HomeMy WebLinkAboutMS 312; Frank H. Ayres & Son Construction Company; 78-046626; Future Improvement Agreement/ReleaseI/.
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Cd I’ 1 !;ljLld , CA 97.008
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C&%@!? CITY CLERK
FEB 3 Ii 45 M’fS. 1
1 jj?FifiAL RECORDS SANOIEG~.CQUNTY,&ALIF. HARLEY F.fJLoOH
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City of Carlsbad
Pat-ccl No. 215310-W. __I-
CONTRACT FOR .FUTURE PUKLl C It4PRO'JI::~4EI~!TS ---------- --..--.-.-
‘FH IS AGREEl4i--.NT i s made by the City of Carlsbacl, a municipal .
COI-pcjration, hereinafter referred to as "City", and Frank H. Ayres & Son .
Construction Company, a California corporation;‘hereinafter referred to as "Property
downer."
RECiTALS: -.--m--e
WEREAS , Property Owner h as applied to City for a 4 .: Final Parcel Map, Yumber MS 312, 1.
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for- the real propct-ty hereina-Ftet- described, now under Property Owner's
owet-t;h i p ; and
FEF
WHEREAS, it has been found tflat ‘said pt;operty is not suitable
.for de>elopmertt in its pt-esent condition, however said property would be
su i tat>1 c for development if certain p:lbl ic improvements -hereinafter . .
described are constructed and certain irrevocable offers of dedication
at-e rila<!E: to City; and .
. WI-IEREAS , the Nunicipnl Code of City and City Engineer's 'letter .
dated December 27, 1977
attacilcd herctto and i ncot-porated by rc-Ference he t-e i n requ i I-C certz i II .
improvements and ded i cat ions a7'; a condition of approval oF I-his
, Parcel f?ap ; and .”
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\%EREAS , Froper ty Owner has rcquestcd said Parcel Kap
i ri11.j t-ovcme;lt’s r7 t-c be yr;~ntccJ by C i try in aclvi)iice of the t imc Si\ id
, ma clc ; 3 nd
to he
- WHEREAS, PI-0pc:ri.y 01.1nc t-, in cons idcrat: ion of tllc approve I or
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SC7 id Parcel flap desires to enter into this agreement
securing the construct ion of said improvements, and City has determined
it to be in the pub1 ic interest to agree to temporarily postpone said
const rut-t ion;
NOW, THEREFORE, IT IS AGREED between -the parties hereto as
follows:
Section 1% Tha-t City agrees to record any irrevocable offers
of dedication made by Property Owner for Final Parcel Map, Number MS 312.
SecLion 2. That Property Owner, in lieu of making the herein-
af.ter described improvements before approval of said Parcel Map
is granted, agrees to install ‘and construct, or cause to be installed
or constructed, sa i d 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
sa id improvements before February 1, 1979 or within such further period
o-f time as is granted by City, provided, however, that upon the happening
o-f either of the following occurrences sai^d improvements may,,--at the sole . .
election of City, be required to be made sooner than stiid date or such
extended period of time whidh 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
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described ‘has frontage, have agreed with City to install street impt-ove-
nients to City specifications.
(b) When owners of more than 50% of the frontage, between .
irjtersecting streets on bo-th sides of the street upon which the property
h(:rcin described has frontage, have pet it ioned 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 ahd construction of
said improvements at the time of signing this contract is $1 ,251 .oo .
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 fai,thful performance OF the promises
(2)
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and covenatl1:s herci n conta i ncd, Property Owner hereby grants to Ci ty a
1 icrl upon the hereinafter described property in the amount of $1,251.00 ,
plus any futtrre increases of co\t in excess of this sum resulting from
increased engineering and construct ion costs, and in the event Property
Owner, his successors, heirs, assigns, or transferees fail to install
arid construct said improvements in the manner and within the time speci-
fied herein, he 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 other-
wi se. City or its contractor and his employees may enter upon any
portion 6r portions of the property reasonably necessary for said
engineering and construction, and the er,tire cost and expense shall be
charged against said property and payable by said Property Obvner, 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. 1.
(b) Direct the City Engineer to estimate the cost.:&f necessary
engineering, and the work required to install and construct said improve-
mcnts, and foreclose said lien in said amount.
(c) Pursue any remedy, legal or equitable (including those
specjfically 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 or purchase money 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 1,ien hereby created
shall be and is hereby subordinated to and declared to be inferior and
subsequent in 1 icn .to the 1 ien OF any such purct~ase money mortgage or
pi: t-chase money deed of trust. The lien hereby created shal 1 likewise be
of no for-cc: or effect aya ins% any owner whose t i t le to the property her-e-
in;lfter described is acquired by or as a result of a foreclosure or
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t ru s tees ’ sale of any such put-chase money mortgage or purchase money
deed of t t-115 t .
Sect ion 5. That at atly time during the period herein provided,
the Property Owner, his successors, heirs, assigns, or traniferces 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 o-f 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 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 emplo;ee 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
C i ty 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 thereo-f from
all liability or claim because of, or arising out of, the use of any
palent 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 ttre 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 o-f public property. The
Pt-operty Owner hereby agrees to pay for such inspection of improvements
a; may be t-equii-ed by the City Engineer of City.
Section 8. - This agreement and the covenants contained herein
s ha 1 1 be b i nd i nq upon and inure to the bene-fit of the successors, hei rs, (4)
assigns, and transferees of Property Owner, shall run with s?id real
PropeWf, and create an equitable servitude upon said real property.
Section 9. A desc;iption of the property refer-red to herein
and upon which said lien is imposed- is described as follows:
Lot 255 of LA GISTA !lEADO!:rS NIT 20. 2 , in the City of Carlsbad, County
of San Diego, State of California, according to Zap thereof No.. 69% , filed in the
Office of the County Recorder of San Diego County , on April 21, 1971.
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Section 10. The required improvements to be constructed and
the estimated costs thereof are as follows:
Improvements
1. 410 S.F. of 4" PCC Sidewalk
2. 82 L.F. of 3'* High Retaining Wall _
Estimated Costs
$ 431.00:
820.00
TOTAL COST $ 1,251.oo
CITY OF CARLSBAD, a Municipal
STATE OF CALIFORNIA )
)ss. :
COUNTY OF SAN DIEGO )
On / I/978 before me the undersigned, a
Notary-Public in aid'state, pe&onally 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.
Notary Public
APPROVED AS TO FORM:
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City Attorney
(Notarial acknowledgement of execution of owners must be attached).
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STATE OF CALIFORNIA 1 _ 359
COUNTY OF___ ORANGE ss. z
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E 0” JANUARY 9 1978
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, before me, the undersigned, a Notary Public in and for
al said State, personally appeared J. H. GLEASSQK I I- known to me to be the VICE c President, and s-s
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tl known to me to be the Secretary of the corporation that executed the within instrument,
I and known to me to be the persons who executed the within
E ii instrument on behalf of the corporation therein named, and ac-
P 2 knowledged to me that such corporation executed the within
f instrument pursuant to its by-laws or a resolution of its board of
Fz;;FgFz
Name (Typed or Printed) (This area for official notarial seal)