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Home My WebLink AboutCT 16-07; KB MARJA ACRES 248 LLC; 2024-0354313; Encroachment AgreementRECORDING IS REQUESTED FOR THE BENEFIT OF THE CARLSBAD MUNICIPAL WATER DISTRICT WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOC# 2024-0354313 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Dec 24, 2024 09:43 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $52.00 (S82 Atkins: $0.00) PCOR: N/A PAGES: 9 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO(s).: 207-102-08-00 -----------PERMIT NO.: EAGREE2024-0021 PROJECT PLAN ID: CT 16-07 PROJECT NAME: _M __ A_R __ J_A_A_C_R_E_S ____ _ PROJECT ADDRESS: 4901 EL CAMINO REAL ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CARLSBAD MUNICIPAL WATER DISTRICT, a public agency organized under the Municipal Water Act of 1911 (District) and KB MARJA ACRES 248 LLC., a Delaware limited liability company ("Owner"), in accordance with Chapter 11 .16 of the Carlsbad Municipal Code, in view of the following facts: RECITALS A. Owner is the owner of that certain real property located at 4901 El Camino Real within the City of Carlsbad, San Diego County, California, also known as Assessor's Parcel Number 207-102-08-00, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference ("Property"). B. District 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 ("District's Easement"). C. Owner intends to or has constructed improvements, as described in Exhibit "C" attached hereto and incorporated by reference ("Improvements") in, on, over, across, and through the District's Easement, as depicted in Exhibit "C" attached hereto. D. District is willing to consent to the location, construction and maintenance of the Improvements based on the terms provided for in this Agreement. E. Owner agrees that this Agreement is only made to the extent of District's interest in the Easement. Owner may be required to obtain authority from other entities having 1 Q:\CED\landDev\PROJECTS\CT\CT 16\CT 16-07-Marja Acres -levy-Mclaughlin-GElDERT\Digital\Encroachment Agreement #2 - CMWD • West Entry Rel Wall\Final Submittal\ENCROACHMENT AGMT-CMWD_2.doc 11/25/2024 other interests in the Property. Owner is responsible for investigating and acquiring appropriate authorizations from other entities having an interest in the Property. NOW, THEREFORE, the parties mutually agree as follows: 1. Permission. District hereby consents to Improvements by Owner on the District's Easement. All rights and obligations acquired by the District with respect to the Easement will remain and continue in full force and effect and will in no way be affected by District's grant of permission to construct and maintain the Improvements. 2. Maintenance Obligation. The Improvements will be installed and maintained by the Owner in a safe and sanitary condition at the sole cost, risk, and responsibility of the Owner and any successors in interest. 3. Revocation or Removal. The Owner must remove or relocate any part of the Improvement within ten (10) calendar days, or such other time as specified in the notice after receipt of it from the District Engineer, or the District Engineer may cause such work to be done. 4. Cost to Remove or Relocate. Owner agrees that if, for any reason (including failure to remove or relocate said Improvements by Owner pursuant to paragraph 3, above), the Improvements must be removed, relocated or otherwise altered, including, but not limited to, maintenance, repair and replacement of facilities and appurtenances on the Property, Owner will reimburse the District for all costs incurred and any damages suffered by the District. In the event the Owner fails to pay such costs to the District upon demand, the costs shall constitute a lien upon the property. Alternatively, the District may bring an action in a court of competent jurisdiction to recover such cost together with reasonable administrative costs and attorneys' fees. 5. Damages. District will not be liable for any damages to the Improvements or to any other property or person that may result from the installation, maintenance or use of Owner's Improvements or the removal of those Improvements by the Owner or the District. All damages will remain the sole responsibility of the Owner. 6. Default by Owner. Default of Owner includes, but is not limited to, Owner's failure to timely comply with the terms of this Agreement, including Owner's failure to remove Improvements or reimburse the District for any cost incurred by the District. The District reserves to itself all remedies available to it at law or in equity for Owner's default. The Owner's failure to perform any obligation under this Agreement constitutes consent to the filing by the District of a notice of violation against the Property. 7. Public Nuisance. Any work performed in the District's Easement contrary to the Improvements provided for in this Agreement and Chapter 11.16 of the Carlsbad Municipal Code, may be declared a public nuisance. 8. Indemnification. The Owner shall agree at all times to defend (with counsel approved by the District), indemnify and hold harmless the Carlsbad Municipal Water District and the City of Carlsbad, and its officers, elected and appointed officials, and from any and all claims, demands, losses, damages, or expenses resulting from the 2 Q:ICED\LandDev\PROJECTS\CT\CT 16\CT 16-07-Marja Acres-Levy-McLaughlin-GELDERnDigital\Encroachment Agreement #2 - CMWD -West Entry Ret Wall\Final Submittal\ENCROACHMENT AGMT-CMWD_2.doc 11/25/2024 construction, maintenance, use, repair or removal of the Improvements 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. 9. 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. Neither this Agreement nor any of its provisions may be amended, modified, or discharged except in a writing signed by both parties. 10. 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 District: Public Works Director Carlsbad Municipal Water District 5950 El Camino Real Carlsbad CA 92008 If to the Owner: KB Marja Acres 248 LLC. 9915 Mira Mesa Blvd. Suite 100 San Diego, CA 92131 which addresses may be changed from time to time by providing written notice to the other party in the manner described above. 11. Waiver. District'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 District's consent for approval to any subsequent act by Owner. Any waiver by District 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. 12. Successors and Assigns. This Agreement and all of the obligation contained herein constitute covenants running with the land and will 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. This Agreement must be recorded against the property by the City Clerk at Owner's sole expense. 13. 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. [Signatures on following page] 3 Q:\CED\LandDev\PROJECTS\CT\CT 16\CT 16-07-Marja Acres -Levy-McLaughlin-GELDERT\Digital\Encroachment Agreement #2 - CMWD -West Entry Rel Wall\Final Submittal\ENCROACHMENT AGMT-CMWD_2.doc 11/25/2024 IN WITNESS WHEREOF, these parties hereto have executed this Agreement on fl-\¾ day of NO\JEMPJc&, , 20..'.J.!L_. this OWNERS: KB MARJA ACRES 248, LLC., a Delaware limited liability company BY: KB HOME MARJA DEVELOPEMNT, LLC., a Delaware limited liability company Its Managing Member By:~~ 7 (Sign Here) Jesse Kleist Its Vice President, Forward Planning (Print Name Here) APPROVED AS TO FORM: CINDIE MCMAHON City Attorney By '\ _; ~ HERRERA - ssistant City Attorney 4 DISTRICT, CARLSBAD MUNICIPAL WATER DISTRICT, a public agency organized under the Municipal Water Act of 1911 PAZ B. GOMEZ, Deputy City Manager Public Works Branch Q:\CED\LandDev\PROJECTS\CT\CT 16\CT 16-07-Marja Acres-Levy-Mclaughlin-GELDERnDigital\Encroachment Agreement #2 - CMWD -West Entry Rel Wall\Final Submittal\ENCROACHMENT AGMT-CMWD_2.doc 11/25/2024 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 before me Richard Stokes Hamlin, Notary Public '------------------(insert name and title of the officer) personally appeared ·:re,':;ise I·( )e ;5 t who proved to me on the basis of satisfactory evidence to be the person{$) whose name-'8') is/ar-e subscribed to the within instrument and acknowledged to me that he/sl:le/.th91/ executed the same in his/hefftheir authorized capacity(le'S'), and that by his/her-ft-heir signature(.s-) on the instrument the person(.s}, or the entity upon behalf of which the person~ 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. (Seal) 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 December 17, 2024 before me, AMBER DAN, NOTARY PUBLIC (insert name and title of the officer) personally appeared _P_a_z_B_. _G_o_m_e_z _____________________ _ 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 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. -........ , AM8ER DAN Notary Public • Citliforniil : S~rr Di~o County ~ Commi1sion :/ 2466836 - y Comm. Expim Oct 17, 2027 (Seal) LEGAL DESCRIPTION: EXHIBIT A CT 16-07 EAGREE2024-0021 LOT 8 OF TRACT NO. 16-07, MARJA ACRES, ACCORDING TO MAP NO. 16537, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED DECEMBER 1, 2022, AS FILE NO. 2022-7000617, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXHIBIT B CT 16-07 EAGREE2024-0021 EASEMENT DESCRIPTION: WATER EASEMENT GRANTED TO CARLSBAD MUNICIPAL WATER DISTRICT PER CITY OF CARLSBAD TRACT NO. 16-07, MARJA ACRES, ACCORDING TO MAP NO. 16537, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED DECEMBER 1, 2022, AS FILE NO. 2022-7000617, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. L.. EXHIBIT C CT 16-07 EAGREE 2024-0021 f.... 0 i..:, CONCRETE SIDEWALK G