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HomeMy WebLinkAboutCT 04-11; Poinsettia Commons LLC; 2009-0716206; 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 DOC# 2009-0716206 DEC 28, 2009 3:56 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 34.00 PAGES: 6662 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 214-650-01, 02, 03 and 05 PROJECT ID: CT 04-11 PROJECT NAME: POINSETTIA COMMONS RELATED PROJECT ID: PR 07-62 RELATED PROJECT ID: N/A ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Poinsettia Commons LLC, A Delaware Limited Liability Company ("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 on Embarcadero Lane within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 214-650-01 thru 05, and more particularly described in Exhibit "A", attached hereto and incorporate herein by reference. 2. The Easement. City currently owns an existing easement over, under, and across Owner's property for general utility and access purposes which easement 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 street light bollards, landscaping and trees, enhanced pavers, a clock tower, and a monument sign to remain in a portion of the general utility and access easement. A plat showing the location of the encroachment is attached as Exhibit "C" attached hereto and incorporated by reference. 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. (B) The Owner shall agree at all times 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 structure installed hereunder, including any loss, damage, or expense arising out of H:\Development Services\Projects\CT FILES\CT 04\CT 04-11 Poinsettia Transit Village - Rick\PR 07-62\PR 07-62 ENCROACHMENT AGMT, Revised 1-10-08.doc (1) loss or damages to property and (2) injury to or death of persons. (C) The Owner must remove or relocate any part of the encroachment 6663 within ten (10) 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. (D) 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 structure. 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 Poinsettia Commons, LLC City of Carlsbad 949 South Coast Drive, Suite 400 1635 Faraday Avenue Costa Mesa, CA 92626 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. 2 H:\Development Services\Projects\CT FILES\CT 04\CT 04-11 Poinsettia Transit Village - Rick\PR 07-62\PR 07-62 ENCROACHMENT AGMT, Revised 1-10-08.doc 6664 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. IN WITNESS WHEREOF, these parties hereto have executed this Agreement on this I?**- day of V*c.?mb*r , 2009 . OWNER Poinsettia Commons LLC, A Delaware Limited Liability Company By: CITY OF CARLSBAD ROBERT T. JOHNSON, JR., P.E. City Engineer BVT y^yyy;,/ (S'ign Here) "E>ve*A itir*t'i>l/JtC€rP*lt.4jr' (Print Name Her*) By: David A. Mauser, Deputy City Engineer RCE 33081 Exp. 06/30/2010 ' (Sign tfere) (jU^ (Print Name Here) APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Deputy City AtU H:\Development Services\Projects\CT FILES\CT 04\CT 04-11 Poinsettia Transit Village - Rick\PR 07-62\PR 07-62 ENCROACHMENT AGMT, Revised 1-10-08.doc 6665 ACKNOWLEDGMENT State of California County of On 7,2-00*1 before me, A''\ana (' .'i /^ fi/ffa*'/ fa b// sonally appeared faffed fat C71>1 (insert name and title of the officer) personally appeared ffe t C>1 "* ^ f V/ / n _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s}-fs/are subscribed to the within instrument and acknowledged to me that hc/s ho/they executed the same in tus/bef/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ^ '/ l JMt ('(Seal) MARIA C. MENDIVIt Commls«ton # 1743572 » Notary Public - California I Orange County * EXHIBIT "A" PR 07-62 6666 LEGAL DESCRIPTION FOR ENCROACHMENT AGREEMENT LOTS 1, 2, 3, 4 AND 5 OF CARLSBAD TRACT CT 04-11 (POINSETTIA COMMONS), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 15593, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON AUGUST 17, 2007. CONTAINS 5.298 ACRES, MORE OR LESS BY:DATE: GARY L HUSTPtlS 7019 (MY LICENSE EXPIRES 06-30-2010) Page 1 of 1 P:\3153\MAPPING\LEGALS\Exh.A EMRA-Lot 5.doc EXHIBIT "B" PR 07-62 6667 LEGAL DESCRIPTION FOR ENCROACHMENT AGREEMENT PEDESTRIAN EASEMENT BEING A PORTION OF LOTS 4 AND 5 OF CARLSBAD TRACT CT 04-11 (POINSETTIA COMMONS), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 15593, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON AUGUST 17, 2007, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE PEDESTRIAN EASEMENT GRANTED TO THE CITY OF CARLSBAD PER SAID MAP NO. 15593 AS SHOW THEREON. GENERAL UTILITY AND ACCESS EASEMENT BEING A PORTION OF LOTS 1, 2 AND 3 OF CARLSBAD TRACT CT 04-11 (POINSETTIA COMMONS), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 15593, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON AUGUST 17, 2007, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: THE GENERAL UTILITY AND ACCESS EASEMENT GRANTED TO THE CITY OF CARLSBAD PER SAID MAP NO. 15593 AS SHOW THEREON. BY: >o^v DATE: GARY LTnUS, PLS^7019 (MY LICENSE EXPIRES 06-30-2010) Page 1 of 1 P:\3153\MAPPING\LEGALS\Exh.B EMRA-PED Esmt & GUE.doc EXISTING PEDESTRIAN EASEMENT PER MAP NO. 15593 oo CO CO ENCROAl MONUM& SIGN EXHIBIT C i R/W, TRAIL EASEMENT & GUE ENCROACHMENT EXHIBIT ' I Ii/. ENCROACHMENT CLOCK TOWER SEE SHEET 2 FOR DETAILS CARLSBAD TRACT NO. 97-10 POINSETTIA PROPERTIES MAP NO. 13785ENCROACHMENT PAVERS (TYPICAL) ENCROACHMENT STREET LIGHTS (TYPICAL)LANDSCAPE/TREES (TYPICAL) ENCROACH MONUMENT PAVERS (WPICAL) BOLL/R OS (TYPICAL) CARLSBAD PO1NSETT1A TRANSIT CENTER CARSBAD TRACT NO 00-18 WATERS END 4AP J440 50 WO GRAPHICAL SCALE NOTE: DETAILED PLANS OF SITE DESIGN ARE FOUND ON DWG. 442-4, DWG 442-4A AND DWG. 442-4L ON FILE WITH THE CITY OF CARLSBAD. DATE: 8/14/08 TITLE: BLUWATER PRIVATE ENCROACHMENT SHEET 1 PROJECT #. PR 07-62 P:\3153\ENGR\EXHIBITS\E-02-encroachment agreement.dwg 6/27/2008 10:27:29 AM PDT PROJECT DESIGN CONSULTANTS Pfenning | LxKfeape Architecture | Envtonmtntal I EnglnMring I Surwy 701 B SUM. SiJIi BOO S«DhQO,CA 92101 EXHIBIT '€' CLOCK roue? DETAIL 6" CURB PLAN VIEW SCALE 1*=10' NOTE:m is A CONCEPTUAL PUN mis stater ro CHANEL FW.DESENWBEPROWEDATAIA1ERDAE 3.50' 7.00' 10.00' 21.00' CROSS SECTION SCALE 1"=10' DATE: 8/14/08 TITLE: BLUWATER PRIVATE ENCROACHMENT SHEET 2 PROJECT # PR 07-62 PROJECT DESIGN CONSULTANTS I Envhunwrul I Engkmrtng I Suv»y P:\3153\ENGR\EXHIBITS\E-02-encroachment agreement.dwg 6/15/2007 10:27:29 AM PDT CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On l< j 'Date personally appeared fc I, before me,1 -. 6670 ; Here Insert Name ai\d Title of the Officer Name(s) of Signer(s) TfRIE L. ROWLEY t CommlMlon # 1773334 I Notary Public - California f San Dl«go County ' M^CCTnm.BpNtOct18.201J I who proved to me on the basis of satisfactory evidence to be the person^ whose name(3) is/arX subscribed to the within instrument and acknowledged to me that he/sW/they executed the same in his/he//their authorized capacity(ie£), and that by his/he^r/thefr signature^) on the instrumeri't the person^, or the entity upon'behalf of which the person(s/acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature. OPTIONAL - Signature of Notary Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ^ ^ 1-9 1 , -. IDocument Date: ' •"- > I I -.^ ^* 1 / I Number of Pages:-? f T ^ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer —Title(s): D Partner — D Limited D General D Attorney in F:act D Trustee D Guardian or Conservator D Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT f OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Cha'sworth, CA 91313-2402• www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 H:\Development Services\Projects\CT FILES\CT 04ACT 04-11 Poinsettia Transit Village - Rick\PR 07-62\PR 07-62 ENCROACHMENT AGMT, Revised 1-10-08.doc