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HomeMy WebLinkAboutSDP 09-04; City of Carlsbad; 2015-0593947; Encroachment AgreementFIRST AMERICAN TITLE INSURANCE COMPANY Jl RECORDING REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 MAIL TAX EXEMPT STATEMENTS TO: EXEMPT The undersigned grantor(s) declare(s): Documentary transfer tax is $0.00 ( ) computed on full value of property conveyed, or ( ) computed on full value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: (x) City of Carlsbad, and DOC# 2015-0593947 llllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllll Nov 16, 2015 01:55PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $39.00 PAGES: 9 SPACE ABOVE THIS LINE FOR RECORDER'S USE Assessor's Parcel No.: 156-302-24 -----~~----------- Project No.: SDP 09-04 ENCROACHMENT AGREEMENT RECITALS This encroachment agreement ("Agreement") is entered into between the City of Carlsbad and RPI Carlsbad, L.P. as of the date that it is executed by all parties. A. The City of Carlsbad, a chartered municipal corporation of the State of California, ("Property Owner") is the owner of a parking lot for the Plaza Camino Real shopping center located in the City of Carlsbad, County of San Diego, State of California ("City Parcel"). B. RPI Carlsbad, L.P ., a Delaware limited partnership ("Business Owner"), is the owner of certain real property adjacent to the City Parcel, as more particularly set forth in Exhibit A, attached hereto and incorporated herein by reference ("Shopping Center Parcel"). The successor-in-interest to Business Owner constructed certain renovations to the buildings located on the Shopping Center Parcel. C. Property Owner has agreed to allow outdoor patio areas for outdoor dining at certain buildings located on the Shopping Center Parcel to encroach onto the City Parcel ("Encroachments"), as shown on Exhibit B attached hereto and incorporated herein by reference, from the exterior wall of the buildings. A diagram showing the location of the encroachment area ("Encroachment Area 11) is attached hereto and incorporated herein by reference as Exhibit B. D. An Encroachment Agreement, recorded as instrument number 2014-0275137 on July 1, 2014, and entered into on June 23, 2014 between Property Owner and CMF PCR LLC (the "Prior Agreement") permitted the Encroachments prior to the date hereof, and upon the transfer of the Shopping Center Parcel from CMF PCR LLC to Plaza Camino Real, and then the subsequent transfer from Plaza Camino Real to Business Owner, the Prior Agreement was -1- RECORDING REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 MAIL TAX EXEMPT STATEMENTS TO: EXEMPT SPACE ABOVE THIS LINE FOR RECORDER'S USE The undersigned grantor(s) declare(s): Assessor's Parcel No.: 156-302-24 ~~~~~-------­Documentary transfer tax is $0.00 ( ) computed on full value of property conveyed, or Project No.: SDP 09-04 ( ) computed on full value less value of liens and encumbrances remaining at time of sale. ( ) Unincorporated area: (x) City of Carlsbad, and ENCROACHMENT AGREEMENT RECITALS This encroachment agreement ("Agreement") is entered into between the City of Carlsbad and RPI Carlsbad, L.P. as of the date that it is executed by all parties. A. The City of Carlsbad, a chartered municipal corporation of the State of California, ("Property Owner") is the owner of a parking lot for the Plaza Camino Real shopping center located in the City of Carlsbad, County of San Diego, State of California ("City Parcel"). B. RPI Carlsbad, L.P., a Delaware limited partnership ("Business Owner"), is the owner of certain real property adjacent to the City Parcel, as more particularly set forth in Exhibit A, attached hereto and incorporated herein by reference ("Shopping Center Parcel"). The successor-in-interest to Business Owner constructed certain renovations to the buildings located on the Shopping Center Parcel. C. Property Owner has agreed to allow outdoor patio areas for outdoor dining at certain buildings located on the Shopping Center Parcel to encroach onto the City Parcel ("Encroachments"), as shown on Exhibit B attached hereto and incorporated herein by reference, from the exterior wall of the buildings. A diagram showing the location of the encroachment area ("Encroachment Area") is attached hereto and incorporated herein by reference as Exhibit B. D. An Encroachment Agreement, recorded as instrument number 2014-0275137 on July 1, 2014, and entered into on June 23, 2014 between Property Owner and CMF PCR LLC (the "Prior Agreement") permitted the Encroachments prior to the date hereof, and upon the transfer of the Shopping Center Parcel from CMF PCR LLC to Plaza Camino Real, and then the subsequent transfer from Plaza Camino Real to Business Owner, the Prior Agreement was -1- terminated pursuant to Section 2 thereof, and the parties are entering into this Agreement to replace the Prior Agreement. AGREEMENT NOW, THEREFORE Property Owner allows the Encroachments by Business Owner subject to the following terms and conditions: Section 1. Encroachments Property Owner hereby allows Encroachments over a portion of the City Parcel as more particularly described above as the Encroachment Area, subject to all matters and encumbrances of record affecting the City Parcel, on the terms and conditions set forth in this Agreement. The City's rights with respect to the ownership of the City Parcel 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 structures. This Agreement does not authorize or approve any encroachments not identified above, nor any additional usable space for the Plaza Camino Real shopping center; and Business Owner shall not charge its tenants for use of the outdoor dining area. The exact number and locations of the Encroachments are reflected in the final construction documents for the Encroachments approved by the building department of the City of Carlsbad, and the Encroachments have been located entirely within the Encroachment Area. Section 2. Term The Agreement will automatically terminate on the demolition or destruction of the shopping center structure on which the Encroachment exists or upon notice from the City pursuant to Paragraph 5, below. Upon termination of this Agreement, Business Owner will have the obligation to remove the Encroachments and restore the City Parcel to its condition as of the date that this document is recorded. Section 3. Maintenance and Repair Business Owner will be solely responsible to conduct such maintenance and repair of the Encroachments and improvements thereon as it deems necessary or advisable to maintain the Encroachments in good condition and repair. Property Owner shall have the right from time to time to inspect the Encroachments to ensure that Business Owner's maintenance and repair obligations are met. Property Owner shall also have the right, but not the obligation, to undertake any maintenance or repair if such obligations are not met in Property Owner's sole discretion within a reasonable period of time following written notice thereof to Business Owner. Business Owner will be solely responsible for the cost of such maintenance and repair. Section 4. Insurance Business Owner must obtain and keep in full force and effect at all times extended commercial general liability insurance covering public liability for personal injury, death, or property damage, arising out of its use or maintenance of the Encroachment Area (including improvements thereupon) for at least $5,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. The insurance will be obtained from an insurance -2- carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII" OR with a surplus line insurer on the State of California's List of Eligible Surplus Line Insurers (LESLI) with a rating in the latest Best's Key Rating Guide of at least "A:X". Business Owner may provide the required limits of coverage through a combination of a primary general liability policy and umbrella/excess policies. Section 5. Removal Obligation After receipt of notice from the City Engineer, and only if necessary for public health or safety reasons, Business Owner will have the obligation to remove or relocate any part of the Encroachments within a reasonable time as specified in the notice, or the City Engineer may cause such work to be done and the reasonable cost thereof shall constitute a lien upon the Shopping Center Parcel. Section 6. No Impediment to Use During the term of this Agreement, no walls, fences or barriers of any sort or kind whatsoever that prevent or impair the use of the Encroachment Area will be constructed, maintained, or permitted on the Encroachment Area, or any portion thereof, by Property Owner or Business Owner, other than wall, fences or barriers surrounding the outdoor patio areas within the Encroachment Area. Section 7. Indemnification Business Owner shall indemnity, defend and hold harmless Property Owner, its agents, representatives, heirs, successors and assigns, against any and all claims, actions, or demands, costs or expense, including reasonable attorney's fees, arising out of or in any way connected to any activities of Business Owner, its agents, representatives, heirs, successors, assigns or invitees arising out of its use of the Encroachment Area, excluding therefrom claims resulting from the negligence or willful misconduct of Property Owner or its agents, representatives, employees, heirs, successors or assigns. Section 8. Notices All notices given pursuant to this Agreement must be in writing and by personal delivery, U.S. Mail or established express delivery service, such as Federal Express, with postage or delivery charge prepaid, return receipt requested, and addressed to the person and address designated below: If to Property Owner: If to Business Owner: Attn: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 RPI Carlsbad, L.P. c/o Rouse Properties, Inc. 1114 A venue of the America, Suite 2800 New York, New York 10036-7703 Attention: Susan Elman -3- Section 9. Waiver Property Owner's consent to or approval of any act or omission by Business Owner shall not constitute a waiver of any other default by Business Owner and shall not be deemed a waiver or render unnecessary Property Owner's consent for approval to any subsequent act by Business Owner. Any waiver by Property Owner 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. Section 10. Miscellaneous This Agreement constitutes the entire agreement between Property Owner and Business Owner relating to the Encroachment. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement will be of no force and effect unless it is in writing and signed by Property Owner and Business Owner or its respective successors or assigns. This Agreement will be effective upon the date it is recorded. Section 11. Signature/Counterparts This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. -4- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth hereinabove. PROPERTY OWNER: CITY OF CARLSBAD, a chartered municipal corporation of the State of California By:~~ ttrillH~or A~TTEST: ~ ~ /~ t1~<.AA--~~ BARA ENGLESON 0 " City Clerk APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:~/~_., Deputy City Attorney -1- BUSINESS OWNER: RPI CARLSBAD, L.P., a Delaware limited partnership By: RPI Carlsbad GP, LLC, a Delaware limited liability company, its general partner JchnA.Waln Chief Financial Officer 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 County of San Diego On \ \ /1 0 /16 before me, Morgen Fry, Notary Public --~~.~~~~=-------- (insert name and title of the officer) peffional~appeared~-~~~~-~~~~~~~l_l~~~~~~~~~~~~~~~~ who proved to me on the basis of satisfactory evidence to be the person~ whose nametsj is/ar:e. subscribed to the within instrument and acknowledged to me that he/sh@/they executed the same in his/1-ter/tlieir authorized capacityties ), and that by his/I:;JerltheiiO signature(-efon 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. WITNESS my hand and official seal. Signature ~~(Seal) je 0 , ~ , 0 e 0 e ~gRaE~ FR;. e . e _ Commission # 2091497 I ~ Notary Public -California ~ z San Diego County ": J. • ~ • • 4Ml ~oT"l ;x~rts pe; t\2~1 ~ ( 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 New York County of New York ) ) § ) On November 6, 2015, before me, Jodieann Nelson, a Notary Public, personally appeared John A. Wain who 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 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 ofNew York that the foregoing paragraph is true and correct WITNESS my hand and official seal. Signat~fe;bfNotary !/ JODIEANN NELSON NOTARY PUBLIC-STATE OF NEW YORK No. 01NE6266888 Qualified In Kings county My commission Expires August 06, 2016 (Affix seal here) EXHIBIT A LEGAL DESCRIPTION OF SHOPPING CENTER PARCEL LOT 12 OF CARLSBAD TRACT NO. CT-76-18 (PLAZA CAMINO REAL SHOPPING CENTER) IN THE CITY OF CARLSBAD, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 8956, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 11, 1978. EXHIBIT A -1- ~ (~) ~NCHOR BUILDING c PATIO ENCROACHMENT AREA ) % ~ \\ ~ '\' \\( C-" /v / a /) ~. PATIO ENCROACHMENT AREA CMF, PCR, LLC & PLAZA CAMINO REAL A~ALIFORNIA LIMITED PARTNERSHIP 19 ~\2; = IIIII -PROPERTY LINE q(RLSJ>AD PATIO ENCROACHMENT ZONE LEVEL 2 FLOOR PLAN MAIN BLDG. JobNo. Date Scale 11/04/2015