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HomeMy WebLinkAboutMS 312; Frank H. Ayres & Son Construction Company; 78-046626; Future Improvement Agreement/ReleaseI/. i -. -53 .’ I),!-:COf-:[I I tic; i:f:EjUi:;‘fED BY /!IlD ) - FILE/PACE &o “+@ tillOK i978 'Wilii.1 I:tICOiii>IID I’iA I I- 1’0: > RECOROED REQiJESTQf C i t y 0 f C;I r 1 sled 1 %OiJ L: 1111 AVi!llllC Cd I’ 1 !;ljLld , CA 97.008 _---_-__.-_ ---- i ; :., . C&%@!? CITY CLERK FEB 3 Ii 45 M’fS. 1 1 jj?FifiAL RECORDS SANOIEG~.CQUNTY,&ALIF. HARLEY F.fJLoOH 1 RECSRL)ER . _-.--_-__-_-_-__-__^-__--___ -.-.- -----.- -_.-I_ --x_- s jxlcc above thi s line for Rccot-der's use . Documenl:a 1-y t rans-Fet- fax: $ NO -i; . --- f"of&.;-.__ ------- . ~tc~twr.ure of dcclaranl: detc:txttniriy tax- f i rfri rlane 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. . 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 .” * \%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 (0 I - I. ’ \ - 354 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 . . 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) , 355 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 : ; ., .- _ . ,” 356 - 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. xx xx ‘. - xx xx xx xx . xx XX xx . xx xx xx xx XX . . . . _ . . ,. - ; . 358 - . 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: -.. * , . City Attorney (Notarial acknowledgement of execution of owners must be attached). -6- . - : - STATE OF CALIFORNIA 1 _ 359 COUNTY OF___ ORANGE ss. z x f E 0” JANUARY 9 1978 u” , 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 9 .- -mm- 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)