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HomeMy WebLinkAboutPR 08-38; Viney, Nicolas J and Mary Anne; 2008-0450292; 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 5564 DQC# 2008-0450292 AUG21.2008 2:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORYJ SMITH.COUNTY RECORDER FEES: 33.00 PAGES: SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 156-142-47 PROJECT NAME: VINEY RESIDENCE RELATED PROJECT ID: PR 08-38 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and NICHOLAS J. VINEY and MARY ANNE VINEY, Husband and Wife as Community Property ("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 2796 James Dr. within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 156-142-47, 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 decomposed granite to remain in a portion of the general utility and access 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. F:\FARMER\KATHY\ENCROACHMENTS\templates.encr\viney.doc 5565 (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 Nicholas/Mary Ann Viney City of Carlsbad 2796 James Dr. 1635 Faraday Avenue Carlsbad CA 92008 Carlsbad CA 92008 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 F:\FARMER\KATHY\ENCROACHMENTS\templates.encrWiney.doc 5566 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 JU/U^. 20 ( OWNER Nicholas J. Viney and Mary Anne Viney, husband and wife as Community Property. Bv: (Sign Here)' NICHOLAS J. VINEY By: f lere) MARY ANNE VINEY CITY OF CARLSBAD ROBERT T. JOHNSON, JR., P.E. City Engineer By: David A. Hauser, Deputy City Engineer RCE 33081 Exp. 06/30/2010 (Print Name Here) X (Print Name Here) APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Deputy City Attorney F:\FARMER\KATHY\ENCROACHMENTS\lemplates.encr\viney.doc CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 5567 State of California County of vJyEstO \^>' On-3uLj (£~. [ Date' personally appeared before me, Xic^rrtX c . \J <, \ VttM Here Insert Name and Title of the Officer ">u Tcxeu EtJ Namef(s) of Slgner(s) who proved to me on the basis of satisfactory evidence to be the personjja) whose r\ame{&Q$l&€ subscribed to the within instrument and acknowlgdaed to me that executed the same in(5J§Jtef7tb«rr authorized d that by(hj§^f/tbeit signature^ on the instrument the person(s^ or the entity upon behalf of which the person(s)'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my han Signature-^ OPTIONAL - fficial seal. Siaffatute"of Notary Public / Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: _ I~TK Document Date: '7/i Signer(s) Other Than Named Above: Capacities) Claimed by Signer(s) p*sSigner's Name:. H-'individual D Corporate Officer — Title(s): __ D Partner—D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: ; Signer Is Representing:. RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: ; Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here vSsv-ss'v'sSv ©200TNationalNotaryAssociation«9350DeSotoAve.,P.O.Box2402-Chatsworth,CA 91313-2402-www.NationalNotary.orB ltem#5907 Reorder:CallToU-Free 1-800-876-6827 F:\FARMER\KATHY\ENCROACHMENTS\templates.encr\viney.doc ORIGINAL 5568 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County On California « of ^9OfO VbHE^C personally appeared ^. V . Here Insert Name and Title ol the Officer VfMIU J. V&lANVfVA Commteton * I7t214CNotoiy MaHe - CoWomia tan Otogo County Place Notary Seat Above who proved to me on the basis of satisfactory evidence to be the personal) whose nair^jgjns/a/e' subscribed to the within, instrument and acknowledged to me that h^he/th^y executed the same- in W^herjth^ir authorized capacity(ief), and that by ry|^er#h9ffrslgnature(?f on the instrument the person^, orfhe entity upon behalf of which the person^) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand Signature. OPTIONAL - jcial seal. 'A Signatrfe"bJ Notary Public f Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reaftachment of this form to another document. Description of Attached Document Title or Type of Document: I fi Document Date: 1 COflf >4 M ^<^\" Signer(s) Other Than Named Above: Number of Pages: JS Vts / Capacity(ies) Claimed by Signer(s) Vi\JSigner's Name: S^Individual n Corporate Officer — Title(s): D Partner — n Limited D General D Attorney in Fact ii\JEL4 RIGHT THUMBPRINT OF SIGNER Signer's Name: Q Individual D Corporate Officer — Title(s): D Partner — n Limited D General D Attorney in Fact RIGHTTHUMBPRINT OF SIGNER D Trustee D Guardian or Conservator n Other: Signer Is Representing: Top of thumb here D Trustee D Guardian or Conservator n Other: Signer Is Representing: Top of thumb here O2007 National Notary Association • 9360 De Soto Ave., P.O. Box 2402 • Ohatsvrortti, CA 91313-2402 • www.NattonalNotary.or9 Item *5907 Reorder Call Toll-Free 1 -800-876-6827 F:\FARMER\KATHY\ENCROACHMENTS\templates.encr\viney.doc 5569 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On Date personally appeared before me,\—I*TM rt Name ar\d titleHere Insert Name ard itle of the Officer Name(s) of Sigrwr(s) tOWlCY 1773M4 . Colifomla | San DMao County who proved to rru} on the basis of satisfactory evidence to be the personjXrwhose namej(s) is/ape"subscribed to the within instrument and acknowledged to me that he/§he7fhey^xecuted the same in his/hefAbctfauthorized capadty^sTand that by his/hetfthelr signature^ on the instrument the person^ or the entity upon behalf of which the personj^Tacted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature. OPTIONAL - Signature of Notary Public/ Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: _. Number of Pages: Signer(s) Other Than Named Above:J.Vt(sv.ii ^ Capacity(ies) Claimed by Signer(s) Signer's Name: _ D Individual D Corporate Officer — Title(s): _ D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: _ Signer Is Representing: Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing:. Top of thumb here 02007 Nata^r^ryAssodatkw- 9350 DeSoto Aw., P.O.Box^ Kem*5907 Reorder. Call ToH-fiee 1-800-876-6827 5570 EXHIBIT "A" LEGAL DESCRIPTION Lot 1 of Carlsbad Tract No. CT 98-16, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 14517, filed in the Office of the County Recorder of San Diego County on December 17, 2002, File No. 2002-1152722. 6 F:\FARMER\KATHY\ENCROACHMENTS\templates.encr\viney.doc 5571 EXHIBIT "B" EASEMENT A general utility and access easement granted to the City of Carlsbad, as shown on Map number 14517, 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 December 17, 2002. 7 F:\FARMER\KATHY\ENCROACHMENTS\templates.encr\viney.doc 5572 LOCATION MAP AREA OF ENCROACHMENT (DECOMPOSED GRANITE) HOUSE \ SCALE 1' = 20 -fr- BUENA VISTA WAY PROJECT NAME ENCROACHMENT FOR VINEY RESIDENCE PROJECT NUMBER PR08-38 EXHIBIT DRAWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 7/17/08 C \DEVBLOP«£Nr PROJECTS\fR\PR08-38.DWG