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HomeMy WebLinkAboutMS 323; Frank H. Ayres & Son Construction Company; 78-046624; Future Improvement Agreement/Release.’ ./ ..- _, I AS r~f:c',)i:il I t!G I:I:Q,u~.I;TED EY r!tJu ) Wi-Ii.YIl I:liCORi)lIL~ I-IA I I- TO: 1 C i l.y of Car 1 slmd 1200 t: IIll AvitntlU ) ,y.: >- ‘5!l?3-+0~~~ FiLEIPAGE HO. BOOK1978 RECORDEDREQUESTOF C&a 8m CITY CLERK .,m..._..--.--..-- FEB 3 II 4#!“?8 Ca I’ 1 SlLld , CA 93.008 1 i . . DFflClAt RECORDS' SAN DkGOCOUWTY,CALIF. ttARLEYF.BLOOM > RECORDER . -__.__-- -_--__-l_----l__I_____ ---.__ Space above ttli s 1 i nc for Recorder I s use . Docwnenta t-y t ra ns -fe r tax : . No FE -e;-; -P--P ;;-.--- 3 ~ynstu re-of dcclarsnt deter-1-rltnrr;y tax- f i t-3 name City of Carlsbad Parcel No. 215-290-20 . --_ - --_- -- CONTRACT FOR .FUTURE PUiZLiC It4PRO~JJI::E/fEt~TS . ..--- --- --._._ THIS AGREEIIENT is made by the City of Carlsbad, a nwnicipal . corporation, hereinafter referred to as “City”, and Frank H. Ayres & Son ’ . Construction Company, a California corporation;.hereinafter referred to as "Property Owner." KECITALS: w H E R p, s , Property Owner has applied to City for a 4 .‘. Final Parcel Map, Number MS 323, ..,. . for the real property hereinafter described, now tlndzr Property Owner's ownership; and . WHEREAS, it has been f’ound that -said property.is not suitable for de$elopment in its present condition, ho:?lever said property would be suitable for developmcnl: if certain pub1 ic in?proven-ients ‘hereinafter -. described are constructed and certain irrevocable offers of dedication are rmc!e to City; and ’ t . WI-IEREnS, the Municipal Code of City and City Engineer’s’letter . dated December 27, 1977 attaciilod hereto and i ncorporatcd by re?erence herein .requi I-C certai II a itnprovenients a i-d cled i cat i errs as a condition of approval of this Parcel F!ap . ; and -- . . V!HERE.r,S, Fropcrty Owner has reque~ted said Parcel Map . . lje cJi-;lnLcd by City i fl CldVCliSCf2 of the t irxc said ‘irl.lpI.ovclnei~t-s al-c? to be iwle; alld , ’ tiHEI!EAS, Proper-t\; 0~.1n[3r, in cons idcrnt ion ol’ tile spprova 1 of ._ i 0) said Parcel r,lap desires to enter into this agreement securing the construction of said improvements, and City has determined it to be in the public interest to agree to temporarily postpone said construct ion; NOW, THEREFORE, IT IS AGREED between the parties hereto as follows: S.ect ion 1. That City agrees to record any irrevocable offers of dedication made by Property Owner for Final Parcel Map, Number I$ 323, Sect,ion 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 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. Property Owner shall not be requi red to make said 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 sai2 improvements may,.:at the sole :: election of City, be required to be made sooner than said 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- setting streets on both sides of the street upon which the property herein described -has frontage, have agreed with City to install street impt-ove- ments to City specifications. (b) When owners of more than 50% of the frontage, between intersecting streets on both sides of the s-tr-eet upon which the property hcrci n described has frontayje, have pet it ioned the City to form an improvement district for the improvement o-f 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 $1,009.00 . Property Owner hereby acknowledges that said cost is a reasonable f2:;timate ol‘ ctrIgineeriny and construct ion costs at thi s time and the-1 t the actual cost of same at some time in the future may exceed this estimate. -Sect ion 3.- -ma.7 for the fai ttlful performance of the promises (2) .., -- -. -... - .,__ - ,.. ...::.:.2’ 341 _- *. and covenants herein contained, Property Owner hereby grants to City a lierl upon the hereinafter described property in the amount of $1,009.00 , plus any future increases of co;t in excess of this sum resulting froin increased engineering and construction costs, and in the event Property Owner, his successors, heirs, assigns, or transFeree5 fail to install arid construct sa id improvements in the manner and within the time speci- f ied herein, he agrees that Ci-ty may do any or all of the follow.ing: (a) Have t-he necessary engineering for said improvements done, and install and construct said improvements by contract or other- \:,i 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 ent i re cost and expense shall be charged against said property and payable by said Property Owner, his successors, heirs, assigns, or transferees immediately upon coinpletion o-f said improvements. In the event same is not paid within 30 days, from coniplet ion, City may ‘?oreclose said lien as provided 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- ment s , 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 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, hei rs, assigns, or t rans Ferees, and the 1.ier-1 hereby created shall be and is hereby subordinated to and declared to be inferior and subsequent in 1 ien ‘to the 1 i en of any such purchase money mortgage or pr:r-chase money deed of trust. The lien hereby created shall likewise be of no force or ef-feet against any owner whose title to the property here- inafter described is acquired by or as a result of a foreclosure or (3) t r-us tees ’ 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 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. Sec.t ion 6. Said City shall not, nor shall 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 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 aqrees to protect said City and the officers and employ.ees thereof from all liability or claim because of, or arising out o-f, the use of any patent or patented article in the construction of said improvements. Sect i on 7. It is further agreed that said Property Owner will at al 1 t irnes up to the completion and acceptance of said work and im- provements by the City, give good and adequate warning to the traveling public of any dangct-ous or defective conditions of public property. The Property Owner hereby agrees to pay for such inspect ion of improvements a; may be required by the City Engineer of City. Section 8. This agreelnent and the covenants contained herein stlnl 1 be bi ndinq upon and inure to the benefit of the successors, heirs, (4) . . / . z < . #I - 343 assigns, and transferees of Property Owner, shall run with said real property, and create an equitable servitude upon said real property. Sect ion 9. A desciiption of the property refer’red to herein and upon which said lien is imposed. is described as follows: Lot 166 of LA COSTA !?EADO!:rS UFIIT TJO. 1 , in the City of Carlsbad, County of San Diego, State of California, according to !?ap thereof No.. 6800 , filed in the . Office of the County Recorder of San Diego County, on December 9, 1970. xx xx ‘. xx xx xx xx . xx - . xx xx (5) . XX . xx xx xx xx XX Section 10. The required improvements to be constructed and the estimated costs thereof are as follows: Improvements 1. 332 S.F. of 4" PCC Sidewalk 7 L. 66 L.F. of 3': High Retaining Wall Estimated Costs $ 349.00 660.00 a Dated: 1 I .I TOTAL COST $ 1,009.00 ,,_..I./,, CITY OF CARLSBAD, a Municipal tion of the State of :: : , City Manager STATE OF CALIFORNIA > ) ss. COUNTY OF SAN DIEGO ) On 7.h 1, /597B before me the undersigned, a Notary-Public in and fo&saia State, peisonally appeared Pau1.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. L2.d gb . Notary Public & APPROVED AS TO FORM: . . .c I NOTARY Wti~c. CA&- (Notarial acknowledgement of execution of owners must be attached). -G- 2 x E s a I I- c J .- G I z ii -z .o f b !+ f 8 0 5 9 STATE OF CALIFORNIA ) : ,. 345 i ORANGE f 55. COUNTY OF ~__ 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 --mm- 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. BETKL. FAUST .- -. (This area for official notarial seal) Name (lyped or Printed)