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HomeMy WebLinkAboutCD 2022-0028; Levine Investments LP; 2023-0135737; 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# 2023-0135737 1111111111111111111111 111111111111111 111111111111111111111111111111111 May 24, 2023 11 :09 AM OFFICIAL. RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES. $44.00 (S82 Atkins $0 00) PAGES: 11 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 213-100-23 AND 24 PROJECT ID: CD 2022-0028 PROJECT NAME: VIASAT ENERGY BLOOM RELATED PROJECT ID: EAGREE2022-0022 RELATED PROJECT ID: _D:::..W.:..:..::G---'4:.::2.::..3-..:c9A:..:-____ _ ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Levine Investments Limited Partnership, a Arizona limited partnership ("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 6161 and 6191 El Camino Real within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 213-100-23 and 213-100-24, 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 general utility and access 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 private underground gas, water and electric conduit/pipe to remain in a portion of the general utility and access 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\PROJECTSICDICD 2022\CD2022-0028 BLOOM ENERGY -VIASAT -RICK\Correspondence\PCIENCROACHMENT AGMT EAGREE 2022-0022.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 sixty (60) days after receipt of written notice 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. (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: Levine Investments LP 2801 East Camelback Rd, Ste 450 Phoenix, Arizona 85016 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. 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 2 Q:\CED\LandDev\PROJECTSICD\CD 2022\CD2022-0028 BLOOM ENERGY -VIASAT -RICK\Correspondence\PC\ENCROACHMENT AGMT EAGREE 2022-0022.doc 9/5/2014 such signature(s) thereby bind such party. this )t WITNESS WHEREOF, these parties he'KW have executed this Agreement on (\ day of mQttn , 20ll_. OWNER Levine Investments Limited Partnership, a Arizona limited partnership By: Keim Inc., an Arizona corporation, its General Partner By: ---'>(-==~"---'----------(Sign Here) Andrew M. Cohn (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 JASON S. GELDERT, Engin R Q:ICEO\LandDe11\PROJECTSICDICD 2022\CD2022-0028 BLOOM ENERGY -VIASAT -RICKICorrespondencelPC\ENCROACHMENT AGMT EAGREE 2022-0022.doc 9/512014 Exhibit A Legal Description of the Real Property EAGREE 2022-0022 All that certain real property situated in the City of Carlsbad, County of San Diego, State of California, as described as follows: LOTS 1,2,3 AND 5 OF CARLSBAD TRACT NO.98-07, LINCOLN NORTHPOINTE, 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, DECEMBER 31, 1998. EXHIBIT "B" LEGAL DESCRIPTION EAGREE 2022-0022 20' WIDE GENERAL UTILITY AND ACCESS EASEMENT GRANTED TO THE CITY OF CARLSBAD, PER DOC 2005-0288023, RECORDED APRIL 07, 2005 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. EXHIBIT C EAGREE 2022-0022 CITY OF OCEANSIDE PACIFIC OCE.AN 78 CITY OF Bloom energy· 4353 N. FIRST STREET SAN JOSE, CA 95134 t: (408) 543-1500 ENGINEER OF RECORD CARSON TURNER, P.E. LICENSE# C53718 NOT TO SCAl£ TY OF N MARCOS SHEET 01 OF 04 WATER LINE E (#1999-0789037) l NEW BLOOM ENERG SERVER (2X) (DETAIL ON SHEET NO. PURPOSE 1 WATER LINES 2 GENERAL UTILITY & ACCESS 3 10' STORM DRAINAGE 4 PRIVATE ROAD AND UTILITY EASEMENT TABLE OWNER REFERENCE CMWD F /N 1999-0789037 CITY OF CARLSBAD MAP NO. 13716 CITY OF CARLSBAD 0329407 CITY OF CALRSBAD MAP NO. 13716 \ DATE DECEMBER 2, 1999 DECEMBER 31, 1998 ' \ \ \ \ \ \ \ \ \ DISPOSITION TO REMAIN TO REMAIN TO REMAIN TO REMAIN SHEET 02 OF 04 UNDERGROUND WATER -uw- PUBLIC NEW BLOOM ENERGY SERVER (2X) NO. PURPOSE 2 GENERAL UTILITY de ACCESS 3 10' STORM DRAINAGE EASEMENT TABLE OWNER REFERENCE CITY OF CARLSBAD MAP NO. 13716 CITY OF CARLSBAD 0329407 VIASAT (EXISTING) \ 0 \ \ I \ \ I \ \ I \ I \ \ I SCALE: \ ~--~- DATE DECEMBER 31, 1998 --- DISPOSITION TO REMAIN TO REMAIN SHEET 03 OF 04 SEE DETAIL NOTES BELOW FOR DETAILS DETECTABLE WARNING TAPE DETAIL NOTES: SECTION A-A 1. BACKFILL ELECTRICAL CONDUITS WITH 6-INCH MINIMUM RED SLURRY. SLURRY MATERIAL PER ELECTRICAL CODE REQUIREMENTS. 2. MINIMUM 6-INCH CLEARANCE REQUIRED BETWEEN RED SLURRY AND TOP OF WATER PIPE. 3. INSTALL TRACER WIRE AND/OR DETECTABLE MARKETING TAPE AND WARNING/ID TAPE IN ELECTRICAL AND GAS CONDUIT TRENCHES THROUGH UTILITY EASEMENT. GRADE O 290.00 ·SHEET 04 OF 04 ARIZONA NOTARY ACKNOWLEDGMENT State of Arizona County of MA!?.!CoPA The foregoing instrument entitled £ncrCJt1.cl,rv1erd fl3 reevvien+ was acknowledged before me this fv1AR.c H 2 7, 2oz ~ (date) by _/1_N~D~R~c~I/J __ f\/)_. _C_O_(-i~rJ ___ (name of person acknowledged). The person has personally appeared before me and presented identification to establish his or identity as required by law . • LISA CHRISTINA BULLINGTON c. Notary Public. State of Arizona ') Maricopa County Commission I 591714 My Commission Expires April 12, 2023 NOTARY ACKNOWLEDGEMENT FORM CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 ll c □ c c c c mo e:00000:oll o:o O'O a B@:t 1:0:():c c o a a oi:1 1:0 o o o j 3:0 00 0:0:e:oo o o:o o 1n 1:e:o 11i111 1:0:e o 0:1 10:e:o:o:ooo:oa eoo80'fflJ 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 } On -1----V-"~~~-before me, Awroe.t= MO\ifua, NOtlM RA!?)ic. -\: Here Insert Name and Title of the Q!}cer personally appeared ____ ___,v ........... (Ci'-'--'a)vt~_.___,,S""-'.'-'G,\~Q.~,~' d~lA(._±4-------- Name(s) of Signer(s) 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. ooooooooof AMBER MOLIFUA Notary Public • California San Oi~o County f Commission II 2306534 - y Comm. Expires Sep 24, 2023 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. s;gnature~,bil.Jl If,.~ Signature of Notary ~ OPTIONAL Completing this information con deter alteration of the document or fraudulent reattachment of this form to on unintended documen Description of Attached Document Title or Type of Document: --------------...,,,,..~------------ Document Date: ________________ ~ ____ Number of Pages: ____ _ Signer(s) Other Than Named Above: ------,,,,,t!-=-------------------- Capacity(ies) Claimed by Signer(s) Signer's Name: ---------.,,c..---Signer's Name: ____________ _ □ Corporate Officer -Title(s): --"------□ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ Ge □ Partner -□ Limited □ General □ Individual orney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ BOODOOOO 0:0 o uooao o:o:o:• 1o:ca~Jo@:o:oa Ul881l800C :c1:00D U!Jl:toOf ~o:0:0000:11cm I Q(J{J8:11:11:11=1 COIJ8tl uaat ©2018 National Notary Association