HomeMy WebLinkAboutCT 2018-0002; Aviara Investors, LLC; 2026-0098679; 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# 2026-0098679
111111111111 lllll 1111111111111111111111111111111111111111 IIIII IIII IIII
Apr 09, 2026 10:47 AM
OFFICIAL RECORDS
JORDAN Z. MARKS,
SAN DIEGO COUNTY RECORDER
FEES: $41.00 (SB2 Atkins: $0 00)
PAGES: 10
SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSESSOR'S PARCEL NO(s).: 212-040-56-00 -----------PERMIT NO.: EAGREE2025-0025
PROJECT PLAN ID: CT 2018-0002 -----------PROJECT NAME: Aviara Apartments
PROJECT ADDRESS: 1205 Aviara Pkwy
ENCROACHMENT AGREEMENT
This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF
CARLSBAD ("City") and Aviara Investors 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 Aviara Parkway within the City of
Carlsbad, San Diego County, California, also known as Assessor's Parcel Number 212-040-56-
00, and more particularly described in Exhibit "A", attached hereto and incorporated herein
by reference ("Property").
8. 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
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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 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,
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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:
Aviara Investors LLC
9191 Towne Center Drive, Suite 180
San Diego, CA 92122
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.
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IN WITNESS WHEREOF, these parties hereto have executed this Agreement on this
B ,I.lo day of t 1..? z~ Ae12.j I L, 2 0 ').. 6 .
AVIARA INVESTORS, LLC, a Delaware limited
liability company
By: R&V Management Investment
Corporation, a California corporation
Its Manager
By,s_c~
(Sign Here)
Scott Dale -President and Secretary
(Print Name and Title Here)
APPROVED AS TO FORM:
CINDIE K. MCMAHON
City Attorney
By:
C. Dalton Sorich
Assistant City Attorney
Date: _ ____,_t-/_,____/----=--~_.L/_2_D_2 6 __ _
4
CITY OF CARLSBAD, a municipal corporation
of the State of California
E gineering Manager
RCE 63912 Exp. 9/30/2026
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CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the
individuals who signed the document, to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STA TE OF CALIFORNIA
COUNTY OF SAN DIEGO
On March 17, 2026, before me, Lesli Palmer, Notary Public, personally appeared
Scott Dale, who proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument, and acknowledged to me
that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
I ce11ify 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.
e/:;tJ~
Signature of Notary Public
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 8, 2026 before me, HELEN GALLAGHER, NOTARY PUBLIC
(insert name and title of the officer)
personally appeared _J_a_s_o_n_S_._G_e_l_de_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.
SignatureillhuJ/jal!qfu
~-···········1 a HELEN GALLAGHER
: Notary Public • C.Ufomt1 : i Sin Dt~ County s
Commission II 250730<I -
My Comm. ExptrM Dec 19, 2021
(Seal)
EXHIBIT '~"
PLAN ID: CT 2018-0002
EAGREE2025-OO25
LEGAL DESCRIPTION:
LOT J OF CITY OF CARLSBAD TRACT NO. 2018-0002 A VIARA APARTMENTS, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STA TE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 16521, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON AUGUST 9, 2022.
ENCROACHMENT AGREEMENT
PA VERB IN CITY R/W FOR: sa&,(> AV/ARA APARTMENTS WEST PLANNING ENGINEERING SURVEYING
APPLICANT
AWARA, LP
3444 CAMINO DEL RIO
NORTH #202
SAN DltGO, CA 92108
ENCROACHMENT -CITY OF CARLSBAD
PRE~~~c::7. ~ PROJECT NAME:
i::nt.PH£N c: OTT AV/ARA APARTMENTS WEST
RC£ C70666 EXP. 6-30-2027
DATE: 8-27-25
SHEET 1 OF 2 SHEETS
A.P.N.
212-040-75-00
EXHIBIT B
LEGAL DESCRIPTION
PUBLIC STREET AND PUBLIC UTILITY
AN EXISTING PUBLIC STREET AND PUBLIC UTILITY EASEMENT PER FINAL ORDER OF
CONDEMNATION RECORED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON APRIL 10, 2000 AS DOC. NO. 2000-0180600.
LEGAL DESCRIPTION
TRAFFIC SIGNAL AND PEDESTRIAN ACCESS
AN EXISTING EASEMENT FOR TRAFFIC SIGNAL AND PEDESTRIAN ACCESS PURPOSES
DEDICATED ON MAP NO. 16521 RECORDED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON AUGUST 9, 2022 AS FILE NO.
2022 -7000374 • -
DESCRIPVON OF ENCROACHMENT
VEHICULAR PA VERS WITHIN PUBLIC
STREET AND UTILITY EASEMENT,
AND TRAFFIC SIGNAL AND
PEDESTRIAN ACCESS EASEMENT.
PACIFIC
OCEAN
EXHIBIT "C"
PLAN ID: CT 2018-0002
EAGREE2025-OO25
OF OCEANSIDE
CITY OF
CITY OF VISTA
Y OF
MARCOS
VICINITY MAP
NOT TO SCALE
ENCROACHMENT AGREEMENT
PA VERB IN CITY R/W FOR: sa&-<> A VIARA APARTMENTS WEST PLANNING ENGINEERING SURVEYING
APPLICANT
A\.?ARA, LP
3444 CAMINO DEL RIO
NORTH /202
SAN DIEGO, CA 92108
ENCROACHMENT -CITY OF CARLSBAD DATE: 8-27-25
{J_ ~ PROJECT NAME: SHEET 1 OF 2 SHEETS
~~~~-=-==-=--=-· .::::....:::....:..,__ AV/ARA APARTMENTS WEST A.P.N .
RCE C70666 EXP. 6-30-2027 212-040-75-00
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LEGEND
EXHIBIT "C"
PLAN ID: CT 2018-0002
EAGREE2025-OO25
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EASEME NO, 16521 ,,,,_ --
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R88XXX3 ENCROACHMENT. VEHICULAR PA VERS IN PUBLIC R/W AND EASEMENT.
----EXISTING R/W.
- - - -PROJECT BOUNDARY.
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ENCROACHMENT AGREEMENT
PAVERS IN CITY R/W FOR:
AV/ARA APARTMENTS WEST sa&"<>
APPLICANT
A\11ARA, LP
3#4 CAMINO DEL RIO
NORTH #202
SAN DIEGO, CA 92108
PLANNING ENGINEERING SURVEYING
ENCROACHMENT -CITY OF CARLSBAD DATE: 8-27-25
PROJECT NAME: SHEET 2 OF 2 SHEETS
AV/ARA APARTMENTS WEST A.P.N. 212-040-75-00