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HomeMy WebLinkAboutSDP 05-14; Wave Crest Oceanfront LLC; 2012-0791294; Encroachment Agreementi RECORDING 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 DOCtt 20 2-079 iiiiiiiiiiiiiiiiiiiiiiiii 294 DEC 17, 2012 9:49 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 2.00 PAGES: SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO. PROJECT ID PROJECT NAME RELATED PROJECT ID 214-160-37; 214-590-04 SDP 05-14 Hilton Carlsbad Beach Resort PR 10-26 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and Wave Crest Oceanfront 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 the southwest corner of Carlsbad Boulevard and Ponto Drive within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 214-160-37 and more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. 2. The Public Riqht-of-Wav. City currently owns an existing public right-of- way along Owner's property which right-of-way 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 his property's private bio-swale stormwater BMP, benches, and fountain to remain in a portion of the public right-of-way. A plat showing the location of the encroachments is attached as Exhibit "C" attached hereto and incorporated by reference. This Agreement is subject to the following terms and conditions: (A) The encroachments 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 structures 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 Q:\CED\LandDev\PROJECTS\SDP\SDP 05\SDP 05-14 Hilton Carlsad Beach Resort and Spa - Jimeno\B & A\PR 10-26 Final ENCROACHMENT AGMT.doc (C) The Owner must remove or relocate any part of the encroachments 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 public right-of-way 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 Wave Crest Oceanfront LLC City of Carlsbad 829 Second Street, Suite A 1635 Faraday Avenue Encinitas, CA 92024 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 this IN WITNESS WHEREOF, these parties hereto have executed this Agreement on JIT— day of PPOi^b^ 20J2^. 2 H:\DevelopmentServices\PROJECTS\SDP FILESVSDP 05\SDP 05-14 Hilton Carlsad Beach Resort and Spa - Jimeno\Bonds and Agreement\ENCROACHMENT AGMT PR 10-26 Final.doc OWNER Wave Crest Oceanfront LLC, a California limited liability company By: Wave Crest Resorts II LLC, a California limited liability company By: Three Seas Enterprises, Inc., a California corporation / By: (Sign Here) William L. Canepa, President (Print Name Here) CITY OF CARLSBAD, a municipal corporation of the State of California GLEN K. VAN PESKI, City Engineer PLS 8801 Exp. 12/31/2012 APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Mi Of Deputy City Attorney H:\Development Services\PROJECTS\SDP FILESVSDP 05\SDP 05-14 Hilton Carlsad Beach Resort and Spa - Jimeno\Bonds and AgreementVENCROACHMENT AGMT PR 10-26 Final.doc CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of SoM Q On VC^/ 17/ before me, ^^6-tf(tgi[ ^<ji-<f:2- IMQWY Pul^ir^ , (Here insert name and title of the officer) personally appeared who 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 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 Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. — Signature of Notary Public (Notary Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in Califomia must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/they, is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of >S(Ckyv fti On J^*^ • ^"=^1 '^'» Date personally appeared } before me, Here Insert Name and Tilie of the Officer * ~~~~~~ Name(s) of Slgner(s) Li. TERIE L. ROWLEY { CommlMlon # 1773634 K Notary PubHc • CoHfomla | ton Di«ge County I Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person^ whose name(0 subscribed to the within Instrument and acknowledged to me that he/sj3^h^9 executed the same in his/i)ierr/th^r authorized capacityn^, and that by hls/tjefAh^fr signatureJaO on the instrument the person(^, or the 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 and official seal. Signature. OPTIONAL Si£^ature of Notary Put>lic 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 Trtle or Type of Document: i5HC.A>A^t^T ^C./ee>ng>4T Document Date: Number of Pages: 3 4 •VKSU;*./' 4. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual Title(s): • Corporate Officer • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here 02(X)7 Natkmal Notary Association* 9350 De Soto Ave., P.O. Box 2402 •Chatsvvorth.CA 91313-2402 •\Nww.tMationalNotary.org Item#5g07 Reorder CaHToll-F^ 1-800-876-6827 H:\Development Services\PROJECTS\SDP FILES\SDP 05\SDP 05-14 Hilton Carlsad Beach Resort and Spa - Jimeno\Bonds and Agreement\ENCROACHMENT AGMT PR 10-26 Final.doc PR 10>26 EXHIBIT "A'' PROPERTY LEGAL DESCRIPTION Parcel 1 of Parcel Map No. 20899 recorded in the Qty of Carlsbad, County of San Diego, State of California, as document No. 2011-351449 . on Julv 12 , 2011. Date James/). Eyerman - Licensed Land Surveyor No. 6336 PR 10-26 EXHIBIT "B" THE EASEMENT Carlsbad Boulevard Right-of-Way as a Public Road per Right-of-Way Map, LO-9630. Ponto Drive Right-of-Way as a Public Road and Utility Easement per Parcel Map No. 20899 dated 07 / 12 / 2011 . 1^ James g). Eyerman - LicenseyfLand Surveyor No. 6336 Date Planning + Engineering 3152 Lionshead Avenue :_;,__^CA©2010 (760) e92-4KX) wwwJiofmanplanning.com SHEET 2 OF 2 PUBLIC ROAD PER MAP LO-9630 0 60 120 240 Hofman Planning + Engineering 3152 Lionshead Avenue Carlsbad, CA 92010 (760)6^-4100 wwwiK)frnanplannlng.com