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HomeMy WebLinkAboutPR 02-74; Pestonjee, Noshir & Jennifer; 2002-0654149; Encroachment AgreementRECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 DOC # 2002-0654149 FEES: 0.00 SPACE ABOVE THIS LINE FOR RECORDERS USE ASSESSOR'S PARCEL NO.: 215-900-27-00 PROJECT NO. & NAME: PR 02-74 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Noshir and Jennifer Pestonjee ("Owner"), in accordance with Chapter 11 .I6 of the Carlsbad Municipal Code. Calliandra Road, within the City of Carlsbad, San Diego County, California, Assessor's Parcel 1. The ProDerty. Owner is the owner of that certain real property located at 1694 Number 215-900-27-00, and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. across Owner's property for open space which easement is described in Exhibit "B attached 2. The Easement. City currently owns an existing easement over, under, and hereto and incorporated by reference. 3. The Encroachment. City hereby covenants and agrees and grants its permission to Owner to allow a retaining wall not to exceed 3 feet in height along the east property line to remain in a portion of the open space 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 or expense arising out of (1) loss or damages to property and (2) injury removal of the structure installed hereunder, including any loss, damage, to or death of persons. (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 iIDEVELOPMENTSERVICESIMASTERSIAGREEMEMS. OTHEWENCROACHMENTAGREEMENT 1 REV 72n4'97 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 Aareement. 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 Carlsbad CA 92008 1635 Faraday Avenue Noshir and Jennifer Pestonjee 1694 Calliandra Road Carlsbad CA 92009 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 Assians. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective legal representatives, successors, and the property, but any failure to do so does not invalidate this provision. assigns. Owner agrees to incorporate this agreement by reference in any subsequent deeds to HJDMLOPMENTSERVICEYMASTERSII\GREEMENTS. OTHERIENCROACHMENTAGREEMENT 2 REV. 12l24187 behalf of such party have the authority to execute this Agreement and by such signatureb) thereby bind such party. & day of ru/Y ,20= IN WITNESS WHEREOF, this parties hereto have executed this Agreement on this OWNER CITY OF CARLSBAD . By: . By: -h%& (sign here) Fp/r LLOYD HUBBS@.E. . bdyit/ &S=&\L& Public Works Director NoXh It' (print name here) By: APPROVED AS TO FORM: RONALD R. BALL City Attorney Attorney I HJDMLOPMENTSERVlCESlMASTERSlAGREMENTS, OTHEPJENCROACHMENTAGREEMENT 3 REV 12i21197 . State of California ) ) County of San Diego 1 On r$atLf, >OQ>before me, hkZ/&;lh s-4 O%R\/ (Name, Title of Officer) personally appeared Modk /Ibu;d fisfi~%k.P~~!n,& ,b~ dC kk&&?f (Name[s] of Sign&r[s]) personally known to me - OR- (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the same in hislherltheir authorized capacityges), and that by hislherltheir 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 Signature of No& official notary seal) Title or Type of Document Date of Document No. of Pages Signer(s) other than named above H/DEVELOPMENTSERVlCESlMASTERSlAGREEMENTS, OTHEWENCROACHMENTAGREEMENT 4 REV 12i2487 Exhibit A Legal Description of Property Lot 78 of Carlsbad Tract 92-03 Unit 3, Aviara Phase III, in the City of Carlsbad County of San Diego, State of California according to map thereof No. 13463, filed in the office of the County Recorder of San Diego County, August 12,1997. Exhibit B Legal Description of Easement Open Space Easement to the City of Carlsbad dedicated over a portion of Lot 78 of Carlsbad Tract 92-03 Unit 3, Aviara Phase III, in the City of Carlsbad County of San Diego, State of California according to map thereof No. 13463, filed in the office of the County Recorder of San Diego County, August 12, 1997. LOCATION NOT TO SCALE \ I OPEN SPACE 1 EASEMENT I, HOUSE LOT 78 1 I I DRI MWA Y -e- I ENCROACHMENT AREA OF RETAINING WALL 3' MAXlMUM b s b 2 -I m 0 3 CALLIANDRA RD. 'RoJECT NAME 7694 CALLIANDRA ROAD PROJECT EXHIBIT LOT 78, APN 215-900-27 NUMBER PR02- 74 C H BE ScOT EVANS, CARLSB*D ENaNECRING DEPT. 7/11/02 C\DEKLWUENT PRMClS\PR02-74.DW