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Home My WebLink AboutCT 97-13; Carlsbad Oaks North; 2004-1180071; Encroachment Agreement7 RECORDED REQLJES'17 OF First American Title SUBDIVISION MAI'I'ING DEW. RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 e. , . .' DOC# 2004-1 130071 I llllllll111 lllll Ill11 11111111111111111111 Ill11 ll1ll111ll11111 Ill1 1111 DEC 15,2004 352 PM OFFICIAL RECORDS SAN DIEGD COUNTY RECORDER'S OFFICE GREGORY J SMITH,. COUNTY RECORDER FEES: 0.00 PAGES: 11 I 11111 Wlll Ylll 111ll11111 Plll HI11 Ill11 1111 Ill11 Ylll HI11 Ill11 1111 1111 111 2004-1 180071 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 209-050-04,209-050-21 209-050-22,209-050-23 209-050-24 CT 97-13 PROJECT NO. & NAME: Carlsbad Oaks North, Water Quality Basins PR 04-96 RIGHT-OF-WAY PERMIT NO.: ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Carlsbad Oaks North Partners, L.P., a California Limited Partnership ("Owner"), in accordance with Chapter 11.1 6 of the Carlsbad Municipal Code. 1. The Propertv. Owner is the owner of that certain real property known as Carlsbad Oaks North, CT 97-13 (Development) located 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 drainage purposes as dedicated on the final subdivision tract map 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 storm water quality treatment basins 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 water quality basins, access roads, risers, dewatering pipes, headwalls, rip rap, etc (refer to Exhibit "C" for plat describing the private storm water quality treatment basins). A plat showing the location of the encroachment is attached as Exhibit "D" attached hereto and incorporated by reference. These private storm water quality treatment basins are constructed in accordance with the improvement plans on file with the City Engineer as drawing numbers 415-98 and 41 5-9D. 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 storm water quality treatment basins and appurtenances are privately owned, operated and maintained. 1 HYDWELOPMENT SERVICES//PROJECTS/CTOZ-ZZAGREEMENTS REV. 04-07-04 17445 b. C. d. e. f. g. h. The private storm water quality treatment basins 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 Carlsbad Oaks North Business Park Owner‘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 storm water quality treatment basins and appurtenances to ensure their effectiveness at removing pollutants-of-concern from the 85‘h 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 storm water quality treatment basins 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 storm water quality treatment basins or after receiving written notification by the City of Carlsbad, whichever occurs first, Owner/HOA shall replace or repair the private storm water quality treatment basins 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 storm water quality treatment basins 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 storm water quality treatment basins 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 OwneriHOA 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. OwnerlHOA 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 maintenance company. A private maintenance company performing the maintenancehepairs of these private storm water quality treatment basins shall not excuse Owner/HOA of the obligations and terms set forth herein. Owner/HOA shall obtain all necessary permits required to perform repair, maintain, replace, or reconstruct the private storm water quality treatment basins and appurtenances in City right-of-way. Owner/HOA shall provide proof 2 H:/DEVELOPMENT SERVICES!/PROJECTSICT02-22/AGREEMENTS REV. 04-07-04 1'7446 i. j. k. 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 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. Nothing in this agreement is intended to, nor shall be construed to grant or authorize the installation of any other facilities or equipment other than the private storm water quality treatment basins 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 Aqreement. 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 Carlsbad Oaks North Partners, L.P. c/o Techbilt Construction Corp. 3575 Kenyon St. San Diego, CA 92110 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. 3 HYDEVELOPMENT SERVICES//PROJECTS/CT02-22/AGREEMENTS REV. 04-07-04 17447' 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@) thereby bind such party. IN WITNESS WHEREOF, this parties hereto have executed this Agreement on this jpd day of ,20 PV. OWNER CITY OF CARLSBAD Carlsbad Oaks North Partners, L.P. a California Limited Partnership By: Sun Tech Investments Corp. - By: Wd p--< LLOYD B%lJBBS?P.E. Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney A By: 4 H:/DEVELOPMENT SERVICES//PROJECTSICT02-ZZAGREEMENTS REV. 04-07-04 State of California 1 1 County of San Diego ) On oct. 18. 2004 before me, Kimberly L. Aeria, Notary Public P (Date) (Name, Title of Officer) personally appeared Paul K. Tchang 9 (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) idare 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 NOTARY PUBUGCAUFORNIA SAN DIEGO COUNly (This area for official notary seal) Title or Type Of Document Encroachment Agreement Date of Document No. of Pages 5 Signer(s) other than named above HYDEVELOPMENT SERVICESI/PROJECTS/CT02-22/AGREEMENTS 5 REV. 04-07-04 17449 October 18,2004 J.N. 96-1005-3 Exhibit “A” Legal Description Lots 1 through 8, inclusive, of Carlsbad Tract No. 97-13, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 147~4, filed in the office of the county recorder of San Diego County on I Z 15 , 2004 as file no. 2004- I I (I 0065 of official records. 17450 October 18,2004 J.N. 96-1 005-3 Exhibit “B” Legal Description Easement for drainage purposes over portions of Lot 11 of Carlsbad Tract No. 97-13, in the City of Carlsbad, County of San Diego, State of California, according to Map No. IqqzI, , filed in the office of the county recorder of San Diego County on of official records. I I S , 2004 as file no. 2004- 1 I~CJ~L~ JN 961005 CARLSBAD OAKS NORTH Busrxicss PARK ~ BASINS EXHIBIT 2710 Loker Avenue West Civil Engineering Suite 100 Planning Corlsbad, California 92008 Processing 760-931 -7700 Surveying Fax:760-951-8680 www.odavconsultants.com r961005\Exhibits\Bosin2\Basin2-ExC dwa Oct 22. 2004 9: 55am ~~ ~ ~ JN 961005 CARLSBAD OAKS NORTH BUSINESS PARK BASINS EXHIBIT \961005\Exhibits\Basin2\6'osin2-ExC.dwa Oct 22. 2004 9: 55am C 0 N S-U L T A/N T S Civil Engineering 2710 Laker Awnw West Suite 100 Planning Corlsbad. California 92008 Processing 760-931 -7700 Surveying F0~:760-931-8680 www.odoyconsuItonts.com CARLSBAD OAKS NORTH BUSINESS PARK BASINS EXHIBIT i9fi1005\Exhibits\Bosin7\Rosin2-ExC.dwo Oct 77. 7004 10 03om N 961005 I C 0 N S U L T k" T S 2710 Laker Avenue West Ciil Engineering Suite 100 Planning Carlsbad. California 92008 Processing 760-931-7700 Surveying Fax:760-931-8680 www.odavconsultants.com ~ 17454 i 'i i i ! i i i \ 1 ! i I I NO SCALE N 961005 CARLSBAD OAKS NORTH BUSINESS PAR' BASINS EXHIBIT 02001 O'Day Consultants, Inc. I. \~)filnnS\F~hihits\Rnsin?\Rnsi"7--Fvn n-t 77 7nn~ In. 7cnm I C 0 N S U L T MN T S 2710 Loker Avenue West Civil Engineering Suite 100 Planning Carlsbad, California 92008 Processing 760-931 -7700 Surveying Fox:760-931-8680 www.odayconsultonts.com