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HomeMy WebLinkAboutBP 77-28; Smalley, Carl and Rosemary; 77-246937; Future Improvement Agreement/Release1 -.- -_.-- .._I____ . -1 A , * . . 3.3’7 - . l R;CORDlNG REQUESTED BY AND ) * . WHEN RECORDED MAIL TO: ! City of Carlsbad 1200 Elm Avenue Carlsbad, CA 22008 - LE/PhGE ,G~+HK37 u I BOOK i977 ^'+-' r R~COROECREOIJESTU~ @DRESSEE Space above this line for Recorder’s * use . . . Documentary. t rans’fer tax: $No fee yo FEE .FwL Signature of declarant determining tax- firm name City of Carlsbad Parcel No. 216-220-07 0 .d CONTRACT FOR FUTURE rjUl3LlC IMPROVEMENTS THIS AGREEMENT is made by the c’ity of Carlsbad, a municipal corpofation, hereinafter referred to as “City”, and Carl E. Smalley and Rosemary Smalley, Trustees under hereinafter referred to as “Proper- Declaration of Trust dated Septembek 4, 1969 t y Owner”, RECITALS: - WHEREAS, Property Owner has applied to City for a . ’ Building Permit No. 77-288 for the real property hereinafter described, now under Property Owner’s ownership; and . . WHEREAS, it’has ‘been’ found that said property is not suitable ’ for development in its present condition; however said property would be suitable for development if certain pub1 ic improvements hereinafter described are constructed and certain irrevocable offers of dedication L are made ‘to City; and , WHEREAS, the Municipal Code of City, Chapter 18.40 requires certain improvements and dedications as a condition of approval of this Building Permit; and WHEREAS, Property Owner has requested said Building Permit be granted by City in advance of the time said improvements are to be made; and . WHEREAS, Property Owner, in consideration of the approval of i d “” f i : . 1 333 said Building Permit desires to enter into this agreement securing the construction of said improvements, and City has determined . it to be in the public interest to agree to temporarily postpone said . construct ion; NOW, THEREFORE, IT IS AGREED between the parties hereto as . follows: . . . . Section 1.’ That City agrees to record any irrevocable offers of dedication made by Property Owner for Building Permit No. 77-288 Sect ion -2. That Property Owner, in lieu of making the herein- ‘.’ after described improvements-before approval of said Building Permit is granted, agrees to-install and construct, or cause to be installed or constructed, said improvements in accordance with plans and specifi- cations approved by the City Engineer within 60 days after written demand so to do by City. Property Owner shall not be requi red to make said improvements before July 1, 1978 qr within such further period of ti.me as is granted by City, provided, however, that upon the happening of either of the foliowing occurrences said improvements may, at the sole , election of City, be required to be made sooner than said date or such extended period o? time which may have been granted,by City: (a) When the City Council finds that the owners of 40%. or more of the frontage, including the frontage of Property Owner, between inter- secting streets on both sides of the street upon which the property herein described has frontage, have agreed with City to install street impr-ove- ments to City specifications, . (b) .When owners of more than 50% 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. Said improvements shal.1 be made without cost or expense to * city. City estimates that the cost of engineering and construction of . . I- said improvements at the time ,of signing this contract is $515.00 . Property Owner her&y acknowledges’ that said cost ‘is a reasonable estimate of engineerrng and construction costs at this time and that the . 2 actual cost of same at some time In the future may exceed this estimate. Section 3. That for the faithful performance of the promises (2) t 339 and covenants herein contained, Property Owner hereby grants to City a ‘t ; li’en upon the hereinafter described property in themamount of $515.00 , ‘r plus any future increases of cost in excess of this sum resulting from increased engineering and construction costs, and in the event Property Owner, his s,uccessors, heirs, assigns, or transferees fai 1 to install I and construct said improvements in the manner and within the time speci- fied herein, he agrees that City may do any or all of the following: (a) Have the necessary engineering for said improvements done, and install and construct said improvements by contract or other- wise. City or its contractor and his employees may enter upon any portion or portions of the property reasonably necessary for said engineering and construction, and the entire cost and expense shall be charged against said property and payable by said Property Owner, his successors, heirs, assigns, or transferees immediately upon completion of said improvements. In the. event same is not paid within 30 days from completion, ‘CTty may foreclbse said lien as provided by law for the foreclosure of mortgages. (b) Direct the City Engineer to estimate the cost of necessary engineering, and the work required to install and construct said, improve- ment s , and foreclose said lien in said amount. (c) Pursue any remedy, legal or equitable (including those specifically referred. to herein), for the foreclosure of a lien, and the Property Owner, his successors, heirs, assigns, and transferees, shall be liable for reasonable attorney’s fees as a cost in said-proceedings. _ : .Section 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 orpurchasemoney deed of trust for value which has been or may in the’future be executed by the Property Owner, his successors, heirs, assigns, or transferees, and the lien hereby created shall be and is hereby subordinated to and declared to be inferior and L subsequent in lien to the 1 ien of any such purchase money mortgage or purchase money deed of trust. The lien hereby created shall likewise be of no force or effect against any owner whose title to the property here- lnafter described is acquired by or as a result of a foreclosure or : * (3) i: trustees’ sale of any such purchase money mortgage or purchase money . ? deed of trust. ; . m Sect ion 5. That at any time during the period herein.provided, the Property Owner, his successors, heirs, .assigns, or transferees may deposit a cash bond or post a surety performance bond satisfactory to the City to charge sa,id surety with the cost of said improvements; the amount of bond to be the estimated cost of engineering and improvements at the time of such deposit or posting as ascertained by t,he City Engineer, and that upon deposit of said cash or posting of said bond the City ,- 4 agrees to release the property, . or any portion of it as to which said deposit or posting applies, from the provisions of this agreement, and to execute any necessary release to enable the record title of the pro- perty to be released from the lien herein imposed. Sect ion 6. Said City shall not, nor shall any officer or employee thereof, be liable’ or responsible for any accident, loss or : damage happen.ing or occurring to the work or improvements specified in - this agreement prior. to the completion and acceptance of the same, nor .shall said City, nor any officer or employee thereof, be 1 iabie for F=12Yrpersons or property injured by reason of said work or improvements, . but al.! of said liabilities shall be assumed by said Property Owner, and, his successors, heirs,‘assigns,’ and transferees, and they shall save the . City harmless from, and indemnify the City against, any and all claims, .~csuc~~ts and 1 iabi 1 it ies of or to any person or property injured or claim- ing to be injured as a result of said work or improvementsi Said Pro- perty Owner, and his successbrs, heirs, assigns, and transferees, further . agrees to protect said City and the officers and employees thereof from all liability or claim be.cause of, or arising out of, the use of any patent or.patented article in the construction of said improvements. - Sect ion 7. It is further agreed that said Property Owner will at -ali times up to the completion and acceptance of said work and im- : , provements by the City, give good and adequate warning to the traveling public of any dangerous or defective conditions of pub1 ic property. The. ., Property Owner hereby agrees to pay for such inspection.of improvements as may be required by the City Engineer of City. 4 Sect ion 8. This agreement and the covenants conta-lned herein . shall be bfndinq upon and inure to the benefit of the successors, heirs, (‘1 1 c < * ’ . . . - ;k. . assigns, and transferees of Property Owner, shall run with said real property, and create an equitable servitude upon said real property. Sect ion 9. A description of the property referred to herein and upon which said lien is imposed-is desiribed as follows: Lot'261 of La Costa South Unit No. 4, according to Map thereof No. 6545, filed in t&e Office of the County Recorder November 24, 1969. - xx . xx . . xx ?’ . xx xx . “-. xx xx i xx * >- -. . A . + ‘t * . i . L ‘C . 3cj2 ‘! * . Section 10. The required improvements to be constructed and the.estimated costs thereof are as follows: . , Improvements 1. 395 s.f. -20 Lump sum grading ' . Estimated Costs of 4" PCC sidewalk $ 415.00 ioo.00 ._ . . TOTAL COST $ 515.00 Dated: d-/y-- 77 . . CITY OF CARLSBAD, a Municipal i, 'STATE OF CALIFORNIA ) 1 ‘. ..I . 1 ss. COURTY OF SAN DIEGO ) . On 1. (977 before me the undersigned, a Notary Public in d for said'Stake, p eisonally appeared Paul D. Bussey, known to me to be the City Manager of the City of Carlsbad, a Municipal Corporation of the State of California, known to me to be the person who executed the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed $.he same. + . . WITNESS my hand and official seal. ,--PROVED AS TO FORM: City Attorney . . \ORA K. GARDINER ’ NOTARY PUBLIC - CALIF. ’ PRINCIPAL OFFICE IN ! ’ mu”“- ‘- SAN DIEGO COUNTY ; MY c()~MlsslON EXPIRES JAN. 2% 1980 -##-- (Notarial acknowledgement of execution of owners must be attached). -6- . t TillE INSURANCE 1..-.....mI- TO 1944 CA (8.74) (Individual) c 343 STATE OF CALIFORNIA . ‘1 “” *lum COMPAN” COUNTY OF I 35. Public in and for said ii I I 2 , known to me % to be the perso & whose name-subscribed !i to the within instrument and acknowledged that executed the same. WITNESS my hand and official seal. prjncjpsl Offica, San Diep CO. C:fif. Signature PATRfClA COLEMAN (This area for official notarial seal) -