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HomeMy WebLinkAbout1974-12-17; City Council; 3256; Future improvement agreements new form-^_.CITY OF CARLSBAD, CALIFORNIA . ^** ' '}pj > ("j f ^ -^ Agenda Bill ^o._j55j5j»_ N-*' Date^ec- 17, '1974 Referred To: Subject:'Submitted By; Future improvement agreements - adoption City of form future agreement with lien contract, to replace existing form Statement of the Matter A recent survey of local agencies by the San Diego County City Attorney's Association has revealed that the future improvement agreement used by City of Carlsbad staff lacks important features. These features are incorporated in the proposed form. See the attached memo from the City Attorney, which summarizes the improvements it provides. Exhibit A. memorandum - Future Improvement Agreement - Lien Contract Form B. Agency survey - l-ien contracts • C. proposed future public improvement agreement form Staff Recommendations Adopt the proposed Future Public Improvement Agreement form for use by City of Carlsbad staff in preparing specific future agreement documents. AD.Ho. . ' ... Date: Dec. 17, 1974 City Manager's Recommendation Concur with staff recoiflmendations CounciJ. Action 1-7-75- The matter was continued to th.e meeting of January 2K 1975 1-21-75 The Future Public Improvement Agreement form was approved. Vs**- ^EXHIBIT RECEIVEDMEMORANDUM DEC 2 TO: Public Works Director nr~.*r\CITY OF CARLSBAD FROM: city Attorney Engineering Department DATE: December 2, 1974 RE: Future Improvement Agreement - Lien Contract Form The City Attorneys Association of San Diego County has just completed a review of the future improvement agree- ments in use throughout the County. A brief summary of the analysis which resulted from that review is attached to this memorandum. The best features of the various lien contracts were combined into a form,lien contract for consideration and adop- tion by the cities. I have reviewed the form contract in some detail and made some minor modifications. A copy is attached to this memorandum. You may note that various blanks on the form contain numbers. I have also prepared a brief set of instructions for the completion of the agreement and numbered the instructions to correspond to the numbers of the blanks. A copy of the proposed instructions is attached to this memorandum. As you can see from the analysis of the contracts, the form that we have been using in our City lacks a number of the features deemed important by the other cities. It is my strong recommendation that the attached form be adopted for use in the City of Carlsbad as soon as possible. The form is a considerable improvement in the following respects: 1. It takes advantage of the new statutory pro- vision, Government Code § 7050, providing the use of irre- vocable offers of dedication. The offers of dedication are made by a separate deed and remain open until accepted by the City. The responsibility for the property remains with the property owner. This avoids liability with regard to unimproved public streets before actual acceptance of the easement by the City. Acceptance should be contemporaneous with the construction of the improvements. 2. Engineering costs are expressly included. 3. Specifically requires construction to be in accord with plans and specifications approved by the City Public Works Director December 2, 1974 Page Two Engineer and to be done within 60 days after written demand by the City. 4. Agreement now clearly provides for the imposi- tion of a lien against the property. The current agreement does not do this. Further, the amount of the lien is equal to the present estimated cost of the improvements plus any future increases in cost. 5. Attorney's fees are provided for and made appli- cable to any remedy chosen by the City to enforce the agree- ment. 6. A hold-harmless and indemnification provision is included. 7. Since a lien is now created by this agreement, it becomes necessary to deal with the circumstances under which the City will subordinate or release the lien. The agreement limits the subordination to purchase money mort- gages. Any other requests for subordination will have to be referred to the Attorney's office and handled on an individual basis. 8. Provision is made for itemized cost estimates of the improvement. In my opinion, in order to enforce these agreements, they must be definite and certain. The only way they can be made definite and certain is to identify each improvement required and identify specific cost. 9. Consent of concurrent transferees is provided for to cover the situation where a developer carries the approval through as a property in escrow and intends to close as soon as the map is approved. The agreement pro- vides for signatures, both of the property owners and the developer as the concurrent transferee.% 10. An express covenant running with the land is included to insure our ability to enforce the obligation. It is necessary in all cases that the City Council, by resolution, approve the agreement and authorize its exe- cution by the Mayor. Under no circumstances could the City Engineer allow the execution of an agreement in lieu of an im- provement without first securing City Council approval. It is, of course, possible to pass a blanket resolution authorizing the City Manager to execute all such agreements. However, the preferable practice is to have the City Council approve each Public Works Director December 2, 1974 Page Three one so that they are aware of the nature of the improvements and of their cost. A standard fill-out-the-blanks agenda bill can be used for this purpose, and my office will be happy to prepare the necessary resolution. You may wish to print a supply of the form agreement omitting, of course, the numbers for the instructions. Any and all questions, comments or suggestions on the agreement are welcome. I would, however, like to see the agreement/ subject to any changes we may agree on, insti- tuted for use in the City as soon as possible. It should be noted that the fact remains that there is not a single City Attorney in the County of San Diego who is aware of any of this type of agreement being enforced judicially. I have not conducted any extensive legal research into that question. As a practical matter it is respectfully suggested that in all cases where it is feasible, resort should be made to the "Block Act", Streets and Highways Code §§ 5780, et seq., if any property owners will not voluntarily proceed to construct the improvements upon the City's demand. VINCENT F. BIONDO, JR. VFB:af Enclosure cc: City Manager ANALYSIS OF MAJOR FEATURES OF LIEN CONTRACTS - SAN DIEGO COUNT*•September 1974 CAT stsd ;.-.s » V.I 4 liic.-.iiio Lie.-. V* .".esi C3«ty V;*-» 1 LieniGranted So Yes Yei Yes Yes Ye* Yes Remedies 6 1,2,3.4 1,2.3.4,: 1,2.3,4 1,2,4 1.2,3,4 1.2,3,4 i1 Kin. Time 6efor« Constr. • No No 1 year No KO Yes accel. byJr.o. Dist. • Yes kccel. by ;!=•.?. DiSt. Include Estimate of Cost Ko Yes itemized NO Yes (general) Yes lur.p sum Yea lunp sura No Express Obi. of Land Yes No No No .No No SubordinationClause No NO Yes, to 1st . Yes, to 1st Yes, to existing 70s Yes, to P.M. • T.O. Yes, to 1st IncludesReel, for 1911 Act t Waiver NO Yes modified No Yes No No No Releaseon Dep.or Bond No Yes Yes Yes Yes Yes Yes Atty. Fees No Limited toRem. 1,4 Limited toRem. 1,4 Limited to Rom. 1,4 Limited toRem. 4 Limited to Rem. 1,4 Limited to Rem. 1,4 Rsoit* Specific Orda. No Yes No No No Yes Ko Consent ftTransferee No No Yos • * NO HO Yes NO Acceleration.Clause NO No No NO Yes, on transfer at pity . Option • NO No Release *nd A**unpt. 6fLiability NO No Ho Yes •No NO NO Councilor BoardApproval '7 7 7 7 7 Board Council Signature Mayor Mayor . Mayor Ha-iager 7 "ClerJt Mayor Universal or Specific • Universal Specific Spec. Parcel Map, Bldg.Perrrit Universal Universal Specific Parcel Map Specific Parcel' .'-ia? Bldg.Perait Tcrrat - Exhibit or latecrat** | Lecal ' Exhibit. Legal IntegratedStr. Address IntegratedLegal Integrated ExhibitLegal Integrated Legal Integrated Assessor's Parcel Ko. Irrprcve-er^s yJ3 i Exhibit / ''V-ibit Integrated i No.-.e Integrated .Von* j Integrated Sor.e Integrated Nor.e Integrated t;:r.e i Integrated ! Ko.-.e { **• 1. Construct laprcvcacr.ts ar.d Foreclose Lien. 3. Estimate Cost and Foreclose Lien. 3. Foreclose Lien. 4, Any Available Remedy, including Attorney Fees. 5, Cause Construction Per Block Act. 6, Lawsuit for Breach of Contract. T.a-\ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008 Space above this line for Recorder's use Documentary transfer tax:$No fee Signature of declarant determin- ing tax - firm name City of Carlsbad Parcel No. CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as "City", and (1) hereinafter referred to as "Property Owner". RECITALS; WHEREAS, Property Owner has applied to City for a (2) 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, how- ever said property would be suitable for development if certain public improvements hereinafter described are con- structed and certain irrevocable 'offers of dedication are made to City; and WHEREAS, the Municipal Code of City and (3) attached hereto and incorporated by reference herein require certain improvements and dedications as a condition of approval of this (4) ; and WHEREAS, Property Owner has requested said (5) 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 (6) desires to enter into this agreement securing the construction of said improve- ments, 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 irre- vocable offers of dedication made by Property Owner for (7) Section 2. That Property Owner, in lieu of making the hereinafter described improvements before approval of of said (8) is granted, agrees to install and construct, or cause to be installed or con- structed, 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 (9) 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 intersecting 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. 2. (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 engineer- ing and construction of said improvements at the time of signing this contract is (10) . Property Owner here- fcy 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 and covenants herein contained, Property Owner hereby grants to City a lien upon the hereinafter described property in the amount of (11) , 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 specified herein, he 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 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 imme- diately upon completion of said improvements. In the event 3. ''**'*' 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 said improvements, and foreclose said lien in said amount. (c) Pursue any remedy, legal or equitable (includ- ing those specifically referred to herein), for the fore- closure of a lien, and the Property Owner, his successors, heirs, assigns, and transferees, shall be liable for reason- able 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 or purchase money deed of trust for value which has been or may in the future be executed by the Property Owner, his successors, heirs, assigns, or trans- ferees, and the lien hereby created shall be and is hereby I 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 ac- quired 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, his successors, heirs, assigns, or transferees may deposit a cash bond or post a surety performance bond satisfactory to the City to charge 4. said surety with the cost of said improvements; the amount of bond to be the estimated cost of engineering and im- provements at the time of such deposit or posting as ascer- tained 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. Section 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 officer or employee thereof, be liable 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 claiming to be injured as a result of said work or improvements. Said Property 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 improvements by the City, give good and 5. .,»»*» 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 improve- ments as may be required by the City Engineer of City. Section 8. This agreement and the covenants con- tained herein shall be binding upon and inure to the bene- fit of the successors, heirs, assigns, and transferees of Property Owner, 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: (12) (If you don't use whole page, put X's down to bottom of page after end of description. Add pages as necessary.) X X X X X X X X X X X X X X X X X X 6. ,«%, Section 10. The required improvements to be con- structed and the estimated costs thereof are as follows: Improvements Estimated Costs 1. Engineering $ (13) 2. (14) 3. Etc. TOTAL COST $ (15) (Same X's as page 6.) X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X XX X X X X X X X X X X 7. Dated: (16) Property Owner WE CONSENT to and join in all the promises herein contained, and agree to said lien imposed. (17) Transferee of portion of said property CITY OF CARLSBAD, a Municipal Corporation of the State of California ATTEST: Margaret E. Adams, City Clerk By- Robert C. Frazee, Mayor APPROVED AS TO FORM: Vincent F. Biondo, Jr. City Attorney (18) 8. INSTRUCTIONS FOR PREPARATION AND EXECUTION OF A CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS This form can be used in connection with parcel maps, variances, conditional use permits and other develop- mental entitlements when the City has exercised its author- ity to condition the approval of such entitlements on the installation of public improvements. The blanks appearing throughout the form are numbered and should be filled out in accord with the corresponding numbered instruction as set out in this memorandum. After execution these agree- ments must be recorded. Double check with City Clerk to insure that after original is returned from County Recorder the official recording information (i.e., book and page numbers), which should appear in upper right corner of the first page, is noted on Engineer's file copy of the agree- ment. Improvements covered by these agreements should be posted to a map used to keep track of progress, city-wide, toward getting enough of one block to either call agree- ments or do a block act. The instructions for filling out the blanks in the agreement are as follows: (1) The full and complete name of all the Property Owners must appear and their capacities. For example, "Joe Jones, an individual", "BX Company, a partnership", "ZB Incorporated, a corporation". (2) e.g., final parcel map, variance, conditional use permit, etc. Include map or application number. (3) e.g., City Engineer's letters dated, Planning Commission Resolution No. , City Council Resolution No. . Whatever constitutes formal City approval. (4) Same as (2), but no number is necessary. (5) Same as (4). (6) Same as (4). (7) Same as (2) . (8) Same as (4). (9) Insert a date as appropriate. This provision is primarily for the protection of the Property Owner so he can plan his financing. It was included because most of the cities in the County use some type of this clause. I would assume the usual agreement would provide for a one- year period. (10) Insert estimate of total costs of engineering and construction of all required improvements. (11) Same as (10). (12) Include full meets and bounds legal descrip- tion. (13) Estimate of total engineering costs for all improvements. (14) List in detail each and every improvement required and its estimated cost: e.g., (a) Full street improvements including, but not limited to, curbs, gutters, side- walks and street paving along 150 feet of frontage of the property on Fig Street. $15,000 (b) 300 feet of 7-inch water main con- necting at point X on the P Street main and running north to point Y on the southerly boundary of the subject property. 2,980 (15) Total of each estimate for engineering and construction. [Should equal total shown on items (10) and (11).] (16) The name or names of all Property Owners and their capacities must appear exactly the same as they appear on item (1). All persons with an interest in the property must sign. Follow instructions given your depart- ment on how these documents are to be executed. (17) This part of the form should be used where the developer is handling the deal and will acquire the property when escrow closes upon recordation of the map. If there is no such party, type in "Not applicable". (18) Attach all appropriate notaries: individual, partnership, corporation, etc. A seal should be used for corporations. Direct any questions regarding proper notari- zation to Audrey or Lois, who are both experienced in such matters. 2.