HomeMy WebLinkAboutPB 84-68; Lemkey, Charles and Elizabeth; 85-069168; Future Improvement Agreement/Release8:- 069168 . ” . . 104 2
RECORDING REQUESTED BY AND >
WHEN RECORDED MAIL TO: >
> CITY OF CARLSBAD
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1200 Elm Avenue
Carlsbad, CA 92008 @@FEE -a-. .- siu -_Y
Space above this line for Recorder’s use.
DocumentaFy transfer tax: No Fee
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Parcel No. 223-230-08
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CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as *‘City”, and JOHN CHARLES LEMKEY AND
ELIZABETH SCHUMACHER LEMKEY, hereinafter referred to as “Property Owner”.
RECITALS:
WHEREAS, Property Owner has applied to City for a Building Plan No. 84-
68 for the real property hereinafter described, now under Property Owner’s
ownership; and
WHEREAS, it has been found that said property is not suitable for
development in its present condition, however said property would be suitable
for development if certain public improvements hereinafter described are
constructed and certain irrevocable offers of dedication are made to City; and
WHEREAS, Property Owner has requested said Building Plan No. 84-68 be
granted by City in advance of the time said improvements are to be made; and
WHEREAS, Property Owner, in consideration of the approval of said
Building Plan No. 84-68 desires to enter into this agreement securing the
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construction of said improvements, and City has determined it to be in the
public interest to agree to temporarily postpone said construction;
NOW, THEREFORE, IT 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 3230 Venado Street.
Section 2. That Property Owner, in lieu of making the hereinafter
described improvements before approval of said Building Plan No. 84-68 is
granted, agrees to install and construct, or cause to be installed or
constructed, said improvements in accordance with plans and specifications
approved by the City Engineer within sixty (60) days after written demand so to
do by City. Property Owner shall not be required to make said improvements
before February 8, 1986 or within such further period of time as is granted by
City, provided, however, that upon the happening of either of the following
occurrences said improvements may, at the sole election of City, be required to
be made sooner than said date or such extended 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 intersecting
streets on both sides of the street upon which the property herein described has
frontage, have agreed with City to install street improvements to City
specifications.
(b) When owners of more than 50% of the frontage, between intersecting
streets on both sides of the street upon which the property herein described has
frontage, have petitioned 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 and construction of said improvements at
the time of signing this contract is FOUR THOUSAND SEVEN HUNDRED AND 60/100
DOLLARS ($4,700.60). 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 faithful performance of the promises and
covenants herein contained, Property Owner hereby grants to City a lien upon the
hereinafter described property in the amount of $4,700.60 plus any future
increases of cost in excess of this sum resulting from increased engineering and
construction costs, and in the event Property Owner, Property Owner’s
successors, heirs, assigns, or transferees fail to install and construct said
improvements in the manner and within the time specified herein, Property Owner
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 otherwise. City or its
contractor and contractor’s employees may enter upon any portion or 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, Property Owner’s successors, heirs, assigns, or transferees
immediately upon completion of said improvements. In the event same is not paid
within thirty (30) days from completion, City may foreclose 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 improvements,
and foreclose said lien in said amount.
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(cl Pursue any remedy, legal or equitable (including those
specifically referred to herein), for the foreclosure of a lien, and the
Property Owner, Property Owner’s successors, heirs, assigns, and transferees,
shall be liable for reasonable attorney’s fees as a cost in said proceedings.
Section 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, Property Owner’s successors, heirs,
assigns, or transferees, and the lien 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 purchase money deed of trust. The
lien hereby created shall likewise be of no force or effect against any owner
whose title to the property hereinafter described is acquired by or as a result
of a foreclosure or trustees’ sale of any such purchase money mortgage or
purchase money deed of trust.
Section 5. That at any time during the period herein provided, the
Property Owner, Property Owner’s 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 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 property to be released from the lien herein imposed.
Section 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 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 Property Owner’s 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 claiming to be injured as a result of said work or
improvements. Said Property Owner, and Property Owner’s successors, heirs,
assigns, and transferees, further agrees to protect said City and the officers
and employees thereof from all liability or claim because of, or arising out of,
the use of any patent or patented article in the construction of said
improvements.
Section 7. It is further agreed that said Property Owner will at all -em
times up to the completion and acceptance of said work and improvements by the
City, give good and adequate warning to the traveling public of any dangerous or
defective conditions of public property. The Property Owner hereby agrees to
pay for such inspection of improvements as may be required by the City Engineer
of City.
Section 8. This agreement and the covenants contained herein shall be
binding upon and inure to the benefit of the successors, heirs, 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 referred to herein and upon
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which said lien is imposed is described as follows:
Lot 437 of Carlsbad Tract No. 72-20, Unit No. 3 as shown on
Map No. 7950, recorded as File No. 74-145645 in the Office of
the County Recorder, County of San Diego, State of California
on June 3, 1974.
Section 10. The required improvements to be constructed and the
estimated costs thereof are as follows:
Improvements Estimated Costs
VENADO:
Sidewalk - 94.25' X 5' X 2.70 sq.ft.
2 Trees - 2 x 50.00
PIRAGUA: Sidewalk - 182.60' X 5' X 2.70 sq.ft.
5 Trees - 5 x 50.00
SUBTOTAL:
+ 15% ENGINEERING CONTINGENCY:
TOTAL COST:
$ 1,272.38
$ 100.00
$ 2,465.10
$ 250.00
$ 4,087.48
$ 613.12
$aOO.60
IN WITNESS WHEREOF, we have hereunto set our hands and seals this
5th day of February , 1982.
CITY OF CARLSBAD, a Municipal Corporation
of the State of California
By:
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. STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
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Notary Public
APPROVED AS TO FOR
,
Vincent F. Biondo, Jr.
City Attorney
(Notarial acknowledgement of execution of owners rust be
attached.)
STATE OF CALIFORNIA ) 1 ss. ,;;w 1048 ' .
COUNTY OF SAN DIEGO )
/ 92?r before me the undersigned, a Notary Stite, person:lly appeared Frank N. Hannen, known to me to be the Acting 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 flunicipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same.
WITNESS my hand and official seal.
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STATE OF CALIFORNIA I couN7-~ OF San Dieqo ss.
On this the 5th day of _ Notary Public in and for said County and State, personally anna=r- Elizabeth Ann Schumacher Lemkey
February
c.,,Fa.l dd 19?? before me the undersigned, a John Charles Lemkey and
, personally known to me or proved to me on the basis of satisfactory evidence to be the
person S - whose name-X&?%subscribed to the within instrument
and acknowledged that theyexecuted the same.
FOR NOTARY SEAL OR STAMP