HomeMy WebLinkAboutMS 399; Kirmse, John & Georgette; 79-330004; Future Improvement Agreement/Release. I‘:i’;i?RD ING REQUESTED BY “ND ) ’ *
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City of Carlsbad
Parcel No. 156-211-04
CONTRACT, FOR FUTURE PUBLIC iMPROVEMENTS
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as “City”, and John Cleveland Kirmse
and Georgette Ki rmse, husband and wife as joint tenant , hereinaFter referred to as “Proper-
, ty Owner”.
RECITALS:
WHEREAS, Property Owner has applied to City for a
Minor Subdivision No. ‘399
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
are made to City; and
WHEREAS, the Municipal Code of City and Section 20.28.060
attached hereto and incorporated by reference herein require certain _
improvements and dedications as a condition of approval of this
Minor Subdivision 399 ; and
WHEREAS, Property Owner has requested said Minor Subdivision
be granted by City in advance of the t ime said improvements are to be
made; anti
* WHEREAS, Property Owner, in consideration of the
(1)
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.sa id, Minor Subdivision No. 399 desires to enter itsLo 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;
NOW, THEREFORE, IT IS AGREED between the parties hereto as
fol lows:
Section’ 1. That City agrees to record any irrevocable offers
of dedication made by Proper,ty Owner for Minor Subdivision No. 399
Section-2. That Property Owner, in lieu of making the herein-
after described improvements before approval of said Minor Subdivision
is granted, agrees to instal’l 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 required to make
said improvements -before August 1, 1980 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 improve-
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 pet it ioned 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 improvements at the time of signing this contract is $.25.231.00 .
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
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and covenants here in contained, Property Owner hereby grants to C ity a
1 ien upon the hereinafter described property in the amount of $25,231.00,
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 successors, heirs, assigns, or transferees fail 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:
(a) Have the necessary engineering for said improvements
done, and install and construct said improvements by contract or other-
w.i se. 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, City 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 required to install and construct sai-d improve-
merits, 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 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
subsequent in 1 ien 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-
inafter described is acquired by or as a result of a foreclosure or
(3)
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-t rus tees ’ sale of any such purchase money mortgage or purchase money
deed of trust.
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 sat isfactory to
the City to charge said 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 the 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.
I Sect ion 6. Said City shall not, nor shall any officer or
employee thereof, be liable or responsible for any accident, loss or
damage happening 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 of.ficer 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 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 will
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
pub1 ic 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 herein
shall be binding upon and inure to the benefit of the successors, heirs,
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issigns, 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 described as follows:
Tract 122 of Map of Carlsbad Lands, Map No. 1661, filed in San
Diego County on March 1, 1915, together with that 10.00 foot
portion of Oak Avenue adjoining said Tract 122 as vacated and
closed to public use by order of the Board of Supervisors of
San Diego County, recorded October 7, 1929 in Book 1700, Page 83
of Deeds, all in the City of Carlsbad, County of San Diego, State
of California.
Generally located on the North side of Oak Avenue between Highland
Drive and Valley Street. Assessors Parcel No. 156-211-04
xx
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xx
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I ’ Section 10. The required improvements to be constructed and
the estimated costs thereof are as follows:
Improvements Estimated Costs
Curb L.F. $ 6,500.OO
Street Lighting L.S. 3,770.oo
5' Sidewalk S.F. 6,825.OO
Gutter S.F. 1,040.00
Drainage Structure L.S. 1,855.OO
Site Preparation L.S. 1,950.oo
Engineering & Contingencies 15% 3,291.oo
(See attached for Parcel 1 and Parcel 2)
TOTAL COST $ 25,231.OO
Dated: 7-24 =7q
CITY OF CABLSBAD, a Municipal of the State of
STATE OF CALIFORNIA ) r
) ss. COUNTY OF SAN DIEGO )
On l2e&ux- 3, /977 before me the undersigned, a Notary Public in a& for said State, peisonally 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 the same.
WITNESS my hand and official seal.
Notary Public
APPROVE\AS TO FORM:
.k/ ‘, 1
(Notarial acknowledgement of execution Of own
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rers must be attached).
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Attachment for Minor Subdivision No. 399
PARCEL 1
Improvements
Curb L.F. Street Lighting L.S. 5' Sidewalk S.F. Gutter S.F. Site Preparation L.S.
Engineering & Contingencies 15%
TOTAL COST
PARCEL 2
Improvements
Curb L.F. Street Lighting L.S. 5' Sidewalk S.F.
Gutter S.F. Drainage Structure L.S. Site Preparation L.S. Engineering & Contingencies 15%
TOTAL COST
Estimated Costs
$ 2,200.oo
1,276.OO
2,310.OO
352.00
660.00
1,020.00
$ 7,818.OO
Estimated Costs
$ 4,300.oo
2,494.oo
4,515.oo
688.00
1,855.OO
1,290.oo
2,271.OO
$ 17,413.oo
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UNITEDST&IESOFAt%RICA:
; STATE OF ALASKA : ss. : FIRSTJUDICIALDISTRICT:
Individual Acknowledgment (~=w
THIS IS To CERTIFY that on this 24th., Day of July, 1979, before the undersigned,
aNotary Public inand for theStateofAlaska, dulycamnissionedsndswrn,
personally appeared John Cleveland Kirmse and Georgette Kimse, husband and wife,
tomeknowntobe the persons described inmdwho executed the above and
foregoing instrumnt, and acknowledged to me that they signed and sealed the
same freely and voluntarily for the uses and purposes therein mentioned.
WITNESSmyhandandofficialsealthe daysndyearinthis certificate
first above written.
Ackmwledged at Skagmy,Alaska.
Notary Public in and for the State of Alaska residing at P.O.Box 395, !%agway,
Alaska, 99840. Telephone: (907) 983-2200.
My cmmission expires December 31, 1982.
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ADDRESSEE
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(-j;‘il;,,-~$,;. " '-,,;-"‘ F: :: I i_) ,* jl\,,.J _ _. 1: SAN DIEGO ':OU?iiY, CALIF,
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