall be sent in writing by United States mail, first class, postage pre-paid, registered or certified with return receipt requested, or by other comparable commercial means and addressed as follows: If to the City: If to the Owner: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Real Estate Collateral Management Co. c/o Morrow Development, Inc. Carlsbad, CA 92008 1903 Wright Place, Suite 180 which addresses may be changed from time to time by providing notice to the other party in the manner described above. 6. Waiver. City's consent to or approval of any act or omission by Owner shall not constitute a waiver of any other default by Owner and shall not be deemed a waiver or render unnecessary City's consent for approval to any subsequent act by Owner. Any waiver by City of any default must be in writing and shall not be a waiver of any other default concerning the same 3 H:/DEVELOPMENT SERVICEWPROJECTSICT02-ZZAGREEMENTS REV. 04-07-04 or any other provision of the Agreement. Successors and Assigns. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns. Owner agrees to incorporate this agreement by reference in any subsequent deeds to the property, but any failure to do so does not invalidate this provision. 7. 8. Capacity. Each party represents that the person@) executing this Agreement on behalf of such party have the authority to execute this Agreement and by such signature(s) thereby bind such party. IN WITNESS WHEREOF, this parties hereto have executed this Agreement on this Gad day of &c; \ ,2odL(. Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney HYDEVELOPMENT SERVICES//PROJECTSICTOZ-2Z/AGREEMENTS 4 REV. 04-07-04 State of Gathima . SLLrmu ) ) County of Sa-Dsgo ccsri ) On AP n] 2Zc ,kN beforeme, hlifi4 (’- 4r-b 1 (Date) (Name, Title of Officer) personally appeared /Gw 5cAdLf 1 (Name[s] of Signer[s]) personally known to me -QT. I \ (to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal Signature of Notary OFFICIAL SEAL DIANA C MORENO NOTARY PVBLIC. STAT€ OF ILLINOIS (This area for official notary seal) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages H:IDEVELOPMENT SERVICESIIPROJECTSICTOZ-2Z/AGREEMENTS 5 REV. 040704 EXHIBIT “A” BENEFITTED PROPERTY Lot 3 1 of Carlsbad Tract 99-03-01 at La Costa Greens, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 14543 filed in the Office of the County Recorder of San Diego County, February 12,2003. Lot 65 of Carlsbad Tract 02-20 at La Costa Greens Neighborhood 1.10, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. WZ?,2604 . [4&5 filed in the Office of the County Recorder of San Diego County, Lot 130 and Goldstone Road inclusive, of Carlsbad Tract 02-24 at La Costa Greens Neighborhood 1.1 1, 1.13 & 1.14, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 14807 filed in the Office of the County Recorder of San Diego County, Wd 27.2004. Sheet 1 of 1 EXHIBIT “B” LEGAL DESCRIPTION OF CITY EASEMENT UNDERLYING ENCROACHMENT 1. General Utility & Access Easement for public utility purposes within CT 99-03: As dedicated on Map No. 14543. 2. Easement for public street and utility purposes within CT 02-24: Goldstone Road As dedicated on Map No. 1m7. 3. Drainage Easement for public utility purposes on Lot 65 of CT 02-20: As dedicated on Map No. \4505. 4. Drainage Easement for public utility purposes on Lot 130 of CT 02-24: As dedicated on Map No. \e07 . Sheet 1 of 1 Exhibit "C" m (6) 3/4" DIA. PERFORATIONS MATERIAL: Gray CM confming io ASTM A48, U 308 and "TO MI05 41 VORTECHS SYSTEM - 24" DIA. x 4" H MH FRAME AND COVER AASHTO HS20-44 HIGHWAY LOADING 2m Enurprirr Drive Scorhough. ME MW4 T& 207-88~-9.33 Fu:ZO7-885-9825 DATE 01/23/02 ISCILLE. NONE lNLENllMr 24uIPBL1D(DR4WNBY: MIF I CHECKEDBY: NOG Sheet 1 of 2 L I Sheet 2 of 2 I' EXHIBIT D LOCATION OF ENCROACHME" MAP NO. ,=, (CT 02-24) LOT 37 LOT 36 LOT 35 EXHIBIT D WCATION OF ENCROACHMENT MAP NO. 14543 (CT 9s-OS) & MAP NO. (CT 02-24) EXHIBIT D LOCATION OF FNCR0AC"T MAP NO. M-805 (CT 02-20) LOT 28 MAP NO. LOT 14 LOT 65 / MAP NO. 14543 / / / u4 1 a