HomeMy WebLinkAboutBP 77-418; Frank H. Ayres & Son Construction Company; 77-420944; Future Improvement Agreement/Release.: .* ~>'J&jrNs RjzQUESTED * BY i- -) ) b&iEN RECORDED >lAIL TO: 1 1 City of Carlsbad
1200 Elm Avenue sz-1 ) . 1
F;LE/PAGE IiD.=& - SOOK 1977 RECGRDEDREQUESTD~--
Qs%M? @STY Cj-ERK
oci 13 9 21 WI9
Carlsbad, CA 92008 _ . . OFFICIALRECORDS SAN'DIEGD COUNtY,CALIF.
1. . HARLEYF.BLOOW' NO FEE Space above this line for R
tary transfer tax: $ No fee
Signature of declarant determining tax- firm name * City of Carlsbad
Parcel No. 21%350-29
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 s 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 Owner's
ownership; and _ I
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 e
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
public interest
said improvements, and City has determined it to be in the
to agree to temporarily postpone said construction;
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 said Building Permit (Plan Check
Number 77-418 1. .
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
dedcribed 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 L 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 $ l,lll.OO . _.
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
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and covenants herein contained, Property Owner hereby grants to City a
lien upon the hereinafter described property in the amount of’ $1 ,lll.OO,
plus .any future increases of cost in excess of this sum re,sulting from
increased engineering and construction costs, and in the event Property
Owner, his successors, heirs, assigns, or transferees fa i 1 to install
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: I
(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 empl‘oyees may enter upon any
portion or portions of the property reasonably necessary. for said
engineering and construction, and the entire 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 improvements. In the event same is not paid within 30 days from .
completion, ‘C’ity may foreclose 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 requi red to install and construct said improve-
ments, 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 cbvenants made herein shall
not be binding upon the holders, mortgagees, or beneficiaries of any
purchase. money mortgage orpurchasemoncy deed of trust for value which
has been or may in the future be executed by the Property Owner, Ilis
successors, heirs, aSSignS, or transferees, and the lien hereby created
s’hall be and is hereby subordinated to and declared to b.e inferior and
subsequent in 1 ien to the 1 ien of any such purchase money mortgag’e 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 h’erc-
Inafter described is acquired by or as a result of a foreclosure or
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trustees’ sale of any such purchase money mortgage or purchase money .
deed of trust. .
Sect ion 5. That at any time during the per.iod herein provided,
the Property Owner, his successors, heirs, .assigns, or transferees may
deposit a cash bond or pos,t a surety performance bond satisfactory to
the City to charge sa,id surety with the cost of s,aid 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
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 iable for
any persons or property 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 1 iabi 1 ities 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 successois, heirs, assigns, and transferees;;,further
City and the off.icers and employees thereof from agrees to protect said
all 1 iability or claim
patent or .patented art
because ,of, or arising out of, the use of any
icle in the construction of said improvements.
Section 7. It is further agreed that said Propcrt,y Ownc’r will
at all times up to the completion and acceptance of said work and i’mi . .i
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.
Sect ion 8. This agreement and the covenants contained’ herflin
shall bc blndlnq upon and i nut-c to the bencfl t of the successors, hcl rs, ( ‘1 1
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assigns, and transferees of Property Owner, shall run wi.th said- real
property, and create an equitable servitude upon said real property. .
Section 9.. A description of the property referred to herein
and upon which said lien is imposed is desiribed as follows:
Lot 453 of LA COSTA MEADOWS UNIT NOi.3, in the City of Carlsbad, .
County of San Diego : State of California, according to. Map thereof
No. 7076,, filed in the Office of the County Recorder of San Diego County,
October 6, 1971. * .
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Section 10. The required improvements to be constructed and
the. estimated costs thereof are as follows:
, Improvements Estimated Costs
363 .S.F. of 4" P.C.C. Sidewalk $ 381.00
73 L.F'. of 3' f High Rdtaini,ng Wall 730.00
Dated: Octobe'c 5, 1977
TOTAL COST $ 1,111.oo
J. H. GLEASON
CITY OF CARLSBAD, a Municipal
Corp,or*,on-of the State of Cavforni I P\ 3
BY La x3- ? Paul D. Busseyj City Manager
STATE OF CALIFORNIA ) 1 .ss. COdNTY OF SAN DIEGO >
On Notary Public in and for said State,
before me the undersigned, a peisonally appeared Paul DC 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 the same. *
WITNESS my hand and official seal.
I
Notary Public
APPPOVED AS TO FORM:
(Notarial acknowledgement of execution of owners must be attached). w
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2 x E s . 9, = i= s 2 z I P iz 9 .z I 8
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STATE OF CALIFORNIA
Orange COUNTY OF--w,-.-
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0” October 5- 1977 , before me, the undersigned, a Notary Public in and for
said State, personally appeared J. H. &ason
known to me to be the Vice President, and -Mm
known to me to be the m-m 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 hand and official seal.
/&&z+-s&d& Signature , ,
BETTY ' cc: FAUST
Name (Typed or Printed) (This area for official notarial seal)
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) "a :'.,i
On 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 PAUL D. BUSSEY known to me to be the
City Manaqer
poration that executed
the within Instrument, known to me to be,
Instrument on behalf of the corporation
that such corporation executed the with-i
executed the within
d acknowledged to me ,
uant to its by-laws
or a resolution of its board of director