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HomeMy WebLinkAboutFIA 91-10; Musser, Kurt & Sherryl Jo; 1991-0262226; Future Improvement Agreement/Release-., 1 P- . ‘\ 4 : . . 1472 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO ? u4-JLW-1991 10=50 ctcl 0 L / \ \ ct\ CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 Space above this line for Recor- der's use. CITY OF CARLSBAD Permit No. MS 751 Parcel No. ' 205-060-02 II - I COE‘I'RXT FOR EWTURE PUBLIC IMPROVRMEETS MS 751 THIS A6REEMEET is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as "CityV*, and Kurt B. Musser and Sherry1 Ja Musser, hereinafter referred to as lQProperty Owner." RECITALS WHEREAS, Property Owner has applied to City for a Minor Subdivision Number 752 for the real property hereinafter described, now under Property Owner's ownership: and WEEREAS, 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 WEEREAS, the Municipal Code of City (and the Conditions of Approval attached hereto and incorporated by reference herein) require certain improvements and dedications as a condition of approval of this minor subdivision; and WEEREAS, Property Owner has requested saidminor subdivision be granted by City in advance of the time said improvements are to 1 Rev. g/20/90 . . 1 , *\ . - \’ I m h be made; and 1473 WHEREAS, Property Owner, in consideration of the approval of said minor subdivision 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 AOREED between the parties hereto as follows: Section 1. That City agrees to record any irrevocable offers of dedication made by Property Owner for Highland Drive. Section 2. That Property Owner, in lieu of making the hereinafter described improvements before approval of said Minor Subdivision is 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 Owner shall not be required to make said improvements before, 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 improvements to City specifications. (b) When owners of more than 50% of the frontage, between intersecting streets on both sides of the street upon 2 Rev. g/20/90 . ‘. * -, . 1474 - 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 improvement at the time of signing this contract is nine thousand one hundred twenty and OO/lOO DOLLARS ($9,120.00). 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 and covenants herein contained, Property Owner hereby grants to i City a lien upon the hereinafter described property in the amount of $9,120.00 plus any future increases of cost in excess of this sum resulting from increased engineering and construction costs, and in the event Property Owner, 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 follow- ing: (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 contractorls 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 transferrees immediately upon completion of said 3 Rev. g/20/90 . . *\ . . : > 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. (cl 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 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 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 4 Rev. g/20/90 : l .1 . : :,. . 1476 - 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. 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 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 5 Rev. g/20/90 . l ‘. . . ‘. .’ . 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: SEE ATTACHED EXHIBIT "A" /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// Rev. g/20/90 - EXHIBIT "A" PARCEL MAP OF THAT PORTION OF TRACT 123 OF CARLSBAD LANDS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 1661, FILED IN THE OFFICE OF COUNTY RECORDER OF SAN DIEGO COUNTY ON MARCH 1, 1915. MORE PARTICULARY DESCRIBED AS THE LAND CONVEYED TO KURT B. MUSSER AND SHERRYL JO MUSSER BY A DEED RECORDED WITH THE COUNTY RECORDER OF SAID COUNTY ON DECEMBER 9, 1980 AS RECORDER'S FILE/PAGE NO. 80-413265, BOUNDED BY A LINE DESCRIBED AS FOLLOWS: TO WIT: BEGINNING AT A POINT ON THE CENTER LINE OF HIGHLAND ST. DISTANT THEREON SOUTH 24'33' EAST 125.33 FEET FROM THE INTERSECTION OF THE SOUTHWESTERLY PROLONGATION OF THE NORTHWESTERLY LINE OF SAID TRACT 123 AND SAID CENTERLINE OF HIGHLAND STREET; THENCE SOUTH 24.33' EAST ALONG SAID CENTER LINE OF HIGHLAND STREET, A DISTANCE OF 62.67 FEET TO A POINT; THENCE NORTH 5927' EAST, A DISTANCE OF 441.22 FEET TO A POINT A LINE DRAWN PARALLEL WITH AND DISTANT 451.97 FEET AT RIGHT ANGLES SOtTHWESTERLY FROM THE CENTER LINE OF VALLEY STREET; THENCE NORTH 34 33' WEST ALONG SAID PA#ALLEL LINE, A DISTANCE OF 61.72 FEET TO A POINT; THENCE SOUTH 55 27' WEST, A DISTANCE OF 430.25 FEET TO THE POINT OF BEGINNING. PARCEL MAP GUARANTEE ISSUED BY TRANSAMERICA TITLE INSURANCE COMPANY. ORDER NO. 6011350 ON APRIL 10, 1991. GROSS AREA = 0.6177 AC. TOTAL NO. OF LOTS = 2 . . - *\ .- - IS ’ * , - . . . I c -, 1479 -, Section 10. The required improvements to be constructed and the estimated costs thereof are as follows: IMPROVEMENTS ESTIMATED COSTS Highland Drive Half Street Paving $9,120.00 Curb and Gutter, Sidewalk, Share of Street Light and Fire Hydrant, Contingency and Engineering Executed by Property Owner this 2 ALo day of fi%'alc -, 1991. PROPERTY OWNER Kurt B. Musser and Sherry1 Jo Musser, Joint Tenants (Name of Property Owner) CITY OF CARLSBAD a municipal corporation of the State of California By: By: MARTIN ORENYW for City Manager Kurt B. Musser. (print name here) ATTEST: Owner ation of signatory) ALETHA L. RAUTEIMRiWZ, City Clerk Sherrvl Jo Musser (print name here) ',. Owner (title and organization of signatory) (Proper notarial acknowledgement of execution by PROPERTY OWNER must be attached) (President or vice-president and secretary or assistant secretary must sign for corporations. ff only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: Deputy City Atvorney Rev. g/20/90 INDlVlDUAl ACKNOWLEDDMENT A State of \ On this the s- - day of f Ii . ss. F zdct 19~ ---, before me, eo the undersigned Notary Public, personally appeared @iA rsonally known to me rJ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) subscribed to the within ins@nt, and acknowledged that n executed it. THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED AT RIGHT: Date of Document Signer(s) Other Than Named Above t 8 NATK3NALlWTARYAS9OlX’.8236RemmetAve..P.O. Ebx7184*Cano~~FM. CA 913017184