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HomeMy WebLinkAboutCT 06-06; Real Estate Collateral Management Company; 2008-0123768; 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 DGC# 2008-0123768 MAR 10, 2008 10:32 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH. COUNTY RECORDER FEES: 42.00 PAGES: 12 iVP SPACE ABOVE THIS LINE FOR RECORDER'S USE 223-071-11-00ASSESSOR'S PARCEL NO.: PROJECT NO. & NAME: Village of La Costa Oaks North 3.7 CT 06-06 PR 07-76 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 - La Costa Oaks North, CT 06-06 (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 451-8. 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 streetlights and appurtenances are privately owned, operated and maintained. 1 H:\Development Services\PROJECTS\CT FILES\CT 06\CT 06-06 La Costa Oaks North - Riddle\Bonds and AgreementVENCROACHMENT AGREEMENT (PR 07-76).doc 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-Oaks 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 resulting from the construction, maintenance, use, repair or removal of the encroachment installed hereunder, including any loss, damage, or expense 2 H:\Development Services\PROJECTS\CT FILES\CT 06\CT 06-06 La Costa Oaks North - Riddle\Bonds and Agreement\ENCROACHMENT AGREEMENT (PR 07-76).doc 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. 3 H:\Development Services\PROJECTS\CT FILES\CT 06\CT 06-06 La Costa Oaks North - RiddleXBonds and Agreement\ENCROACHMENT AGREEMENT (PR 07-76).doc 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. 1 635 Faraday Avenue 1 903 Wright Place, Suite 1 80 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. 4 H:\Development Services\PROJECTS\CT FILES\CT 06\CT 06-06 La Costa Oaks North - Riddle\Bonds and Agreement\ENCROACHMENT AGREEMENT (PR 07-76).doc 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, this parties hereto have executed this Agreement on this g i 5-f day of 57)W4^-y , 20 OWNER Real Estate Collateral Management Company, a Delaware corporation Fred Schimel, Vice President CITY OF CARLSBAD By: ROBERT T. JOHNSON, JR. City Engineer CfTf APPROVED AS TO FORM: RONALD R. BALL City Attorney Bv: Jfl/UQjf- Citv Attorney \ H:\Development Services\PROJECTS\CT FILESVCT 06VCT 06-06 La Costa Oaks North - Riddle\Bonds and AgreementVENCROACHMENT AGREEMENT (PR 07-76).doc State of-California County of SanDiogo On (Date) personally appeared before me, (Name, Title of Officer) (Name[s] of Signer[s]) personally known to me - OR- (or proved to me on the basis of satisfactory 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 600Z/fr/Ol S3HldX3 NOISSII/WOD AW SIONITII JO 31V1S 'Dliand AHV10N ON3dOI/N 'O VNVIQ „ 1 V 3 S 1 V I D N d 0 „s^x^x^v^v^^vr^v^s^vrv^v/v^v^v** (This area for official notary seal) DIANA C. MORENO NOTARY Signature of Notary Title or Type of Document Date of Document Siqner(s) other than named above No. of Paqes 6 H:\Development Services\PROJECTS\CT FILES\CT 06\CT 06-06 La Costa Oaks North - RiddleXBonds and Agreement\ENCROACHMENT AGREEMENT (PR 07-76).doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ee@sgaSiB6Jge^@s©se&eiss6@e@sg!^ State of California County of On 1 1 3') Xo^fr personally appeared ' — i before me, l/Ws /N, A. tV Here Insert Name and K^ $t*- NameW) of Signerfs/ ^T^M/^6u^ Title of the Offider Tfl» 1. HOWlfY CommlMton # 1773SM Notary PubHc • CoWomio San 01*90 County who proved to me on the basis of satisfactory evidence to be the person^) whose name^) is/a/e subscribed to the within instrument and acknowledged to me that he/s>feVthey executed the same in his/h^r/thjeir authorized capacity(Ws), and that by his/h£r/their signature^) on the instrument 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. Place Notary Sea! Above WITNESS my hand and official seal. Signature. OPTIONAL Sianature of Notary Public 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: Document Date: _Lj_3 Signer(s/) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: v - Individual i/Cbrporate Officer — Title(s): Partner — 7 Limited . General Attorney in Fact Trustee Guardian or Conservator Other: __ Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER TOD o( thumb here Aitr~HT Number of Pages: 5 A .Signer's Name:. Individual Corporate Officer — Title(s): :. Partner— . Limited General . Attorney in Fact : Trustee Guardian or Conservator i-Other:. RKiHTTHUMBPRINT OF SIGNER Signer Is Representing: 1 4- ^ ©2007 National Notary Association- 9350 De Soto Ave.. P.O Box 2402• Chatsworth. CA 91313-2402-'www.NationalNotary.org Item «5907 Reorder CallToll-Free 1-800-876-6827 EXHIBIT 'A' BENEFITTED PROPERTY Neighborhood 3.7 Lots 44 through 49 inclusive of Carlsbad Tract Map No. 06-06, Villages of La Costa - La Costa Oaks North - Neighborhood 3.7, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof No. \S to**9 filed in the Office of the County Recorder of San Diego County on Sheet 1 of 1 EXHIBIT "B" LEGAL DESCRIPTION OF CITY EASEMENT UNDERLYING ENCROACHMENT 1. Easement for public street and utility purposes within CT 06-06: Avenida Soledad As dedicated on Map No. Sheet 1 of 1 HiQ I ^fe o joi- s ) (5 O a -j y, . 0. 3 « O E. Z iiaaSfiE^ UJ (g) ® _J W HI i <££ 2 2 £ T^ c4 n •* in 2 DO K 10 g2 CM O 9 tNO »2 S2IM-1 ois U ig:b - Exhibit "C" The Lighting Tradition SET SCREWS PROVIDED TO SECURE TO ARM 2Y2" ID. TRHU BOLT PROVIDED TO PREVENT WINDMILLING CAST ALUMINUM FINIAL ARM CENTER (4) SCREWS ALIGNING BALL SF>EOH=IO/VTriONS: 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 EXHIBIT D LOCATION OF ENCROACHMENT MAP NO. PUBLIC STREET NAMES AVENIDA SOLEDAD NO. STREET LIGHTS = 5 NTS HUNSAKER & ASSOCIATES SAN DIEGO, INC PUNNING 9707 Wsptes Street ENGINEERING Sjn Cfego, Ca 92121 SURVEYING PH(858)55M500- FX(858>558-1414 SHEET 1 OF 1 R:\0712VkD4\EIMbM\5r UCHT ENCDOMCHMCNr EXHBT^tgC 1Z75)Jgl-1l>-2007:14:1«