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HomeMy WebLinkAboutCT 79-27; G & G Enterprises Inc; 84-357001; Maintenance Agreementl 211 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: 1 City of Carl&ad ,' 1200 Elm Avenue I Car&bad, CA 92008 1 I r -.‘“*- I i,.’ ; ‘f 31 : “: i ‘.., [ii : ‘3;:) ::;.,,‘,::t P, ! , t’i 1;,A.!, .‘i.,;:i c-i ..‘;I :‘, ::,.; ;c..$ SEp 2 (J f;;.E 2: 59 VET. “\ L.. .i‘. L. l- i fJyJ;\; ::’ +i’; ; : <;[ ;t --.“I Space Above this line for Recorder's Use SLOPEMAI NTEEAECE AGREEUEWC THIS AGREEMENT is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as "City" and G & G Enterprises, Inc., a Nevada Corporation, hereinafter referred to as "Property Owner". RECITALS: WHEREAS, Property Owner has applied to City for approval of construction of certain improvements on the subject real property hereinafter described, now under Property Owner's ownership, in Case No. PCD-58; and WHEREAS, it has been found that although said property is suitable for development, certain measures must be taken to assure the maintenance of certain slopes that will result from said development; and WHEREAS, Property Owner is the beneficiary of an Agreement to maintain portions of such slopes as set forth in the records of the San Diego County Recorder, file number 66916 (April 20, 1966 Agreement); file number 135915 (July 28, 1969 Amendment to Agreement); and file number 78-346433 (August 15, 1978 Second Amendment to Agreement) ("Existing Slope Maintenance Agreement"); and WHEREAS, Property Owner has requested approval of Case No. PCD-58; and WHEREAS, City has determined it to be in the public interest to agree to allow said development if reasonable assurance is given by Property Owner that said slopes will be maintained; NOW, THEREFORE, IT IS AGREED between the parties hereto as follows: 1) Property Owner agrees to hold City harmless from any and all liability which may arise from the existence, erosion or failure of any slope on the site steeper than 2:l including any liability resulting from any maintenance or repair of any slope including any maintenance or repair done by the City regardless of whether the maintenance or repair by the City is done in a negligent manner. 2) Property Owner agrees to obtain and maintain liability insurance with respect to the subject property and covering among other things, the obligations set forth herein, and to name City as an "additional insured" thereon. The amount of the insurance shall not be less than $1,000,000.00. 31 Property Owner agrees to maintain and repair as necessary said slopes, either directly, or indirectly, through the enforcement of its rights under an existing Slope Maintenance Agreement. 4) Property Owner hereby grants City a right of entry to repair and/or maintain said slopes in the event Property Owner fails to repair and/or maintain said slopes to the satisfaction of City after 30 days notice so to do. 5) Property Owner hereby agrees that in the event City deems it necessary to enter the subject property to maintain or repair said slopes, it will have a lien enforceable under the provisions of California Civil Code Sections 2924, 2924(b) and 2924(c) on the subject property in the amount of the expenses actually incurred for the maintenance and/or repair of said slope or slopes, subordinate in priority to all liens existing at such time as it arises, enforceable through foreclosure action in the Court having jurisdiction with respect thereto. The cost of any expenses incurred by the City for slope maintenance or repair shall also be a personal obligation of Property Owner, its successors or assigns and the City may bring an action to enforce the obligation. In the event of any action or foreclosure brought to enforce the terms of this agreement the City shall be entitled to reasonable attorneys' fees. -2- 8. . > ‘. . *, * ,* .j +: 213 - 6) The parties agree that the responsibility for the maintenance and/or repair of said slopes rests with Property Owner, and that in the event City exercises its right of entry under Paragraph 4 hereof, City neither waives its rights under this agreement, nor assumes any duty for subsequent maintenance and/or repair of said slopes. The foregoing notwithstanding, nothing in this Agreement is intended to, nor shall be construed as altering, amending, modifying, waiving, or acting as a surrender of any right or rights available to Property Owner under the existing Slope Maintenance Agreement. 7) Property Owner contemplates that the apartments constructed pursuant to PCD-58 may, in the future, convert to a condominium project, and agrees that this agreement shall be binding upon and inure to the benefit of such homeowner's association as may be created for the benefit of the individual purchasers of undivided interests therein, that it shall run with said real property, and that it shall create an equitable servitude upon said real property. Nothing herein shall be construed in any manner to limit City's power in regard to the condominium however, including the power to deny such conversion. 8) That it is agreed that anything herein contained to the contrary notwithstanding, the promises and covenants made herein shall 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, except that the lien hereby created shall be and is hereby subordinated to and declared to be inferior and subsequent in line 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. 9) This agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of -3- Property Owner, shall run with said real property, and create an equitable servitude upon said real property. 10) A description of the property referred to herein and upon which said lien is imposed is described in Exhibit "A" attached hereto and made a part hereof as fully as though set forth herein verbatim. G & G ENTERPRISES, INC., PROPERTY OWNER CITY OF CARLSBAD, a Municipal Corporation of the State of California 1 . 0 By:z+& FRANK D. ALESHIRE, City Manager STATE OF CALIFORNIA 1 1 ss COUNTY OF SAN DIEGO 1 On &Z72zzZ~~~./Fd# , before me, the undersigned, a Notary Public in and foisaid County and State, personally appeared FRANK D. ALESHIRE, 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 F 'OR Vincent F. Biondo, Jr. City Attorney -4- STATE OF CALIFORNIA 1 1 5s COUNTY OF SAN DIEGO 1 On 5, before me, the undersigned, a Notary Public-in ang-for,said County and State, personally r ~_- L - , known to me to be the of the corooration that executed the within Instrument, known to me to be the person who executed the within Instrument-on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official OFFICIAL SEAL a CHI WTINA 6. COURTNEY 8 N’.,?hRV *UBLIC .CILIFORNIb ----- g f“IW:IPAL OFFICE tN c SAN DlEGO COUNTY MY Commission Expires April 25.1986 .IIIIWYUIIWlbn1111~~~~rr~“,,““,~~”~””~~~..~,~,.‘,~,~,“~,,,,, ..(.. ,,, -5- 4 . . -16 , .Pw r * k . 1 . . ImAL#DEsCRIpTIoN Lots 7, 8, 9 and 10, inclusive, of Carlsbad Tract Nap No. 79-27, in the City of Carl&ad, according to Map No. 10161 filed July 30, 1981, in the Office of the San Diego County &corder, and with the improvements thereon being ten buildings, roads and recreation area. EXHIBIT "A"