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HomeMy WebLinkAboutCUP 123; Freiburger, Albert; 76-346858; Future Improvement Agreement/Releaser-?;COf<DlNG REQUESTED 13. &ND ) ’ WHEN RECORDED MAIL TO: 1 ’ ) City of Carlsbacl 1 1200 Elm Avenue 1 Carlsbad, CA 92008 1 > oFFICIA\.RECORDS SAN I)\EGQ COUNT 'r'a i:blf". HARLE’f F. 8tJUH F&CORDER -----,- Space above thts 1 i ne for Recor-derts -- use I NO FEE Signature of deylarant determining tax- firm name City of Carlsbad Parcel No. 156 - 180 - 35 CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as “City”, and Albert J. Freiburger , hereinafter referred to as “Proper- ty Owner”. RECITALS: WHEREAS, Property Owner. has appl ied to C ity for a Conditional Use Permit I: I Gi‘ LI the i-G 1 p I-Opei-t); herei naftc’r described, ncd under Pt-opzrty C;dner’s ownership; and *. WHEREAS, it has been found that said property is not suitable for development in its present cond suitable for development if certain described are constructed and certa are made to City; and t ion, however said property would be pub1 ic improvements here,inafter n irrevocable offers of dedication WHEREAS, the Municipal Code of City and Planning Commission Resolution No. 1269 (CUP-1231 attached hereto and incorporated by reference herein require certain improvements and dedications as a condition of approval of this Conditional Use Permit ; and WHEREAS, Property Owner has requested said conditional use be granted by City in advance of the time said improvements are to be made; and . WHEREAS, Property Owtrer, in consideration of the approval of >. . 671 said conditional use des i res 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 const ruct ion; 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 Owner for N/A Section 2. That Property Owner, in lieu of making the herein- after described improvements before approval of said conditional use is granted, agrees to install 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 October 1, 1977 or within such further period of time as is granted by City, provided, however, that upon the happening of either of the fol lowing occurrences said improvements may, at the sole election of City, be requi red 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 petit ioned the City to form an improvement district for the improvement of said streets. Sa id improvements sha 1 t 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 $2,427.00 . 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 (2) and covenants herein contained, Property Owner hereby grants to City a lien upon the hereinafter described property in the amount of $2,427.00, plus any future increases of cost iti excess of this sum resulting from increased engineering and construction costs, and in the event Property Owner, his successors, heirs, assigns, or t’ransferees fa il to install and construct said improvements in the manner and within the t ime speci- . fied herein, he agrees that City may do any or all of th e foll owing: (a) Have the necessary engineering for said improvements ,- 0. 672 done, and install and construct said improvements by contract or other- wise. ” City or its contractor and his employees may enter upon any portion or portions of the property reasonably necessary for said engineering and construction, cld the entire cost and expense shal 1 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 instail and construct said improve- ment s , 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 lien to the 1 ien of any such put-chase 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 rerult of a foreclosure or ’ (3) . ^ . . ; _ 673 trustees’ 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 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 <I), .deposit or posting applies, from the provisions of this agreement, and to execute any necessary release to enable the record t;?le 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 da:nage 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 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 public of any dangerous or defective conditions of public property. The Property Owner hereby ar;, may be requi red by Section 6; shal: be bi nd i nq upon agrees to pay for such inspect ion of improvements the City Engineer of City. This agreement and the covenants con.ta i ned herzi n and inure to the benefit of the successors, heirs, ( 4 1 c.. I - . 674 assigns, and transferees of Property Owner, shall run with said real property, and create an equitable servitude lIpon said real property. Sect ion 9. A description of the property referred to herein and upon which said 1 ien is imposed is described as follows: A portion of Tract 115 of the Amended Map of the Town of Carlsbad, Map No. 775, County of San Diego, and a portion of Tract 119 of Carlsbad Lands, Map No. 1661, County of San Diego, State of California. + ‘.V . 4 .- . 65’5 Section 10. The required improvements to be constructed and the estimated costs thereof are as follows: I nip rovement s Estimated Costs 2%" AC Pavement, 2,000 sq.ft. @ $0.28 Preparation of base, 2000 sq.ft. @ $0.20 $ 560. 400. Curb and Gutter, 100 ft. @ $4.00 Sidewalk , 500 sa.ft. @ $1.00 l/4 15% Street Light*'@ $1,006. Engineering and Contingencies 400. 500. 250. 317. $ 2,42*7.00 promises herein contained, and agree to said lien imposed. STATE OF CALIFORNIA ) 1 ss. COUNTY OF SAN DIEGO ) Transferee of port-ion of said property On before me the undersigned, a Nota t-y Pub 1 i e, pirsonally 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. . l . -*a- --- EEC4 OFFlClAL SEAL \ NORA K. GARDINER NOTARV PUBLIC - CALIF PRlNClPAL OFFICE IN SAN DIEGO UUYlY ; A , u’ COMMlSSlON EXPlRES JAN. 29, 1980 ’ ---E-*-22---CITCI, \ .(Notarial acknowledgement of execution of owners’ must be attached). ,I \ STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss- . *- 676 On October 6, 1976 before me, the undersigned, a Notary Public in and for said County and State, personal1 ALBkl?f?:dFREIBURGER , known to me to be the person -whose name is subscribed to the within instrument and acknowledged that he executed the same. d /et \ -5YdLAA- I , 4 8 SAFECO FOR NOTARY SEAL OR STAMP OFFICIAL SEAL MARGARET E. HESLEY NOTARY PUBLIC . CALIFORNIA Principal Office, San Diego Co. Calif. My Commission Exp. Nov. 16 1979