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HomeMy WebLinkAboutCUP 2022-0010; Cabrillo Power I LLC; 2023-0129744; Encroachment AgreementRECORDING IS REQUESTED FOR THE BENEFIT OF THE CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOC# 2023-01297 44 1111111 111111111111111 1111111111111111111111111111111111111111 11111111 May 17, 2023 02:55 PM OFFICIAL RECORDS JORDAN Z. MARKS SAN DIEGO COUNTY RECORDER FEES $44.00 (SB2 Atkins: $0.00) PAGES. 11 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 210-010-45 AND 47 PROJECT ID: CUP2022-0010 PROJECT NAME: CARLSBAD DESALINATION PLANT (AQUAFARM DRIVEWAYS) RELATED PROJECT ID: EAGREE2022-0032 RELATED PROJECT ID: DWG 539-8 ----------- ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Cabrillo Power I LLC, a Delaware limited liability company ("Owner"), in accordance with Chapter 11.16 of the Carlsbad Municipal Code. 1. The Property. Owner is the owner of that certain real property located at within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 210-010-45 and 210-0101-47, 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 which easement is described in Exhibit "B" attached hereto and incorporated by reference. 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow driveways to remain in a portion of the public street and utility easement. 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 cost, risk, and responsibility of the owner and its successors in interest. (B) The Owner shall agree at all times to indemnify and hold the City free and harmless from any and all claims, demands, losses, 1 Q:ICED\LandDev\PROJECTSICUPICUP 221CUP2022-0010 CARLSBAD DESALINATION PLANT-RICK (SEE CD2022- 0022)\Corespondence\PCIEAGREE2022-0032\ENCROACHMENT AGMT EAGREE2022-0032.doc 9/5/2014 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 within ten (10) days or such other time as specified in the notice after receipt of it from the City Engineer, or the City Engineer may cause such work to be done and the reasonable cost thereof shall constitute a lien upon the property. Consistent with Condition 18 of Planning Commission Resolution No. 7464, the driveways shall be constructed, removed and restored to previous conditions within 18 months of the approval date of this agreement unless the necessary agency approvals to allow the driveways to remain as permanent facilities are acquired. The City Engineer may extend this time by written notice described in Section 5 of this agreement. (D) 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 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: If to the City: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 If to the Owner: Attn: Eric Leuze, Vice President Cabrillo Power I, LLC 4600 Carlsbad Blvd. 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 2 Q:ICEO\LandDev\PROJECTSICUPICUP 22\CUP2022--0010 CARLSBAD DESALINATION PLANT -RICK (SEE CD2022- 0022)\Corespondence\PCIEAGREE2022-0032\ENCROACHMENT AGMT EAGREE2022-0032.doc 9/5/2014 Please see attached notary certificate. Notary lnitialst,u 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 represdnts 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. this IN )C,ITNESS WHEREOF, thAe parties hereto have executed this Agreement on i -day of tnacc , 20.n._. OWNER Cabrillo Power I, LLC, a Delaware limited~liabili ~ By: ..,.:::.....,c;._..:....r.,.____,,~----------ign Here) Eric Leuze, Vice President (Print Name Here) By: ---------------(Sign Here) (Print Name Here) APPROVED AS TO FORM: CINDIE MCMAHON City Attorney By ~~ Senior Assistant City Attorney 3 CITY OF CARLSBAD, a municipal corporation of the State of California JASONfi) GELDERT, Eng;••t: ~•g~r t-:/4v/Pl RCE 63912 Exp. 9/30/2024 ? Q:\CED\LandDevlPROJECTSICUPICUP 221CUP2022-0010 CARLSBAD DESALINATION PLANT -RICK (SEE CD2022- 0022)\Corespondence\PCIEAGREE2022-0032\ENCROACHMENT AGMT EAGREE2022-0032.doc 9/5/2014 EXHIBIT 'A' EAGREE 2022-0032 LEGAL DESCRIPTION FOR TEMPORARY DRIVEWAY Parcel 3 per Certificate of Compliance recorded October 30 , 2001 as Document No. 2001 - 0789067, together with that portion of Parcel 4 per Certificate of Compliance recorded October 30, 2001 as Document No. 2001 -0789068, and as shown on Record of Survey No. 17350, in the City of Carlsbad, County of San Diego, State of California. ~ L.S. 7019 P:12398.25\SURVEY _BNDR Y\Easement Modifications -May 2022\Plats\Legal\2398.25 -Poseidon -Legal -Intake Modification Easement.docx EXHIBIT 'B' EAGREE 2022-0032 LEGAL DESCRIPTION FOR TEMPORARY DRIVEWAY That portion of the Carlsbad Boulevard right-of-way, being 100-feet wide, also a portion of Parcel 3 per Certificate of Compliance recorded October 30, 2001 as Document No. 2001- 0789067, together with that portion of Parcel 4 per Certificate of Compliance recorded October 30, 2001 as Document No. 2001 -0789068, and as shown on Record of Survey No. 17350, in the City of Carlsbad, County of San Diego, State of California, and more particularly described as follows : PARCEL A Commencing at an angle point in the Northwesterly line of said Parcel 4, said point also being the Southwestern corner of said Parcel 3 and Northwestern terminus of a line which bears North 64°31 '22" West a distance of 293.59 feet to a point along the Easterly right-of- way line of Carlsbad Boulevard as shown on said Record of Survey No. 17350 ; thence along the Easterly right-of-way line of said street and bearing South 24°07'36" East a distance of 12.12 feet to the True Point of Beginning of Parcel A; thence continuing along the Easterly right-of-way line of said street South 24°07'36" East a distance of 51 .94 feet; thence leaving the Easterly right-of-way line of said street South 65°20'05" West a distance of 15.92 feet; thence North 24°07'50" West a distance of 52.08 feet; thence North 65°50'40" East a distance of 15.92 feet to the True Point of Beginning of Parcel A ; Said parcel of land contains 0.019 acres, more or less. PARCEL 8 Commencing at an angle point in the Northwesterly line of said Parcel 4, said point also being the Southwestern corner of said Parcel 3 and Northwestern terminus of a line which bears North 64°31 '22" West a distance of 293.59 feet to a point along the Easterly right-of- way line of Carlsbad Boulevard as shown on said Record of Survey No . 17350; thence along the Easterly right-of-way line of said street and bearing North 24°07'36" West a distance of 117.26 feet to the True Point of Beginning of Parcel B; thence continuing along the Easterly right-of-way line of said street North 24°07'36" West a distance of 52.00 feet; thence leaving the Easterly right-of-way line of said street South 65°51 '19" West a P:\2398.25\SURVEY _BNDR Y\Easement Modifications -May 2022\Plats\Legal\2398.25 -Poseidon -Legal -Intake Modification Easement.docx distance of 15.95 feet; thence South 24°08'43" East a distance of 52.00 feet; thence North 65°50'58" East a distance of 15.93 feet to the True Point of Beginning of Parcel B; Said parcel of land contains 0.019 acres, more or less. Attached hereto is a plat labeled Exhibit 'C' and by this reference made a part thereof. All distances shown hereon are grid distances. To compute ground distances, divide grid distances by 0.999963440. All bearings shown hereon are grid, based upon California Coordinate System Zone 6, NAD-83, and Epoch 1991 .35. ~ GARY L. HUS L.S. 7019 P:\2398.25\SURVEY_BNDRY\Easement Modifications -May 2022\Plats\Legal\2398.25 -Poseidon -Legal -Intake Modification Easement.docx LEGAL DESCRIPnON: PORTlON OF CARLSBAD BOULEVARD RIGHT-OF-WAY, BEING 100-FEET WIDE, ALSO A PORTlON OF PARCEL 3 PER CERTlFICA TE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS DOCUMENT NO. 2001-0789067, TOGETHER WITH THAT PORTlON OF PARCEL 4 PER CERTlFICA TE OF COMPLIANCE RECORDED OCTOBER 30, 2001 AS DOCUMENT NO. 2001-0789068, AND AS SHOWN ON RECORD OF SURVEY NO. 17350, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA. ASSESSORS PARCEL NO: 210-010-45 & 49 BASIS OF BEARINGS: THE BASIS OF BEARINGS FOR THIS ORA WING IS THE HORIZONTAL CONTROL BASED ON THE CALIFORNIA COORDINATE SYSTEM ZONE 6, NAO 83, AS DETERMINED LOCALLY BY THE LINE BETWEEN FIRST ORDER CONTROL POINTS 057 AND 141 PER RECORD OF SURVEY NO. 17271, I.E. N4039'21 »W. NOTE: SEE DWG 539-8 ON FILE WITH THE CITY FOR CONSTRUCTlON PLANS OWNER: CABRILLO POWER I LLC LEGEND: P.o.c. T.P.O.B. R5o<3I IND/CA TES EXISTlNG PROPER TY LINE IND/CA TES POINT OF COMMENCEMENT IND/CA TES TRUE POINT OF BEGINNING IND/CA TES TEMPORARY DRIVEWAY (PARCEL A) AREA = 0.019 ACRES, MORE OR LESS IND/CA TES TEMPORARY DRIVEWAY (PARCEL B) AREA = 0.019 ACRES, MORE OR LESS TAMARACK A',fNUE PALOAIAR AIRPORT ROAD 4600 CARLSBAD BOULEVARD CARLSBAD, CALIFORNIA 92008 PHONE· {760) 268-4011 & VICINITY MAP SURVEYOR OF WORK: PROJECT DESIGN CONSULTANTS 701 8 STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 PHONE· {619) 235-6471 ~ APPLICANT: POSEIDON RESOURCES 501 ltf'ST BROADWAY SUITE 2020 SAN DIEGO, CALIFORNIA 92101 N NO SCALE DATE PREPARED BY: PROJECT DESIGN CONSULTANTS 701 8 STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 £AGREE 2022-0032 TEMPORARY DRIVEWAY EXHIBIT 'C' SHEET 1 OF J A.P.N. 210-010-45 &-49 P: \2J98.25\SVRl/fY.JJNORY\EaSfllTIMt Modifications -2022\t1t1a-aachmt1t1t p11m1lt\Plats\REV •UU-10-2J\2J98.25 -Poseldan -Encraochment P11m1lt Rev 4-Sheetot.dlfg ACVA \ HE.0/0/V.OA :J LACOO/V LAGOON JNiAKE ---==-\ EASEMENi ~{\:GEL 3 ~ \ ~--------. r \ \ ~ PAHCEL 4 ROS -JJ350 \I ~\ RO~J7i550 \ .A.A.A.A.A.A ~ ~ ~\aa ~-• : \\ ~ : \ PA~CEL 3 1 CERTIF,ICATE OF COMPLIANCE I I RECORDED OCTOBER 30, 2001 I \ ~ FILE' NO. 2001-0789087 :PAfCE\ A \APN 210-010~ L-\-\-I SEE SHEET 3 ......-/ ~ \ ....... ~ \ ~ ::.>.. (1') '((\~ '((\ 7'((\~ (1') -~~~ ~::.>..~ (") ~--<\. "Y: \ ~ \~ < ~ ~ L ~\ 0 .............. PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 FILE NO. 2001-0789088 100 0 100 APN 210-010-49 PAHCEL 4 ROS -JJ350 .............. .............. I I I SCALE 1" = 200' £AGREE 2022-0032 TEMPORARY DRIVEWAY APPUCANT: POSEIDON RESOURCES 501 ltf"ST BROADWAY SUITE 2020 SAN DIEGO, CALIFORNIA 92101 PREPARED BY: PROJECT DESIGN CONSULTANTS 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 EXHIBIT •c• SHEET 2 OF J A.P.N. 210-010-45 & 49 P: \2398.25\SURVfY..BNDRY\EaSttmflllt llodlffcat/ons -2022\,ncroadlmtlflt p«mlt\Pfats\REV •UU-10-23\2398.25 -Poseidon -£ncroachm,nt Permit Rev 4-Sh"t02.dwg \ \ EASTERLY RIGHT-OF-WAY LINE OF CARLSBAD BOULEA VARD \ -\ 20 0 20 I I I SCALE 1" = 40' APPUCANT: POSEIDON RESOURCES 501 M:ST BROADWAY SUITE 2020 SAN DIEGO, CALIFORNIA 92101 T.P.O.B. PAHCEL 3 ROS -JJ350 ..A.A., ~ ~ ~ ~ PARCEL B \ \ PREPARED BY: --"-"--~ ~ ~ ~ ~ ~ ~ ~ PARCEL 3 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 FILE NO. 2001-0789087 P.o.c. APN 210-010-45 ~ ~ ~ ~ NORTHWESTERN CORNER OF ~ PARCEL 4 AND SOUTHWESTERN ~ CORNER OF PARCEL 3 ~ PARCEL A PAHCEL 4 ROS -J7350 PARCEL 4 CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 30, 2001 FILE NO. 2001-0789088 APN 210-010-49 £AGREE 2022-0032 TEMPORARY DRIVEWAY EXHIBIT PROJECT DESIGN CONSULTANTS 'C' 701 B STREET SUITE 800 SAN DIEGO, CALIFORNIA 92101 SHITT J OF J A.P.N. 210-010-45 & 49 P: \2J9425\SUR~....BNDRY\£as«nMt Modifications -2022\encroachmMt permlt\Plats\R£V ,f._04-10-2J\2J98.25 -Poseidon -Encroachment Permit Rev 4-SheetOJ.dwg 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 s~/"'-t"'.',t;,,.fd before me, ---=u;....:::....:..,.,._;_/lo-=.;:../_.l,£...._, ~-=-k~r........+--=-\.l.:::..ak!....=.....:::,,L.--f't:__'J,=-..;;__;1,:.....:• c..=--- (insert name and title of the o 1cer) personally appeared V ,r/ L CV'L-~ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s i re ~~scribed to the within instrument and acknowledged to me tha~she/they executed the same in ~her/their authorized capacity(ies), and that by~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 PENAL TY 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 ~ w~ Please see attached nota,y Certificat Nota,y Initials· e. ·cv (Seal) ········~ CONNOR VICK Notary P~blic -California 2 Sacramento Count{ ?i Commission;; 2391931 - y Comm. Expires Jan 27, 2026 CALIFORNIA 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. W'\Wrrtirr1 , 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. f ··············~ ' • •~ 1,Jt,,Y W1CKEIUiAA • .. _ • MoUry Public -uliforni~ : . -S.,, DietO County s: , Commission , 2'40 11 38 - My Comm. ExpirM Aj)r 1 a, 202, Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. OPTIONAL Completing this information con deter alteration of the document or fraudulent reattachment of this form to on unintended document. Description of Attached Document Title or Type of Document: ___________________________ _ Document Date: ______________________ Number of Pages: ____ _ Signer(s) Other Than Named Above: ________________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ □ Corporate Officer -Title(s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ Signer is Representing: _________ _ ©2019 National Notary Association