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Home My WebLink AboutCT 97-13; Carlsbad Oaks North; 2004-1180072; Encroachment AgreementWHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad; CA. 92008 .. DOC ## 2004-1 180072 I 111ll1ll Ill 111111111111111 11111111111111111111 11111111111111111111111 DEC 15,2004 352 PM OFFICIAL RECORDS SAN DlEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER 0.00 FEES: 9 PAGES: I 111111 Ill11 Ill11 1111 11111 Hlll11111111111111 lllll Ill11 1111 11111 Ill11 Ill1 1111 2004-1 180072 SPACE ABOVE THIS LINE FOR RECORDERS USE ASSESSOR'S PARCEL NO.: 209-050-04,209-050-21 209-050-22,209-050-23 209-050-24 PROJECT NO. & NAME: CT 97-1 3 4 Carlsbad Oaks North PR 04- 97, Passive Recreation Facilities 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 .I6 of the Carlsbad Municipal Code. 1. The Property. 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 is the owner of certain real property within the Development for public sewer pump station purposes as dedicated by separate document and as described in Exhibit "6 attached hereto and incorporated by reference (the "City Property"). 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow private passive recreation amenities and appurtenant facilities to remain in a portion of the City Property to serve the passive recreation requirements for this Development. The encroachment consists of, but is not limited to landscaping, a parking lot, hardscape, picnic tables, signage, etc (refer to Exhibit "C" for plat describing the private passive recreation amenities). A plat showing the location of the encroachment is attached as Exhibit "D" attached hereto and incorporated by reference. These private passive recreation amenities are constructed in accordance with the landscape plans on file with the City Planning Department as drawing number 415-9L. 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 passive recreation amenities and appurtenances are privately owned, operated and maintained. 1 H:/DEVELOPMENT SERVICES//PROJECTS/CT02-22/AGREEMENTS REV. 04-07-04 b. C. d. e. f. 9. h. The private passive recreation amenities 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 maintain, repair, replace, reconstruct, or perform any other necessary work to maintain the private passive recreation amenities 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 passive recreation amenity or after receiving written notification by the City of Carlsbad, whichever occurs first, Owner/HOA shall replace or repair the private passive recreation amenities 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 passive recreation amenities 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 passive recreation amenities 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 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 arising out of (1) loss or damages to property and (2) injury to or death of persons. Owner/HOA 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 maintenance/repairs of these private passive recreation amenities 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 passive recreation amenities and appurtenances on City property. Owner/HOA shall provide proof of insurance prior to any work being performed on City property. 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 2 H:/DEVELOPMENT SERVICES//PROJECTS/CTO2-22/AGREEMENTS REV. 04-07-04 be affected by City’s grant of permission to construct and maintain the encroach men t. 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 passive recreation amenities 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 Assiqns. 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. 8. Capacitv. 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(s) thereby bind such party. IN WITNESS WHEREOF, this parties hereto have executed this Agreement on this 3’& dayof /VOW ,204. H:/DEVELOPMENT SERVICESIIPROJECTS/CTOZ-ZZAGREEMENTS 3 REV. 04-07-04 OWNER 17458 CITY OF CARLSBAD Carlsbad Oaks North Partners, L.P. a California Limited Partnership By: Sun Tech Investments Corp. a California Cor By: J -7s By: PAUL K. F Public Works Director President APPROVED AS TO FORM: RONALD R. BALL City Attorney By: 4 H:iDEVELOPMENT SERVICESIIPROJECTSICTOZ-ZZAGREEMENTS REV. 0467-04 17459 State of California ) 1 2ounty of San Diego ) 3n Wer 19.7004 before me, Susan E. Eubank, Notary Public I (Date) (Name, Title of Officer) Dersonally appeared Paul K. Tchang , (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) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized capacity(ies), and that by hislherltheir 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 (This area for official notary seal) Title or Type of Document Encroachment Agreement City of Carlsbad Date of Document Signer(s) other than named above No. of Pages H:/DEVELOPMENT SERVICES//PROJECTS/CT02-22/AGREEMENTS 5 REV. 04-07-04 17460 October 18,2004 J.N. 96-1 005-3 Exhibit “A” Legal Description Lots 1 through 8, inclusive, o Carlsbad Tract No. 97- 13, in 1 e City of Carlsbad, County of San Diego, State of California, according to Map No. 1 VI ZL, filed in the office of the county recorder of San Diego County on 1 records. if, 2004 as file no. 2004- I I Floes of official 17461 October 18,2004 J.N. 96- 1005-3 Exhibit “B” Legal Description Lot 9 of Carlsbad Tract No. 97-13, in the City of Carlsbad, County of San Diego, State of California, according to Map No. “‘6%b, filed in the office of the county recorder of San Diego County on I 3’1 2004 as file no. 2004- I I SW~S of official records. I EXHIBIT %' SHEET 1 OF 1 SHEET PR 04-97 NO SCALE I:\961005\Exhlbits\Lot.\lot9 dwg Oct 22 2004 la37.m hfs: 9605ASlR 9605ESTR: '9605FSTR; 'b605UnAP; pas-uabarws 62 \ CARLSBAD OAKS NORTH BUSINESS PARK c.7: 97-13 C 0 N S U L T Am T S 2710 Loker Avenue West Carlsbad. California 92008 Fox: 760-931 -8680 Civil Engineering Processing Suite 100 Planning 760-931-7700 Surveying www.odoyconsultants.com EXHIBIT ’D’ SHEEIlv463 SHEEl @ 1 NO SCALE CARLSBAD OAKS NORTH BUSINZSS PARK C.T. 97-13 - I CONSULTA/NITS I 2710 Loker Avenue West Civil Enaineerina Suite 100 Planning I 760-931-7700 Survevina Carlsbad. California 92008 Processing .a Fax: 760-931 -8680 1 www.odayconsultants.com ~61W5\Exhiblts\Loh\LotsZdwg Oct 22. 2004 103lom 8: 9605ASTR; 9M)XSTR; 9605FSTR: 9605AMAP