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HomeMy WebLinkAboutMS 286; McKinstry, Fairfax and Barbara; 76-193421; Future Improvement Agreement/Release, _- GiYl!?D I NG REQUESTED WHEN RECORDED MAIL TO; AND > ! City of Csrlsbad 1209 j 1200 E lm A.venue Carl shad, CA 92008 76393421 FILE/PACE NO. BOOK1976 RECORDEDREOLJESlOf ADDRESSEE Jurr 22 1’3 09 Ml ‘76 1. OFFICIAL RECORDS SAN DIEGD COUtUr', Chi.ii. HARLEY F. BLOOM I-- Space0 -- rder’s u s e I ~<~~+;zQ~: $No Fee re of dec arant determining tax- firm name City of Carlsbad Pa reel No. 155-271-32 -- CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as “City”, and Fairfax D. McKinstry and Barbara E. McKinstry , hereinafter referred to as “Proper- t y Owne r” . RECiTALS: -__-- WHEREAS, Property Owner’has applied to City for a parcel ma@ - Minor Subdivision No. 286, Laguna Drive and Davis Avenue i-cl r’ i he I-eel 1 property tlereinafter described, IKNJ bnder Pi-tipei’tY 3wner! 5 ownership; and L 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 het-ci nafter described are constructed and certain irrevocable offers of dedication are made to City; and WHEREAS, the Municipal Code of City and City Endineer's tenta- tive map approval letter dated May 26, 1976 attached hereto and incorporated by reference herein require certain improvements and dedications as a condition of approval of this minor subdivision ; a nd WHEREAS, Property Owner has requested said minor’ subdivision approval be granted by City in advance of the t ime said improvements are to be ma de ; a rid WHEREAS, Property Owner, in consideration of tile approval of (1) 7 1210 - . 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 construct 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 approval of said minor subdi- vision. Section 2. That Property Owner, in lieu of making the herein- after 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 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 July 1, 1977 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 Ci.ty, be required to be made sooner than said date or such extended period of time which may have been granted by City: c (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 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 improvements at the time of signing this contract is $553.50 . 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 est imatc. Section 3. -- .I-^- That for the faithful performance of the promises (2) . 1221 - and covenants herein contained, Property Owner hereby grants to City a lien upon the hereinafter described property in the amount of $553.50 , 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 sa.id improvements in the manner and within the time speci- fied herein., he .ag.rees that City may, do any or all of the following: :. (a) Have the necessary eng,ineering -for said improvements 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 engintrring and construction, and 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 camp 1 et i on, City may foreclose said lien as provi’ded 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 improve- * ments, 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 c 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 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 here- inafter described is acquired by or as a rerul t of a for-ec losurc or (3) at all times up to the completion provements by the City, give good public of any dangerous or defect . and acceptance of sa and adequate warning ive cond i t i ens of pub - .’ ’ . , 12'12 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 cha’rge 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 ti: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:r,age happening or occurring to the work or improvements speci f ied 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 wi 11 d work and im- to the travel ing ic property. The Froperty Owner hereby agrees to pay for such i nspeci: ion of improvements arj may be required by the City Engineer of City. sha 1 Sect ion 8. Th i s I be b i nd i nq upon and i agreement and the covenants con,ta i ned herci n nut-e to the benefit of the successors, heirs, ( 4 > assigns, and transferees of Property Owner, shall run with said real property, and create an equitable servitude ltpon 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: All those portions of Lots 1, 2, and 3 and the east half of Tuttle Avenue (closed to public use) adjoining said lots on the west, all in Block 9 of -the Sunny Slope Tract of Carlsbad, in the City of Carlsbad, County of San Diego, State of California according to map there of No. 486 filed in the Office of the County Recorder of San Diego County on February 7, 18881 lying westerly of the westerly line of Davis Avenue as shown on map No. 3382 of Knowles Park filed in the Office of the County Recorder of San Diego County on February 24, 1956. Excepting from said portion of Lot 3 and Tuttle Avenue those portions ly- ing within Lot 1 of said Knowles Park. Also excepting therefrom that portion described as follows: BEGINNING AT THE westerly line of said east half of Tuttle Avenue (closed to public use) and the westerly prolongation of the southerly line of said Lot 1 of said map No. 486; thence north OoO5' east 3.18 feet; thence south 89O57' east 29.78 feet to a point on the arc of a curve concave northwest- erly having a radius of 25.00 feet; thence southwesterly along said curve through a central angle of 29O47'43" an arc distance of 13.00 feet to a point on the southerly line of said east half of Tuttle Avenue (closed) thence westerly along the said southerly line to the point of beginning. xxx xxx xxx xxx xxx xxx (5) . * . 123.4 L . Section 10. The required improvements to be constructed and the estimated costs thereof are as follows: Improvements Estimated Costs 1 . Engineering $ - 0 - 2. 5' sidewalk - @ .82 sq.ft. (135'x5') , 553.50 3. TOTAL COST $ 553.50 . STATE OF CALIFORNIA ) 1 ss. . COUNTY OF SAN DI EGO > L+L C#‘/%& .rroperty Owner CITY OF CARLSBAD, a Municipal Corpora- e of California . On Notary Pub1 ic i /.c 1476 before me the undersigned, a and for sdid State, pgrsonally appeared Paul D. Gussey, known to me to Citv Manaaer of the City of Carlsbad, a municipal corporation of the State of CalTfornia, 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. . . (Notarial acknowledgement of execution of owners must be attached). to 447 CA (4.7s) (Individual) STATE OF.CAUFORNIA TRUE INSURANCE 1215 AND TRUST AncoR EOMPANY Public in and for said W B I r: 2 to be the person & whose name Lp/ h dsubscribed ?; to the within instrument and acknowledged that executed the same. d and o5cial seal. , known to me r.\\.r\r.r.\r\............,.., 0lTIaAL SEAL Name (Typed or Printed) SAN DIEGO COUNTY MY CDYMISSIOW EXPIRES MAREn I7 lalg l ~..~\..~~.........\......~~.~ (This m-n fw elo*l mMw rul) 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92006 , TELEPHONE: (714) 729-l 181 May 26, 1976 Craig Ducey ' 928 Laguna Drive Carlsbad, CA 92008 Subject: Proposed Parcel Map for Minor Subdivision No. 286 - Laguna Drive and Davis .Avenue Dear Sir: Whereas the requirements of the California Environmental Quality Act and the City of Carlsbad Environmental Protection Ordinance of 1973 relating to the subject proposed parcel map, have been examined by the Planning Director and declared to have a non- significant impact upon the environment, and whereas negative findings delineated by Section 20.24.130 of the Carlsbad Munici- pal Code have not been made, and whereas this minor subdivision is found to be in conformity with the General Plan of the City of Carlsbad, therefore a final decision has been made to approve the subject tentative parcel map subject to the following condi- tions: 1. All required fees and deposits shall be paid prior to final map recordation. 2. Owner of proposed Parcel No. 3 shall enter into an agreement with the City of Carlsbad for the future installation of a 5'pcc sidewalk on the Davis Avenue frontage of the property. 3. Owner of proposed Parcel No. 1 shall extend existing drive- way toward rear of lot to provide legal off street parking for parcel. (Minimum length of driveway 40' from property line) 4. Tentative map approval shall expire one (1) year from the date of the final decision of approval, if the parcel map has not been recorded. Very truly yours, Tim Flanagan City Engineer TCF/RMcN/slw cc: William E. Billings Fairfax McKinstry EXHIBUI ‘ii!!