HomeMy WebLinkAbout; Carlsbad Public Financing Authority; 2019-0065346; Easement"' ..
CHICAGO TITLE COMPANY
COMMERCIAL DIVISION
RECORDJNG REQUESTED BY:
CITY OF CARLSBAD
AND WHEN RECORDED, MAIL TO:
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CA 92008-1949
DOC# 201"9-0065346
111111111111 lllll 11111111111111111111 lllll lllll lllll 111111111111111111
Feb 25, 2019 08:00 AM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
PAGES: 11
RESTRICTIVE EASEMENT
THIS RESTRICTIVE EASEMENT ("Easement") is made this \ ~ day of feb~
2019 by GRAND PACIFIC CARLSBAD HOTEL, L.P., a Delaware limited partnership, havin~
address at 5900 Pasteur Court, Suite 200, Carlsbad, CA 92008 ("Ground Lessee") and THE
CARLSBAD PUBLIC FINANCING AUTHORITY, a joint powers authority formed by the City of
Carlsbad and the Carlsbad Municipal Water District having an address at 1200 Carlsbad Village Drive,
Carlsbad, CA 92008 ("Ground Lessor"), at the request of the San Luis Rey Band of Mission Indians
("SLR"), a California Native American Tribe having an address at 1889 Sunset Drive, Vista, CA 92081,
and a party to this agreement.
WITNESSETH
WHEREAS, Ground Lessor, as landlord, and Ground Lessee, as tenant, entered into that certain
unrecorded Ground Lease, dated December 15, 2016 ("Ground Lease") for that certain real property in
the City of Carlsbad ("City"), County of San Diego, State of California (the "Property"), as evidenced
by that certain Memorandum of Ground Lease recorded in the Office of the Recorder of San Diego
County, California on December 15, 2016 as Document No. 2016-0689338; and
WHEREAS, on or about February 23, 2016, the City approved Ground Lessee's Final
Environmental Impact Report ("FEIR") for the development project referenced as the Westin Hotel and
timeshare project SCH #2015041042 ("Project") that provided for certain development activities
conditioned in part upon a Mitigation Monitoring and Reporting Program ("MMRP"); and
WHEREAS, measures CR-l/CR-2/CR-3 of the MMRP ("Mitigation Measures") require certain
procedures to be implemented during any ground disturbing activities including that a Qualified
Archaeologist and a Luisefio Native American Monitor be present with the authority to halt the ground
disturbing activities if archeological artifact deposits and/or items of tribal cultural significance
associated with SLR (collectively "Cultural Resources") are discovered; and
WHEREAS, Ground Lessee elected to forego significant grading and conduct only limited
disturbance of topsoil upon a triangle portion of the north westerly comer of Property consisting of
949.34 square feet ("Preserve Area"). The Preserve Area has been identified as having a potential for
subsurface Cultural Resources and the parties recognize that the Preserve Area has neither been tested
for Cultural Resources, nor found to be absent of Cultural Resources.
NOW, THEREFORE, in consideration of the above, the Owner hereby dedicates to the City of
Carlsbad a restrictive easement as described in Exhibit A and as shown in Exhibit B incorporated by
TIiis Instrument filed for record by Chicago TIiie Company
asan acconvnodatlon only. It has not bean examned as
ID ill IUC1llml or as to ilB lffKt UJlllll 11111U8 Page 1
DOCS 121163-000006/3562942. 7
this reference, ("Easement") within and through the Preserve Area on the terms and conditions set forth
below. All references herein below to "Owner" shall mean Ground Lessor during such times that the
Property is not subject to the Ground Lease or a successor ground lease and shall mean Ground Lessee
during such times that the Property is subject to the Ground Lease, as may be amended, or if the Ground
Lease is terminated and the Property is made subject to a future ground lease, the ground lessee under
such future ground lease.
1. Restrictions Placed within the Easement.
a. To forever protect and preserve the potential for subsurface Cultural Resources within the
Easement, no portion of the "Native Soils" (the subsurface soils contained within the Easement
which do not extend into the Santiago Formation) in the Easement area shall be excavated,
disturbed, moved or dug into, or subject to any ground penetrating activity(ies) by any means; no
improvements including installation of footings, additional means of foundations, such as
caissons, irrigation lines, wet or dry infrastructure or utility lines shall be placed within the
Easement; and any use or development of the Property impacting the Easement shall be
conducted in a manner so as to not result in degradation of the Native Soils and shall maintain
areas of evenly distributed partial permeability of the ground surface (referred to herein as the
"Restrictions"). Ground disturbing activities include any digging or movement of existing
Native Soils of any kind within the Easement. Ground disturbing activities does not include any
work within and contained to any non-Native Soils or fill materials added above the Native Soils
of the Easement, as long as those ground disturbing activities do not impact the subsurface soils.
b. Any subsurface activity which violates the Restrictions required herein may be considered by the
City of Carlsbad as an unauthorized additional impact to Cultural Resources.
c. Except as expressly stated, nothing herein shall be construed in any way to provide any party or
person with a right of access to, interest in, and/or use of, the Easement.
2. Exception to Restrictions Placed Upon Easement. The Restrictions shall not apply and Owner
shall be able to do any of the foregoing within the Easement:
a. to the minimum extent practicable, if required, the following is permissible (provided such
excepted activities shall not obviate the need for any review and approvals by the City):
(i) to restore the existing (or replace with similar) existing improvements located above the
Easement which have been damaged by the occurrence of a casualty ( e.g., fire,
earthquake, flood or other natural or unintentional man-made catastrophe); or
(ii) to comply with changes to federal, state and local laws and regulations affecting the
Property; or
b. upon issuance of permit by City of Carlsbad Planning Department for development and
construction activity within the Easement, following written notice to and review by SLR (in
accordance with Section 11 of this Easement), subject to any imposed avoidance or mitigation
measures (referred to herein as the "Permitted Construction Activity"). In connection with any
Permitted Construction Activity, Owner shall comply with then applicable City requirements for
projects located within the City including any avoidance, mitigation measures, monitoring,
survey and repatriation requirements.
3. Permit to Undertake Permitted Construction Activity. Notwithstanding anything contained in this
Easement to the contrary, in the event Owner desires to perform any Permitted Construction
Activity, Owner shall submit a permit application to the City of Carlsbad Planning Department, with
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DOCS 121163-000006/3562942. 7
a copy sent to SLR. In accordance with CEQA and the City's Project Planning requirements, the
permit application shall describe the nature, scope, design, location, timetable, methods for
minimizing of impacts to cultural resources and any other material aspect of the proposed activity in
sufficient detail to enable the City of Carlsbad Planning Department to require mitigation measures
and any discretionary or other approvals required.
4. Current Development Approvals. The Restrictions placed by this Easement do not in any way
modify, expand or diminish the current development approvals for the Project that underwent review
in the FEIR and were approved by the City of Carlsbad. Except for the express obligation to
implement the Mitigation Measures as required under the MMRP for the Project and the
commitments and restrictions made herein, Ground Lessee retains all of its rights to use and develop
the Property, which may include, as an example and not limitation, the right to place new topsoil or
other material added above the Native Soils of the Easement..
5. Reserved Rights. Except for the express rights granted hereunder Owner reserves to itself, and for
its tenants, representatives, successors, and assigns, all rights, title and interest in and to the Property.
Nothing in this Easement shall require the removal or modification of any improvements,
hardscaping or landscaping existing on the Property and made pursuant to Project approvals as of the
date of execution of this Easement.
6. Termination of Easement. Upon completion of applicable requirements or mitigation measures
imposed by the City for any Permitted Construction Activity within the Easement (as provided for in
Section 3 herein), the Restrictions for that portion of the Easement that is disturbed by the activity is
terminated and released to the depth that such activity has occurred. Any diminished easement area
shall be documented, and a revised legal description and map of the easement area shall be recorded
with the County of San Diego according at the cost of Owner. Upon termination of the Restrictions
for the entire Easement, Owner may at its election and discretion record a Termination of Easement,
after notice has been provided to SLR and the City, and upon City approval. Otherwise, the
Easement shall be in effect for perpetuity.
7. City Regulatory Jurisdiction. The City shall retain regulatory jurisdiction to enforce the Restrictions.
Any delay, omission or forbearance by the City to exercise its enforcement rights under this
Easement shall not be deemed or construed to be a waiver of such term or of any subsequent breach
of the same or any other term of this Easement.
8. Waiver of Certain Defenses. Owner hereby waives any defense oflaches, estoppel, or prescription.
9. Acts Beyond Owner's Control. Notwithstanding anything contained in this Easement to the
contrary, nothing contained in this Easement shall be construed to entitle the City to bring any action
against Owner for any injury to or change in the Property resulting from causes beyond Owner's
control, including, without limitation, non-permitted third party action, fire, flood, storm, and
seismic movement, or from any minimally necessary and prudent action taken by Owner under
emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from
such causes.
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DOCS 121163-000006/3562942. 7
10. Estoppel Certificates. Upon request by any party, the other parties shall within thirty (30) days
execute and deliver to requesting party any document, including an estoppel certificate, which
certifies compliance with any obligation contained within this Easement.
11. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or
is required to give to the other shall be in writing and either served personally or sent by first class
mail, postage prepaid, addressed to the parties at their address stated in on page 1 above or to such
other address as any party from time to time shall designate by written notice to the other. Unless
provided otherwise, all notices must be provided with a minimum of sixty (60) days' advance
written notice of proposed requested activity, and each party subject to said notice shall provide a
written response to such notice within thirty (30) days of receipt of said notice and provide specific
comments to the proposed requested activity.
12. Amendment. If circumstances arise under which an amendment to or modification of this Easement
would be appropriate, the parties are free to jointly amend this Easement by written amendment
mutually agreed upon by all parties, including the requesting party, SLR; provided that any
amendment shall be consistent with the purpose of this Easement, shall include reference to the
significant tribal cultural values and be consistent with protecting those values. Any such
amendment shall be recorded in the official records of San Diego County, California.
13. General Provisions.
(a) Controlling Law. The interpretation and performance of this Easement shall be governed by the
laws of the State of California.
(b) Severability. If any provision of this Easement, or the application thereof to any person or
circumstance, is found to be invalid, the remainder of the provisions of this Easement or the
application of such provision to persons or circumstances other than those as to which it is found
to be invalid, as the case may be, shall not be affected thereby.
( c) Entire Agreement. This instrument sets forth the entire agreement of the parties and supersedes
all prior discussions, negotiations, understandings, or agreements relating to this Easement, all of
which are merged herein.
(d) Termination of Rights and Obligations. A party's rights and obligations under this Easement
terminate upon transfer of that party's interest in this Easement or Property, as applicable, except
that liability for acts or omissions occurring prior to the transfer shall survive transfer.
( e) Captions. The captions in this instrument have been inserted solely for convenience of reference
and are not a part of this instrument and shall have no effect upon construction or interpretation.
(f) Counterparts. The parties may execute this instrument in two or more counterparts, which shall,
in the aggregate, be signed by both parties; each counterpart shall be deemed an original
instrument as against any party who has signed it. In the event of any disparity between the
counterparts produced, the recorded counterpart shall be controlling.
[SIGNATURES FOLLOW ON NEXT PAGE.]
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DOCS 121163-000006/3562942. 7
IN WITNESS WHEREOF Ground Lessor and Ground Lessee have set their hands on the day
and year first above written.
GROUND LESSOR:
THE CARLSBAD PUBLIC FINANCING AUTHORITY,
a JOI owers authority formed by the City of
Ca sba and the Carlsbad Municipal Water District
Attest: ,,,,, .. ,,,,
ri) ~ ,,,, \..SBAo ,,,,, ~ ~ ...... , ~~--·········· 0 ...... ~B"""ar""'bt-ar---1""-'E~n~g-el"""'so,...,.n""', +C-it"""-y-C---le'lf-~--------+-------[ ~vii~~
(seal) -Q • d ·• Q -=>-: . . :::u= ~~... .:~:.: -=:,v·· ...... ...-~~ Approved as to form and legality: ... ····· ,'
Celia Brewer, City Attorney
GROUND LESSEE:
GRAND PACIFIC CARLSBAD HOTEL, L.P.,
a Delaware limited partnership
By: Grand Pacific Carlsbad Hotel, Inc.,
a Delaware corporation, its General Partner
By:
By: ~D~J~~~-
David S. Brown, Co-President
",, ... * .,, ,, ,,,,,,,,11,1'''
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DOCS 121163-000006/3562942.7
REQUESTING/CONCURRING PARTY:
SAN LUIS REY BAND OF MISSION INDIANS,
a California Native American Tribe
By: IJt ~(fa I ;:/dt -/4 ' / I
Melvin ernon, Ctptain
rJKa. Mervin J. v.ernon
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DOCS 121163-000006/3562942. 7
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
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 February 19, 2019 before me, Diane Marie Proulx, Notary Public, personally appeared David S.
Brown and Timothy J. Stripe, who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) i:s/-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 PENAL1Y OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
(Seal)
Acknowledgement
"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 )
) f () -
On ,/}gl"::>,}J)Ji;9-l)/Cj before me';-,~Jll_~ Notary P~blic, p~rsonally
appeared m , i l,) L~1 .__} \/ b::'::-0, ¥l , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) isf'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 of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal. (im f a U.
(V,_°' ~ff/4 2? A-
Signature
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DOCS 121163-000006/3562942. 7
Acknowledgement
"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 f~!,\ 'J:.\,1.D\'\ J:,efore me, tv\O~l\ll{Y4 , Notary Public, personally
appeared Si.of\: C,vyicU0\ cu / ' wh;proved O me on the basis of satisfactory
evidence to be the persorrt-s.) whose name~ is/'.are subscribed to the within instrument and acknowledged
to me that he/sh0,1the, executed the same in his/A0r/fheir authorized capacity~ and that by
his/her/theit signature~ 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.
WITNESS my hand and official seal. 1············~ MORGEN FRY
: .~ • Notary Public -Callfornia z
~ : • San Diego County ~
z ~-.-:11~~, Commission # 2268605 -
My Comm. Expires Dec 2-4, 2022
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DOCS 121163-000006/3562942. 7
EXHIBIT A
LEGAL DESCRIPTION OF EASEMENT
AN EASEMENT WITHIN THAT PORTION OF PARCEL A OF ADJUSTMENT PLAT 16-
08, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON DECEMBER
15, 2016 AS DOC. NO. 2016-0688761, BEING MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF LOT F OF SAID MAP 823;
THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT F AND THE EASTERLY
LINE OF SAID LOT H, NORTH 00°03'41" EAST A DISTANCE OF 110.04 FEET; THENCE
LEAVING SAID EASTERLY LINE, NORTH 89°56'19" WEST A DISTANCE OF 120.00 FEET;
THENCE NORTH 00°03'41" EAST A DISTANCE OF 120.04 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING NORTH 00°03'41" EAST A DISTANCE OF 40.00 FEET;
THENCE SOUTH 89°56'19" EAST A DISTANCE OF 49.00 FEET; THENCE SOUTH 50°50'09"
WEST A DISTANCE OF 63.25 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THERFROM A 6.50 FOOT DIAMETER PORTION, THE CENTER
POINT BEING MORE PARTICULARLY DESCRIBED AS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF LOT F OF SAID MAP 823;
THENCE NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT F AND THE EASTERLY
LINE OF SAID LOT H, NORTH 00°03'41" EAST A DISTANCE OF 110.04 FEET; THENCE
LEAVING SAID EASTERLY LINE, NORTH 89°56' 19" WEST A DISTANCE OF 120.00 FEET;
THENCE NORTH 00°03'41" EAST A DISTANCE OF 160.04 FEET; THENCE SOUTH 51 °34'27"
EAST A DISTANCE OF 30.13 FEET TO THE CENTER POINT OF SAID PORTION.
THE TOP OF THE EASEMENT SHALL TERMINATE VERTICALLY AT ELEVATION 262.94
BASED ON CITY OF CARLSBAD CONTROL MONUMENT BENCHMARK CLSB-097,
RECORDED ON RECORD OF SURVEY NO. 17217, FEBRUARY 8, 2002 AS FILE NO. 2002-
0112862. BEING AN ELEVATION OF 290.800 PER DATUM NGVD 29, AND EXTEND
DO WNW ARD TO AN ELEV A TION OF 260.44 A DISTANCE OF 30 INCHES.
SAID PORTION OF LAND CONTAINS 949.34 SQUARE FEET
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DOCS 121163-000006/3562942. 7
NO
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EXHIBIT B
DEPICTION OF EASEMENT
EXHIBIT "B"
OPEN SPACE EASBIENT
LINE DATA
BEAR/NC LENCTH
NOO'OJ'-1 IT 110.()I'
N8!J'56'!!J"W 120.00'
NOO'O.J'-1 I T 120.()I'
NOO'O.J'-IIT 1().00'
SB!J'56 'I !J "E ,9.00•
S50'50179 "W 63.25'
I /?E'PA!l?IA new
SHAFT LOCA new
Jl?IJE IUNT CF Bf"Q'NMNC I
PARCEL) A
Doc, No, [201a-oaas1a1
l2
---0 100 200
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DOCS 121163-000006/3562942. 7
S1EET 1 fF 1 S1EET
SCALE.· l"-100'