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Home My WebLink AboutCT 97-17; Aviara Brindisi, LLC; 2001-0352332; Encroachment AgreementRECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 -- A Iqm] DOC # 2001-0352332 MRY 31, 2001 9:lO m-l oFFICIfl. RECORDS SW DIEGO CUNY RECtRDER’S OFFICE l?iREmw JGIMs COUlSTYooRm- : . 111111111111111 2001-0352332 SPACE ABOVE THIS LINE FOR RECORDER’S USE ASSESSOR’S PARCEL NO.: 21 S-930-06-00 PROJECT NO. 81 NAME: PRO001 06 Brindisi RIGHT-OF-WAY PERMIT NO.: RW 000448 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT (“Agreement”) is entered into between the CITY OF CARLSBAD (“City”) and Aviara Brindisi, LLC, a Delaware 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 6357 Alexandri Circle, within the City of Carlsbad, San Diego County, California, Assessor’s Parcel Number 215-930-06-00, and more particularly described in Exhibit “A”, attached hereto and incorporated herein by reference. 2. The Easement. City currently owns an existing easement over, under, and across Owner’s property for sewer purposes 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 retaining wall to remain in a portion of the sewer 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. 1 MASTERS/FORMS/ENCROACHMENT AGREEMENT REV. 12/24/97 (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 City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92009-4859 Aviara Brindisi, LLC a Delaware Limited Liability Company 5770 Oberlin Drive San Diego, CA 92121 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. Ill Ill Ill MASTERS/FORMS/ENCROACHMENT AGREEMENT REV. 12/24/97 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 %* day of *Tan* ,2ObI -. OWNER AVIARA BRINDISI, LLC a Delaware Limited Liability Company By: PICal Housing Associates, L.P., a California limited partnership, its Sole Member By: The Prudential Insurance Company of America, a New Jersey Corporation, its general partner By: IHP Investment Advisors LLC, a Delaware limited liability company, its Attorney-in- Fact CITY OF CARLSBAD By: Institutional Housing Partners I LP., a California limited partnership, its Sole Member By: Institutional Housing Partners, Inc., a California corporation, its General Partner By: %;Y,A If 11 J. -F&~~j~~iP~~ I &,L~F 1'~ -J&.QA~ I& ‘,J (print name And title above) (print name and fitle above) APPROVED AS TO FORM: ~@+.4.. * By: v B I=49 LL:YD B. HUBBS, P.E. City Engineer 3 MASTERS/FORMS/ENCROACHMENT AGREEMENT REV. 12/24/97 7489 State of California County of San Diego On i-8 -01 before me, SWWW ChvLs’Ll, Ac~~,N~;iZrn/ %&/ML (Date) ’ (Name/, Title of Officer)’ personally appeared EhiAILy 3‘ ‘~$Jbw4- ad (Name[s] of Signer[s]) h@h.. JJ &bccArr L personally known to me -OR - (r) to be the person(s) whose name(s) @subscribed to the within instrument and acknowledged to me that b-cd&el@ executed the same in tG&&@uthorized capacity(ies), and that by f+Sbwlt@ signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal (This area for official notary seal) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages 7490 EXHIBIT “A” Legal Description Lot 6 of Carlsbad Tract 97-17 in the City of Carlsbad, County of San Diego, State of California according to map thereof No. 13909, filed in the Office of the County Recorder of San Diego County on December 28,1999. 7491 EXHIBIT “B” Legal Description of Easement 15’ wide public sewer easement on lot 6 of Carlsbad Tract 97-17 in the City of Carlsbad, County of San Diego, State of California according to map thereof No. 13909, filed in the Office of the County Recorder of San Diego County on December 28, 1999. / ‘. -> . r EXHIBIT C 7492 \ EASEMENT \ \JO~NT mm \ ISOUTH WALL-Y I4zZT ,0 7618~5de666. snDbp,cA9l101 61N354471 PAx6lN344349 T: \ENGR\7310-19\EXHlB/TS\WALL.DWG WALL PROFILE - SOUTH WALL SCALE: 7” = 10’ HORIZ., I” = 4’ VERT. =1 *fi -ho ?Q %coo nrcg -a \Y, QCL @2 9-l & S?k Ll .I . . . . . . . . . . . . . . . 267 ! .__.__.__.__,__...................... i .______.__._ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................ : 0 10 20 30 40 50 NORTH WALL 2 h gqz 2 d?$ 2 Q-J-4 Lu Qsk 5” d 3 275 ._.._.__.__.___.____................ I 273 271 P ......... ......................... ........... II.. ------- $1 .... TOP; OF WALL ; ---------~.--.--.--.i-----------------...-......--.-.....-.. -------- 267 : _.__._..._.______.__................ &@lQ , iELEvAI:lH WALL 2o / 30 FG ELEVATION - - - lF/BF EL E VA TION ----------- PRQIECIDIZSIW~TL~ -r-r- 701BSEt&khha600, SaaDiqqCA 92101 619-2YS-6671 FAX C19-234UM9 t \ENGR\7370-79\EXHlBlTS\WALL.DWG