1995-33086
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Recording Requested By: 4.-
When Recorded Mail To: 1288
City Clerk "
City ofEncinitas
505 South Vulcan Avenue
Encinitas, California 92024
AGREEMENT FOR IMPROVEMENTS
IN PUBLIC RIGHT-OF-WAY
(LIEN CONTRACT)
Assessor's Parcel
Nos. 255-024-01, 257-040-15 & 257-490-24 Project No.: DR 91-044
This AGREEMENT executed this I') pf day of £i-prEI'\&?-t2- 1994, by and
between HOME DEPOT u.SA, INe. hereinafter called the OWNER, and the CITY OF
ENCINITAS, a political subdivision of the State of California, hereinafter called the CITY, is as
follows:
WHEREAS, the OWNER owns property described as:
SEE EXHIBIT "A" ATTACHED HERETO
AND MADE A PART HEREOF BY THIS REFERENCE (the "Property"), and
WHEREAS, the OWNER is currently proposing a Home Depot home
improvement center, outdoor garden area and associated loading dock, parking facilities and
landscaping on the Property, and
WHEREAS, the Property is adjacent to an incomplete street known as Olivenhain
Road, and
WHEREAS, the improvements will generate more traffic and the OWNER has
agreed to reimburse the CITY for the costs of certain improvements to Olivenhain Road in
accordance with Chapter 23,08 of the City ofEncinitas code, and
WHEREAS, pursuant to Chapter 23.08 of the City ofEncinitas code, the City
Engineer has recommended that construction of those improvements required by the CITY be
postponed and that the OWNER be required to execute an agreement to pay for said
improvements in the future and to grant a lien to the CITY upon said Property to secure the cost
of construction of said future improvements, and
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WHEREAS, the OWNER is agreeable to the execution of such an agreement;
NOW THEREFORE, IT IS AGREED by and between the parties hereto as
follows:
1. The CITY agrees to accept the dedications, if any, and upon the
completion of the improvements required herein to the satisfaction of the City Engineer, agrees to
dedicate said improvements to the public and for public streets.
2. The OWNER, as required by DR 91-044, agrees, covenants, and promises
to reimburse the CITY for the actual costs reasonably incurred by the CITY in constructing and
installing the improvements herein set forth (the "Reimbursement Amount") at a time satisfactory
to the CITY, provided, however, that the OWNER shall not be required to reimburse the CITY
the Reimbursement Amount before July 1,1995, or within such further period of time as is
hereafter specified by the CITY, or such extended period of time which may have been specified
by the CITY:
(a) When the City Council has initiated assessment proceedings over an
area between intersecting streets on both sides of the street upon which the Property has
frontage; or
(b) When owners of more than 60% of the frontage, between
intersecting streets on both sides ofthe street upon which the Property has frontage, have
petitioned the CITY to form an improvement district for the improvement of said streets
and the CITY initiates such proceedings.
3. That for the faithful performance ofthe promises and covenants herein
contained, the OWNER hereby grants to the CITY a lien upon the Property, and in the event the
OWNER, his/her successors, heirs, assigns, or transferees fail to reimburse the CITY the
Reimbursement Amount within thirty (30) days after written demand to do so, he/she agrees that
the CITY may do all of the following:
(a) Charge the Reimbursement Amount against said Property. Said
cost and expense shall be payable by said OWNER, his/her successors, heirs, assigns or
transferees, immediately upon completion of said improvements, and in the event the same
is not paid within thirty (30) days after written notice ITom the CITY to the OWNER of
said completion, the CITY may foreclose said lien as provided by law for the foreclosure
of mortgages, and the OWNER agrees that the amount of said lien shall include
reasonable attorney's fees which shall be taxed as a cost in any suit for such foreclosure.
(b) Pursue any other remedy, legal or equitable by law for the
foreclosure of a lien, and the OWNER, his/her heirs, successors, assigns and transferees
shall pay reasonable attorney's fees to be taxed as a cost in said proceedings.
4. That it is agreed that anything herein contained to the contrary
notwithstanding, the promises and covenants made herein shall not be binding upon the holders,
mortgagees, or beneficiaries of any purchase money mortgage or trust deed, for value which has
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'been or may in the future be executed by the OWNER, his/her heirs, successors, representatives,
assigns, or transferees, and the lien hereby created shall be and is hereby subordinated to and
declared to be inferior and subsequent in lien to the lien of any such purchase money mortgage or
trust deed, The lien hereby created shall likewise be of no force or effect against any owner whose
title to the Property is acquired by or as a result of a foreclosure or trustee's sale of any such first
mortgage or first trust deed
5. That at any time during the period herein provided, the OWNER, his/her
heirs, successors, representatives, assigns, or transferees, may place a cash deposit or post a form
of surety satisfactory to the CITY to charge said surety with the cost of said improvements, the
amount of security to be the estimated cost of improvements, as ascertained by the City Engineer
at the time of the request, and that upon deposit of said cash or posting of said surety, the CITY
agrees to release the Property, or any portion of it under single ownership, from the provisions of
the Agreement, and to execute any necessary release to enable the OWNER, his/her heirs,
successors, representatives, assigns, or his/her transferees to clear the record title of the Property
so released of the lien herein imposed.
6. As provided in this Agreement, the OWNER will reimburse the CITY the
actual cost and expense of constructing the following improvements:
OLIVENHAIN ROAD
1. Curb and gutters, 670 lineal feet along the Property,
2. Sidewalk, 670 lineal feet along the Property, 5 feet wide.
3. 24 feet of roadway pavement, 670 lineal feet along the Property.
4. Not reimbursable is work performed outside the 670 lineal feet ofthe Property,
earthwork, bridgework and work on the side of Olivenhain opposite the Property.
EL CAMINO REAL/OLIVENHAIN ROAD/LEUCADIA BOULEVARD INTERSECTION
1. An eight and 3/10 percent (8.3%) share in the total cost of the following improvements to
the EI Camino Real/Olivenhain Road/Leucadia Boulevard intersection:
(A) Curb, gutter, paving, and side walk ITom:
(I) 1+91.12 PCR Olivebain Road to 28+86.14 PCR Leucadia Boulevard; and
(2) 80+ 11.65 PCR EI Camino Real to 82+14.72 PCR El Camino ReaL
(B) Traffic signal improvements.
(C) Undergrounding and relocation of utilities within the limits specified in (A) above.
(D) Grading within the limits specified in (A) above.
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1291
(E) Drainage facilities within the limits specified in (A) above.
(F) Bridge widening improvements from the connection to the Leucadia Boulevard
bridge easterly across EI Camino Real to the east terminus of the structure.
OWNER:
HOME DEPOT u.SA, INC., a Delaware
corporation
~~~~
~ Title: (ovþlJYM-t CO1; v1SeA -
VJe<;,ÞVl )\' V IS I UVì
CITY:
CITY OF ENCINIT AS
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'STATE OF )
O¡¿ft1v~¡¿ ) ss.
COUNTY OF )
On <;fp+-ewdwvICJ !~1~beforeme, Jfal1l1.etf-e (YlCc(Cttn,a
Notary Public in and for said state, persona'ily appeared Dðl1 ~( R. J.!--tÞk.h , personally
known to me (or proved to me on the basis of satisfactory evidence) 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 the entity upon
behalf of which the person acted, executed the instrument.
WITNESS my hand and official seaL
OFFICIAL NOlARv SEAL
Ji","NEllE MC CLAIN
N,J,", , Public.. CEdl/ornl.
')CI.,NCE COUNTY
M, CO",'" boice, NOVO41Ð94
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94257002.DOC/DWW /AO045-136/09-14-94/gtb
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EXHIBIT U Au TO 1293
AGREEMENT FOR IMPROVEMENTS
IN PUBUC RIGHT-OF-WAY
PROJECT NO, TM 91-{)44
lliE PROPERTY REFERENCED BY lliIS AGREEMENT IS DESCRIBED AS FOLLOWS:
PARCEL 1
THAT PORTION OF LOT 8 IN SECTION 2, TOWNSHIP 13 SOUlli, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, LYING WESTERLY OF lliE WESTERLY LINE OF
THE RANCHO LOS ENCINITAS AND THE NORTHWEST QUARTER OF THE
NORlliEAST QUARTER OF SECTION 11, TOWNSHIP 13 SOUlli, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, ALL BEING IN THE CITY OF ENCINITAS,
COUNTY OF SAN DIEGO, STATE OF CAUFORNIA, ACCORDING TO OFFICIAL PLAT
lliEREOF.
EXCEPTING THEREFROM lliOSE PORTIONS THEREOF DESCRIBED IN DEED TO lliE
COUNTY OF SAN DIEGO, ROAD SURVEY NO. 1800-1, RECORDED NOVEMBER 28,1969
AS FILE NO. 217326 OF OFFICIAL RECORDS.
ALSO EXCEPTING THOSE PORTIONS LYING WESTERLY OF THE EASTERLY LINE OF
THE 90 FOOT STRIP OF LAND DESCRIBED IN PARCEL NO. 67083-A IN SAID DEED TO
THE COUNTY OF SAN DIEGO, RECORDED NOVEMBER 28, 1969 AS FILE NO. 217326 OF
OFFICIAL RECORDS.
ALSO EXCEPTING THAT PORTION OF SAID LOT 8 LYING NORTHERLY OF THE
SOUTHERLY UNE OF iliA T CERTAIN 60 FOOT STRIP OF LAND DESCRIBED IN PARCEL
NO. 61294-B IN DEED TO THE COUNTY OF SAN DIEGO, RECORDED SEPTEMBER 28,
1961 AS FILE NO. 169289 OF OFFICIAL RECORDS, KNOWN AS ROAD SURVEY NO. 1631.
PARCEL 2
LOT 24, CITY OF ENCINITAS TRACT NO. 87-{)Q6, MAP NO. 12433, RECORDED JULY 31,
1989, IN lliE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.