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Home My WebLink AboutCT 04-09; Real Estate Collateral Management Company; 2006-0014586; Encroachment AgreementRECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DQC# 2006-0014586 JAN 09, 2006 8:57 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREfiORY J. SMITH, COUNTY RECORDER FEES: 0.00 PAGES: 13 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 223-110-08,10,12 213-111-01,08,09,12 213-112-12,15,18, 213-112-20,22,23,28 213-112-29,30 PROJECT NO. & NAME: Village of La Costa Greens CT 04-09 PR 05-74 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 11.16 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 non-City standard private streetlights and appurtenant facilities to remain in a portion of the easement to serve the streetlight requirements for this Development. The encroachment consists of, but is not limited to light poles, mast arms, concrete foundations, luminaries, wiring, pull boxes, conduit, etc (refer to Exhibit "C" for plat describing the private streetlight specifications). A plat showing the location of the encroachment is attached as Exhibit "D" attached hereto and incorporated by reference. These private streetlights are constructed in accordance with the improvement plans on file with the City Engineer as drawing numbers 429-2. 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 H:/DEVELOPMENT SERVICES//PROJECTS/CT 04-09/AGREEMENTS REV. 11-2005 successors in interest. The streetlights and appurtenances are privately owned, operated and maintained. b. The private streetlights and appurtenances thereto shall be energized, 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. c. Owner/HOA agree to pay San Diego Gas & Electric (SDG&E) directly for any streetlight energy charges necessary to power all private streetlights covered by this Agreement. d. Owner/HOA agree to maintain, repair, re-energize, replace, reconstruct, or perform any other necessary work to maintain the private streetlight 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 streetlight or after receiving written notification by the City of Carlsbad, whichever occurs first, Owner/HOA shall replace or repair the street light to a safe and operational condition to the satisfaction of the City Engineer. e. If Owner/HOA fail to maintain, repair, re-energize, replace, reconstruct, or perform any other necessary work to improve a non-operating or damaged private streetlight to a safe and operational condition in accordance with the terms set forth above, the City shall have the right, but not the duty, to repair, replace or maintain the private streetlights 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/HOA's common property subject to enforcement and foreclosure in accordance with California State law. f. The Owner/HOA hereby agree, in the event that the Owner/HOA fail, at any time to satisfy the terms of this Agreement which may consist of, but may not be limited to failure to re-energize, maintain, repair, reconstruct, or replace the streetlights and appurtenances pursuant to the terms set forth above, this lack of action may be considered a breach of terms of this Agreement and, the City, at it's own discretion, may provide one (1) written notice to inform Owner/HOA that the Lighting and Landscape District will take over responsibility of these streetlights covered herein. Within 60-days after receipt of said notice, the Lighting and Landscape District will take over responsibility and all property owners within the Development and covered by the HOA will, hereinafter, become annually assessed the current assessment rate as approved by City Council, consistent with the Landscape and Lighting District No. 2. The streetlights, if maintained by the Lighting and Landscape District, may be replaced by City-standard streetlights and not with ornamental streetlights proposed in Exhibit C, since the City does not stock these non-standard streetlights. g. The Owner/HOA hereby agree to indemnify and hold the City free and harmless from any and all claims, demands, losses, damages, or expenses H:/DEVELOPMENT SERVICES//PROJECTS/CTXXXX/AGREEMENTS REV. 04-07-04 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. h. Owner/HOA shall provide City Engineer with the name, telephone number and address of its designated private streetlights maintenance company and shall advise the City Engineer, in writing, if any contact information changes regarding the private streetlights maintenance company. A private streetlights maintenance company performing the maintenance/repairs of these private street lights shall not excuse any Owner/HOA obligations of terms set forth herein. i. Owner/HOA shall obtain all necessary permits required to perform repair, maintain, re-energize, replace, or reconstruct the private streetlights in City right-of-way. These permits include, but are not limited to right-of-way permits, electrical permits, etc. j. 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. k. Whatever rights and obligations were acquired by the City with respect to the 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. I. 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. m. Owner/HOA shall ensure the private streetlights provide the standard lumens and light coverage of the public road that a standard public streetlight provides. Nothing in this agreement shall be construed to reduce the Carlsbad public road standards required for safe vehicular travel. n. Owner/HOA agree to replace all private streetlights covered under this Agreement when the streetlight's service-life is complete as determined by the City Engineer. Owner/HOA shall replace the streetlight no less than 3 months after receiving written notification by the City of Carlsbad that a streetlight(s) is in need of replacement. If Owner/HOA fail to replace the streetlight(s), the City shall have the right, but not the duty, to replace the private streetlight(s). The 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/HOA's common property subject to enforcement and foreclosure in accordance with California State law. H:/DEVELOPMENT SERVICES//PROJECTS/CTXXXX/AGREEMENTS REV. 04-07-04 o. Nothing in this Agreement shall excuse or exempt the Development from the obligation to annex into the Citywide Street Light and Landscaping District in accordance with its map conditions and requirements. p. Owner must remove or relocate any part of the encroachment within thirty (30) 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 Agreement. 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 Real Estate Collateral Management Co. City of Carlsbad c/o Morrow Development, Inc. 1635 Faraday Avenue 1903 Wright Place, Suite 180 Carlsbad CA 92008 Carlsbad, CA 92008 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 or any other provision of the Agreement. 7. 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. H:/DEVELOPMENTSERVICES//PROJECTS/CTXXXX/AGREEMENTS REV. 04-07-04 8. Capacity. Each party represents that the person(s) executing this Agreement on behalf of such party have the authority to execute this Agreement and by such signature(s) thereby bind such party. JN WITNESS WHEREOF, this parties hereto have executed this Agreement on this * " OWNER CITY OF CARLSBAD Real Estate Collateral Management Company, a Delaware corporation APPROVED AS TO FORM: RONALD R. BALL City Attorney By: City Attorney By: <^^^g^^^e /e/Mr By:(7-f- 'f^a. T_LOYD BfHuBBS^3 E Fred Schimel, Vice President Public Works Director H:/DEVELOPMENT SERVICES//PROJECTS/CTXXXX/AGREEMENTS REV. 04-07-04 State of California County of -San Diego On QG&fe* /V,&KT before me, D/«i4 C. (Date) (Name, Title of Officer) personally appeared (Name[s] of Signer[s]) personally known to me —OR (er proved to mo on tho baoio of oatiofactory -evidence) 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 PUBLIC, STATE OF ILLINOIS MY COMMISSION EXPIRES 10/4/2009 (This area for official notary seal) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages H:/DEVELOPMENTSERVICES//PROJECTS/CTXXXX/AGREEMENTS REV. 04-07-04 State of California ) ) County of San Diego ) On November 22, 2005 before me, Belinda R. Guzman, Notary Public, personally appeared Robert J. Wojcik, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. — —• TILWITNESS my hand and official seal BELINDA R.GUZMAN Commission # 1565777 Notary Public - California San Diego County MyComm. Expires Mar 31,20091 | 09P• 4 Signature of Notary (This area for official notary seal) EXHIBIT "A" BENEFITTED PROPERTY Lots 4, 21, 22, 24, 26, 27, 29, 31, 34, 36, 38, 39, 41, 44, 47, 48 and 49 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. Lots 65 through 69 inclusive, 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. 14805 filed in the Office of the County Recorder of San Diego County, May 27, 2004. Lots 37 through 41 inclusive, of Carlsbad Tract 02-21 at La Costa Greens Neighborhood 1.12, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 14806 filed in the Office of the County Recorder of San Diego County, May 27, 2004. Lots 76 and 77 inclusive, of Carlsbad Tract 02-22 at La Costa Greens Neighborhood 1.9, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 14804 filed in the Office of the County Recorder of San Diego County, May 27, 2004. Lots 83 through 88 inclusive, of Carlsbad Tract 02-23 at La Costa Greens Neighborhood 1.8, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 14803 filed in the Office of the County Recorder of San Diego County, May 27, 2004. Lots 130 through 137 inclusive, of Carlsbad Tract 02-24 at La Costa Greens Neighborhood 1.11, 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, May 27, 2004. Sheet 1 of 2 EXHIBIT "A" BENEFITTED PROPERTY Lots 72, 73, 74, 75, 76, 78 and 79 inclusive, of Carlsbad Tract 04-15 at La Costa Greens Neighborhood 1.04 and 1.07, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 1*50*?2> filed in the Office of the County Recorder of San Diego County, JuL 2"?, Lots 93 through 98 inclusive, of Carlsbad Tract 04-16 at La Costa Greens Neighborhood 1.06, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. |*5O*yZ filed in the Office of the County Recorder of San Diego County, 3uL "Z,"?, 'ZCQ5 • Lots 108 through 116 inclusive, of Carlsbad Tract 04-09 at La Costa Greens Neighborhood 1.17, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof no. 1*5 JC? I filed in the Office of the County Recorder of San Diego County, Sheet 2 of 2 EXHIBIT "B" LEGAL DESCRIPTION OF CITY EASEMENT UNDERLYING ENCROACHMENT Easement for public street and utility purposes within CT 04-09: Estrella De Mar Road Cobalt Drive Limonite Court Marcasite Place Peridot Court Olivine Court As dedicated on Map No. 1 Sheet 1 of 1 Exhibit «C" Sheet 1 of 2 sun LIGHTING Exhibit "Cr The Lighting Tradition SET SCREWS PROVIDED TO SECURE TO ARM 2W I.D. TRHU BOLT PROVIDED TO PREVENT WINDMILLING CAST ALUMINUM FINIAL ARM CENTER (4) SCREWS ALIGNING BALL SPECIFICATIONS: LUMINAIRE: HOUSING - HEAVY WALL CAST ALUMINUM CONSTRUCTION WITH REMOVABLE BALLAST TRAY FOR EASY BALLAST ACCESS. REFLECTOR-HEAVY WALL ALUMINUM CONSTRUCTION. INSIDE OF REFLECTOR FINISHED WITH HIGH GLOSS WHITE ENAMEL. OPTICS: CLEAR PRISMATIC GLASS DIFFUSER PROVIDES TYPE V (SYMMETRIC) OR TYPE III (ASYMMETRIC) LIGHT DISTRIBUTION. DIFFUSER SUPPLIED IN HINGED CAST ALUMINUM GASKETED DOOR, AND A HOUSE SIDE SHIELD. LAMP HOLDER: MOGUL BASE PORCELAIN. LAMP: 100 W. H.P.S. (BY OTHERS) BALLAST: H.P.F./C.W.A. AUTOTRANSFORMER, -20° STARTING TEMPERATURE. (SPECIFY VOLTAGE) FINISH: ELECTROSTATICALLY APPLIED BAKED ON TEXTURED ACRYLIC ENAMEL. (SPECIFY COLOR.) SCALE: 1" = 1'-0" Sheet 2 of 2 EXfflBIT D LOCATION OF ENCROACHMENT MAP NO. 16 Ifc I STREET NAMES ESTRELLA DE MAR ROAD COBALT DRIVE LIMONITE COURT MARCASITE PLACE PERIDOT COURT OLMNE COURT NO. STREET LIGHTS = 19 N. T.S. HUNSAKER & ASSOCIATES SAM O I t C (X INC IUNNNG im HumMbm SMtt SHEET 1 OF 1 fc\OJ75\«£»«\E*ll*i\EK