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Home My WebLink AboutCT 03-06; Aviara Black Rail Road 16 LLC; 2007-0141837; Encroachment Agreement17927 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# 2007-0141837 MAR 01,2007 3:11 PM OFFICIAL RECORDS SAN DIEfin COUNTY RECORDER'S OFFICE GREGORY J SMITH,COUNTY RECORDER FEES: 31.00 PAGES: 9 2007-0141837 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 218-050-20, 21 & 28 PROJECT NO. & NAME: CT 03-06/PR 06-122 BLACK RAIL ROAD 16 RIGHT-OF-WAY PERMIT NO.: N/A ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") ancTBLACK RAIL ROAD 16 LLC ("Owner"), in accordance with Chapter 11.16 of the Carlsbad Municipal Code. 1 . The Property. Owner is the owner of that certain real property located at CT 03- 06, EAST SIDE OF BLACK RAIL ROAD, SOUTH OF POINSETTIA LANE, within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 218-050-20,21 & 28, and more particularly described in Exhibit "A", attached hereto and incorporate herein by reference. 2. The Easement. City currently owns an existing easement over, under, and across Owner's property for PUBLIC STORM DRAIN EASEMENT which easement is described in Exhibit "B" attached hereto and incorporated by reference. 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow PRIVATE STORM DRAIN FILTER, MH, AND APPURTANCES to remain in a portion of the PUBLIC STORM DRAIN EASEMENT. A plat showing the location of the encroachment is attached as Exhibit "C" attached hereto and incorporated by reference. This Agreement is subject to the following terms and conditions: (A) The encroachment shall be installed and maintained in a safe and sanitary condition at the sole cost, risk, and responsibility of the owner and its successors in interest. (B) The Owner shall agree at all times to indemnify and hold the City free and harmless from any and all claims, demands, losses, damages, or expenses resulting from the construction, maintenance, use, repair or removal of the structure 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. H:\Development Servic«s\PROJECTS\CT FILES\CT 03VCT 03-06 Tabata Residential Subdivision - WickhamVBonds and Agreements\ENCROACHMENT AGREEMENT.doc REV. 07/15/2002 17928 (C) The Owner must remove or relocate any part of the encroachment within ten (10) 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 and the reasonable cost thereof shall constitute a lien upon the property. (D) Whatever rights and obligations were acquired by the City with respect to the easement shall remain and continue in full force and effect and shall in no way be affected by City's grant of permission to construct and maintain the encroachment structure. 4. 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. 5. 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: If to the Owner: City Engineer Aviara Black Rail Road 16 City of Carlsbad By: McComic Consolidated, Inc. 1635 Faraday Avenue c/o TransWest Housing Carlsbad CA 92008 10721 Treena Street #200 San Diego, CA 92131 which addresses may be changed from time to time by providing notice to the other party in the manner described above. 6. 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. 7. Successors and Assigns. This Agreement shall 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. 2 H:\Development Services\PROJECTS\CT FILES\CT 03\CT 03-06 Tabata Residential Subdivision - Wickham\Bonds and Agreements\ENCROACHMENT AGREEMENT.doc REV. 07/15/2002 17929 8. 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. IN WITNESS WHEREOF, these parties hereto have executed this Agreement on this day of OWNER CITY OF CARLSBAD By: By:: Qj %fa -- - GLENN PRUIM.P.E. Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Deputy City Attorney 3 H:\Development Services\PROJECTS\CT FILES\CT 03\CT 03-06 Tabata Residential Subdivision - Wickham\Bonds and Agreements\ENCROACHMENT AGREEMENT.doc REV. 07/15/2002 17930 State of California ) ) County of San Diego ) On February 20, 2007, before me, Belinda R. Guzman, Notary Public, personally appeared David Mauser personally known me 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 entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal _ Signature of Notary *UNCA R.GUZMAN 1548777 SanWigo County (This area for official notary seal) State of California ) ) County of San Diego ) 17931 On Vy\s. W. 2-Don before me, (Date)(Name, Title of Officer) personally appeared P-- G?€o\-W^ej (Name[sl of Signer personally known to me - OR- (or proved to m 4 VAg^CoYv-^c^. r^) the basis of oatisfaotory ovidonoe) to be the person(ar) whose name(^) is/aye subscribed to the within instrument and acknowledged to me that he/sj/fe/tt)ey executed the same in his/h^r/thj§ir authorized capacity(ips"), and that by his/h£f/tr>eir signature^ on the instrument the person(^), or entity upon behalf of which the person(s^ acted, executed the instrument. WITNESS my hand and official seal -^J-li^fclJ Signature of Notary KRISHNA VON GIETZEN Commteton # 1696293 Notary Public - CaWomta f San Dtogo County My Comm. Expkw Sap 26.201 (This area for official notary seal) Title or Type of Document Er^g^ Date of Document _ Signer(s) other than named above Nor of Pages H:\Development Services\PROJECTS\CT FILES\CT 03\CT 03-06 Tabata Residential Subdivision - WickhamVBonds and Agreemen!s\ENCROACHMENT AGREEMENT.doc REV. 07/15/2002 17932 EXHIBIT 4A' PR 06-122 LEGAL DESCRIPTION A.P.N. 218-050-20, 21 & 28 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, BEING A SUBDIVISION OF A PORTION OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, T12S, R4W, SBBM. PARCEL 1: THE NORTHERLY 180.00 FEET OF THE WESTERLY 257.00 FEET OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF FRACTIONAL SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLBSAD, COUNTY OF SAN DIEGO, STATE OF CALFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. PARCEL 2: THAT PORTION OF THE NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDINGLY TO OFFICIAL PLAY THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTH QUARTER CORNER OF SAID SECTION 22; THENCE NORTHERLY ALONG THE NORTH-SOUTH CENTER LINE OF SAID SECTION 22, NORTH 2° 18' 55" WEST, 1041.37 FEET TO THE TRUE POINT OF BEGINNING;THENCE SOUTH 89°55' 47" EAST 250.00 FEET; THENCE SOUTH (T 04' 13" WEST OF THE SOUTH LINE OF SAID NORTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE WESTERLY ALONG THE SAID SOUTH LINE TO THE SOUTHWEST CORNER OF SAID NORTH HALF;THENCE NORTHERLY ALONG SID NORTH-SOUTH CENTER LINE OF SECTION 22 TO THE TRUE POINT OF BEGINNING. EXCEPTING THAT PORTION LYING NORTHERLY OF A LINE DESCRIBED AS FOLLOWS: 17933 BEGINNING AT A POINT ON THE EAST LINE OF THE ABOVE DESCRIBED LAND WHICH IS DISTANT THEREON SOUTH 0° 04'13" WEST 350 FEET FROM THE NORTHEAST CORNER THEREOF;THENCE NORTH 87° 51' WEST 235.93 FEET TO THE NORTH-SOUTH CENTER LINE OF SECTION 22. EXCEPTING THEREFROM SAID PARCELS 1 AND 2 THE WESTERLY 30.00 FEET AS SET FORTH IN FINAL ORDER OF CONDEMNATION, SAN DIEGO SUPERIOR COURT CASE NO. N 75923-1, 0007536 OF OFFICIAL RECORDS. PARCEL 3: THE EASTERLY 287 FEET OF THE WESTERLY 544 FEET OF THE NORTHERLY 180.06 FEET OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF FRACTIONAL SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, SAID DIMENSIONS BEING MEASURED ALONG AND PARALLEL TO THE WESTERLY AND NORTHERLY LINES, RESPECTIVELY, OF SAID SOUTH HALF OF THE SOUTHEAST QUARTER. PARCEL 4: THE NORTH HALF OF THE WEST HALF OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDINGLY TO THE OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE WESTERLY 257 FEET OF THE NORTHERLY 180 FEET OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 22. THE AFOREMENTIONED 257 FOOT AND 180 FOOT DIMENSIONS BEING MEASURED ALONG AND PARALLEL TO THE WESTERLY AND NORTHERLY LINES, RESPECTIVELY OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF SAID SECTION 22. ALSO EXCEPTING THERFROM THE EASTERLY 287 FEET OF THE WESTERLY 544 FEET OF THE NORTHERLY 180.66 FEET OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 22.^,^^—~~~-^^^^JM^ 17934 EXHIBIT <B' PR 06-122 LEGAL DESCRIPTION PUBLIC STORM DRAIN EASEMENT A.P.N. OVER, UNDER AND ACROSS LOT '8'AND LOT ' 17' OF CARLSBAD TRACT NO. 03-06, ACCORDING TO MAP NO. /5SV, FILED IN THE OFFICE OF THE COUNTY RECORDER, ON /#*&**/- /> , 2007, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS FILE NUMBER 2007- OLdGO LdOQ_ Ld •O CO 0_