HomeMy WebLinkAboutBP 78-11; Fowkes, James and Martha; 78-069923; Future Improvement Agreement/Releaser;,$“3’ : gp<<;. ‘[<Eg(;ESTE-~ E?\’ nra;.. )
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City of Carlsbad
I.202 Elm Avenue I
CtziI-ldJaci, CA 92008 1 \
RECORDEDREQUESTOF
WRESSEE
9 06 RM ‘18
GFICiALRSCDRDb
CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as "City", and James L. Fowkes and
Martha M. Fowkes, husband and wife as joint tenants
hereinafter referred to as "Property Owner".
RECITALS: ---
WHERF,AS, Property Owner has applied to City for a
Building Permit (Plan Check No. 75-11 1 . ~-
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 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
q-ant-d 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 securiny the
construction of said improvements, and City has determined it to be in the
‘FEE?
public interest to agree to temporarily postpone;gaid construction;
NOW, TNEREF'ORE, 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 78-11 ).
Section 2. That Property Owner‘, -
described improvements before approval of
agrees to install and construct, or cause
in lieu of making the hereinafter
said Building Permit is granted,
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
March 1, 1979 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
City estimates
improvementsat
Property Owner
of engineering
improvements shall be made without cost'or expense to City.
that the cost of engineering and construction of said
the time of signing this contract is $ 3,805.OO . --
hereby acknowledges that said cost is a reasonable estimate
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
.a 4
(2)
. I /a .
‘.
1582
and covenants hcrei n conta i ncd, Property Owner hereby grants to Ci ty a
lien upon the hereinafter described property in the amount of $39805.00 , ,’
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,uccessprs, heirs, assigns, or transferees fail to install
and construct sa id im,provements in the manner and within the time speci- I
fied herein, he. agrees that City may do any or all of the foliowing:
(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 employees may enter tipon any
portion or por’tions of the property reasonably necessary for said
engineering and construction, and the entire cost and expense shal 1 be
charged against said property and payjble by said Property Owner, his
successors, heirs, assigns, or transferees immediately upon completion
of’ sa id improvements. In the event same is not paid within 30 days from
completion, ‘C’ity may foreclbse s’aid 1 ien as provided by law for the
foreclosure of mortgages,
(b) ijirect the City Engineer to estimate the cost of necessary
engineering, and the work required to install and construct said improve-
me n t s , ancj 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 vaiue which
has been or may in the’ futurq be executed by the Property Owner, his
successors, hei.rs, 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 purc.hase money mortgage or
purchase money deed of t rust. The lien hereby created shall likewise be
of no force or effect against any owner whose tit lo to the property here-
inafter described is acqrllred by or as a result of a foreclosure or
(3)
trustces~ sale
deed of trust,
sect ion 5. That at any time during the per
pu rcha se money
idcd, iod herein prov
1583
of any such purchase money mortgage or
the Property Owner, his successors, heirs, .assigns, or transferees may
deposit a cash bond or post a surety performance bond satisfactory to J
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,
an! 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 happening or occurring t-d 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 prpperty 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 improvem&nts. Said Pro-
perty Owner, and his successors, heirs, assigns, and transferees, further
agrees to protect said City and the officers and employees thereof from
a?1 liability or claim because of, or arising out of, the use of any
patent or .patented article in the coIIsi:ruction of said improve!\:ents.
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 .i
Property Owner hereby agrees to pay for such inipcction of improvements
as may be required by the City Engineer of City.
Sect ion 8. This agreement and the covenants contained herein
she 1 I hc bi ndi nrl trpnn and i nrlrc; to I-hc! benefi 1: nl: E.hc :iIiccessor3, hcl rs,
f 11 )
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:
That portion of Lot 4 of Wilsonia Tract, in the City of Carlsbad, County of San
Diego, State of California, according to map thereof No. 2169, filed in the office
of the County.Recorder of San Diego County, August 13, 1929, described as follows:
Beginning at the most norther.ly corner of said Lot 4; thence along the .
. northeasterly line of said lot, South 34O33'00" East, ZOO.67 feet to the most .
easterly corner of land described in deed 'to Victor Flurillo, et ux, recorded
flay 7, 1953 in Book 4847, Pabe. of -Official Records; thence along the boundary
of said Murillo's land as follows: South 55O27'00" West, 400.58 feet.to the most
southerly corner of said land; and North 34'26'00" West, 188.29 feet to the north-
westerly line of said Lot 4; thence along said northwesterly line, North 47'00'00"
East, 84.15 feet to an angle 'point therein; thence continuing along said northwesterly
line, North .55'27'00" East, 316.96 -feet to the point of beginning.
Excepting therefrom, the northeasterly 175.00 feet of the northwesterly
: 100.00 feet.
Also excepting therefrom, the northeasterly 10.00 feet as described in deed
to th e City of Carlsbad, recorded August 23, 1968,'as Fiie No. 146394.
xx.' .
xx
XX
. xx
xx
xx’ ,
.$X
(5)
xx
xx
Section 10. The requi-red improvements to be constructed and
the,estimated costs thereof are as follows:
ImDrovcments
1.
2.
3.
4.
5.
;:
AC Pavement & Base 2,420 s.f. 0 0.60 ,
6" Curb,& Gutter 101 1.f. @ 5.00
4" PCC Sidewalk * 505 s.f. 0 1.05
Portion of street lighting cost 101 ,l.f. @ 2.20
AC Berm Transition 40 1.f. 8 2.50
Grading, Site Preparatioh lump sum
Engineering & Contingencies (15%)
Estimated Costs
$ 1,452.OO
505.00
530.00
'222.00
100.00
500.09
496.00
TOTAL COST $ 3,805.OO
:
I
STATE OF
Dated:
CITY OF CARLSBAD, a Municipal Corporation of the State of California
CALIFORNIA > ) ss.
By &J.$~~$&A-&J (!@-?m Paul D. Buss"ey --
COUNTY OF SAN DIEGO )
On ~LQALwM A. /9W before me the undersigned, a
Notary Public in andRcfoWsrsaid State, peisonally appeared 4%&&D Dus-z-J+,w~.~* .
known to me to be theACity Manager of the City of Carlsbad, a MuniciGal p+OWI(J
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.
APPROVED AS TO FORM:
City Attorney
Oct. 23, 1981 P < j+Yu .+;--a
(Notarial acknowledgement of execution of awners must be attached).
-
.
STATE OF t
0 Qn CAQ ss.
COUNTY OF 158fi
u
ON 9 GAmdL/ ) 1Lg
before me the undersped, a Notad Publiki;and$qyi State personally appeared 3 cclM-6 d WbJk- A& h. =Ff=o~L?r
. *
-h
OPFICIAL SEA!.
LEAH M. FITZZGERAU) :
, known to me,
to be the perso& whose name& ace. subscribed to the within Instrument.
and acknowledged to me that &e Y executed the same.
WITNESS my hand and official seal.
= Notary Public in i?hU& said State.
ACKNOWLEDGMENT-GenmCWolcotts Form RU-Rtv. 3-64