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HomeMy WebLinkAboutBP 77-418; Frank H. Ayres & Son Construction Company; 77-420943; Future Improvement Agreement/Release‘ : . a - ~‘,::L~;finl;x REQUESTIXI BY 1’. 13 ) RECOI?DEi3REaU=T~~ WHEN RECORIIED I’{ AIL TO: 814 ) -mu&! CITY CLERK City of Carlsbad i200 Elm Avenue Caxlsbacl, CR 92008 --. ! Ocr 13 9 21w7 ; OFFlCtAL RECORDS SAN DlECQ COUNTY.CALIF. HARLEY f. 81Oo’M RECORDER NO FEE Space above this line for Recorder's Use transfer tax: $ No fee Signature of declarant determining tax- firm name City of Carlsbad ' Parcel No. 215-350-27 --__ CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as "City", and FRANK H. AYRES & SON CONSTRUCTION COMPANY, a California Corporation hereinafter referred to as "Property Owner". RECITALS: --.- WHEREAS, Property Owner has applied to,City for a Building Permit (Plan Check No. 77-418 ) for the real property hereinafter described, now under Property Owr.er'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 public improvements hereinafter described are constructed and certain irrevocable offers of dedication 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 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 construction; . ~ . . 81.5 NOW, THEREFORE, IT IS AGREED between the parties hereto as follows: Section -1. of dedication made by Number 77-4181. That City agrees to record any irrevocable offers Property Owner for said Building Permit (Plan Check Section 2. That Property Owner, in lieu of making the hereinafter 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 specifications approved by the City Engineer within 60 days after written demand so to do by City. Property Owner.shall not be required to make said improvements before October 15, 1978 or within such further period of time as is granted by City, provided, however, that upon the happening of either of the following occurrences said improvements may, at the sole election of City, be required to be made sooner than said date or such extended period of 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 improvements to City specifications; (b) When owners of more than 50% of the frontage, between inter- secting 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 shall be made without cost or expense to City. City estimates that the cost of engineering and construction of said improvementsat the time of signing this contract is $ 1,11p.00 . Property Owner hereby acknowledges that said cost is a reasonable estimate of engineering and construction costs at this time and that the actual cost of same at some time in the future may exceed this estimate. Section 3. That for the faithful performance of the promises . ‘. ‘4 . . - . . SlFi and covenants herein contained, Property Owner hereby grants to City a li’en upon the hereinafter described property in the amount of $ 1,159.00. 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 fail to install and construct said improvements in the manner and with.in the time speci- I 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- wi se. City or its contractor and his employees may enter upon any portion or por’tions of the property reasonably necessary for said engineering and construction, and the ent i re cost and expense shal 1 be charged against said property and payable by said Property Owner, his successors, heirs, assigns, or transferees immediately upon completion of said iniprovements. in t’he event same is not paid within 30 days from completion, ‘City may foreclbse s’aid lien as provided by law for the foreclosure of mortgages, (b) Direct the City Engineer to estimate the cost of crecessary 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. Sect ion 4. That it is agreed that anything herein contained to the contrary notwithstanding, the promises and covenants made herein shal 1 not be binding upon the holders, mortgagees, or beneficiaries of any purchase. money mortgage or purchase money deed of trust for value which has been or may i n the futu t-c? be executed by the Property Owner, his successors; heirs, assigns, or transferees, and the 1 ien hereby created shall be and is hereby subordinated to and declared to be inferior and subsequent in lien to the 1 ien of any such purT:hase money mortgage ot purchase money deed of trust, The lien hereby ireated shall 1 ikewise be of no force or effect against any owner whose title to the property here- inafter described is acq~rired by or as a result of a foreclosure or (3) . * . I l Sl+T t i-us tees’ sale of any such purchase money mortgage or purchase money deed of trust, Section 5 -2 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 s,aid improvements; the I 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 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 shal 1 any officer or employee thereof, be liable. or responsible for any accident, loss or damage happen-ing or occurring td 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 tI!ereof, be 1 iable Car any persons or pr?perty injured by reason of said work or improvements, but all 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, suits and liabilities of or to any person or property injured or claim- ing to be injured as a result of said work or improvements. Said Pro- perty Owner,’ and his successors, heirs, assigns, and transferees, further agrees to’protect said City and the officers and employees thereof from all liability or claim because of, or arising out of, the use of any patent or .patented article in the construction of said improvements. Section 7. It is further agreed that said Property Owner wi 11 at all 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 public property. The .i Property Owner hereby agrees to pay for such inipcction of improvements as may be required by the City Enjinecr of Cit’y. Section 8. This agreement and the covenants contained herein shn 11 bc! hind i nq rlpon and I nut-c? to the henc.fi 1: of the! s~tcccssors, hci I-5 , ( 11 ) a.ssigns, 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 desCr ibed as. fol lows: Lo.t 451 of LA COSTA MEADOWS UNIT NO. 3, in the City of Carlsbad, County of San Diego, State oflCalifornia, according to Map thereof No. 7076, filed i-n the Office of the County Recorder of San Diego County, October 6; 1971. xx- xx xx xx xx xx xx xx‘ xx xx xx . . . .- r . 1 819 Section 1.0. The required improvements to be constructed and the. estimated costs thereof are as follows: , Improvements Estimated Costs 380 S.F. of 4" P.C.C. Sidewalk . $ 399 .oo 76 L.F. of 3'2 High Retai'ning Wall 760.00 Dated: Octoder 5, 1977 TOTAL COST $1,159.00 ' s : J. H. GLEASON CITY OF CARLSBAD, a Municipal. Corpbrat$on of the State of . . STATE OF CALIFORNIA ) 1 5s. C&TY OF SAN DIEGO ) d Qn ’ before me the undersigned, a Not;ary Public in and for said State, pe&zonally appeared Paul D. Buksey, 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 the same. WITNESS my hand and official seal. Notary Public APPROVED AS TO FORM: (NoLarial acknowledgement of execution of owners must be attached). .d . -G- -- - STATE OF CALIFORNIA 5s. > 5 COUNTY OF------- 0 range ~- > F On s October 5. 1977 before J..aGl'eason me, the undersigned, a Notary Public in and for a said State, personally appeared = i= known to me to be the V i Ce 5 President, and- --- .v known to me to be the m-m 4 Secretary of the corporation that executed the within instrument, and known to me to be the persons who executed the within instrument on behalf of the corporation therein named, and ac- knowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. FRANK H. AYRES & SON CONSTRUCTION CO. WITNESS my handprd official seal. n /4&T& --&q +&&A Signature /I OFFIC!AL SEAL LP My Commission Expires Nov. 25, 1980 I 4 9 BET6 ‘L. FAUST Name (Typed or Printed) (This area for offiial notarial seal) - STATE OF CAL1 FORNIA j COUNTY OF SAN DIEGO ) "* ._i..* Otl October 7. 1977 before me, the undersigned, the City Clerk of the City of Carlsbad, a city within the said County and State, personally appeared PAUI D. BUSSFY known tq me to be the City Manager Aaawo: xbxlwt xtxlx htt xM?x the within Instrument, Instrument on behalf that such corporation '.Lurj~ corporation that executed &$q$@ executed the within nati.$$$::$Hn~ acknowledged to me @pypy$,uant to its by-1 aws or a resolution of its board of direcWr$. L.-*$,-. ,-...s-$ i ;A :: .-. -. ..- :. . :