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HomeMy WebLinkAboutPD 2023-0035; Silva, Sal; 2025-0129219; Encroachment Agreementinterests 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. 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, 2 https://carlsbadca1gov.sharepoint.com/sites/BA/Shared Documents/Bonds and Agreements/B&A/PROJECTS/PD 2023-0035; EAGREE2023-0036 -Silva Encroachment Agreement_S.G/ENCROACHMENT AGMT -CITY EASEMENT.doc 11/25/2024 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 City: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 If to the Owner: Sal Silva 291 Redwood Ave. Carlsbad, CA 92008 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 Owner1s 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. 3 https://carlsbadca1gov.sharepoint.com/sites/BA/Shared Documents/Bonds and Agreements/B&A/PROJECTS/PD 2023-0035; EAGREE2023-0036 -Silva Encroachment Agreement_S.G/ENCROACHMENT AGMT -CITY EASEMENT.doc 11/25/2024 · PD 2023-0035 EAGREE2023-0036 EXHIBIT "A" LOT 10 OF PACIFIC TERRACE, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 3613, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON MARCH 27, 1957. PD 2023-0035 EAGREE2023-0036 EXHIBIT "8" A 50' wide easement for public use as shown on Parcel Map number 3613, in the City of Carlsbad, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County on February 18, 1957.