HomeMy WebLinkAboutSDP 09-04; City of Carlsbad; 2015-0593947; Encroachment AgreementFIRST AMERICAN TITLE INSURANCE COMPANY
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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
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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
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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
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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
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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
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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.
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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
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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
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~NCHOR BUILDING
c PATIO ENCROACHMENT AREA ) % ~ \\ ~ '\' \\( C-" /v / a
/) ~.
PATIO ENCROACHMENT AREA
CMF, PCR, LLC &
PLAZA CAMINO REAL
A~ALIFORNIA LIMITED PARTNERSHIP 19
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=
IIIII -PROPERTY LINE
q(RLSJ>AD
PATIO ENCROACHMENT ZONE
LEVEL 2 FLOOR PLAN
MAIN BLDG.
JobNo. Date Scale 11/04/2015