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HomeMy WebLinkAboutPD 2019-0010; ALPS Group 2 Inc; 2020-0359463; Encroachment AgreementDOC# 2020-0359463 Jul 08, 2020 12:44 PM OFFICIAL RECORDS Ernest J Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $68.00 (S82 Atkins: $0.00) PAGES: 19 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 213-262-16-00 PROJECT ID: PD2019-0010 PROJECT NAME: ALPS GROUP 2 STAYBRIDGE STE RELATED PROJECT ID: EAGREE2019-0022 RELATED PROJECT ID: ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into by and among the CARLSBAD MUNICIPAL WATER DISTRICT, a public agency organized under the Municipal Water Act of 1911 ("District"), Hotel Energy Solutions, LLC, a California limited liability company ("Developer") and ALPS Group 2, Inc., a California corporation ("Owner"), in accordance with Chapter 11.16 of the Carlsbad Municipal Code. 1. The Property and Project. Owner is the owner of that certain real property located at 2735 Palomar Airport Rd. within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 212-262-16-00, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. Pursuant to that certain Photovoltaic System Lease Agreement dated as of August 24, 2018 (a memorandum of which was filed in the Official Records of San Diego County as document no. 2019- 0113795 on March 29, 2019), Developer will engineer, construct, operate, and maintain a photovoltaic solar-plus-battery-storage project on Owner's property that will include the construction and installation of certain carports and underground electrical conduits, among other facilities (the "Project"). 2. The Easement. District currently owns an existing easement over, under, and across Owner's property for which easement is described in Exhibit "B" attached hereto and incorporated by reference. 3. The Encroachment. District hereby covenants and agrees and grants its permission to Owner and Developer to allow (i) electrical conduit installed in connection with the Project to remain in a portion of the easement described above and (ii) overhanging solar panels and supporting structures installed in connection with the Project RECORDING IS REQUESTED FOR THE BENEFIT OF THE CARLSBAD MUNICIPAL WATER DISTRICT WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 to remain in an portion of the easement described above and (iii) the installation, reinstallation, operation, maintenance, and removal of such conduit, solar panels and supporting structures from time to time. 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 joint and several cost, risk, and responsibility of the Owner, the Developer, and the successors in interest of each. (B) The Owner and Developer shall jointly and severally agree at all times to indemnify and hold the District 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 described herein, including any loss, damage, or expense arising out of (1) loss or damages to property and (2) injury to or death of persons. (C) In connection with any activity of the District permitted under its easement agreement with Owner, Owner and Developer agree, on a joint and several basis, to remove or relocate any part of the encroachment required to carry out such activity as soon as reasonably practicable following receipt of notice from the City Engineer, but in any case no later than 30 days following receipt of such notice, or the City Engineer may cause such work to be done and the reasonable cost thereof shall constitute a lien on the real property described in Section 1 above (but not, for the avoidance of doubt, any personal property of Developer associated with the Project). If emergency repairs are required to the waterline that is the subject of the easement described herein, the District may, if required to make such repairs, remove the encroachment described above without liability to the District for damages (unless such damages were the result of gross negligence or willful misconduct). (D) Whatever rights and obligations were acquired by the District with respect to the easement shall remain and continue in full force and effect and shall in no way be affected by District'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: 2 If to the District: If to the Owner: City Engineer 2725 Palomar Airport Rd. City of Carlsbad Suite #100 1635 Faraday Avenue Carlsbad, CA 92009 Carlsbad CA 92008 Attn: Sharad Khandwala If to the Developer: 111 New Montgomery St. Suite 500 San Francisco, CA 94105 Attn: Dan Martin which addresses may be changed from time to time by providing notice to the other party in the manner described above. 6. Waiver. District's consent to or approval of any act or omission by Owner or Developer shall not constitute a waiver of any other default by Owner or Developer and shall not be deemed a waiver or render unnecessary District's consent for approval to any subsequent act by Owner or Developer. Any waiver by District 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 this 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. 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. 9. Counterparts. This Agreement may be executed in one or more duplicate counterparts and when signed by all of the parties shall constitute a single binding agreement. 10. Insurance. Developer shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Developer, its agents, representatives, employees or subcontractors. (A) Coverages and Limits. Developer shall maintain the following coverages and minimum limits: Commercial General Liability (CGL) Insurance: Insurance written on an "occurrence" basis, including products-completed operations, personal and advertising injury, with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (B) Additional Provisions. Developer shall ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 3 a. the District, its officials, employees and volunteers are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the Developer; products and completed operations of the Developer; premises owned, leased, hired or borrowed by the Developer. The coverage shall contain no special limitations on the scope of protection afforded to the District, its officials, employees or volunteers. b. The Developer's insurance coverage shall be primary insurance as respects the District, its officials, employees and volunteers. Any insurance or self-insurance maintained by the District, its officials, employees or volunteers shall be in excess of the Developer's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the District, its officials, employees or volunteers. d. Coverage shall state that the Developer's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (C) Notice of Cancellation. Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be nonrenewed, suspended, voided, canceled, or reduced in coverage or limits except after ten (10) days' prior written notice has been sent to the District by certified mail, return receipt requested. (D) Deductibles and Self-Insured Retention (S.I. R.) Levels. Any deductibles or self-insured retention levels must be declared to and approved by the District. At the option of the District, either: the insurer shall reduce or eliminate such deductibles or self-insured retention levels as respects the District, its officials and employees; or the Developer shall procure a bond guaranteeing payment of losses and related investigation, claim administration and defense expenses. (E) Waiver of Subrogation. All policies of insurance required under this Agreement shall contain a waiver of all rights of subrogation the insurer may have or may acquire against the District or any of its officials or employees. (F) Subcontractors. Developer shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. Coverages for subcontractors shall be subject to all of the requirements stated herein. (G) Acceptability of Insurers. Insurance is to be placed with insurers that have a rating in Best's Key Rating Guide of at least A-:VII. Insurers must also be authorized to transact the business of insurance by the State of California Insurance Commissioner as admitted carriers as evidenced by a listing in the official publication of the Department of Insurance of the State of 4 California. (H) Verification of Coverage. Developer shall furnish the District with certificates of insurance and original endorsements affecting coverage required by this clause. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. The certificates and endorsements are to be in forms approved by the District and are to be received and approved by the District before the Agreement is executed by the District. [Signature page follows] 5 IN VyITNESS WHEREdy, the parties hergtjg have executed this Agreement on this ICI day of 17114 sr— , 20 I`f I . ALPS GROUP 2, INC. (OWNER) By: (Sign Here) (Print Name Here) [Signature page to Encroachment Agreement] DESCRIPTION OF THE ATTACHED DOCUMENT: STM7AU41.e41/ eP.4/1"4"-- (Title or description of attached document) ps Siczyiv-rtse (Title or description of attached document continued) Number of Pages (-P Document Date (Additional Information) CAPACITY CLAIMED BY THE SIGNER Individual(s) vrporate Officer (Title) Partner(s) Attorney-in-Fact Trustee(s) Other A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document CALIFORNIA ALL-PURPOSE Certificate of Acknowledgment State of California County of San Diego On Aitys--t- , 2019 before me, M. McFadden, Notary Public personally appeared Shtt Va-it kha.k-ida,vaicc_ who proved to me on the basis of satisfactory evidence to be the person(s) whose name 1.4re subscribed to the within instrument and)s. knowledged to me th e/ he/they executed the-same in6ifflier/their authorized capacity(ies), and that by i er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acte , 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. (177-or M. McFkiden, Notary Public (Notary Seal) r"6"6.41'6""1:417C7;11:11"6"1, 0 COMM. #22110396 (/) NOTARY PUBLIC - CALIFORNIA r, U) My Comm. Expires April 07, 2023 ADDITIONAL OPTIONAL INFORMATION HOTEL ENERGY SOLUTIONS, LLC (DEV PER) By 1Sign here 7A-N) "T7 (Print Name Here) [Signature page to Encroachment Agreement] Notary Public - California San Francisco County T. Commission # 2259134 My Comm. Expires Oct 19, 2022 WITNESS my hand and official seal Signature Signature çf tary Public I .$7.- a aaa a a a D. NIGAM t•—• CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of KA/ fAAA C-- Herq...1.qsert Name and litle of the Officer Name(s) of Signer(s) before me, Date personally appeared who proved to me on the basis of satisfactory evidence to be the persog7 vhose nam is/are-- subscribed to the within instrument and acknowledged to me that he/s tfTrxecuted the same in his/twatheir authorized capacity(ies)-,-and that by hisaperrittretr signature4e)-on the instrument the person(s), or the entity upon behalf of which the person(6) 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 Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: C.--1(C),%1CIN D Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ID Corporate Officer — Title(s): O Partner — 0 Limited El General 0 Individual El Attorney In Fact O Trustee 0 Guardian or Conservator D Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ment Date: CA Ar"\ Signer's Name: D Corporate Officer — Title(s): 0 Partner — El Limited 0 General 0 Individual 0 Attorney In Fact OTrustee 0 Guardian or Conservator 0 Other: Signer Is Representing: [Signature page to Encroachment Agreement] DISTRICT, CARLSBAD MUNCIPAL WATER DISTRICT, a public agency organized under the Municipal Water Act of 1911 By Ce) (Sign here) W7-- Gomez_ ve30 L,L4171.nr_LIne Hee PuPIAA,c, wee.tz_ APPROVED AS TO FORM: CELIA BREWER City. Attorney By: OBERTO M. CONTRERAS Assistant City Attorney [Signature page to Encroachment Agreement) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California S County of an Diego SIA lilt 10, 20)-0 before me, Morgen Fry, Notary Public (insert name and title of the officer) personally appeared who proved to me on the ba of sa isfacto ev dence to be the person*(qwhose name) isAerre subscribed to the within instrument and acknowledged to me thatlw./shelthecy executed the same in 194sLherltlaQir authorized capacity), and that by hi/her/their signature N on the instrument the person), or the entity upon behalf of which the person' 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. MORGEN FRY Notary Public - California z San Diego County Commission # 2268605 — My Comm. Expires Dec 24, 2022 Signature (Seal) WITNESS my hand and official seal. ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California S County of an Diego On 51,uAt. 1012-0)-0 before me, Morgen Fry, Notary Public (insert name and title of the officer) personally appeared 640 who proved to me on the basis of satisfactory evidence to be the person( whose name(s.) isAafe- subscribed to the within instrument and acknowledged to me that heislexecuted the same in his/144414eir authorized capacity(ie.), and that by his/hcrIthcir signature(s.) on the instrument the person(, or the entity upon behalf of which the personts),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. MORGEN FRY Notary Public - California z San Diego County > Commission # 2268605 — My Comm, Expires Dec 24, 2022 (Seal) EXHIBIT A Lecial Description of Property THE LAND REFERRED TO HEREIN IS SITUATED IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF CARLSBAD TRACT NO. MS12-02, ACCORDING TO PARCEL MAP THEREOF NO. 21166, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND AS PER CERTIFICATE OF CORRECTION RECORDED ON APRIL 10, 2018 AS INSTRUMENT NO. 2018-140914, OF OFFICIAL RECORDS, BOTH FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 11,2014. APN: 213-262-16 [Signature page to Encroachment Agreement] EXHIBIT B Easement 'See attached( EXHIBIT B LEGAL DESCRIPTION OF EASEMENT THAT CERTAIN WATER LINE EASEMENT GRANTED TO CARLSBAD MUNICIPAL WATER DISTRICT PER MAP NO. 21166 OF WATER LINE EASEMENT RECORDED APRIL 10, 2018 AS INSTRUMENT NO. 2018-140914, OF OFFICIAL RECORDS OF THE COUNTY OF SAN DIEGO. EXHIBIT C Encroachment 'See attached] (N) PV CARPORT 5 I AREA = 2,223 SO. FT. MOO - (N) PV CARPORT 4 AREA = 2.223 SO. FT. .11• INIMM AREA = 2,049 SO. FT. 477.4-: (N) PV CARPORT 3 r (N) PV CARPORT 2 (N) PV CARPORT AREA = 2,049 SQ. FT. AREA = 2,388 SO. FT. 46-5" 4'-10" 86'-2" 48*-11" 7 92'. CONDUIT CROSSES -/ WATERLINE EASEMENT 2 MAX OVERHANGING-' INTO THE EASEMENT PARCEL 2 2735 PALOMAR AIRPORT RD V-4" (N) PV CARPORT 6 AREA = 1,708 SQ. FT. 11" 38.-1" - 86-2" - I=1 (E) EASEMENT 20 FEET WIDE WITH TABS, FOR WATER LINE PURPOSES ItINTENANCE I - (E) iSEMENT 20 FEET WIDE WITH TABS, FOR WATER LINE fURPOSES 1254' 12%9" I- 51Y LANDSCAPE I 0: EXHIBIT "C" (--r KEY LEGEND ; NEW SOLAR CANOPY PARKING STRUCTURES 2735 PALOMAR AIRPORT RD, CARLSBAD, CA 92009 213-262-16-00 PARCEL 2.977 ACRES PARCEL MAP NO. 21166 CITY OF CARLSBAD TRACT NO.12-02 TITLE EAGREE 2019-0022 DATE: 3-27-2019 ENCROACHMENT FOR ALPS INNOVATIONS DRAWN BY: DJB SOLAR CARPORT INSTALLATION FOR 2735 PALOMAR RD SHEET 1 OF 3 1 AREA OF ENCROACHMENT 2735 PALOMAR AIRPORT RD, CARLSBAD, CA 92009 TITLE EAGREE 2019-0022 ENCROACHMENT FOR ALPS INNOVATIONS DATE: 3-27-2019 DRAWN BY: DJB SOLAR CARPORT INSTALLATION FOR 2735 PALOMAR RD SHEET 2 OF 3 EXHIBIT "C" 18* TRENCH WIDTH FG OF EX. PAVEMENT -- PROPOSED 2' CONDUITS NOTE: SLURRY ENCASEMENT DYED RED NOTE: PROVIDE ADDITIONAL SIGNAGE IF REQUIRED BY A.H.J. (E) 10" PVC WATER IM/N OMNI 'NM 50.-0" LANDSCAPE MAINTENANCE "HOA" 20' (E) EASEMENT 20 FEET WIDE WITH TABS, FOR WATER LINE PURPOSES GRANTED TO OMWD HEREON 1 Scale: 1" = 50' 3.-ft MIN COVER nnnnn 12" MIN PER CITY STANDARD SECTION A-A Scab: 1/2' = 1%0' 213-262-16-00 PARCEL 2.977 ACRES PARCEL MAP NO. 21166 CITY OF CARLSBAD TRACT NO.12-02 18" TRENCH WIDTH - FG OF EX. PAVEMENT 24 MIN DEPTH OF C ZS' 3.-9' MIN - - PROPOSED 2" CONDUITS COVER - NOTE: SLURRY ENCASEMENT DYED RED NOTE: PROVIDE ADDITIONAL SIGNAGE IF REQUIRED BY A.H.J. 12" MIN PER CITY STANDARD (E) 10" PVC WATER 2 SECTION A-A Scale: 1/2' = 1'-0" EXHIBIT "C" (E) EASEMENT 20 FEET WIDE —\ WITH TABS, FOR WATER LINE \ PURPOSES GRANTED TO CMWD HEREON MMII .29' N AREA OF ENCROACHMENT rr) , , ; , Scale: 1" = 50' \....} 11 2735 PALOMAR AIRPORT RD. TITLE EAGREE 2019-0022 CARLSBAD, CA 92009 1 213-262-16-00 PARCEL 2.977 ACRES PARCEL MAP NO. 21166 CITY OF CARLSBAD TRACT NO.12-02 DATE: 3-27-2019 ENCROACHMENT FOR ALPS INNOVATIONS DRAWN BY: DJB SOLAR CARPORT INSTALLATION FOR 2735 PALOMAR RD SHEET 3 OF 3