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HomeMy WebLinkAboutCDP 2025-0017; Hanalei Six Trust - Bryan A. & Kellie A. Boyack, Trustees; 2025-0342663; 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# 2025-0342663 11111111111111111111111111111111111111111111111 IIIII IIIII IIIH 11111111 Dec 04, 2025 10:46 AM OFFICIAL RECORDS JORDAN Z. MARKS SAN DIEGO COUNTY RECORDER FEES: $38.00 (882 Atkins: $0.00) PAGES: 9 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO(s).: 206-262-13-00 ------------PERMIT NO.: EAGREE2025-0029 PROJECT PLAN ID: CDP 2025-0017 ------------PROJECT NAME: Boyack Family ADU PROJECT ADDRESS: 3985 Highland Dr. ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Bryan A. Boyack and Kellie A. Boyack, Trustees of the Hanalei Six Trust dated May 15, 2025 ("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 3985 Highland Drive within the City of Carlsbad, San Diego County, California, also known as Assessor's Parcel Number 206- 262-13-00, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference ("Property"). B. City has a property interest in, on, over, across, and through Highland Drive a 60' wide right- of-way ("Right-of-Way"). 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 Right-of-Way, 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 Right- of-Way. Owner may be required to obtain authority from other entities having other 1 Q:ICED\Admin\B&AIPROJECTSICDP 2025-0017; EAGREE2025-0029; Boyack Family Adu_C.G\ENCROACHMENT AGMT -CITY OWNED PROPERTY.doc 11/25/2024 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. City hereby consents to Improvements by Owner across the Right-of-Way. All rights and obligations acquired by the City with respect to the Right-of-Way 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 Right-of-Way 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 Q:\CED\Admin\B&A\PROJECTS\CDP 2025-0017; EAGREE2025-0029; Boyack Family Adu_C.G\ENCROACHMENT AGMT -CITY OWNED PROPERTY.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: Bryan and Kellie Boyack 3985 Highland Dr. 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 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. 3 Q:ICED\Admin\B&AIPROJECTSICDP 2025-0017; EAGREE2025-0029; Boyack Family Adu_C.GIENCROACHMENT AGMT • CITY OWNED PROPERTY.doc 11/25/2024 :-fri IN WITNLJ~ Vl,HEREOF, these parties hereto have executed this Agreement on this {J I day of D 3'Yk/:ur . 20.a6,_. BRYAN A. BOYACK AND KELLIE A. BOYACK, Trustees of the Hana lei Six Trust dated 1\Lwtv--r~ 2025 Kellie Boyack (Print Name Here) APPROVED AS TO FORM: CINDIE K. MCMAHON City Attorney By: c ~~ C. Dalton Sorich Assistant City Attorney CITY OF CARLSBAD, a municipal corporation of the State of California Ub Engineering Manager RCE 63912 Exp. 9/30/2026 (Notarial acknowledgement of execution of Owner must be attached.) (Chairman of the Board, President, or any Vice-President and secretary, any assistant secretary, the Chief Financial Officer, or any assistant treasurer must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute the instrument.) 4 Q:\CEDIAdmin\B&A\PROJECTSICDP 2025-0017; EAGREE2025-0029; Boyack Family Adu_C.G\ENCROACHMENT AGMT • CITY OWNED PROPERTY.doc 11/25/2024 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. State of California } County of s Q /7 Vi ./2. ~o On /Vov€(yyt Mil 6 , 9'.o:l~fore me, :It11JO{ SacU7y,,tDl1 , JIJo,~ R 'i Pt, -t&, (:. Date I~ l . f).. Here Insert Name and Title of the'fifficer personally appeared n..e l (, e JJ 0 9 ac1e CIName(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the persorWsf whose namejsf@Pcire subscribed to the within instrument and acknowledged _to me that he§}they executed the same in hi~their authorized capacity.Q.e-5), and that by hi~ltheir signatureferon the instrument the perso~r the entity upon behalf of which the perso~ acte~ecuted the instrument. INNA.SACCOMAN ' COMM. #2412862 z Notary Public • California ~ San Diego County - Comm. Expires Aug. 13, 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----~~~----------- Signature of Notary Public OPTIONAL Completing this information can deter alteration of tfJ.e document or fraudulent reattachment of this form to an unint nded 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: □ Corporate Officer -Title(s):,L,,,_/ ______ _ D Partner -□ Limited □ ~neral D Individual /oAttorney in Fact □ Trustee □ Guardian or Conservator D Other: Signer's Name: D Corporate Officer -Title(s): ______ _ □ Partner -D Limited D General □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator D Other: Signer i/;?r'esenting: _________ _ , Signer is Representing: __________ _ ©2019 National Notary Association 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 3, 2025 before me, HELEN GALLAGHER, NOTARY PUBLIC (insert name and title of the officer) personally appeared _J_a_so_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. (Seal) ········i HELEN GALLAGHER Notary Public • Cailfornia z San Di~o co~ nrt ~ Commission if 2507304 - y Comm. Expires Dec 19, 2028 LEGAL DESCRIPTION EXHIBIT';\" PLAN ID: CDP2025-0017 EAGREE2025-0029 THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF TRACT TWO HUNDRED FORTY-TWO OF THUM LANDS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1861, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 9, 1915, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTHWESTERLY LINE OF HIGHLAND STREET, DISTANT THEREON NORTH 28' 39' WEST 227.36 FEET FROM THE SOUTHEASTERLY CORNER OF SAID TRACT 242; THENCE SOUTH 61' 21 WEST 238.40 FEET; THENCE SOUTH 28' 39' EAST 75 FEET TO A POINT IN THE NORTHWESTERLY LINE OF THE SOUTHEASTERLY 152.36 FEET OF SAID TRACT 242; THENCE NORTH 61' 21' EAST ALONG SAID NORTHWESTERLY LINE, 238.40 FEET TO A POINT IN SAID SOUTHWESTERLY LINE OF SAID HIGHLAND STREET; THENCE NORTH 28' 39' WEST ALONG SAID SOUTHWESTERLY LINE, 75 FEET TO THE POINT OF BEGINNING. APPLICANT ENCROACHMENT -CITY OF CARLSBAD VAN RYN ENGINEERING PREPARED !Jlt ti?--10127125 PROJECT NAME: JOHN VANIRYN DATE BOYACK FAMILY ADU R.C.E C80667 EXP. J/31/27 DA TE: 10/27/2025 SHEET 1 OF 1 A.P.N. 206-262-130 APPLICANT VAN RYN ENGINEER/NG EXHIBIT "B" PLAN ID: CDP2025-0017 EAGREE2025-0029 UNDERLYING EASMENT(S) OF PROPOSED ENCROACHMENT A 60.0' PUBLIC RIGHT-OF-WAY GRANTED TO THE CITY OF CARLSBAD ACCORDINGLY TO THE MAP THEREOF NO. 1681, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DECEMBER 9, 1915. ENCROACHMENT -CITY OF CARLSBAD PREPAREDf!: I h PROJECT NAME: ~ fj.,if= 10/27/25 BOYACK FAMILY ADU JOHN VA RYN DAT£ R.C.E C80667 EXP. J/31/27 DAT£: 10/27/2025 SHEET 1 OF 1 A.P.N. 206-262-130 EXHIBIT "C" PLAN ID: CDP2025-0017 EAGREE2025-0029 DESCRIPTION OF ENCROACHMENT CUTOFF WALL & PERVIOUS PAVERS IN PUBLIC ROW OF HIGHLAND DRIVE ~ LIMITS OF EX. AC~ b HIGHLAND DRIVE d I'<') PUBLIC R.O.W PER MAP 1681- ------.r b 75.0' I.() d -.i= " ~~ -~ ... l II I I I I I ~ PERVIOUS PA VERS ~ II I I I I C I.O 00 I I I d LO -.i= II I I I I 7TT 39.5 II I I I I := APN: 206-262-130 ~ ~I I I I I I I LEGEND ----PROPERTY LINE ROW LINE CENTER LINE 11 8'X18" CUTOFF WALL PER SDRSD-G22 PERVIOUS PAVER CUTOFF WALL.~ -4.0' -I + .+ +~ ...; +.i....~3 + + + ~---1-,--1--,, I ~ .... l ..J....___J___22.5 + I + + ~ + N28' 07' 20"W, 74.97' CITY OF OCEANSIDE PACIFIC OCEAN VICINI TY CITY OF VISTA MAP APPLICANT ENCROACHMENT -CITY OF CARLSBAD DA TE: 10/27/2025 VAN RYN ENGINEERING SHEET 1 OF 1 A.P.N. 206-262-130 -