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HomeMy WebLinkAboutSDP 2020-0005; El Salto Falls LLC; 2025-0104924; Encroachment AgreementI RECORDING 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# 2025-0104924 I llllll lllll lllll 1111111111111111111111111 lllll lllll 111111111111111111 Apr 23, 2025 10:43 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $47.00 (SB2 Atkins: $0.00) PAGES: 12 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO(s).: 167-040-49-00 -----------PERMIT NO.: EAGREE2025-0001 PROJECT PLAN ID: SOP 2020-0005 PROJECT NAME: Children's Paradise Preschool PROJECT ADDRESS: 3375 Marron Rd ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and EL SALTO FALLS, LLC., a California 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 3375 Marron Rd. within the City of Carlsbad, San Diego County, California, also known as Assessor's Parcel Number 167-040-49-00, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference ("Property"). B. 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 ("City'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 City's Easement, as depicted in Exhibit "C" attached hereto. D. City 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 City's interest in the Easement. Owner may be required to obtain authority from other entities having other interests in the Property. Owner is responsible for investigating and acquiring appropriate authorizations from other entities having an interest in the Property. 1 Q:\CED\Admin\B&AIPROJECTSISDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool L.OIENCROACHMENT AGMT - CITY EASEMENT.doc 11/25/2024 - NOW, THEREFORE, the parties mutually agree as follows: 1. Permission. City hereby consents to Improvements by Owner on the City's Easement. All rights and obligations acquired by the City with respect to the Easement will remain and continue in full force and effect and will in no way be affected by City'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 City Engineer, or the City 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 City for all costs incurred and any damages suffered by the City. In the event the Owner fails to pay such costs to the City upon demand, the costs shall constitute a lien upon the property. Alternatively, the City may bring an action in a court of competent jurisdiction to recover such cost together with reasonable administrative costs and attorneys' fees. 5. Damages. City 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 City. 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 City for any cost incurred by the City. The City 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 City of a notice of violation against the Property. 7. Public Nuisance. Any work performed in the City'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 City), indemnify and hold harmless the City and its officers, elected and appointed officials, and from any and all claims, demands, losses, damages, or expenses resulting from the 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 2 Q:\CED\Admin\B&A\PROJECTS\SDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool_L.O\ENCROACHMENT AGMT - CITY EASEMENT.doc 11/25/2024 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 City: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 If to the Owner: Julie A. and David H. Lowen 211 Main St., Suite 205 Vista, CA 92084 which addresses may be changed from time to time by providing written notice to the other party in the manner described above. 11. 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. 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\Admin\B&A\PROJECTS\SDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool L.O\ENCROACHMENT AGMT - CITY EASEMENT.doc 11/25/2024 - IN WITNESS WHEREOF, these parties hereto have executed this Agreement on 0-+h. day of Ap r-i I , 20-1:.2_. this EL SALTO FALLS, LLC., a California limited liability co David H. Lowen (Print Name Here) APPROVED AS TO FORM: CINDIE K. MCMAHON City Attorney - By: u~ /t M Ul-1.~ City Attorney 4 CITY OF CARLSBAD, a municipal corporation of the State of California Q:\CED\Admin\B&A\PROJECTSISDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool_L.O\ENCROACHMENT AGMT - CITY EASEMENT.doc 11/25/2024 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer com pie ting this certificate verifies only the identity of the Ind iv id ual who signed the document to whkh this certtticate is attached, and not the tru1hfulness, accuracy, or validity of that document. State of California } County of ~ t;;) 1e..3 ~ ~~ .,., \ 8, ~,0~5 before me, Ja,W\ e_s,. L., l{gio_ -..)ot~ f"'-~ \,·~ Date Here Insert~ and\Twe of theotffcer On personally appeared ___ J_v.._l_,~~~-4\~_,_L(;)~~W_e.l~"'---------------- Name(s) of Slgner(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ls/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capaclty(les), 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. e e eeeeee ~ JAMES L. HAGAR otary Public • California z San Diego County ommission II 2426513 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 can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document _________________________ _ DocumentDate: ___________________ Numberof Pages: ___ _ Signer(s) Other Than Named Above: _____________________ _ Capaclty(les) Claimed by Slgner(s) Signer's Name: ___________ _ Signer's Name: __________ _ □ Corporate Officer -Tllle(s): ______ _ □ Corporate Officer -Tltle(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney In Fact □ Individual □ Attorney In Fact □ Trustee □ Guardian or Conservator □ Trustee D Guardian or Conservator D Other: --------------D Other: -------------- Signer Is Representing: ________ _ Signer Is Representing: ________ _ ©2019 National Notary Association 5 Q:\CED\Admin\B&AIPROJECTSISDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool L.OIENCROACHMENT AGMT - CITY EASEMENT.doc 1112512024 - 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 certtticate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of S:,.__n. ~ te 30 On A p vi\, 'ii , 3.0 J. S Date e a d Title of the Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ls/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capaclty(les), and that by his/her/their slgnature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. e•••••••~ JAMES L. HAGAR Notary Public -California z San Diego County ~ Commission II 2426513 - y Comm. Expires Nov 12, 2026 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. Signature O_ • · · -' ~ ~~OA • ~ure of NotaryPtd;Jic OPTIONAL --------------~ Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: _________________________ _ DocumentDate: ___________________ Numberof Pages: ___ _ Slgner(s) Other Than Named Above: _____________________ _ Capaclty(tes) Claimed by Slgner(s) Signer's Name: ___________ _ Signer's Name: ___________ _ □ Corporate Officer -Tltie(s): ______ _ □ Corporate Officer -Tltie(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 5 Q:\CED\Admin\B&A\PROJECTS\SDP 2020-0005; EAGREE2025-0001 -Children's Paradise Preschool L.O\ENCROACHMENT AGMT - CITY EASEMENT.doc 11125/2024 - 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 On April 22, 2025 before me, HELEN GALLAGHER, NOTARY PUBLIC (insert name and title of the officer) personally appeared _J_a_s_o_n_S_. _G_e_ld_e_rt ___________________ _ 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. ~············f , HELEN GALLAGHE" : .... Noury Public • Cillfornia z ~ ;; San Di!iO County ir: z Commission II 2507304 - Signature~~ My Comm. Explr!s Dec 19, 2021 (Seal) EXHIBIT "A" SDP2020-0005 EAGREE2025-0001 LEGAL DESCRIPTION THE PROPERTY LOT 7 OF THE CARLSBAD TRACT CT 11-04, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16038, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, JULY 10, 2015 OF OFFICIAL RECORDS. • SUBJECT TO EASEMENTS, COVENANTS, CONDITIONS, RESTRICTIONS, RESERVATIONS, RIGHTS, RIGHTS-OF-WAY AND OTHER MATTERS OF RECORD, IF ANY. LEGAL DESCRIPTION PREPARED UNDER THE SUPERVISION OF: EXHIBIT "B" SDP2020.0005 EAGREE2025-0001 LEGAL DESCRIPTION MARRON ROAD MARRON ROAD, GRANTED TO THE CITY OF CARLSBAD AS AN EASEMENT FOR PUBLIC STREET AND PUBLIC UTILITY PURPOSES AS SHOWN ON CARLSBAD TRACT CT 11-04, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16038, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, JULY 10, 2015 OF OFFICIAL RECORDS. LEGAL DESCRIPTION PREPARED UNDER THE SUPERVISION OF: PREPARED BY: PACIFIC OCEAN ACAL ENGINEERING, INC. Cl SURVEYORS 21 CA 9208 MAI 60-24-7675 EXHIBIT "C" SDP2020-0005 EAGREE2025-0001 VICINITY MAP CITY OF ENCINITAS NOT TO SCALE ITY OF AN MARCOS PRIVATE SERVICE AND BACKFLOW VALVE ENCROACHMENT IN THE CITY or CARLSBAD DRAWN: OHL CHK'D: OHL DATE: 03/10/25 DATE: 03/25/25 SHEET 1 OF 3 A.P.N.: 167-040-49-00 PREPARED BY: ACAL ENGINEERING, INC. CIVIL ENGINEERS AND LAND SURVEYORS 211 MAIN STREET. VISTA CA 92084 MAIN: 760-724-7674 FAX: 760-724-7675 EXHIBIT 11C,, SDP2020-0005 EAGREE2025-0001 AREA OF ENCR ACHMENT J (SEE SHEET OF 3) "~---- LOT 7 MAP 1 038 I I I I I I I I ~ I J ! ~ I I I c1 I I PRIVATE SERVICE AND BACKFLOW VALVE ENCROACHMENT IN THE CITY Of' CARLSBAD DRAWN: DHL CHK'D: DHL DATE: 03/10/25 DATE: 03/25/25 SHEET 2 OF 3 A.P.N.: 167-040-49-00 0 40 80 EXHIBIT "C" SDP2020-0005 EAGREE2025-0001 120 r-•~-=--=-=---•1---~ c-- I<") r---~ ..- ..-301 w PRIVATE SERVICE LINE LOT 7 MAP 16038 I I O::'.'. w O,_ PRIVATE BACKFLOW VALVE ! ~~ I Q:: a /W i Ct: o ,~ I I I I PREPARED BY: PRIVATE SERVICE AND BACKFLOW VALVE ENCROACHMENT ACAL ENGINEERING, INC. IN THE CITY OF CARLSBAD CIVIL ENGINEERS AND LAND SURVEYORS 211 MAIN STREET VISTA CA 92084 MAIN: 760-724-7674 FAX: 760-724-7675 DRAWN: DHL CHK'D: DHL DATE: 03/10/25 DATE: 03/25/25 SHEET 3 OF 3 A.P.N.: 167-040-49-00