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HomeMy WebLinkAboutPD 2022-0031; McCarthy, James Patrick and McCarthy, Kimberly; 2023-0063130; 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# 2023-0063130 1111111111111111111111111111111111111 lllll 1111111111111111111111111111 Mar 13, 2023 09:30 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $35.00 (SB2 Atkins: $0.00) PAGES: 8 SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 155-251-37-00 -----------PROJECT ID: PD2022-0031 -----------PROJECT NAME: McCarthy Residence RELATED PROJECT ID: EAGREE2022-0037 ENCROACHMENT AGREEMENT This ENCROACHMENT AGREEMENT ("Agreement") is entered into between the CITY OF CARLSBAD ("City") and James Patrick McCarthy and Kimberly McCarthy, Co-Trustees of the James and Kimberly McCarthy Family Trust dated September 16, 2021 ("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 945 Buena Place within the City of Carlsbad, San Diego County, California, Assessor's Parcel Number 155-251-37-00, 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 Utilities 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 an attached deck to remain in a portion of the 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. (8) 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:\CED\LandDev\PROJECTS\PD\PD 2022\PD2022-0031 McCarthy Encroachment -Glassen\ENCROACHMENT AGMT.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 requ ired 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: James Patrick McCarthy and Kimberly McCarthy, Co-Trustees of the McCarthy Family Trust dated September 16, 2021 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\Lanc!Oev\PROJECTS\PD\PO 2022\PO2022-0031 McCarthy Encroachment· Glassen\ENCROACHMENT AGMT.c!oc 9/5/2014 IN WITNESS WHEREOF, these parties hereto have executed this Ag reement on I'S+" day of 11-et-c...bt..... , 20~. this APPROVED AS TO FORM: CINDIE MCMAHON ::y Att~9f Senior Assistant City Attorney 3 CITY OF CARLSBAD, a municipal corporation of the State of California JASON S. GELDERT, Engineer' Manager Q:\CED\landDev\PROJECTSIPD\PD 2022\PD2022-0031 McCarthy Encroachment -Glassen\ENCROACHMENT AGMT.doc 9/5/2014 CALIFORNIA ALL-PURPOSE 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 Californ~ ) County of ~141,,t .z ) On \,1 ~~ z .. ~;Mefore me, ---'~1,<-L---~-( t---+-1 __ JJ_~ _ ___;_,.,.,.._e_~ ___ _ Date Here Insert Name and Title of the Officer personally appeared __ _;:~:_.__c_S,_fl_~_°'_w---_-_l"'--_~ ___ j_-4--~-=---0----'-~---'-~-~ ...... ~-~---=----=-'(- Name(s) of1igner(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. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 'a-· a DAREN VASS l _ COMM. #2423861 ~ ~ NOTARY P\J8UC-CAl,JfORHIA - SAN DIEGO COUNTY I I Mw eom,,,. e.,. NMmbef 21. 202e • Place Notary Seal Above ---------------OPTIONAL--------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document .,,,.,,..L,, ~:r't Title or Type of Document: e,;J~M"t'l IJPV"ffl,(rrDocument Date: __ l,-.{_~_\_i,,,z,-__ _ Number of Pages: ___ Signer(s) Other Than Named Above: ____________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ □ Corporate Officer -Title(s): ______ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Trustee □ Guardian or Conservator □Other: ______________ _ □ Other: ______________ _ Signer Is Representing: _________ _ Signer Is Representing: ________ _ Yv~'§k.'§k,~~~-g,~~"' ©2014 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1 -800-876-6827) Item #5907 CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 OU08080:00800E09080:0CODOCO o:o:o:o 8(]~8:000001 I B o:0:oo001aao11aco.o D D E [}j[] 13 1:s:o:o:o:8QOl):880B O 8=0 0 (IOftiOOII 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. 0 Dote On _-=-------1._=,=-iL..:~L.._;JC...,=----b~f rem personally appeared ______ __,.._.t....::;...~L--------=:....__....___,_,,____,._,___,..--'------------- ~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 t he in strument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. AMY WICKERHAM Motary Public • California ~- San Diego County s Comminion II 2401138 ~ ,.,.,~••'• My Comm. Expires Apr 18, 2026 I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing pa ragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal and/or Stamp Above s;gnatme~ ignatureof Notary Public OPTIONAL Completing this information con 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: _______________________ Number of Pages: ____ _ Signer(s) Other Than Named Above: _______________________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General □ Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □ Other: Signer is Representing: _________ _ Signer's Name: _____________ _ □ Corporate Officer -Title(s): ______ _ □ Partner -□ Limited □ General o Individual o Trustee □ Other: □ Attorney in Fact □ Guardian or Conservator Signer is Representing: _________ _ 8011811C0:0:0:00:0:0 DD Bt81111illl000flll83J:000080IIJIMJ D Jll DD 0:0:0:tDIOOUOOFJ:□:0:0:0:0001131:0:(] E fl0ll011311DI0:8CO:Bc8QOIJ ©2019 National Notary Association EXHIBIT "A" Legal Description Lot 3 of SUNNY SLOPE Tract Resubdivislon No. 1, BUENA VISTA TERRACE, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 3845, filed in the Office of the County Recorder of San Diego County, March 26, 1958. APN: 155-251-37-00 Exhibit "B" Easement Description A UTILITY EASEMENT GRANTED TO THE CITY OF CARLSBAD ACCORDING TO MAP THEREOF NO. 3845, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 26, 1958. PROJECT NAME PLAT OF PROJECT BUENA PL. (E) NORTl-l DECK RESIDENCE <EJ DRIVEWAY AREA OF ENCROACt-lMENT ENCROACHMENT FOR 945 BUENA PL. CARLSBAD, CA 92008 APN: 155-251 -37-00 PROJECT NUMBER EXHIBIT EAGREE2022-0037 C