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Home My WebLink AboutPR 03-29; Fourth Quarter Properties XXX LLC; 2003-0760176; Encroachment AgreementDOC # 2003-0760176 k JUN 269 2003 4~16 PM OFFICIAL AECMB W DIEGO COUNTY Em's OFFICE GREGORY J. SMITH, COUNTY ECORDER FEES: 29.00 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 SPACE ABOVE THIS LINE FOR RECORDERS USE ASSESSOR'S PARCEL NO.: 255-012-04 PROJECT NO. & NAME: PR 03-29 (SDP 00-1 0) The PavilionlForum Shomina center RIGHT-OF-WAY PERMIT NO.: ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ('City") and Fourth Quarter Properties XXX, LLC, a Georgia limited liability company ("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 1935 Calle Barcelona within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 255-01 2-04, 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 general utility and access 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 portions of a retaining wall (tiebacks) to remain in a portion of the easement described in Exhibit "A". The tiebacks and wall are permitted under building permit no. 03- 0624. 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 con d it ions : (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 (I) loss or damages to property and (2) injury to or death of persons. 1 H:\Development Services\PROJECTS\PR FILES\PR 03-29 MaashofENCROACHMENT AGREEMENT.doc (C) The Owner must remove or relocate any part of the encroachment within ten (IO) 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 Aqreement. 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 City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Fourth Quarter Properties XXX, LLC 300 Village Green Circle SE #200 Smyrna, GA 30080 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 Assiqns. 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 I H.\Developmenl Services\PROJECTS\PR FILESPR 03-29 Maashoff\ENCROACHMENT AGREEMENT.doc 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, this parties hereto have executed this Agreement on this 6@ day of*. ,2003. CITY OF CARLSBAD Print Name: &\/Id u% By: Print Name: APPROVED AS TO FORM: RONALD R. BALL City Attorney 3 I H:Development Services\PROJECTS\PR FILES\PR 03-29 MaashoMENCROACHMENT AGREEMENT.doc State of C-~.G~J; A County of CO#b ) 1 (Name, Title of Officer) On i/?k? befo ( te) personally appeared 45- C& , (Name[s] of Signer[s]) personally known to me - OR- (or proved to me on the basis of satisfactory evidence) to be the person@) whose name(s) idare 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 hislherltheir signature(s) on the instrument the person(s), or entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal official notary seal) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages 4 P:\01-0064-01 The Pavilion ai La Cosla\Files\Reports\City--ENCROACHMENT AGREEMENT.doc EXHIBIT “A” LEGAL DESCRIPTION 255-01 2-04 Lot 4 of City of Carlsbad Tract No. 92-08, Green Valley, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 13997, filed in the Office of the County Recorder of San Diego County, July IO, 2000. Together with Non-exclusive easements, appurtenant to Lots 3 and 4 of Map No. 13997, of the installation, operation, maintenance and replacement of private drainage; for access to and for the maintenance, repair and replacement of the open space and riparian trails and for access to and for the installation, operation and maintenance, repair and replacement of the desiltation basins as set forth in the “Declaration and Grant of Easements’’ recorded July IO, 2000 as File No. 2000- 0362588 of Official Records. EXHIBIT “B” THE EASEMENT That portion of Calle Barcelona as dedicated to the city and accepted by the city, as shown on Carlsbad Tract No. 92-08, Map No. 13997, Recorded in the office of the County Recorder on July IO, 2000 as File No. 2000-362589. PEDES TRlAN PROTECTION RAILING PER ARCHITECTS PLAN - PROPOSED WALL (PER SEPARATE PERMIT) BONDED TIEBACKS TO BE DETERMINED BY coNTRAcToR . # T UNBONDED TIEBACKS PER SEPARATE WALL PLAN \ / II NOTE: CI bf 10" WATER AND 12" RECLAIMED WATER ARE THE ONLY WET UTILITIES IN THE STREET WITHIN THE AREA OF THE TlEBA SECTION 'E-E' NO SCALE &-m* NU .CKS. . *. *, i i j i 6. .. , :: .. ! I I I ! i' .. ,. i ! I