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Home My WebLink AboutMS 647; Radabaugh, Cynthia J. et al; 86-454059; Future Improvement Agreement/ReleaseRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 2143 j Space above this line for JlR 10 , Recorder’s use. ,MG /- Documentary transfer tax: No Fee City of Carlsbad Parcel Nos. : 205-060-50 and ??67/sB”1 205-060-52 THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as “City”, and CYNTHIA J. RADABAUGH, MARVIN K. DEWEESE, ROBERT P. BURNS, DENISE R. BURNS, TIMOTHY SAUNDERS, SHEILA SAUNDERS, ISADORE STONE and TYBIE STONE, hereinafter referred to as “Property Owners”. RECITALS: WHEREAS, Property Owner has applied to City for a Minor Subdivision No. 647 for the real property hereinafter described, now under Property Owners’ 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 . *’ . - ’ - m, lldd - 2 - . improvements hereinafter described are constructed and certain irrevocable offers of dedication are made to City; and WHEREAS, the Municipal Code of City and conditions of approval for Minor Subdivision No. 647 attached hereto and incorporated by reference herein require certain improvements and dedications as a condition of approval of this Minor Subdivision No. 647; and WHEREAS, Property Owners have requested said Minor Subdivision No. 647 granted by City in advance of the time said improvements are to be made; and WHEREAS, Property Owners, in consideration of the approval of said Minor Subdivision No. 647 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; 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 Owners for Highland Drive. Section 2. That Property Owners, in lieu of making the hereinafter described improvements before approval of said Minor Subdivision No. 647 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 sixty (60) days after written demand so to do by City. Property Owners shall not be required to make said improvements before September 22, 1987 or within such further - u 1143 - 3 - 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 40X or more of the frontage, including the frontage of Property Owners, between intersecting 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 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 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 THREE THOUSAND THREE HUNDRED EIGHTY FIVE AND NO/100 DOLLARS ($3,385.00>. Property Owners hereby acknowledge that said cost is a reasonable estimate of engineering and construction coats 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 and covenants herein contained, Property Owners hereby grant to City a lien upon the hereinafter described property in - 1146 - 4 - the amount of $3,385.00 plus any future increases of coat in excess of this sum resulting from increased engineering and construction costs, and in the event Property Owner, Property Owner’s successors, heirs, assigns, or transferees fail to install and construct said improvements in the manner and within the time specified herein, Property Owner agrees that City may do any or all of the following: (a> Have the necessary engineering for said improve- ments done, and install and construct said improvements by contract or otherwise. City or its contractor and contractor’s 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, Property Owner’s successors, heirs, assigns, or transferees immediately upon completion of said improvements. In the event same is not paid within thirty (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 said improvements, and foreclose said lien in said amount. (12) Pursue any remedy, legal or equitable (including those specifically referred to herein), for the foreclosure of a lien, and the Property Owner, Property Owner’s successors, heirs, assigns, and transferees, shall be liable for reasonable attorney’s fees as a cost in said proceedings. - 5 - 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 or purchase money deed of trust for value which has been or may in the future be executed by the Property Owner, Property Owner’s 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 lien to the lien 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 hereinafter described is acquired by or as a result of a foreclosure or trustees’ sale of any such purchase money mortgage or purchase money deed of trust. Section 5. That at any time during the period herein provided, the Property Owner, Property Owner’s successors, heirs, assigns, or transferees may deposit a cash bond or post a surety performance bond satisfactory 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 property to be released from the lien herein imposed. , 1148 - 6 - Section 6. 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 City, nor any officer or employee thereof, be liable for any injury to persons or property caused by or resulting from, in whole or in part, the work or improvements, but all of said liabilities shall be assumed by said Property Owner and Property Owner’s 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 claiming to be injured as a result of said work or improvements until such improvements are completed and fully accepted by the City. Said Property Owner,’ and Property Owner’s 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 improvements by the City, give good and adequate warning to the traveling public of any dangerous or defective conditions of public property. The Property Owner hereby agrees to pay for such inspection of improvements as may be required by the City Engineer of City. Section 8. This agreement and the covenants contained .- - h . . - 1149 - 7 - herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of Property Owners, shall run with 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 described as follows: PARCEL A Parcel A in the City of Carlsbad, County of San Diego, State of California as shown at Page 13640 of Parcel Maps, filed in the Office of the County Recorder of San Diego County on January 18, 1985. PARCEL 1 Parcel 1 in the City of Carlsbad, County of San Diego, State of California as shown at Page 14172 of Parcel Maps, filed in the Office of the Couty Recorder of San Diego County on February 15, 1986. Section 10. The required improvements to be constructed and the estimated costs thereof are as follows: Improvements Curb, Gutter and Sidewalk (Approximately 125 lineal feet) Estimated Costs $ 2,945.oo SUBTOTAL $ 2,945.oo +I 5X ENGINEERING CONTINGENCY $ 440.00 TOTAL COST $&385.00< . . , 1150 :, 8 - IN WITNESS WHEREOF, we have hereunto set our hands and seals this 24th day of. September , 1986. PROPERTY OWNERS: CITY OF CARLSBAD, a Municipal alifornia TIMOTHY %4UNDEFK-- J--d-- L ISADOREfl+TONE --qq&, ,& TYb# STONE ’ \. ICS rust bs ~~~~~~L'Fo?%h D i e go /ss. 1 On Sewer 39. lS8fi ,before me, the undersigned, a Notary Public in and for said State, personally appearedtin K. DeWeese -- personally known to me (or proved to me on the basis of satis- z? factory evidence) to be the person(s) whose name(s) islaresub- ‘i scribed to the within instrument and acknowledged to me that : :,rTXr?Y PlJ5LIC - CALIFORNIA t$#$/they executed the same. SAN DIEGO COUNTY WITNESS my hand and official seal. (This area for official notarial seal) . u 1151 h -9- STATE OF CALIFORNIA COUNTY OF SAN DIEGO 1 > as. 1 On .the 7th day of October a Notary Public in and fo)r 1986 before me the undersigned, sax’ State personally appeared Uartin Orenyak, known to me to bd the Community Development Director of the City of Carlsbad, a Municipal Corporation of the State of California, known to me to be the person who executed the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same. WITNESS my hand and official seal. 7 ~~ ~~~~~~~ Notarv Public Vincent F. Biondo; Jr. City Attorney (Notarial acknowledgement of execution of owners must be attached.) State of CALIFORNIA On this the 24tkiay of September 1986, before me, S.S. County of LOS ANGELES R. Erika Kingett I R ERIKA KINGETT NOTARY PUBLIC - CALlFORNlA LOS -ANGELES COUNTY the undersigned Notary Public, personally appeared Robert P. Burns and DeniseR. Burns I - --.*-4 yfmm ‘c - CALIFORNIA - w. P.o.BfR737,klBbE#~~ eS personally known to me q proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) are subscribed to the within instrument, and acknowledged that they executed it. WITNESS my hand a official s I. 6tfdAkw I’ Le ‘/c, Notary’s Signature GENERAL ACKNOWLEDGMENT FORM 7110052 NATIONAL NOTARY ASSOCIATION l 23012 Ventura Blvd. l Woodland Hills, CA 91364 the undersigned N blic, personally appeared 1152 12 .$ ‘b 0 al E c s .o b I F ii . FJ I) , 2 z 8 = G ? ‘p is 3 $ = J 5 6 &!f personally known to me 0 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) subscribed to the within instrument, and acknowledged that executed it. WITNESS my hand and official seal. STATE OF CALIFORNIA . iaa. COUNTY OF # n/c-w I On ~51?/7 r * 29, /.Y.$?LG ,before me, the undersigned, a Notary Public in and for said State, personally appeared I//nO7-I4 v sAQiv13F~~ personally known to me (or proved to me on the basis of satis- factory evidence) to be the person(o) whose name(s) is/are sub- scribed to the within instrument and acknowledged to me that he/eh&hey executed the same. WITNESS my hand and official seal. S!gnaturp& /& STATE OF CALIFORNIA COUNTY OF San Diego SS. On September 29, 1986 before me, the undersigned, a Notary Public in and for said County and State, personally appeared Isadore I. Stone and Tvbie Stone FOR NOTARY SEAL OR STAMP (This area for official notarial seal) , known to me to be the personSwhose name- ubscribed to the within instrument and acknowledged that they executed the E. Lynne Rigmer f OFFICIAL SEAL i ‘1 N,E,b,tY~~L~%~~:~lA i NOTAFiY BOND FILED IN SAN DIEGO COUNTY I z My Commission Expires March 29, 1989 i *************************t*+********** t 54