HomeMy WebLinkAboutMS 322; Frank H. Ayres & Son Construction Company; 78-046625; Future Improvement Agreement/Release.I
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c i ty of Car 1 shad
1200 E 1111 Avi:nuc
ca I- 1 r;l,ad , CA 93.008
78-q
FILE/PAGE HO..ie.w- BOOK 19'78 RECORDEDREQUESTOF
Cf?@&~s CITY CLERK
ke 3 II 46Alm
UFFJCtlrLRECORDS . SANDIEGOCOUHTY,CALIF. HARLEYF.BLOOH RECORDER . --- -----------__-. Space above this I i ne for Recor-dFs---
USC .
Documentary transfer- tax:
$No&- --- Signature of dcclaranl: detczmlining tax-
f i rm name
City of Carlsbad
Pa reel No. 215-290-l 9.
CONTRACT FOR .FUTURE PUBLiC IMPRO’JEMEi4TS --- -.--
THIS AGREEMilNT is made by the City of Carlsbatl, a mclnicipsl
corporation, hereinafter referred to as “City”, and Frank H. hyres i Son s
Construction Company, a California corporation;‘hereinafter referred to as “Property
Owner.”
REC. i TALS: ----
WHERF_AS, Property Owner has applied to City for a IL .z Fina? Parcel Map, Number MS 322, .T
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for- the real property hereinafter described, now under Property Owner’s
ownership; and
WHEREAS, it- has been found that .saicl property. is not suitable
for degeldpment in its present condition, ho:qever said property would be
suital~le for development if certain p:lb? ic improvements ‘hereinafter i-
described are conslructed and certain irrevocable offers of dedication
d are ma<!e l:o Ci t’y; and ’
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WHERCAS, .the Muni c i pa 1 Code of C i-ty and City Engineer’s letter
dated December 27, 1977
attac.ilcd hereto and incorporated by reference herein rcqui I-C certsi II
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s a i cl Parcel Map desires to enter into this agreefnent
secut-i ng t\le const t-uct ion of said improvements, and C i ty has determined
it to be in the public interest to agree to temporarily postpone said
const ruct ion;
NOW, THEREFORE, I J 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 Final Parcel Map, Number MS 322.
.Sect ion 2. That Property Owner, in lieu of making the herein-
a.fter described improvements before approval of said Parcel Map
is granted, agrees to install and construct, or cause to be installed
or constructed, sa id improvements in accordance with plans and specifi-
cations approved by the City Engineer within 60 days after written
demand so to do by City. Pt-bperty Owner shall not be required to make
sa id improvements before February 1, 1979 or within such further period
OF time as is granted by City, provided, however, that upon the happening
of either of the following occurrences sai% improvements may-,--at the sole . ..‘
election of City, be requi red to be made sooner than said date or such
ex-tended 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 o-f the street upon which the property herein
described ‘has frontage, have agreed with City to install street improve-
ments to City specificat ions.
(b) When owners of more than 50% of the frontage, between
inI:et-setting streets on both sides of the street upon which the property
hcrcin described has frontage, have pet it ioned .the City to form an
i !rrp rovcmen t d i st r i c t for the i nip rovement of sa i d s t reet s .
Said improvements shall be made wi thout cost or expense to
City. City estimates that the cost of engineering a&l construction of
sa id improvczfnents at the time of signing this contt-act is $1,247.00. .
Property Owner hclreby acknowledges that said cost is a reasonable
CL”-, t i rrk3 te 0 1’ er~y i n2e r i rry antI cor~rrtrtrctior~ costs at this time and that t11e
actual cost 0T same at some time in the future may exceed this cst imate.
Sectiorl 3. _-.---_--- Jhnt for tllc fai Lhful pcrfor::1,3nncc 0F the pt-omi ses
(2)
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a nd covenants here i n cants i ned , Property Owner hereby grants to City a
1 icn upon the hereinafter described property in the amount of $1,247.c)O ,
plus any future increases 0-F cost in excess of this sum resulting from
inct-eased engineering and construction costs, and in the event Property
Owner, his successors, heirs, assigns, or transferees fail to install
and construct said improvements in the manner and within the time speci-
f ied herein, he agrees that City may do any or all of the following: S
(a) Have the necessary engineering 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 6r 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, 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 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-
merits, and foreclose said lien in said amount.
(c) Pursue any remedy, legal or equitable (including those
specffically 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 Lb. .- 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 l.ien 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
pr:rchase money deed of trust. The lien hereby created shall Iikewise be
of no force or ef.fect against any owner whose tit le to the property here-
inafter described is acquired by or as a result of a foreclosure or
(3)
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t- t-us tees ’ sa 1 e of any such purchase
clced 0 F t t-11 s t: .
money mortgage or purchase money
Section 5. That at any t -.-___--
the Property Owner, his successors,
ime during the period herein provided,
heirs, ’ assigns, or transferees may
deposit a cash bond or post a surety performarice bond satisfactory to
the City to charge said surety with the cost o-f 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 pro-
pet-ty to be released from the lien herein imposed.
Sect ion 6. -- Said City shall not, nor shal 1 any officer or
emp 1 oyee thereof, be liable or responsible for any accident, loss or
damage happening or occur.ring 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 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
his successors, heirs, assigns, and transferees, and they shall save the
City harmless froln, and indemnify the City against, any and all claims,
suits and 1 iabi 1 ities o-f or to any person or property injured or claim- i-
ing to be injured as a result of said work or improvements. Said Pro-
perty Owner, and his successors, heirs, assigns, and transferees, further
a CJ rees to protect said City and the officers and employees thereof from
all liability or claim because o-f, or arising out of, the use of any
patent or patented article in the construction of said improvements.
Se0 i on 7. It is _- - -further agreed that said Property Owner wi 11
at a 11 times up to the completion and acceptance of said work and im-
provements by the City, give good and adequate warning to the traveling
pub1 ic of ally dangerous ot- defective conditions of pub1 ic property. The
Property Ownct- hereby agrees to pay for such inspect ion of improvements
a :; r,lay be t-equ i i-cd b;l t hti C i t y Eng i nzer o I’ C i ty .
Sect ion 8, This _---___- ag reellen t a nd the covcna n t s con ta i ned here i n
5f)a 11 be b i tic1 i nq upon and inure to the benefit of the s~lcccssors, heirs,
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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 refer'red to herein
and upon which said lien is imposed- is described as follows:
Lot 165 of LA COSTA YEADONS UNIT 110. 1 , in the City of Carlsbad, County
of San Diego, State of California, according to Yap thereof !40.6800 , filed in the v
Office of the County Recorder of San Diego County, on December 9, 1970.
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(5) XX
Section 10. The required improvements to be constructed and
the estimated costs thereof are as follows:
Improvements Estimated Costs
1. 435 S.F. of 4" PCC Sidewalk $ 457.00
2. 79 L.F. of 3'f High Retaining Wall 790.00
TOTAL COST $ 1,247.OO
Dated: //s/78
CITY OF CARLSBAD, a Municipal
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On L I.1978 before m'e the undersigned, a
Notary-Public in and for&afd 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,
. APPROVED AS TO FORM:
' NOTARY F'UB,i, r,ALIi
PRINCIPAL OFhIct IN
SAN DIZGO C0d~jY My CommisSidn Expires Oct. 23 iqxl
(Notarial acknowledgement of execution of owners must be attached).
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STATE OF CALIFORNIA ,.
_ 3512
COUNTY OF ORANGE >
ss.
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0” JANUARY 9, 1978 , before me, the undersigned, a Notary Public in and for
said State, personally appeared J. H. GLEASON
known to me to be the Vice President, and ---
known to me to be the ---- Secretary of the corporation that executed the within instrument,
and known to me to be the persons who executed the within
instrument on behalf of the corporation therein named, and ac-
knowledged to me that such corporation executed the within
instrument pursuant to its by-laws or a resolution of its board of
directors.
BEti L. FAUST
Name (Typed or Printed)
OFFICIAL SEAL BETTY L. FAUST 1
hZi~;rii’i PUBLIC CALIFURNIA
/
PHI!\ICI?AL OFFICE IN ii
ORANGE COUNTY
(This area for official notarial seal)