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Home My WebLink AboutCB 991575; Island @ Carlsbad LLC; 1999-0671129; Future Improvement Agreement/Release~~l~YYYYrlll~llllYYY DOC it 19994671129 1999-0671129 OCT 04m 1999 10:oa AM RECORDING REQUESTED BY rnICIlY REcfm H DIOGO couliy REcwB?‘s OFFICE WHEN RECORDED MAIL TO City Clerk CITY OF CARLSBAD 2035 GRaaRvkEFITHs Y!Eo= : . 1200 Carlsbad Village Dr. Carlsbad, CA. 92008 ,I 1,) ,! i Space above, this line for Recorder’s use. i: (_ i’ ,, ,, ,‘j+ OF &&&j”$ ,’ : (: 3, (E,~,, “C&NTRACT FOR FUTURE PUBLIC IMPR&EMENj% ,: Permit No. CB 99-##5 Parcel No. 21.&$~~, FIA No. FIA39Q’I 31: ;,, : I’, S( ,,,:,, THIS AGt@EMENT is made by the City of ‘Cdrfsbad, a municfpal corporation, I) 3 hereinafter referred to I$$ “City”, and the “Island @ Carlsbad” LLC,, hereinaft& referred to as ,,$ (, “Property Owner.” ‘ji ,‘,, ,( RECITALS ‘, ,( WHEREAS, Property Owner has applied’to City for a Permit Number CB 99-1575 for the real property hereinafter described, now undei 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, the Municipal Code of City requires certain improvements and dedications as a condition of approval of this building permit; and WHEREAS, Property Owner has requested that approval of said building permit be granted by City in advance of the time said improvements are to be made; and MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 1 2036 WHEREAS, Property Owner, in consideration of the approval of said building permit 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 construction; NOW, THEREFORE, IT IS AGREED between the parties hereto as follows: Section 1. That City agrees to recordc:any irrevocable offers of dedication made by “i’ Property Owner for public rigtif of way on Faraday Avenue or Van Allen Way. Section 2. That Property Owner, “in ’ lieu ‘.af, making the hereinafter described improvements before approval’~bf said building permit is granted, agrees to install and construct, ‘, a,~@ or cause to be ‘8ndtalled’:or constructed, said improvements in’ ‘accordance with plans and :_ ,r :: : i, 9, specifications approvedpy the City Eng&er w$n sixty’(60) days after written demand to do so by City. Prdperty’C’wner shall not be required to make said improvements before January, (( “ (, 2001, or within such further period of time as is granted’ by,‘City, provided, however, that upon : the happening of’either ‘of the following occurrences” &id improvements:,‘may, at the sole L_ election of City, be required to be made soonerthan said date oi’such extended period of time which may have been ‘granted by City: ;,, ,; I (a) When the City ‘~oij.iicil’k;;;;ls’.tEiai’~~e 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 peti- tioned 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 improvement at the time of signing this contract is thirty thousand and OO/lOO DOLLARS ($30,000). Property owner hereby acknowledges that said cost is a reasonable estimate of engineering and construction costs at this time and that I MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 2 REV. 5125199 2037 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 $30,000 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 @inner and within the time ‘specified herein: Property Owner agrees that City may do any or aIf@ the .f$bwing: . 1 a.!‘- iI :1_,,_, (a) ‘~ave’the’necessary engineering for said improvements done, and install and ; :, _l: L ‘3 : ;:;I 3‘ 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 (.’ :il, said engineering and Mx-rstruction, and the entire cost and expense shall becharged against ~:, :_( 1(0 said property and payable by said, Propeity ,Owner, Prc$erty Owner’s successors, heirs, ,, assigns or transferees> immediately upon completion of said impro&ments. In the event same ,( ,I~ is not paid within thirty (36)“daysfrom completion, City may foreclose said lien as provided by ‘), law for the foreclosure of mortgages. (b) Direct the City Engineer to estimate,the%ost of necessary engineering, and the work required to install and construct said improvements, 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, 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 I MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 3 REV. 5125199 2038 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 forceor effedt~$@&tst any owner whose title to the property r : ! :( _, hereinafter described is acquired by or as a result of a foreclosure or trustees’ sale of any such ‘,, purchase money mortga$e or purchase money deed of trust. j: ,/( ,‘I a Section 5. That ‘at anytime during the period herei&‘provided, the Property Owner, ,,:, ‘( ‘,, Property Owner’s successors, heirs, assigns or transferees may deposit a cash bond or post a : :, i surety performance~~bond‘ satisfactory to the City to charge said surety ‘vi;ith 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 I:, deposit of said’ cash,‘or posting of said bond the City agree& to release the property, or any portion of it as to which s&deposit or posting applies, from the provisions of this agreement, ,~ _:’ : !i (i and to execute any necessary reiease to enable the record ‘$tle 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 or 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 or transferees, further agrees to protect said City and the officers and employees thereof from I F MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 4 REV. 5125199 2039 all liability or claim because of, or arising out of, the use of any patent or patented article in the construction of said improvement. Section 7. It is further agreed that said Property Owner will at all 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 3 may be required by th$~kity En$r$$,~~f:Ci~$?‘ ,:, ) ,“,‘, ,I ‘, 1’1’ ‘,, : i_I,_) ‘iii‘ is,‘, ~’ Section 8. Ttiis agreement and the covenants contained herein ‘&all be binding upon ‘, 3) ,,,,/ ‘) ,;a, i, and inure to the b6efit ,ofihe successors, heirs, assigns and trangferees of Property Owner, : >, i )! ::’ “ shall run with said rea‘fp,rcperty, and create an equitable servitude upon said real property. Section 9. A d&ription of the property referred to herein and upon‘which said lien is i,l , “: imposed is described as follows: Lot 73 of earlsbad Tract 85-&‘as shown on tiap #I2815 , ,_ 8: ‘,I, Section AO. IThe required’.‘improvements to be constructed‘and the estimated costs thereof are as folk&s: :‘,::‘,,, 10, 3’ ‘_ ,’ ,, ‘E,,, Ill ), 0, !,( L (, :, ~ ,, “/ ‘,( r ill :‘ ‘Y((> ,, ,( (: ill I ” ‘> j:; 1 i;i) ~ ,il 2% ill ill I III Ill ill Ill Ill Ill I MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 5 REV. 5125199 2040 IMPROVEMENTS QUANTITY UNIT COST ESTIMATED COSTS Traffic Signal Lump Sum $120,000+4 $30,000.00 TOTAL $30,000.00 ,~( L,:( ~,.. (S~(( ,I,( Executed by Property Ownerthis ((,(,( ,, of (p day of sm. , 19’2 PROPERTY OWNER CITY OF’ CARLSBAD a municipal corporation of.the’State of California RAYMOND’:R: PATC,@TT Robert J. Lichter ,Z-,~,‘,i” :: ’ (print name here) “- President, Lichter Venture Group (title and organization of signatory) , By: _(,( (‘ (sign here) ,, ), ,,,( I) : :~’ , i ‘,, (’ s (print name here) (~, i ‘I( “I ( 3. ‘I’ ” s (title and organization of signatory) ((,’ ’ (Proper notarial acknowledgment~ofexecution byPROPERTY’6WNER must be attached) ,( : ” (, ;J,‘,( (Chairman, president or vice-president ‘aid’ secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney By: REV. 5125199 I MASTERS\FORMS\CONTRACT FUT-PUB-IMPVMNTS 6 2041 State of California ) 1 County of San Diego ) On September 22, 1999, before me, Belinda R. Guzman, Notary Public, personally appeared Lloyd Hubbs, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal !IF&5J& /!j& (This area for Signature of Notary official notary seal) Title or Type of Document Contract for Future Improvement Agreement MS 96-07 FIA 99-l 1 Parcel No. 156-142-04 Date of Document September 17, 1999 Signer(s) other than named above None No. of Pages 6 . 2042 State of California County of San Diego ) On~beforeme,($LI~ hdd 5k4e\dod (Date) (Name, Title of Officer)’ personally appeared fb3EeT cf LL(-t-Em?/ (Name[s] of Signer[s]) I personally known to me -OR - (proved to me on the basis of satisfactory evidence) to be the person $ ) whose name + ) 0 is/ re subscribed to the within instrument and acknowledged to me that e 0 he/they executed the same in his/ erltheir authorized 0 capacity(i d s), and that by @erltheir signature P ) on the instrument the or entity upon behalf of which the person acted, executed the instrument. . WITNESS my hand and official seal JULIE ANN SHANNON COMM. #1176128 NOTARY F’UBLIC-CALIFORNIA -I (This area for official notary seal) Title or Type of Document a0h)T-T 63e Fu-rL)l% ?ti6(--tc m@ Date of Document q-t b-77 No. of Pages CP an named above 2043 State of California ) 1 County of San Diego ) On September 22, 1999, before me, Belinda R. Guzman, Notary Public, personally appeared Lloyd Hubbs, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal Signature of Notary (This area for official notary seal) Title or Type of Document Contract for Future Improvement Agreement CB 99-1575 FIA99013 Parcel No. 212-120-04 Date of Document September 17, 1999 Signer(s) other than named above None No. of Pages 6