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Home My WebLink AboutCDP 02-28; Kiko, Frederick J; 2006-0395071; Encroachment AgreementRECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 B DGC# 2006-0395071 JUN05, 2006 1:15PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH.. COUNTY RECORDER '""a 2006-0395071 SPACE AL ASSESSOR'S PARCEL NO.: PROJECT NO. & NAME: KIKO RESIDENCE 203-140-10 CDP 02-28 PR 06-38 RIGHT-OF-WAY PERMIT '!O.: RW 05-292 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Fredrick J. Kiko, Trustee of the Fredrick J. Kiko Trust Agreement Dated June 30, 1998. ("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 in Lots 13 and 14 of Block "A" of Hays Land Company Addition To Carlsbad (Development) within the City of Carlsbad, San Diego County, California, and more particularly described in Exhibit "A", attached hereto and incorporate herein by reference (the "Benefited Property"). 2. The Easement. City currently owns an existing easement over, under, and across Owner's property for public street and public utility purposes as dedicated on the final subdivision tract maps and is described in Exhibit "B" attached nereto and incorporated by reference. 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow private underground storm drain system and appurtenant facilities to remain in a portion of the easement to serve the Development. The encroachment consists of, but is not limited to PVC Storm Drain, concrete encasement, 2 pre-cast drainage inlets with traffic grates, etc (refer to Exhibit "C" for plat describing the private underground storm water quality treatment units). These private underground storm drain facilities are constructed in accordance with the grading and improvement plans for this development on file with the City Engineer as drawing number 409-2A. 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. The private underground storm drain system and appurtenances are privately owned, operated and maintained. b. The private underground storm drain system and appurtenances shall be maintained, repaired and replaced pursuant to the terms of this Agreement at the sole cost and expense of Owner or other successors-in-interest of the H:\Development Services\PROJECTS\CDP FILES\CDP 02\CDP 02-28 Kiko Residence - WickharrABonds and Agreements\ENCROACHMENT AGREEMENT (private Storm Drain), PR , wickham.doc REV. 6221 the sole cost and expense of Owner or other successors-in-interest of the Benefited Property, which shall take over all such obligations set forth in this Agreement. c. Owner agrees to pay all necessary regulatory fines if Owner/HOA fail to maintain the private underground storm drain system and appurtenances. d. Owner agrees to maintain, repair, replace, reconstruct, or perform any other necessary work to maintain the private underground storm drain system and appurtenances in a safe and operational condition to the satisfaction of the City Engineer. No less than forty-eight (48) hours after Owner discovery of a non- operating or damaged private underground storm drain system or after receiving written notification by the City of Carlsbad, whichever occurs first, Owner shall replace or repair the private underground storm drain system and appurtenances to a safe and operational condition to the satisfaction of the City Engineer. e. If Owner fails to maintain, repair, replace, reconstruct, or perform any other necessary work to improve a non-operating or damaged private underground storm drain system to a safe and operational condition in accordance with the terms set forth above, the City shall have the right, but not the duty, to repair, replace or maintain the private underground storm drain system and appurtenances, for public safety or for any other reason, and City shall have the right to recover all reasonable costs in doing so, directly from the Owner, which if not paid within forty-five (45) days of written receipt from the City, shall become a lien on the Owner's property subject to enforcement and foreclosure in accordance with California State law. f. The Owner hereby agrees 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 encroachment 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. g. Owner shall obtain all necessary permits required to perform repair, maintain, replace, or reconstruct the private underground storm drain system and appurtenances in City right-of-way. Owner shall provide proof of insurance prior to any work being performed in the City right-of-way. The insurance requirements shall meet the minimum qualifications as required by the right-of- way permit and the Municipal code, in effect at the time the work is proposed pursuant to this Agreement. The City of Carlsbad shall be listed as additionally insured on the insurance binder and supported by the insurance endorsement. h. 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. i. Nothing in this agreement is intended to, nor shall be construed to grant or authorize the installation of any other facilities or equipment other than the H:\Development Services\PROJECTS\CDP FILES\CDP 02\CDP 02-28 Kiko Residence - Wickham\Bonds and Agreements\ENCROACHMENT AGREEMENT (private Storm Drain), PR , wickham.doc REV. 04-07-04 6222 storm drain and necessary appurtenances thereto specifically approved by the City pursuant to this Agreement. j. Owner must remove or relocate any part of the encroachment within ninety (90) 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. 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 Fredrick J Kiko. City of Carlsbad 3561 Donna Drive 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. 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. H:\Development Services\PROJECTS\CDP FILES\CDP 02\CDP 02-28 Kiko Residence - WickhamVBonds and Agreements\ENCROACHMENT AGREEMENT (private Storm Drain), PR , wickham.doc REV. 04-07-04 6223 IN WITNESS WHEREOF, this parties hereto have executed this Agreement on this_ day of OWNER- Frederick J. Kiko CITY OF CARLSBAD Glenn PruitfT(/ Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney By: H:\Development Services\PROJECTS\CDP FILES\CDP 02\CDP 02-28 Kiko Residence - WickhamXBonds and Agreements\ENCROACHMENT AGREEMENT (private Storm Drain), PR , wickham.doc REV 04-07-04 6224 State of California County of San Diego (Date) personally appeared (Name, Title of Officer), L IT. (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^js/aYa subscribed to the within instrument and acknowledged to me that he/slie/tfrfey executed the same in his7Re^he*tsauthorized capacityfles), and that by his/fifef/tFteit signature^ on the instrument the personts^_or entity upon behalf of which the person(5)^cted, executed the instrument. WITNESS my hand and official seal Signature of Notary I OFFICIAL SEAL 1 CHRISTI WAYMIRE * (This area for official notary seal) Title or Type of Doci Date of Document Signer(s) other than named above No. of Pages Pv\ \\VY1 \r ^v H:\Development Services\PROJECTS\CDP FILES\CDP 02\CDP 02-28 Kiko Residence - WickhamVBonds and Agreements\ENCROACHMENT AGREEMENT (private Storm Drain), PR , wickham.doc 6225 State of California ) County of San Diego ) before (Date) personally appeared (Name, Title of Officer) (Name[s] of Signer[s]) _, \>p£rsonally known to me -OR - n (proved to me on the basis of satisfactory evidence) to be the personj^ whose namej^f is/afe**subscribed to the within instrument and acknowledged to me that he/ohc/thoy executed the same in his/hor/thoif authorized capacity^iee), and that by his/her/their signaturej#) on the instrument the personj^f, or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal BELINDA R. GUZMAN Commission #1568777 Notary PubUc - California Signature of Notary (This area for official notary seal) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages 6226 LEGAL DESCRIPTION EXHIBIT "A" LOTS 13 AND 14 IN BLOCK "A" OF HAYES LAND COMPANY ADDITION TO CARLSBAD MAP NO. 2, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF NO. 1221, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 4, 1909, INCLUDING THAT PORTION, IF ANY, LYING BETWEEN THE ABOVE DESCRIBED PROPERTY AND THE LINE OF ORDINARY HIGH TIDE OF THE WATERS OF THE PACIFIC OCEAN AND EXCEPTING THAT PORTION, IF ANY, OF SAID LOTS LYING BELOW THE LINE OF THE ORDINARY HIGH TIDE OF THE WATERS OF THE PACIFIC OCEAN. 6227 LEGAL DESCRIPTION EXHIBIT B The easement; Ocean Street, as dedicated on Map No 2 of the Hayes Land Company Addition #2 dated November 4, 1909 and further recorded in the City of Carlsbad Book of Maps, Page 1221 LJ 03 (— LJ 2 _l O 5E N LENGTHLJ ^BEARINGf) UJ_i UJ s f>i g * m ." P | s c IP a KCO 5 ID N56-56'40-E5 -J UJ 8 3 I en ^M.1V.SS.SCNM.oz.caccNsg K: u 0 DC Q Scol -0.1 oCO O nnni i3ria<;pi rin 'TAIW r-r-r i -/-A nAn-r.j.t /^« *