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HomeMy WebLinkAboutPD 2021-0040; AB3, LLC.; 2023-0005046; 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# 2023-0005046 111111111111 lllll 11111111111111111111111111111111111111111111111111111 Jan 09, 2023 08:45 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 8 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 204-171-10 and 11 PROJECT ID: PD2021-0040 -----------PROJECT NAME: 786 Palm Ave -----------RELATED PROJECT ID: EAGREE2022-0011 RELATED PROJECT ID: DWG 534-4A ----------- ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and AB3, LLC, a California 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 786 Palm Avenue within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 204-171-10 and 204-171-11 , 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 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 pervious pavers and trash capture best management practice (BMP) to remain in a portion of the public street and utility 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, 1 Q:ICED\LandDev\PROJECTSIPDIPD 2021 IPD2021-0040 786 Palm Avenue -Rick\EAGREE2022-0011 \EAGREE 2022-0011 786 Palm.doc 9/5/2014 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. (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: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 If to the Owner: AB3, LLC Attn : Paul Jacinto 3220 Gray Hawk Court Carlsbad, CA 92010 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. 2 Q:ICED\LandDev\PROJECTS\PDIPD 2021\PD2021-0040 786 Palm Avenue -Rick\EAGREE2022-0011\EAGREE 2022-0011 786 Palm.doc 9/5/2014 IN WITNESS WHEREOF, these parties hereto have executed this Agreement on 7/ day of '1~ , 20 -;7:Z..-:-this OWNER AB3, LLC, a California limited liabil~ity company By: -~-~~-----~----(Sign Here) Albert Bertha (Print Name Here) By: ---------------(Sign Here) (Print Name Here) APPROVED AS TO FORM: CINDIE MCMAHON City Attorney By : RON KEMP Senior As=t ~ Attorney 3 CITY OF CARLSBAD, a municipal corporation of the State of California JASON S. GELDERT, Engin Q:ICED\LandDev\PROJECTS\PDIPD 2021 IPD2021-0040 786 Palm Avenue -Rick\EAGREE2022-0011 IEAGREE 2022-0011 786 Palm.doc 9/5/2014 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California } County of ~r\ l)1e~O On ¼I?;,\ lu:n.. before me, _____:w_,t l1ttM Su(\ ,Ii Wt>l-4rv Pu\,h·c Date Here Insert Name and Title ;;;;;,Jofficer personally appeared ~YJe~f-\-~_Bz.....,., .... I~~~~----------------- Name(s) af Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ls/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same In his/her/their authorized capaclty(les), and that by his/her/their slgnature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. ft ft ft ft ft ft ft ft ft l WILLIAAI SUN Notary Public · C•lifornia 2 San Die-so County ~ Commission • 2282168 • - My Comm. Expires Maf21, 2023 P/oce Notary Seal and/or Stamp Above I certify under PENAL TY 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 of Notary Public ______ __,, OPTIONAL Completing this Information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document: __________________________ _ DocumentDate: _____________________ Numberof Pages: ___ _ Slgner(s) Other Than Named Above: ______________________ _ Capaclty(les) Claimed by Slgner(s) Signer's Name: ___________ _ Signer's Name: ___________ _ o Corporate Officer -Title(s): ______ _ o Corporate Officer -Tltle(s): ______ _ o Partner -o Limited o General o Partner -□ Limited o General o Individual □ Attorney In Fact o Individual o Attorney In Fact □ Trustee o Guardian or Conservator o Trustee o Guardian or Conservator □ Other: D Other: Signer Is Representing: _________ _ Signer Is Representing: _________ _ <f:>2019 National Notary Association 4 Q:\CED\LandDev\PROJECTSIPD\PD 2021\PD2021-0040 786 Palm Avenue -Rick\EAGREE2022-0011\EAGREE 2022-001 1 786 Palm.doc 9/5/2014 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 fflJcl 108080IIIDDOC081198881JOOOtCJOl~:o~~I 181 D 1:1 l=H~0:80C0 0;0:0 0 0 080ll80t0 E A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthful ness, accuracy, or validity of that document. State of Name(s) of Signer(s) 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. ••••••••• l ~y W1CKERHAA • Motary Publk -California I • San Diet<> County ~ • Commission f HO 11 38 0•,.•c •'• My Comm. ExpirM Af)r 18, 2026 Place Notary Seal and/or Stamp Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. OPTIONAL Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ___________________________ _ Document Date: ______________________ _ Signer(s) Other Than Named Above: -----------------,=--~==----------- Capacity(ies) Claimed by Signer(s) Signer's Name: --------------:::,,,-gner's Name: _____________ _ □ Corporate Officer -Title(s): □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Atto in Fact □ Individual □ Attorney in Fact □ Trustee ardian or Conservator o Trustee o Guardian or Conservator □ Other: □ Other: Signer is Representing: _________ _ Ill 11103 IOOO:( 00(] § iJOI 1:1)1~80808fi:t«f •:e• 11:00:rnc 0000 0 0:0:0,rno:1 !:I i:I 1:0:a !:I llH O BCO O {IQ:~ )0:600 ©2019 National Notary Association EXHIBIT "A" EAGREE 2022-0011 PD 2021-0040 REAL PROPERTY IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: APN 240-171-10: THE NORTHEASTERLY 70 FEET OF LOTS 31 AND 32 IN BLOCK 44, OF THE TOWN OF CARLSBAD, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 535, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 22, 1888, THE SOUTHWESTERLY LINE OF THE SAID 70 FEET HEREIN CONVEYED BEING PARALLEL WITH FOURTH STREET. APN 204-171-11 : ALL OF LOTS 31 AND 32, IN BLOCK 44, OF THE TOWN OF CARLSBAD, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 535, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 2, 1888. EXCEPTING THEREFROM, THE NORTHEASTERLY SEVENTY FEET, THE SOUTHWESTERLY LINE OF SAID SEVENTY FEET BEING PARALLEL WITH FOURTH STREET. ~ EXHIBIT "B" EAGREE 2022-0011 PD 2021-0040 THAT PORTION OF PALM AVENUE, JEFFERSON STREET (FORMERLY FOURTH STREET) AND ALLEY AS SHOWN ON AMENDED MAP OF THE CITY OF CARLSBAD, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ACCORDING TO MAP NO. 775, AS FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, ON FEBRUARY 15, 1894. 30' 15' SCALE: 1 o· 30' ----1" = 30' -- b ~ ~ C\j (i VICINITY MAP EXHIBIT "C" EAGREE 2022-0011 PROJECT BOUNDARY ' ' ' ____ 1,... ___________ _ I EXIST. 5• CURB & GUTTER EXIST. 5' WIDE I SIDEWALK ____l_ PALMA VE. LEGEND (j) PERMEABLE PAVERS -ENCROACHMENT IN RIGHT OF WAY Cg) TRASH CAPTURE BMP -TYPE A CURB OUTLET PER SDRSD D-25A WITH BIO CLEAN CURB GUARD AND CONNECTOR PIPE SCREEN ATTACHED TO OPENING RONALD L. HOLLOWAY R.C.E. 29271 bl. NTS APN 204-171-11 & 10 HA, Inc. IMPROVEMENTS PER c1TY or cARLsaAD DWG 534-4A land planning, clvl engineering, surveyrig 5115 AVENIDA ENCINAS SUITE •L• CARLSBAD, CA. 92008-4387 (760) 931-8700 CITY OF CARLSBAD ENCROACHMENTS 786 PALM AVENUE PD 2021-0040 DATE: 08/24/22