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2010-647129D 0 C # 201 0-06471 29 1111111111111111111111111111111111111111111111111111111111 IN NOV 23, 2010 3:37 PM Recording Requested By: ) OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE City Engineer ) DAVID L. BUTLER, COUNTY RECORDER FEES: 31.00 When Recorded Mail to: ) PAGES: 6 City Clerk City of Encinitas 1111111111111111111111111101111111111111111111111111111111 IN IN 505 South Vulcan Avenue ) Encinitas CA 92024 ) SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT FOR PAYMENT OF WASTEWATER DISCHAGE CAPACITY FEES APNs: 265-023-61 Project 08-057 MUP Bldg Permit: 09-868 & 09-1119 THIS AGREEMENT is between the City of Encinitas hereinafter referred to as "The City", and Henry G Kurtz and HKJS LLC a California Limited Liability Corporation together and individually referred to as ``Owner". This agreement is to defer the payment of Wastewater Discharge Capacity Fees hereinafter referred to as "Fees" for the proposed additions to Olivenhain Guest Home located at 350 Cole Ranch Road, Building Plan Check No. 09-868 & 09-1119, Major Use Permit 08-057, hereinafter referred to as "Property". A complete description of said "Property" is attached hereto and made a part hereof as Exhibit "A". The tennis of this agreement is binding upon Henry G. Kurtz and HKJS LLC. independently and jointly and any future owner(s) of the Property. WHEREAS, The Fees are due prior to issuance of building permit in the City of Encinitas, and WHEREAS, The Owner desires to delay payment of Fees before issuance of the building occupancy,and WHEREAS, The Owner agrees and understands no occupancy permit will be issued by the City of Encinitas unless the Fees are paid in full, and WHEREAS, The City of Encinitas agrees to defer payment of the Fees to facilitate development of the proposed addition only if the Owner guarantees payment prior to issuance of building occupancy, and WHEREAS, it is the intention of the Owner and The City that this Agreement constitute a covenant running with the land, binding upon successive owners of the property, NOW THEREFORE, IT IS HEREBY AGREED FOR VALUABLE CONSIDERATION AS FOLLOWS: The Property is benefited by this Agreement, and it is understood and agreed that Owner and each and every person who shall at anytime own all or any portion of the property referred to herein are expressly bound hereby for the benefit of the land, and that the covenants herein contained shall be binding on the heirs, executors, administrators, successors, and assignees of each of the Owner. 2. Total Fees are $48,931.44 which must be paid in full prior to the building occupancy. Additional Charges may need to be assessed based on the actual dates of the building permit issuance and building permit occupancy. 3. Deferring of the Fees is rarely allowed for any development projects in the City of Encinitas. Therefore there is no established policy or procedure to alert the City staff to collect the Fees at the building occupancy. It is the Owner responsibility to assure that Fees are paid before the building occupancy. Otherwise the Owner is responsible for payment of Fees, and payment of a late fee which is 10%, of the total Fees. Interest shall be paid for payments that are more that thirty. days past due based on the annual percentage rate of 7%. 4. The Owner shall jointly and severally defend, indemnify, and hold harmless City, City's engineer and its consultants and each of its officials, directors, officers. agents and employees from and against all liability, claims, damages, losses. expenses, delays, including costs of defense and attorney's fees 5. City, City's engineer, and its consultants, and each of its officials, directors, officers, employees and agents, shall have no responsibility or liability relative to deferment of the Fees. 6. In the event the Owner, its successors and assigns, fails to pay the Fees prior to the building occupancy, the City reserves the right to file an assessment lien on the real property with the County Recorder of County of San Diego for the Fees, Late fees, interest, administration and attorney's costs. 7. Unless the Fees are paid prior the building occupancy, it is the purpose of the signatories hereto that this instrument be recorded to the end and intent that the obligation hereby created shall be and constitute a covenant running with the land and any subsequent purchaser of all or any portion thereof, by acceptance of delivery of a deed and/or conveyance regardless of form, shall be deemed to have consented to and become bound by these presents, including without limitation, the right of any person entitled to enforce the terms of this Agreement to institute legal action as provided in this Agreement, such remedy to be cumulative and in addition to other remedies provided in this Agreement and to all other remedies at law or in equity. 2 8. The City Engineer at his own discretion may allow further deferment of the payment of the Fees only if this agreement is replaced with another agreement stipulating new terms and conditions and signed by the Owner and the City Engineer. 9. This Agreement shall be governed by the laws of the State of California. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent Jurisdiction, the validity, and enforceability of the remaining provisions shall not be affected thereby. IN WITNESS WHEREOF, the parties have executed this Agreement This ~7 r- day of IVeyt su ~t~ 2010 by: OWNER: 1 f f / -,H 'ry G. Ku z, l a ager Date 42,3 HKJS, LLC., Owner : THE a Peter Cota-Robles Date City Engineer Signature of Owner and The City must be notarized. Attach the appropriate acknowledgement. Exhibit "A" Legal Description of Property LOTS 17, 18, 36, 37, 38, 39, 40, 41, AND 42 OF THE RESUBDIVISION OF BLOCKS 31,36 AND 42 OF COLONY OLIVENHAIN, IN THE CITY OF ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 287, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 21, 1885. TOGETHER WITH THAT PORTION OF THE ALLEY IN SAID BLOCK 31, VACATED AND CLOSED TO THE PUBLIC USE BY ORDER OF THE BOARD OF SUPERVISORS RECORDED APRIL 16, 1974 AS FILE/PAGE 74-95662 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY, ADJOINING SAID LOTS. ALSO TOGETHER WITH THE NORTHWESTERLY 12.00 FEET OF E STREET LYING SOUTHEASTERLY OF AND ADJACENT TO SAID LOTS 36, 37, 38, 39, 40, 41 AND 42 AS VACATED AND CLOSED TO THE PUBLIC USE BY ORDER OF THE CITY COUNCIL OF SAID CITY OF ENCINITAS RECORDED JUNE 23, 1988 AS DOCUMENT NO. 88-301589 OF SAID OFFICIAL RECORDS OF SAN DIEGO COUNTY. ALL AS DESCRIBED IN CERTIFICATE OF COMPLIANCE RECORDED AS DOCUMENT NO. 2009-0649069 ON NOVEMBER 20, 2009 IN THE OFFICE OF THE RECORDER OF SAN DIEGO COUNTY. 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County oc:i~ On :ZO iO before me, X~ yai~/« rJ2d7~1'~ !°Ua~'~/C Date Here Insert Name an Title of the Officer personally appeared ~F Xlef V' C,4~ 7 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)(:Qhre subscribed to the within instrument and acknowledged to me that 4!e/he/they executed the same in r/their authorized capacity(ies), and that by pis~e heir signature(s) on the instrument the RANOA G. MILUI)UR r/t Commission 01709664 < person(s), or the entity upon behalf of which the Notary Public - ca~o^"am person(s) acted, executed the instrument. San Diego County My on Exp. Jan. 6, 2011 I certify under PENALTY 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: Place Notary Seal Above Signat OPTIONAL ure Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another 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): ❑ Individual ❑ Partner - ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Corporate Officer - Title(s): ❑ Individual ❑ Partner - ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing 0 2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of, zx" On XV- 3, ~1"~JIJ before me, ,wow 6- A/& 44N )4 kd;~Oc Date Here Insert Name and Title of the Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)(gare subscribed to th ;within instrument and acknowledged to me that he/they executed the same in 9her' erthe ir 5Qhorized capacity(ies), and that by A G. W- ~ their signature(s) on the instrument the #17096" < son(s), or the entity upon behalf of which the RNtart' PI116Ifc - CaUoraia person(s) acted, executed the instrument. san apo ca!uaty MY Exp. Jan. 6, 2011 I certify under PENALTY 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:~a,t1 Place Notary Seal Above SignatYc NotaryPubic OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another 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: ❑ Corporate Officer- Title(s): ❑ Individual ❑ Partner - ❑ Limited ❑ Attorney in Fact ❑ Trustee ❑ General Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing Signer's Name: Number of Pages: ❑ Corporate Officer - Title(s): ❑ Individual ❑ Partner - ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing ©2009 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907