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Home My WebLink AboutFIA 91-09; Aviara Land Associates; 1991-0259639; Future Improvement Agreement/Release- 270 RECORDING REQuASTED BY AND ) D,"; Iti 199FO259639 .WBEN RECORDED MAIL TO 1 03-JUbl-195'1 12:18 FT CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, CA 92008 SAN DIEGO COUNTY RECORDER’S OFFICE 1 1 ANNETTE EVANS, CO~N~~~EC~DER RF: 11.00 : 21.00 BF If i 9. DO 1.00 Space above this line for Recor- der's use. CITY OF CARLSBAD Permit No. CUP 90-7 Parcel No. 215-040-19 & 21 COBmCIULCP'FORFVTUR3 PUBLIC rB4PRovEMENTs THIS AGREEMER!l! is made by the City of Carlsbad, a municipal corporation, hereinafter referred to as "City*g, and Aviara Land Associates Limited Partnership, a Delaware Limited Partnership formerly Pacific Rim Land Associates Limited Partnership, a Delaware Limited Partnership, hereinafter referred to as "Property Owner." RECITALS WHEREAS, Property Owner has applied to City for revisions to grading plan for CT 85035A, Drawing Number 286-913) 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 WEEREAS, the Municipal Code of City and Planning Commission Resoltuion No. 3160, said resolution attached hereto and incorporated by reference herein requires certain improvements and 1 Rev. g/20/90 t I.’ ’ ,( . * ~ - . 271 P -I dedications as a condition of approval of this Conditional Use Permit grading revision: and WHEREAS, Property Owner has requested said grading revisions 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 grading revision 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, TWWRWFQRW, IT IS AC3NEED between the parties hereto as follows: Section 3. t That City agrees to record any irrevocable offers of dedication made by Property Owner for public road dedication of a portion of Black Rail Road. Section 2. That Property Owner, in lieu of making the hereinafter described improvements before approval of said grading revisions 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 Bake said improvements before March 15, 1992, 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, 2 Rev. g/20/90 ‘b . . ‘. - - 272 - between intersecting streets on both siaes 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 improvement at the time of signing this contract is two hundred thirty one thousand and OO/lOO DOLLARS ($231,000,00), 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 $231,000.00 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 follow- ing: (a) Have the necessary engineering for said improve- ments done, and install and construct said improvements by contract or otherwise. City or its contractor and contractorls 3 Rev. g/20/90 * ‘.“L . ., - - _ * . 273 - h 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 ortransferrees 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. w 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 transferrees, 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 4 Rev. g/20/90 ‘, ,-* , ‘- ‘. 274 P - 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 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 all liability or claim 5 Rev. g/20/90 , p*. ‘. ’ . . ~I *. .- .275-T 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 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 which said Lien is imposed is described as follows: THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA. COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO OFFICIALPLATTHEREOF, BEINGMORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 90 OF CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT "B", MAP NO. 12410 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989; THENCE ALONG THE WESTERLY LINE OF SAID LOT 90 SOUTH 41"42'13" WEST, 150.00 FEET; THENCE SOUTH 47",34'25" WEST, 401.34 FEET: THENCE SOUTH 40"13'00" WEST, 100.00 FEET, TO THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE CONCAVE TO THE NORTH; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGEL OF 8O"OO'OO" A DISTANCE OF 34.91 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF ALGA ROAD AS DESCRIBED IN DEED RECORDED JUNE 29, 1989, AS FILE NO. 89-345765 OF OFFICIAL RECORDS: THENCE ALONG SAID NORTHERLY RIGHT OF WAY LINE, NORTH 59"47'00" WEST, 1238.99 FEET; THENCE LEAVING SAID NORTHERLY RIGHT OF WAY LINE, NORTH 30"13'00" EAST, 10.49 FEET: THENCE NORTH 6 Rev. g/20/90 ’ < . . * L .‘, -. > . _ * the ,- 276 - 25"10'21'. EAST, 31.82 FEET: THENCENOkTH44'49'49" EAST, 25.18 FEET: THENCE NORTH 69'37'37" EAST, 31.61 FEET; THENCE NORTH 34"27'19 " EAST 115.24 FEET: THENCE NORTH 85"11'18" EAST, 16.56 FEET: THENCE SOUTH 62'09'01" EAST, 51.57 FEET; THENCE SOUTH 73"58'40" EAST, 13.81 FEET; THENCE NORTH 05'32'53" WEST, 6.43 FEET; THENCE NORTH 14"35'20" EAST, 84.83 FEET: THENCE NORTH 27"17'39" EAST, 40.09 FEET TO A POINT ON THE NORTHERLY LINE OF RECORD OF SURVEY NO. 10774 FILED IN THE OFFICE OF THE COUNTY RECORDER OCTOBER 30, 1986; THENCE ALONG SAID NORTHERLY LINE SOUTH 87"30'08" EAST, 164.90 FEET; THENCE SOUTH 87"32'14' EAST, 662.56 FEET: THENCE NORTH OO"12'09' WEST, 445.00 FEET: THENCE LEAVING SAID NORTHERLY LINE, SOUTH 66"16'56" EAST, 449.71 FEET; THENCE SOUTH 34'17'42' EAST,lO9.20 FEET TO THE MOST WESTERLY CORNER OF LOT 91 OF SAID MAP NO. 12410; THENCE ALONG THE WESTERLY LINE OF SAID LOT 91 SOUTH 12'25'15' EAST, 121.00 FEET: THENCE SOUTH 49"26'00' EAST, 308.02 FEET; THENCE SOUTH 07"18'00" WEST, 141.00 FEET: THENCE SOUTH 16"08'15" EAST' 266.00 FEET; THENCE SOUTH 04"19'15" EAST, 115.81 FEET TO A POINT ON THE NORTHERLY LINE OF SAID LOT 90 OF MAP NO. 12410; THENCE ALONG SAID NORTHERLY LINE NORTH 48"17'47" WEST, 410.00 FEET TO THE POINT OF BEGINNING. Section 10. The required improvements to be constructed and estimated costs thereof are as follows: ESTIMATED COSTS 6" Curb & Gutter 995 ft. @12.60/l.f. $ 12,537.OO 5' Sidewalk 4975 sq. ft. / @ 2.90 sq. ft. 14,428.OO AC Pavement & Base 19,967 sq. ft. @3*50 sq. ft. 69,885.OO Street Light 3 @ $3,150.00/each 9,450.oo Pedestrian Ramp 2 @ 630,OO/each 1,260.OO Street Name Sign 1 @ $180.00/each 180.00 Guard Barricade 2 Q 38O/each 760.00 Fire Hydrant 1 @ $2,730,00/each 2,730.OO Sewer Main 463 ft. @$29,UO/ft 13,427.OO Sewer Access Hole 1 @ $2,3lO/each 2,310.OO Sewer Lateral 2 @ $780.OO/each 1,560.OO Curb Inlet 1 @ $1,200.00/each 1,200.00 18" Storm Drain Pipe 87 ft @ 73.00/feet 6,351.OO 2" Water set 1 @ 1,090.00/each 1,090.00 Slope Plantings 5,000 sq. ft @ 680.00/MSF 3,400.OO Pavement wall 1 @ 850.00/each 850.00 CI SD Type B 2 @ 3,150.00/each 6,300.OO Sub-grad Prep 21,298 ft @.40c/ft 8,519.OO Tap PH to exist main 1 @ l,OOO/each 1,ooo.oo Rev. g/20/90 ‘. ‘i . * . . _ . . ’ . P 277 - City Monument 2 @330.00/each Grading 2,500 cy @ 3.7O/cy +20% Engineer, Plancheck Inspection, Admin. +15% Contingency 660.00 s 9.250.00 $167,147.00 s 33.429.00 200,576.OO $ 30.086.00 $230,662.00 Executed by Property Owner this 8th day of May 19 91 . I PROPERTY OWNER: CITY OF CARLSBAD, a municipal corporation of the State of California Aviara Land Associate Limited Partnership, A Delaware Limited Partnership, formerly Pacific By: Rim Land Associates Limited Partnership, A Delaware for Limited Partnership, as Owner City Manager By: Aviara Lan A Delaware Partner By:-,,+ f A,,^ Dale L. Cl&en& Vice President By: pp!, ‘d.,k+-- Ted L. Hoover, Assistant Secretary By: Republic Development Company, By:*& Dale L. Cle-, Vice President By: Assistant Secretary (Proper notarial acknowledgement of execution by PROPERTY OWNER must be attached) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: $+ /LN I Deputy City Attorney . -- 278 STATE OF CALIFORNIA COUNTY OF San Diego I 1 ss. I On Mav 8. 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared Dale L. Clemens, personally known to me vn . . . 3 to be the person who executed the within instrument as the Vice President and Ted L. Hoover personally known to me -he . . s to be the person who executed the within instrument as the Assistant Secretary of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (g/- ~g&?+/c NOTARY PUBLIC I STATE OF CALIFORNIA COUNTY OF San Diego I 1 ss: I On May 8. 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared Dale L. Clemens, personally known to me vn . . 1 to be the person who executed the within instrument as the Vice President, and Ted L. Hoover, personally known to me -he . . c be the person who executed the within instrument as the Assistant Secretam of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (Seal) NOTARY PUBLIC