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HomeMy WebLinkAboutSUP 98-03D; Levine Investments Limited Partnership; 2014-0497218; Encroachment AgreementDOCtt 2014-0497218 llllllllllllllll RECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY NOV 14, 2014 11:04 AM OF CARLSBAD WHEN RECORDED MAIL TO: OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 48.00 City Clerk PAGES: 12 CITY OF CARLSBAD 1 mill mil lllli mil iim iiiii ••iii ••m ••m ••III ••III •••II ••ill ••III ••III ••• 1200 Carlsbaci Village Dr. Carlsbad, CA. 92008 1 iBiiii ••III iiiii ••III i\w\M lllll mil mil mil iiiii iiiii mil iiiii iiiii iiiii iin III SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 213-100-01 PROJECTID: SUP98-03(D) PROJECTNAME: El Camino Real at Viasat Lot 1 RELATED PROJECT ID: PR 14-30 RELATED PROJECT ID: MS 13-07 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Levine Investments Limited Partnership, an Arizona limited partnership ("Owner"), in accordance with Chapter 11.16 of the Carlsbad Municipal Code. 1. The Propertv. Owner is the owner of that certain real property located at 6155 El Camino Real within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 213-100-01, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. 2. The Easement. City currently owns an existing easement over, under, and across Owner's property for public street and utility purposes, public road and utility purposes, a drainage easement and a pedestrian easement which easements are described in Exhibit "B" attached hereto and incorporated by reference (the "Easement Area"). 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow trellis structures, pedestrian lights mounted to the trellis stnjcture located at the bus tumout, a monument sign, four-four inch and two-two inch conduits for electronic communication services and decorative pavement to remain in a portion of the Easement Area (the "Encroachment Facilities"). A plat showing the location of the Encroachment Facilities is attached as Exhibit "C" attached hereto and incorporated by reference. This Agreement is subject to the following terms and conditions: (A) The Encroachment Facilities shall be installed and maintained in a safe and sanitary condition at the sole cost, risk, and responsibility ofthe Owner and its successors in interest. Q:\CED\LandDev\PROJECTS\SUP\SUP 98-03D Ei Camino Reai Viasat Lot IVENCROACHIVIENT AGIVIT PR 14-30 Viasat trellis, conduit, decorative pavement, etc.doc 01/25/13 (B) The Owner shall agree at all times 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 structure 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. (C) The Owner must remove or relocate any part of the Encroachment Facilities within ninety (90) business days or such other time as is specified in the written notice after owner's receipt of such notice from the City Engineer that such removal or relocation is required to address a health, safety or welfare issue. So long as the Owner is working diligently to cause the removal or relocation of the Encroachment Facilities, the City and/or City Engineer shall not cause the work to be done by the City or a third party. The parties agree that the removal of the Encroachment Facilities may be burdensome and/or cause detrimental hann to Owner and to the users of its buildings within the Property. Therefore, the Owner and the City Engineer shall agree that whenever possible, the parties will work toward a relocation of the Encroachment Facilities and in particular, the conduits for the communication services. If Owner fails to timely cause the removal or relocation of the Encroachment Facilities, the City and/or City Engineer, shall be entitled, following notice to Owner and an opportunity for owner to cause such work to be completed, to cause the work to be done and the reasonable cost thereof shall constitute a lien upon the property. 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 pennission to constmct and maintain the Encroachment Facilities. This Agreement may only be tenninated by the Parties for cause upon a material breach of the Agreement and a failure to cure the breach by the breaching party after being provided notice of default and a reasonable opportunity to cure said default. If the Agreement is terminated for cause by the City, then Owner, at is sole cost and expense, if required by the City, shall return the easement area to City Standards in accordance with the then current Carlsbad Municipal Code and all other applicable City policies, regulations, and standards within 90 days of termination of the Agreement or such other time as specified by the City Engineer. Prior to returning the Easement Area to City Standards, Owner shall provide plans for approval by the City within 30 days after submission which approval shall not be unreasonably withheld. If Owner fails to return the easement area to City standards within 90 days of termination of this Agreement, the City shall have the right but not the obligation to complete the work. The City may then, at its option invoice Owner for the costs incurred to return the easement area to City standards. 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 retum receipt requested, or by other comparable commercial means and addressed as follows: If to the City: If to the Owner: City Engineer Levine Investments Limited Partnership City of Carlsbad 2201 Camelback Road, Suite 650 1635 Faraday Avenue Phoenix, AZ 85016 Carlsbad CA 92008 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. 2 Q:\CED\LandDev\PROJECTS\SUPaUP 98-03D El Camino Reai Viasat Lot 1\ENCR0ACHMENT AGMT PR 14-30 Viasat trellis, conduit, decorative pavement, etc.doc 01/25/13 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. IN WITNESS WHEREOF, these parties hereto have executed this Agreement on this «T ^ day of QokW . 20 M . OWNER Levine Investments Limited CITY OF CARLSBAD, a municipal Partnership, an Arizona Limited Partnership, by corporation of the State of Califomia its General Partner, Keim, Inc., an Arizona corporatiorj. By y\ (/^ /( JASON S. GELDERT, City Engineer (Sign Here) William S. Levine, Chainnan of Keim Inc. (Print Name Here) RpE 63912 By (Sign Here) (Print Name Here) APPROVED AS TO FORM: CELIA BREWER City Attomey ^» l^DNKEMP V Assistant City Attomey CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of SqyiA /Ni A On VblT-'Z.I nolU before me, /'.r!^-/^, (/'^ ^-eyVlAdiAA^e^ . A^<^-^a^ (Here insert name and title c/f the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(.8)'whose name(^is/^«-subscribed to the within instrument and acknowledged to me that he/she/tbcy executed the same in his/her/thefr authorized capacity(ies), and that by his/her/tbeir signature(^on the instrument the person(5); or the entity upon behalfof which the person(8^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ofNotary Public (Notary Seal) CECELIA FERNANDEZ Commtsslon # 1996355 Notary PubHc • Californii San Ditgo County ^ My Comm. Expires Oct 30,2016 [ ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attacheti'document) (Title or description of attached document continued) Numberof Pages DocumentDate (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attomey-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any adcnowledgment compleled in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of Califomia. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/theyr is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com STATE OF ARIZONA County of Maricopa ) ) ss. ) On this, the day of {)f-m-^u4^2^ 14 before me the undersigned Notary Public, personally appeared {(//fn^(^6 'fitu4P . the CAoi/t*»^ij^ of Keim, Inc., the General Partner of Levine Investments Limited Partnership, the Member of Pivotal 650 California Street LLC, an Arizona limited liability company and acknowledged that he as such officer, being authorized to do so, executed the foregoing. In witness whereof, I have hereunto set my hand and official seal. OFFICIAL SEAL AMANDA B. KOWALSKI Notary Publc-SMa of Ailmw MARKX>f>A COUNTY 'Norary Notary Expiration US!5I J*Mlf' M) Description of document this notarial certificate is being attached to: Type/Title Date of Document Number of Pages Add'l signers (other than those name in the notarial certificate July 17, 2014 J.N. 131029 PAGE 1 OF 1 EXHIBIT "A" LEGAL DESCRIPTION PR 14-30 LOT 1 OF CARLSBAD TRACT NO. 98-07, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13716 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AS FILE NUMBER 1998-865598 RECORDED DECEMBER 31, 1998. July 17, 2014 J.N. 131029 PAGE 1 OF 3 EXHIBIT "B" LEGAL DESCRIPTION PR 14-30 PARCEL A EL CAMINO REAL FOR PUBLIC ROAD AND UTILITY PURPOSES, A 90.0 FOOT WIDE STRIP GRANTED TO THE COUNTY OF SAN DIEGO PER DOC 44690, RECORDED MARCH 12, 1970; AN 18.00 FOOT WIDE STRIP GRANTED TO THE COUNTY OF SAN DIEGO PER DOC 320065, RECORDED NOVEMBER 30, 1972; A PORTION GRANTED TO THE CITY OF CARLSBAD PER MAP NO. 13716, RECORDED DECEMBER 31, 1998; AND A PORTION GRANTED TO THE CITY OF CARLSBAD PER MAP 14 600 RECORDED MAY 29, 2003, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. PARCEL B 20' WIDE PUBLIC DRAINAGE EASEMENT GRANTED TO THE CITY OF CARLSBAD, PER MAP NO. 14600, RECORDED MAY 29, 2003 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. PARCEL C PUBLIC STREET & UTILITY EASEMENT DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 1 OF CT 98-07, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13716 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AS FILE NUMBER 1998-865598 RECORDED DECEMBER 31, 1998, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1, SAID POINT BEING THE BEGINNING OF A 1937.00 RADIUS CURVE CONCAVE WESTERLY; A RADIAL LINE TO SAID POINT BEARS NORTH 83°50'07" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE AND SAID EASTERLY LOT LINE, ALSO BEING THE WESTERLY RIGHT-OF-WAY OF EL CAMINO REAL, THROUGH A CENTRAL ANGLE OF 01°02'11", AN ARC DISTANCE OF 35.04 FEET TO THE TRUE POINT OF BEGINNING. THENCE CONTINUING ALONG SAID 1937.00 FOOT CURVE, SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 04°59'30", AN ARC DISTANCE OF 168.76 FEET TO THE BEGINNING OF A NON TANGENT 60.00 FOOT RADIUS CURVE, CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 89°52'42" EAST; THENCE LEAVING SAID EASTERLY LINE AND WESTERLY RIGHT-OF-WAY AND NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16°29'56", AN ARC DISTANCE OF 17.28 FEET; THENCE TANGENT TO SAID July 17, 2014 J.N. 131029 PAGE 2 OF 3 CURVE NORTH 16°37'14" WEST, 28.17 FEET TO THE BEGINNING OF A 60.00 FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14° 44'07", AN ARC DISTANCE OF 15.43 FEET TO THE BEGINNING OF A REVERSE 1925.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 01°27'07", AN ARC DISTANCE OF 48 . 78 FEET TO THE BEGINNING OF A REVERSE 60.00 FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14°29'47", AN ARC DISTANCE OF 15.18 FEET; THENCE TANGENT TO SAID CURVE NORTH 11°09'34" EAST, 29.07 FEET TO THE BEGINNING OF A TANGENT 60.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16°16'22", AN ARC DISTANCE OF 17.04 FEET TO THE TRUE POINT OF BEGINNING. PARCEL D PEDESTRIAN EASEMENT DESCRIBED AS FOLLOWS: THAT PORTION OF LOT 1 OF CARLSBAD TRACT NO. 98-07, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13716 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AS FILE NUMBER 1998-865598 RECORDED DECEMBER 31, 1998, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1, SAID POINT BEING THE BEGINNING OF A 1937.00 RADIUS CURVE CONCAVE WESTERLY; A RADIAL LINE TO SAID POINT BEARS NORTH 83°50'07" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE AND SAID EASTERLY LOT LINE, ALSO BEING THE WESTERLY RIGHT-OF-WAY OF EL CAMINO REAL, THROUGH A CENTRAL ANGLE OF 07°00'19", AN ARC DISTANCE OF 236.82 FEET TO THE TRUE POINT OF BEGINNING. THENCE CONTINUING ALONG SAID 1937.00 FOOT CURVE, SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 02°59'02", AN ARC DISTANCE OF 100.88 FEET TO THE BEGINNING OF A COMPOUND 290.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08°22'39" AN ARC DISTANCE OF 42.40 FEET; THENCE LEAVING SAID EASTERLY LINE AND WESTERLY RIGHT-OF-WAY AND NON-TANGENT TO SAID CURVE SOUTH 68°44'25" EAST, 16.21 FEET TO THE BEGINNING OF A NON-TANGENT 27 4.00 FOOT RADIUS CURVE CONCAVE WESTERLY; A RADIAL LINE TO SAID POINT BEARS SOUTH 78°18'58" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF July 17, 2014 J.N. 131029 PAGE 3 OF 3 07°50'41", AN ARC DISTANCE OF 37.51 FEET TO THE BEGINNING OF A CONCAVE 1921.00 FOOT RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 02° 04'55" AN ARC DISTANCE OF 69.81 FEET TO THE BEGINNING OF A REVERSE 25.00 FOOT RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHEATERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54°58'10", AN ARC DISTANCE OF 23.98 FEET; TO THE BEGINNING OF A REVERSE 12.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 55°52'17" AN ARC DISTANCE OF 11.70 FEET TO THE TRUE POINT OF BEGINNING. 0:\Legal_Descriptions\13102 9\ECR-ENCROACH-B.docx EXHIBIT 'C LEGAL DESCRIPTION PORTION OF LOT 1 OF CT 98-07, LINCOLN NORTHPOINTE. IN THE CITY OF CARLSBAD. COUNTY OF SAN DIEGO STATF OF CALIFORNIA PFR MAP NO 13716, REC 12/31/98. BASIS OF BEARINGS THF BASIS OF BFARINGS FOR THIS PLAN IS THF NORTHERL Y LOT LINE OF LOT 1 OF MAP 13716. I.E N 79'41'12" E LEGEND EASEMENT ENCROACHMENT ARFA ^ " " j EXISTING RIGHT- OF- WA Y EXISTING LOT UNE EXISTING EASEMENT EXISTING EASEMENTS EXISTING REUNOUISHMENT OF ABUTTER'S ACCESS RIGHTS OCEANSIDE /////// VISTA Q] PUBLIC UTILITIES & INGRESS/EGRESS TO SDG&E REC JULY 27, 1960 AS F/N 151772 SLOPE RIGHTS & DRAINAGE PURPOSES TO COUNTY 0E\ SAN DIEGO REC MARCH 12 1970 AS F/N 44690 & 44691 PUBLIC ROAD PURPOSES TO COUNTY OF SAN DIEGO REC NOVEMBER 30, 1972 AS F/N 320065 ACCESS RIGHTS RELINQUISHED TO EL CAMINO REAL REC DECEMBER 31. 1998 AS MAP NO 13716 PUBUC UTILITIES & INGRESS/EGRESS TO SDG&E REC JULY 6 1999 AS F/N1999-0468729 WATER EASEMENT TO CMWD REC DECEMBER 2 1999 AS F/N 1999-0789037 SIGHT DISTANCE CORRIDOR TO THE CITY OF CARLSBAD REC MAY 29 2003 PER MAP 14600 20' DRAINAGE EASEMENT TO THE CITY OF CARLSBAD, REC MAY 29 2003 PER MAP 14600 LANDSCAPE MAINTENANCE EASEMENT TO HOA, REC JANUARY 4 2005 PER MAP 14960 SIGNAGE EASEMENT TO HOA. REC MARCH 15 2005 F/N2005-0210897 DRIVEWAY ENCROACHMENT TO COUNTY OF SAN DIEGO REC MAY 21, 2012 AS F/N 2012-0295404 PUBLIC STREET & UTILITY EASEMENT TO THE CITY OF CARLSBAD REC JUNE 6 2012 AS F/N 2012-0330239 [6] m rsl 10 11 12 15 PACIFIC OCEAN BUSINESS PARK DR. CITY OF SAN MARCOS : O N S U L T A^~l CONSULT AAI T S 2710 Loker Avenue West, Suite 00 Carlsbad, California 92010 T: 760-931-7700 F: 760-931-8680 CITY OF ENCINITAS VICINITY MAP NO SCALE CITY OF CARLSBAD APPLICANT: ENCROACHMENT AGREEMENT DATE: SEPT. 18. 2014 LEVINE INVESTMENTS LMTED PARTNERSHIP. AN ARIZONA LIMITED PARTNERSHIP 2201 CAMELBACK RD STF 650 PHOENIX. AZ 85016 (602) 248-8181 PREPARED BY: NICHOLE A. FINE LS 8753, EXP. 12/31/14 SEE DWG. 483-3 ON FILE WITH CITY FOR DETAILS SHEET 1 OF 2 SHEETS A.P.N. 213-100-01 P.R. 14-30 EXHIBIT 'C SCALE: 1 PVT. TRELLIS & PEDESTRIAN UGH ENCROACHMENT IN PUBLIC ESMT ^ R/w DEDL,__ ^ PER PR lfi-2f PARCEL C CONSULT T S 2710 Loker Avenue West, Suite 100 Carlsbad, California 92010 T: 760-931-7700 F: 760-931-8680 CITY OF CARLSBAD APPLICANT: ENCROACHMENT AGREEMENT DATE: SEPT. 18, 2014 LEVINE INVESTMENTS LIMITED PARTNERSHIP. AN ARIZONA LIMITED PARINERSHIP 2201 CAMELBACK RD STF 650 PHOENIX. AZ 85016 (602) 248-8181 PREPARED BY: NICHOLE A. FINE LS 8753 EXP. 12/31/14 SEE DWG. 483-3 ON FILE WITH CITY FOR DETAILS SHEET 2 OF 2 SHEETS A.P.N. 213-100-01 P.R. 14-30