The URL can be used to link to this page

Home My WebLink AboutSDP 01-01B; Ascent-Biltmore Carlsbad LLC; 2007-0387632; 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 DOC# 2007-0387632 JUN 08, 2007 9:30 AM OFFICIAL RE CORDS SAN DIEGO COUNTY RECORDER'S OFFICE G R E G 0 RY J. S MIT H, CO U N TV R E CO Fl D E R FEES: 31.00 PAGES: 9 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 212-040-25 PROJECT ID: SDP01-01(B) PROJECT NAME: Biltmore - 24 Hour Fitness RELATED PROJECT ID: PR 06-29 RIGHT-OF-WAY PERMITS: RW 06-458 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Ascent-Biltmore Carlsbad, LLC ("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 1265 Laurel Tree Lane, within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 212-040-25, 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 Water and Storm Drain 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 Private Parking, Hardscape and Private Storm Drain to remain in a portion of the Public Water and Storm Drain easements. 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. H:\Development Services\PROJECTS\SDP FILES\SDP 01-01(6) Pacifioa Palomar -BILTMORE - Riddle\Bonds and AgreementsVENCROACHMENT AGREEMENT Rev 11- 2005.doc REV. 011/18/2005 (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 Ascent Biltmore Carlsbad, LLC City of Carlsbad c/o Biltmore Holdings 1635 Faraday Avenue Attn: Richard Lund/Steve Taylor Carlsbad CA 92008 111 West Monroe, Suite #1700 Phoenix, AZ 85003 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. H:\Development Services\PROJECTS\SDP FILES\SDP 01 -01 (B) Pacifica Palomar -BILTMORE - Riddle\Bonds and Agreements\ENCROACHMENT AGREEMENT Rev 11- 2005.doc REV. 011/18/2005 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 }-V<Xxx , 20 QJ . OWNER: Ascent-Biltmore Carlsbad, LLC a Delaware limited liability company By: Biltmore-LGE Carlsbad, LLC, an Arizona limited liability company, as Biltmore Member/Managing Member By: Biltmore Holdings, LLC, an Arizona limited liability company, as its managing member By: CITY OF CARLSBAD (Sj<fn Here) Richard Lund (Print Here) (Title) RONALD R. BALL City Attorney ROBERT T. JOHNSON, JR., P.E. Acting City Engineer By: David A. Mauser, Deputy City Engineer RCE 33081 Exp. 06/30/2008 (Print Here) Manager By: (Title) (Sign Here) By: Deputy Cit^Attorney H:\Development Services\PROJECTS\SDP FILES\SDP 01-01(B) Pacifica Palomar -BILTMORE - Riddle\Bonds and Agreements\ENCROACHMENT AGREEMENT Rev 11- 2005.doc REV. 011/18/2005 State of California ) ) County of San Diego ) On May 18, 2007, before me, Belinda R. Guzman, Notary Public, personally appeared David Mauser personally known me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal KUNDAR. GUZMAN Commtaton* 1565777 Notary Pubte-Colltomta Son Dtogo County Signature of Notary (This area for official notary seal) State of County of- San Diego On ftAj 9.2009 before me, Wsb&\Y\e. k/M (Date)' (Name, Title of Officer) personally appeared \L\ (JAA Vik 0 • (Name[s] of Signer[s]) personally known to me - OR- (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are 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 his/her/their 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 KattwriMMotlwr Notary PuMfc. Arizona Mwfcop* County My Commliilon £*<*». Jum1«,a«10 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 H:\Development Services\PROJECTS\SDP FILES\SDP 01-01(8) Pacifica Palomar -BILTMORE - Riddle\Bonds and Agreements\ENCROACHMENT AGREEMENT Rev 11- 2005.doc REV. 011/18/2005 Exhibit 'A' Legal Description All of Parcel 1 of Parcel Map No. 20219, in the City of Carlsbad, County of San Diego, State of California, as file no. 2007-0158003 recorded on March 7, 2007. Exhibit B Legal Description of Easement Twenty foot (20') public water easement and twenty foot (20') public storm drain easement dedicated by Parcel Map thereof No. 20219, filed in the office of the County Recorder of San Diego County as file no. 2007-0158003 recorded March 7, 2007. PRIVATE PARKING AND HARDSCAPE WITHIN PUBLIC WATERLINE EASEMENT 20 WATERLINE EASEMENT PUBLIC STORM EASMENT \,\\ '20' WATERUNE1 EASEMENT PRIVATE HARDSCAPE AND STORM DRAIN WITHIN PUBLIC WATERLINE EASEMENT PRIVATE PARKING PUBLIC WATERLINEPROPOSED OFFICE BUILDING VICINITY MAP CITY OF OCEANSDE £DP Ol-Ol(B)DRAWING! NO. 432-20 PACIFIC OCEAN PROJECT- SITE CJTY OF EHCMITAS Exhibit C page i of 2 BILTMORE - 24 HE. FITNEgg PRIVATE HARD^dAPE/UTILITIE^/PARKING ENtiROAdHMENT EXHIBIT CITY OF CARLSBAD, dA -LANG- engineering co. Consulting Engineers Land Planners 561 SAXONY PLACE, SUITE 101B ENONITAS. CALIFORNIA 92024 DATE; MARCH 9, 2006 SCALE.- r-so' JOB K|(U 050214 DRA^N BY: R.G.L ACAD ft 050214-ENCROACH CHKD: R.G.L 50"100' /PRIVATE PARKING AND'HARDSCAPE WITHIN PUBLIC ATERLINE" EASEMENT AND STORM DRAINAGE EASEMENT 20' PUBLIC STORM EASMENT VICINITY MAP CITY OF OCEANSDE $DP Ol-Ol(B)DRAWING! NO. 432-20 Exhibit C Page 2 of2 BILTMORE - 24 HR. FITNE$|3 PRIVATE HARD0C!APE/UTILITIE$/PARKINGf ENtiROAdHMENT EXHIBIT dITY OF dARL^BAD, dA -LANG- engineering co. Consulting Engineers Land Planners 561 SAXONY PUCE, SUITE 101B ENONITAS. CALIFORNIA 92024 DATE MARCH 9, 2006 SCALD i"-so' JOB Ha: 060214 DRAftN BY: R.G.L ACAD I: 060214-ENCROACH CHKDt R.G.U 50'