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HomeMy WebLinkAboutMS 322; Frank H. Ayres & Son Construction Company; 78-046625; Future Improvement Agreement/Release.I .y . -46 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 . 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 ’ . . 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 - -. 347 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) . 348 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) . I “- 349 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, ( 4 1 5 I(.* . , - . - l 350 . 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. xx xx xx xx xx . , xx * xx xx xx xx . (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). l . -6- i. - STATE OF CALIFORNIA ,. _ 3512 COUNTY OF ORANGE > ss. _______ 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)