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HomeMy WebLinkAboutCT 81-41; Sheldon Enterprises; 83-199178; Encroachment AgreementRECORDING REQUESTED BY ^ When recorded Return T~; . „ 867 City Clerk : - Sl230 Elm Avenue Carlsbad, CA 92008 ENCROACHMENT AGREEMENT THIS ENCROACHMENT AGREEMENT is made by the CITY OF CARLSBAD, a municipal corporation, herein called "City", and T.L. SHELDON ENTERPRISES, INC., a California Corporation, herein called "Corporation". RECITALS WHEREAS, Corporation has submitted a tentative map entitled the GROVE to the City referenced as CT-81-41/CP-187 ("Tentative Map"); and WHEREAS, the City has approved the tentative map; and WHEREAS, the City owns an easement for sewer purposes across Parcel A of Parcel Map 1681 filed June 29, 1973, said property being located in the City of Carlsbad, County of San Diego, State of California ("Land"). Said easement, a twelve foot sewer easement, was recorded on April 2, 1973 as File No. 73-085550 ("Easement"); and WHEREAS, the City has required that Corporation construct a parking garage over Line "B" located within the easement; and WHEREAS, construction cannot be allowed without the permission of the City; and WHEREAS, City and Corporation want to define their rights and lia- bilities in relation to said Line "B"; and WHEREAS, the Utility Department of the City wants to define an alternate route for a portion of Line "B" within the easement if the ease- ment is ever required to be relocated for maintenance and/or for repair; and WHEREAS, the parties want to insure that future owners of the pro- perty and the GROVE CONDOMINIUM ASSOCIATION will be bound by the promises 868 and covenants of the Corporation; and WHEREAS, the City desires to be held harmless from any and all lia- bility arising out of the construction of the parking garage over the easement; and WHEREAS, the Corporation desires to be held harmless from any and all liability arising out of the normal operation and maintenance of the easement. NOW THEREFORE, the parties agree as follows: 1. PERMISSION TO CONSTRUCT PARKING GARAGE GRANTED. Corporation is hereby granted permission to construct the Parking Garage, Ramp, Retain- ing Wall, Footings and Foundations as shown on City Approved Plans in, over, along and across the easement ("Structures"). 2. CORPORATION SHALL REPAIR DAMAGE TO SEWER DURING COSNTRUCTION. Corporation shall, at its own expense, restore to City Standards any sewer main or other public improvement damaged or altered during con- struction. All work related to such restoration in the easement shall be accomplished only after obtaining a public improvement permit for the same. 3. REMOVAL AND RELOCATION OF PORTION OF SEWER. Corporation shall remove and relocate, to the satisfaction of the City, as approved by the City Engineer, that portion of the sewer improvement located in the ease- ment as shown in Exhibit "A" only upon the occurrence of any one of the following events: a. Damage occurs to the sewer in the easement as a result of a sur- charging of said sewer by the Structures, as defined in this Paragraph of the agreement, and repair of Line "B" as shown on Exhibit "A" at- 869 attached hereto is not feasible without relocation of the sewer main; b. Maintenance is determined to be not feasible over the portion of the easement referred to in Exhibit "A" as a result of the improve- ments over the easement; c. Repair of any break in or damage to the sewer, other than that caused by normal life expectancy or wear and tear, is not feasible without relocation of the portion of the sewer referred to in Ex- hibit "A" (In the event the repair of the line is required by virtue of normal wear and tear, the costs of repair shall be borne by the City, however, the costs of replacing any part or portion of the structure disturbed by the work shall be borne by the Corporation. If the line is needed to be relocated by virtue of normal wear and tear, the Corporation or their successor in interest shall grant the necessary appropriate easement for the line to the City and the City shall pay for the cost of the relocation of the line); or d. The sewer is rendered a hazard to the public health, safety or the general welfare of the inhabitants of the project and/or any citizens of the City by virtue of the construction of the structures. The City Engineer of the City of Carlsbad shall determine the occur- rence of the events listed in this section and shall further make all determinations regarding feasibility or cause for the needed repairs or replacement. The decision of the City Engineer shall be final unless the decision is not reasonably supported by the evidence. For the purpose of this section feasible shall mean capable of being accomplished in a successful manner within a reasonable 870 period of time taking into account economic, environmental and technological factors. 4. COST OF RELOCATION AND REPAIR CAUSED BY PARAGRAPH 3. FACTORS. Any cost for any relocation and/or repair caused by any of the factors listed in Paragraph 3. of this agreement shall be borne by the Corpora- tion, or its successor in interest, including the GROVE CONDOMINIUM ASSOCIATION. Reserves sufficient to cover the cost of relocation shall be established by the Association for the possibility that relocation of that portion of the sewer may be required by the City Engineer. 5. COST OF RELOCAITON AND REPAIR NOT CAUSED BY FACTORS MENTIONED IN PARAGRAPH 3. Any repair and/or relocation not caused by the factors listed in Para- graph 3. of this agreement shall be accomplished by the City at its sole cost and expense and without charge to the Corporation and/or its succes- sor in interest. The Corporation shall grant City all easements, licenses or other permission required by City for the repair and/or relocation without cost to the City. 6. STANDARD OF MAINTENANCE OF STRUCTURES. The structures shall be installed and maintained in a safe and sanitary condition at the sole cost, risk and responsibility of the Corporation, or its successors in interest. Corporation shall hold City harmless from any and all liability, cost or damage with respect to the structures, arising out of causes re- ferred to in Paragraph 3. of the agreement. 7. CORPORATION INDEMNITY. Corporation shall at all times indemnify and save City free and harmless from, and pay in full, any and all claims, -4- 871 demands, losses, damages or expenses that the City may sustain or incur in any manner resulting from the construction, maintenance or use of the structures causing (a) loss or damage to property and/or (b) injury to or death of persons providing said loss, damage, injury or death is proximate- ly caused by the Corporation, its contractors, its officers, agents and/or employees. 8. CITY INDEMNITY. City shall at all times indemnify and save Corporation free and harmless from, and pay in full, any and all claims, demands, losses, damages or expenses that Corporation may sustain or incur in any manner resulting from any work of the City within the ease- ment which causes (a) loss of or damage to property and (b) injury to or death of persons provided said loss, damage, injury and/or death is prox- imately caused by negligence of the City, its contractors, officers, a- gents and/or employees. 9. NO RELINQUISHMENT OF CITY RIGHTS. Nothing contained in this agreement shall be construed to mean that the City relinquishes or sub- ordinates to Corporation any interest in or right of the public to use the easement. 10. GRANT OF NECESSARY EASEMENTS FOR RELOCATION. Should the reloca- tion of the sewer referred to in Exhibit "A" become necessary in the opinion of the City Engineer, after all other methods of repair have been explored, then the Corporation, or their successor in interest, including THE GROVE CONDOMINIUM ASSOCIATION shall grant such easement or easements to the City as are necessary to construct and maintain the relocated sewer. This agreement is in consideration for such grant and no additional consideration or payment for the granting of such easements shall be made -5- 872 to the Corporation. 11. REMOVAL OF STRUCTURES UPON ABANDONMENT OR DESTRUCTION. Upon abandonment or substantial destruction of the Structures, and failure to repair the same within 20 days, Corporation, at its expense, shall provide for the removal of the Structures and restoration of the public easement and affected improvements. 12. COMPLETION OF STRUCTURES. The Structures shall be completed within the life of the tentative map or any extensions thereof, or any approved extension of this agreement. 13. TERMINATION OF PERMISSION TO ENCROACH. Permission to encroach herein is subject to revocation by the City upon the happening of the earlier of the following events: a. That certain date occurring 50 years after the date of this Encroachment Agreement, unless this agreement is extended, for additional periods of time, which extensions shall not be unreason- ably withheld by the City; b. Removal of the Structures with the approval of the City; or c. Failure of the Corporation to comply with the terms of this agreement after being given 30 days written notice of the impending termination. 13. BINDING UPON HEIRS AND SUCCESSORS IN INTEREST. This agreement shall be binding upon the heirs, assigns, successors in interest of the Corporation and the covenants contained herein shall run with the land and any and all subdivisions of said property. Whenever Corporation is mentioned in this agreement, it shall be interpreted to include and apply to the successors or assigns of the Corporation including THE GROVE CON- ft 873 DOMINIUM ASSOCIATION. If Corporation, its successors or assigns, shall fail to perform any covenant or obligation herein contained, the City may perform the same and the costs thereof shall become a lien against the aforesaid property and recoverable by the City in the same manner as is provided for abatement of a public nuisance. 14. RECORDATION OF AGREEMENT. This agreement shall be filed in the Office of the County Recorder of San Diego County. 15. ENCROACHMENT AUTHORIZED UPON EXECUTION OF AGREEMENT. The Cor- poration's encroachment as set forth in Paragraph 1. of this agreement is authorized upon the execution of this agreement by the City. 16. ATTORNEYS FEES. If any lawsuit or cause of action is instituted in a court of competent jurisdiction, the prevailing party shall be en- titled to reasonable attorneys fees, costs of suit and expert witness fees, if any, in addition to such other relief as the court may award. — 7 — /7 874 IN WITNESS WHEREOF, this Agreement is executed this Sthday of June 1983, by the City of Carlsbad, acting through its City Manager and by Corporation. Dated this 9th day of June 1983. CITY THE CITY OF CARLSBAD A Municipal Corporation CORPORATION T.L. SHELDON A Californi^f Co T.L. Sheldon, President APPROVED AS CITY ATTC/RNE (3 ASPHALT PORTION OF LINE REQUIRE RELOCATI AGREEMENT (ONLY PROPOSED MANHOLE PROPOSED MANHOLE) EXHIBIT A-6940/G. 876 ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF On 7J2JJLAMJLSU'/ J?£ /)c^~~~, 1983 before me, the undersigned Notary Public in and for said State, personally appeared T.L. SHELDON personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the President of T.L. SHELDON ENTERPRISES, INC., a California corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS MY HAND AND OFFICIAL SEAL. SIGNATURE L^jJ fcys>jJU V^L^T^ <« • / f f / 7 &— ~'——- 83-199178 OFFICIAL SEAL f ,, , ROSE MARIE JORDAN I I Of f.'ClAL. KL'CnRnf, NOTARY PUBLIC - CALIFORNIA '' ! Ur SrtM DlLGj CCL:i'j i'y. CA I SAK Ci-'GO COU^n •-, J^j^nn^KP^AP^q 13FB j (983 JON | /{ pjlj 2254 Moore Strcot Suite 202, San Diago, CA 52110 [Seal]