2005-1105542
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W RECORDING REQUESTED BY:
1 VI Deborah Cervone
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1././1 AFTER RECORDING MAIL TO:
City Clerk
City of Encinitas
S. Vulcan Avenue
Encinitas, CA 92024
D~# 2005-11 05542
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DEe 27, 2005
3:51 PM
OFFICl.o.L RECORD',;
'~,':::',~,J DIECiO CDUNT'( RECOF:D:R'S OFFICE
CiF:ECiORY J '3MITH COUNTY RECDF:DER
FEES 2500
P6J.1ES 7
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HISTORIC PROPERTY PRESERVATION AGREEMENT
THIS AGREEMENT is made and entered into by and between the CITY OF ENCINITAS, a
municipal corporation ("CITY"), and Anthony and Erin Smith, ("Owner(s)").
Recitals
WHEREAS, California Government Code Section 50280, et seq. Authorizes cities to enter into
contracts with the owner(s) of qualified historical property to provide for the use, maintenance, and
restoration of such historical property so as to retain its characteristics as a property of historical
significance.
WHEREAS, Owner(s) possesses fec titl, in and to thai certain real propt.rty, together with
associated structures and improvements thereon, Assessor Parcel No.256-411-61-00, located at the street
address 221 Sunset Drive, Encinitas, California (the "Historic Property").
WHEREAS, On December 14,2005, the City Council of the City of Encinitas adopted
Resolution 2005-61 thereby declaring and designating the above property as a Historical Property
pursuantto the terms and provisions of Resolution 2003-68, Administration of the Mills Act Contracts.
WHEREAS, both the City and Owner( s), for their mutual benefit, now desire to enter into this
agreement both to protect and preserve the characteristics of historical significance of the Historicall
Property and to quality the Historic Property for an assessment of valuation pursuant to the Provisions of
Chapter 3, of Part 2, of Division I of the California Revenue and Taxation Code.
Agreement
NOW, THEREFORE, both the City and Owner(s), in consideration of the mutual covenants and
conditions set forth herein and the substantial public benefits derived therefrom, do hereby agree as
follows:
1. Compliance with Council Policv. Owner(s) shall comply with City Council Resolution
number 2005-61 incorporated herein by this reference.
2. Applicability of Government Code and Revenue and Taxation Code. This Agreement is made
pursuant to Article 12 (commencing with section 50280) of Chapter I, of Part I, of Division I, of Title 5
of the California Government Code and Article 1.9 (commencing with section 439) of Chapter 3, of part
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2, of Division I of the California Revenue and Taxation Code and is subject to all of the provisions of
these statutes.
3. Preservation ofProoertv. The Owner(s) agree to preserve and maintain the designated historic
resource on the Historic Property, and when necessary, to restore and rehabilitate the property to conform
to the rules and regulations published by the Secretary of the Interior's Standards for Rehabilitation and
Guidelines for Rehabilitating Historic Buildings. In particular, the Owner(s) agree to make all of the
improvements identified in Attachment "A" during the initial term of this Agreement. The Owner(s) shall
obtain a Historic Resource Alteration permit from the Historic Resource Commission (Planning
Commission) prior to obtaining a building permit for any addition to, or alteration to the exterior of the
Historic Resource.
4. Insoections. The Owner(s) agree to permit the periodic examination of the Historic Property,
by prior appointment, by the City, The County Assessor, the Department of Parks and Recreation, and the
State Board of Equalization as may be necessary to determine the Owner(s') compliance with this
Agreement.
5. Visibility ofProoertv. The Owner(s) agree to allow for the visibility of the historic resource on
the Historic Property from the public right-of-way(s).
6. Term of Agreement. This Agreement shall be effective and shall commence on the date this
Agreement is approved by the City Council and shall remain in effect for a term often {I 0) years
thereafter.
7. Automatic Renewal. Each year on the anniversary of the effective date of this Agreement
("Renewal Date"), a year shall automatically be added to the ir,itial term of this Agreement unless notiGe
of non-renewal is mailed as provided herein.
8. Notice of Non-renewal. If either Owner(s) or City desires in any year not to renew the
Agreement, that party shall serve written notice of non-renewal on the other party. If the Owner(s) elect to
serve a notice of nonrenewal, the notice must be served on the City at least ninety (90) days prior to the
Renewal Date, otherwise one (I) additional year shall automatically be added to the term of this
Agreement. Conversely, if the City elects to serve a notice ofnonrenewal, the notice must be served on
the Owner(s) at least sixty (60) days prior to the Renewal Date, otherwise one (I) additional year shall
automatically be added to the term ofthis Agreement. Upon receipt by the Owner(s) of a notice of
nonrenewal from the City, the Owner(s) may make a written protest of the nonrenewal. The City may, at
any time prior to the Renewal Date, withdraw its notice of nonrenewal.
9. Effect of Notice ofNonrenewal. If, in any year, either party serves a notice ofnonrenewal as
provided in Paragraph 8 above, this Agreement shall remain in effect for: (1) the halance of the period
remaining under the initial term of this Agreement; or (2) the balance of the period remaining sincl~ the
last automatic renewal, whichever the case may be.
10. Cancellation. The City, following a duly notice public hearing as set forth in California
Government Code Section 50280; et seq., may cancel this Agreement ifis determines that the Owner(s)
has breached any of the conditions of this Agreement or has allowed the property to deteriorate to the
point that it no longer meets the standards for a qualified historic property. In addition, the City may
cancel this Agreement if it determines that the Owner(s) has failed to restore or rehabilitate the property
in the manner specified in this Agreement. In the event of cancellation, Owner(s) shall pay a cancdlation
fee as set forth in the California Government Code Section 50280, et seq. (fees are currently equal to
12.5% of the current fair market value of the property).
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II. Enforcement of Agreement. In lieu of and/or in addition to any provisions to cancel the
Agreement as referenced herein, City may specifically enforce, or enjoin the breach of, the terms of this
Agreement. In the event of the default under the provisions of this Agreement by Owner(s), City shall
give written notice to Owner(s) by registered or certified mail addressed to the address stated in this
Agreement, and if such a violation is not corrected to the reasonable satisfaction of the City within thirty
(30) days thereafter, or if not corrected within such a reasonable time as may be required to cure the
breach or default if said breach or default cannot be cured within thirty (30) days provided that acts to
cure the breach or default may by commenced within thirty (30) days and must thereafter be diligt:ntly
pursued to completion by Owner(s), then City may, without further notice, declare a default under the
terms of this Agreement and may bring any action necessary to specifically enforce the obligations of
Owner(s) growing out of the terms of this Agreement, apply to any court, state or federal for injunctive
relief against any violation by Owner(s) or apply for such relief as may be appropriate.
City does not waive any claim of default by Owner(s) if City does not enforce or cancel this
Agreement. All other remedies at law or in equity, which are not otherwise provided for in this
Agreement or in City's regulations governing historic properties are available to the City to purSUl~ in the
event that there is a breach of this Agreement. No waiver by City of any breach or default under tllis
Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereinunder.
12. Binding Effect of Agreement. The Owner(s) hereby subjects the Historic Property to the
covenants, conditions, and restrictions as set forth in this Agreement. City and Owner(s) hereby dl~clare
their specific intent that the covenants, conditions, and restrictions set forth herein shall be deemed
covenants running with the land and shall pass to and be binding upon the Owner(s') successors and
assigns in title or interest to the Historic Property. Each and every contract, deed or other instrum(mt
herein executed, covering on conveying the Historic Property, or any portion thereof, shall conclusively
be held to have been executed, delivered, and accepted subject to the covenants, conditions, and
restrictions expressed in this Agreement regardless of whether such covenants, conditions, and restrictions
are set forth in such contract, deed or other instrument.
City and Owner(s) hereby declare their understanding and intent that the burden of covenants,
conditions, and restrictions set forth herein touch and concern the land in that Owner(s) legal interest in
the Historic Property in rendered less valuable thereby. City and Owner(s) hereby further declare their
understanding and intent that the benefit of such covenants, conditions, and restrictions touch and concern
the land by enhancing and maintaining the historic characteristics and significance of the Historic
Property or benefit of the public and Owner(s).
13. Notice. Any notice required to be given by the terms of this Agreement shall be provided at
the address of the respective parties as specified below or at any other address as may be later specified
by the parties hereto.
To City: City Clerk
City of Encinitas
505 S. Vulcan Avenue
Encinitas, CA 92024
To Owner(s): Anthony and Erin Smith
P.O. Box 676287
Rancho Santa Fe, CA 92067
G:/Kathy Noel/Historic PreservationlMills Act Contract.doc
Page 3 of7
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14. General Provisions.
a. None of the terms, provisions or conditions of this Agreement shall be
deemed to create a partnership between the parties the parties hereto and any of
their heirs, successors or assigns nor shall such terms, provisions or conditions
cause them to be considered joint ventures or members of any joint enterprise.
b. Owner(s) agrees to and shall hold City and its elected officials,
officers, agents, and employees harmless from liability for damage or claims for
damage for personal injuries, including death, and claims for property damage
which may arise from the direct or indirect use or operations of Owner( s) or those
of his contractor, subcontractor, agent, employee or other person acting on his
behalf which relate to the use, operation and maintenance of the Historical
Property. Owner(s) hereby agrees to and shall defend the City and its elected
officials, officers, agents, and employees with respect to any and all actions for
damages suffered, or alleged to have been suffered, by reason of the operations
referred to in this Agreement regardless of whether or not the City prepared.,
supplied or approved the plans, specifications or other documents for the Historic
Property.
c. All of the agreements, rights, covenants, conditions, and restrictions
contained in this Agreement shall be binding upon and shall inure to the benefit of
the parties herein, their heirs, successors, legal representatives, assigns, and all
persons acquiring any part or portion of the Historic Property, whether by
operation oflaw or in any manner whatsoever.
d. In the event legal proceedings are brought by any party or parties to
enforce or restrain a violation of any ofthe covenants, conditions or restrictiions
contained herein, or to determine the rights and duties of any party hereundl:r, the
prevailing party in such proceeding may recover all reasonable attorney's fe,es to
by fixed by the court, in addition to, court costs and other relief ordered by the
court.
e. In the event that any of the provisions of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, or by subsequent
preemptive legislation, the validity and enforceability of the remaining provisions,
or portions thereof, shall not be effected thereby.
f. This Agreement shall be constructed and governed in accordance with
the laws of the State of California.
15. Recordation. No later than twenty (20) days after the parties execute
and enter into this Agreement, City shall cause this Agreement to be recorded in
the office of the County Recorder of the County of San Diego.
16. Amendments. This Agreement may be amended, in whole or in part,
only by a written-recorded instrument executed by the parties hereto.
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ATTACHMENT A
HISTORIC PROPERTY PRESERVATION AGREEMENT
REINVESTMENT OF TAX SAVINGS
Being that the property at 221 Sunset Drive, Encinitas, CA 92024 is in excellent condition and has good
quality construction, the City is not proposing any requirements of the owners to reinvest monies trom
their tax savings back into the property maintenance.
PERIODIC INSPECTIONS
There will be a routine visual site inspection performed every five (5) years by a City staff person to
reconfirm the condition and upkeep of the exterior of the home as well as to verify that routine
maintenance of the home is being performed. Should any other inspections be required, any associated
costs will be covered by the owner(s).
First inspection performed by City staff on:
November 15,2005
ADDITIONS AND FUTURE WORK
Should their be any proposed additions to the home, the additions must be consistent with the original
home and must be like in color, design, and materials. Any structural changes will also require the review
of an historical consultant to check for consistency with the original home. Any associated fees shall be
covered by the owner( s).
Any future work to the home will be required to be reviewed by the following:
Planning Commission-
Exterior changes requiring a permit such as, but not limited to, changing exterior
windows and any additions.
Planning and Building Staff-
Interior changes requiring a permit such as, but not limited to, electrical, plumbing, and
re-roofing.
Standard and routine maintenance does not require City review. No public notice will be required for
work done to the property.
G:/Kathy Noel/Historic Preservation/Mills Act Contract.doc
Page 5 of6
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IN WITNESS WHEREOF, CITY and OWNER(S) have executed this
Agreement as of the date set forth below.
CITY OF ENCINIT AS, a Municipal Corporation
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Mayor
ATTEST:
~QLiA ~r~~
eborah Cervone, CIty Clerk
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Date
OWNER(S)
Dated: I j. /2,", / D .~.
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By. /"'\f'I~/'< 4'.a...
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Dated: /2-/2-<1>/0> By: A-..~" '/ ~r(:~ ~
v7T/7fJ/';'. c;377/7.."""'-
OWNER(S) PLEASE HAVE NOTARY PUBLIC ATTACH A SEPARATE PROOF OF NOTARY PAGE
WITH SIGNATURE AND SEAL.
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t....""'...~.......,........_...~ ..;/ ~~
, .,,,,,.:c, K~THE E ELISE NOEL
.;- r&~~:;:"~j~i.;'~, ~tSsio.n # 13i',1623 z
~ G-(P~..' tl /'\Jo..ary Public - California ~
J ~n"1 ./. San Diego COUI1ty ~
j.."::"_ My Comm Expires Aug 24, 2006
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State of California
County of San Diego
On PeiA'?"'t'ibef2.- u. -t-"(J c;-
before me, Katherine Elise Noel, Notary Public,
personally appeared f';jZ-t Iv c:;M 1m MJ1) A-t\J1H~NYf: <;;;1\1 t fit
o personally known to me
I!Y'proved to me on the basis of satisfactory evidence
to be the persons whose names are subscribed to the within instrument and acknowledged to me
that they executed the same in their authorized capacities, and that by their signatures on the
instrument the persons, or entity upon behalf of which the persons acted, executed the
instrument.
WITNESS my hand and official seal.
iifw~~ ~ IV~Q
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~~/ ,...~ commission#137'~~;~ r
i ;~:;.. . ""lj Notary Public - California ~
~ ' , '/' San Diego coun~y
':~~~ My Comm. Expires Aug :24, 2006
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G:/Kathy Noel/Historic PrcservationlMil1s Act Contract.doc
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