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1994-655368 c • a C~ p 1 FJaia-1 9 '4 11 = out M 742 Recording Requested By: ) "-tH N Ith r.rJ11'NTJ E~ 06.CE^ OFFICE When Recorded Mail To: ? QTY CIjF'DEF' City Engineer j 1 'i `FE K City of Encinitas ) 505 South Vulcan Avenue ) Mr Encinitas, CA 92024 ) AGREEMENT FOR IMPROVEMENTS IN PUBLIC RIGHT-OF-WAY (LIEN CONTRACT) Assessor's Parcel Project No. :-EN 94-550 No. 29R-i90-2i This AGREEMENT executed this 3rd day of October , 199 4, by and between Robert J. T.,sitana, James G Austin and _Stephen D. Timmons 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 WHEREAS, the OWNER is currently proposing conversion of an Pxistinq a orage building to retail use WHEREAS, the property is adjacent to an incomplete street, and WHEREAS, the improvement will generate more traffic and the OWNER has agreed to provide the right-of-way and/or improvements in accordance with Title 24 of the City of Encinitas code, and WHEREAS, pursuant to Title 24 of the City of Encinitas code, the City Engineer has recommended that construction of those improvements required by the CITY to be constructed by the OWNER be postponed and that the OWNER be required to execute an agreement to construct 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 WHEREAS, the OWNER is agreeable to the execution of such an agreement; bp3753a 743 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, in lieu of makinq_the improvements specified herein, and required by Chptr 23.36 of Municipal Code _ agrees, covenants, and promises that he/she will install, construct, or cause to be installed or constructed the improvements herein set forth at a time satisfactory to the CITY, provided, however, that the OWNER shall not be required to complete said improvements before October 3, 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 herein described has frontage; or b) When owners of more than 60% of the frontage, between intersecting streets on both sides of the street upon which the property herein described has frontage, have petitioned the CITY to form an improvement district for the improvement of said streets and the CITY initiates such proceedings. Such improvements shall be made without cost or expense to the CITY. The CITY estimates that the cost of construction of said improvements at the time of the signing of this Agreement is $ 3,760.00 (Exhibit "B"). The OWNER hereby acknowledges that said cost is a reasonable estimate of construction costs at this time and that the actual cost of said improvements at some time in the future may exceed this estimate; and the OWNER hereby agrees that his/her obligation under this Agreement extends to the actual cost of construction of said improvements, notwithstanding it may exceed such estimate. 3) That for the faithful performance of the promises and covenants herein contained the OWNER hereby grants to the CITY a lien upon the property herein described, and in the event the OWNER, his/her successors, heirs, assigns, or transferees fail to install and construct said improvements in the manner and within the time specified herein, he/she agrees that the CITY may do all of the following: a) Install and construct said improvements by contract or otherwise, and grant permission to the CITY or its contractor and his/her employees to enter upon any bp3753a 744 portion or portions of the property reasonably necessary for said construction, and the entire cost and expense of said improvements shall be charged 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 from 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) Direct the City Engineer to estimate the cost of the work required to complete said improvements and foreclose said lien in said amount. C) Foreclose said lien as a mortgage. d) 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 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 herein described 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. bp3753a 745 6) The OWNER will cause to be constructed, in accordance with CITY standards, at his sole cost and expense, the following improvements: 1) Curb and gutters, lineal feet. Face of curb to be located feet from the centerline. 2) Sidewalk, 1.107 square feet.., 3) driveway(s), feet wide. 4) Roadways, 5) Drainage: as required. 6) Other: a) Clearing and grubbing, as required. b)€x+x~I4xX&R~~fx c) Plant 2 Mexican Fan Pal - d) 0 Bert sitana l Jam A~~ • h SteLp'Re'th D. immonss Signature of owners to be notarized. Attach the appropriate acknowledgements. C I TY~~F~E'-N~CjI NN/I TAS City Manager I bp3753a CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT? N. 5193 State of - l OPTIONAL SECTION } CAPACITY CLAIMED BY SIGNER County of ? ) 7 Though statute does not require the Notary to fill i the data below, doing may prove C1n ~Dl before me, inI uable to persons relying on the document. DATE, &Z NAME, TITLEOFOFFIGER-E.G.JAN DOE N~7OTARY/PUBLIC" jo INDIVIDUALS personally appeared j Omt I'll 1(^^ o CT F[ ST ❑ CORPORATE OFFICER(S) p _ j ~/AA~E(SyC1F SIGNERIS)~ - ' Y~" N I I ,'N! M1 O Yt TITLE(S) ❑ personally known to me - -'proved to me on the basis of satisfactory evidence., ❑ PARTNER(S) ❑ LIMITED / to be the person(s) whose name(s) is(!Lro ❑ GENERAL subscribed to the within instrument and ac- ❑ ATTORNEY-IN-FACT knowledged to me that he/s13t ecuted ❑ TRUSTEE(S) °f~pA` the same in his/her hoq d E] pTHURP.AROIALLA GUARDIAN/CONSERVATOR g; NOTARVPUBUGGiIIPORNM capacity(ies), and that y his/he thel Fc CCMM, NUMBER 1005.122 ❑ OTHER: lI SAN UIE00 COUNTY signature(s) on the instrument the person(s), MYCOMM IXP JAN 7.1 or the entity upon behalf of which the person(s) acted, executed the instrument. - ddd,,, SIGNER IS REPRESENTING: WITNESSylhandaand~ official eal. NAME OF PERSON(S) OR ENTITV(IES) SIGNATURE OF NOTARY i OPTIONAL SECTION THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE OF DOCUMENT THE DOCUMENT DESCRIBED AT RIGHT: NUMBER OF PAGES DATE OF DOCUMENT Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form. SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION • 8236 Remmet Ave., P.O. Box 7184 • Canoga Park, CA 91 309-71 84 A • 74 7 EXHIBIT A Parcel 9 of Parcel Map No. 12092, in the City of Encinitas, County of San Diego, State of California, according to Map thereof, filed in the Office of the County Recorder of San Diego County, May 6, 1982, being a division of a portion of the Atchison, Topeka, and Santa Fe Railway Companys station grounds in Section 16, Township 13 South, Range 4 West, San Bernardino Meridian, according to official Plat thereof. EXHIBIT "B" 0 CITY OF ENCINITAS • ESTIMATE OF QUANTITIES AND COST ?48 Reference 99 Fact- "F" St Area Road_ Quantities by Date 8-15-94 Estimate By w00 _ Date No. Quantity Unit Item Unit Price Amount Sidewalk 2.90 3,210 2 2 each Mexican Fan Palm 275.00 550 This is an ESTIMATE ONLY. Quantities, units and sizes may be modified and are subject to the approval of TOTAL the final engineering plans by the City Engineer. 3 760 Remarks: