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HomeMy WebLinkAboutCB900285; Kunkel, J. Richard; 90-626028; Future Improvement Agreement/Releaser RECORDING REQUESTED BY AND ) 1493 - f30 526028 <-"" ---__ WHEN RECORDED MAIL TO CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 1 r 3 L. * .I I - . Space above ~'-'~~ff&- -for Recorder t s use. CITY OF CARLSBAD Parcel No. 203-140-35 CONTRACI? FOR FUTURE PUBLIC I#PROVEMBNTS THIS AGRBBMBNT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as Vity", and J. Richard Kunkel, hereinafter referred to as "Property Owner." RECITALS WHEREAS, Property Owner has applied to City for a Building Permit 90-285 (BP 90-285) 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, theMunicipal Code of City requires certain improvements and dedications as a condition of approval of this BP 90-285; and WBEREAS, Property Owner has reguestedthatapprovalof BP 90-285 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 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; 1 Rev. 5/21/90 t494 TEER&FORB, IT IS AGREED between the parties hereto as Section 1. That City agrees to record any irrevocable offers of edication made by Property Owner for BP 90-285. Section 2. That Property Owner, in lieu of making the hereinaf- er described improvements before approval of said BP 90-285 is ranted, agrees to install and construct, or cause to be installed or onstructed, said improvements in accordance with plans and specifica- ions approved by the City Engineer within sixty (60) days after ritten demand so to do by City. Property Owner shall not be required o make said improvements before August 1, 1992, or within such urther period of time as is granted by City, provided, however, that pon the happening of either of the following occurrences said im- rovements may, at the sole election of City, be required to be made ooner than said date or such extended period of time which may have een granted by City: (a) When the City Council finds that the owners of 40% or ore of the frontage, including the frontage of Property Owner, etween intersecting streets on both sides of the street upon which he property herein described has frontage, have agreed with City to nstall street improvements to City specifications. (b) When owners of more than 50% of the frontage, between ntersecting streets on both sides of the street upon which the rope&y herein described has frontage, have petitioned the City to orm an improvement district for the improvement of said streets. Said improvements shall be made without cost or expense to City. ity estimates that the cost of engineering and construction of said provement at the time of signing this contract is one thousand four ndred and OO/lOO DOLLARS ($1,400). Property owner hereby acknowl- 2 Rev. 5/21/90 1495 . edges that saiu 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 $1,400 plus any future increases of cost in excess of this sum resulting from increased engineering and construction costs, and in the event Proper- ty 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 improvements done, and install and construct said improvements by contract or otherwise. City or its contractor and contractorls employees may enter upon any portion or portions of the property reasonably neces- sary 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 transferrees 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. 0) 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 (including those specifically referred to herein), for the foreclosure of a lien, and the Property Owner, Property Owner's successors, heirs, assigns and Rev. 5/21/W . II - - 1496 I transferrees, shall be liable for reasonable 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, 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 2. 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 engineer- ing and improvements 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 employ- ee thereof, be liable or responsible for any accident, loss or damage 4 Rev. 5/21/90 a - . . ’ . . happening or ocLurring to the work or improtiements 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 improve- ments, but all of said liabilities shall be assumed by said Property Owner and Property Owner's successors, heirs, assigns or 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 Property Owner's successors, heirs, assigns or 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 improvement. 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 herein shall be binding upon and inure to the benefit 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: Lot 26 Block A according to Map No. 122l. h 1497 Rev. 5/21/90 I’ * l , -0 ‘. 4 &. L- 1498 - Section 10. The required improvements to be constructed and the stimated costs thereof are as follows: IMPROVEMENTS 125 sq. ft. Sidewalk 25 L.F. Curb, Gutter Engineering ESTIMATED COSTS $ 420.00 300.00 500.00 $1,220.00 +15% Contingency $ 180.00 TOTAL $1,400.00 Executed this 23 - " day of flu2& , 19 ?o . CITY OF CARLSBAD a municipal corporation of the State of ualifo~ I/ ATTEST: City Clerk (Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corpo- ration must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) II APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: TDeputy City Att&ey Rev. 5/21/90 GENERAL ACKNOWLEDGMENT - NO. 2Ql the undersigned Notary Public, personally appeared , q personally known to me proved to me on the basis of satisfactory evidence within instrument, and acknowledged that