HomeMy WebLinkAboutFIA 95-12; Huffman, Martin & Whooley, Finbarr; 1995-0564771; Future Improvement Agreement/Release- . 5-T # lJwh!i4771
162‘7 12-DEC-1995 01=18 FTI
OFFICIN RECORDS SAN QfECiO COUNTY RECORDER’S OFFICE GREGORY SHITH , ;WiTY RECORDER : 0.00
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO City Clerk ; CITY OF CARLSBAD 1200 Carlsbad Village Dr. i Carlsbad, CA 92008 1
Space above this line fur Recorder's use. CITY OF CARLSBAD
CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS
Permit No. CUP 92-04A
Parcel No. 167-030-12 & I67-030-14
FIA No. 95012
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as ItCityI1, and Martin W.
Huffman & Finbarr F. Whooley, a General Partnership, hereinafter
referred to as "Property Owner."
RECITALS
WHEREAS, Property Owner has applied to City for a Conditional
Use Permit Number CUP 92-04a 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
AGREEMENTS\AG-12.FRM Rev. 11/04/92
WHEREAS, the Municipal Code of city requires certain
improvements and dedications as a condition of approval of this
Conditional Use Permit; and
WHEREAS, Property Owner has requested that approval of said
Conditional Use Permit 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 Conditional Use 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, THEREZ'ORE, 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 Conditional Use Permit.
Section 2. That Property Owner, in lieu of making the
hereinafter described improvements before approval of said
Conditional Use Permit is granted, agrees to install and con-
struct, 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 December 1, 1997, 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,
AGREEMENTS\AG-12.FRM 2 Rev. 11/04/92
between intersecting streets on both siues 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 THIRTEEN THOUSAND SEVEN HUNDRED SIXTY SIX and OO/lOO
DOLLARS ($13‘766.00). 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 $13,766.00 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 contractor's
employees may enter upon any portion or portions of the property
AGREEMENTS\AG-12.FRM 3 Rev. 11/04/92
- 1630 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 sini& 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 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
of a foreclosure or trustees' sale of any such purchase money
mortgage or purchase money deed of trust.
AGREEMENTS\AG-12.FRM 4 Rev. 11/04/92
A /1 16.3 1 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 ofthis 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
because of, or arising out of, the use of any patent or patented
article in the construction of said improvement.
AGREEMENTS\AG-12.FRM 5 Rev. ll/O4/92
- I 1632
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:
See attached Exhibit rlA1l
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AGREEMENTS\AG-12.FRM 6 Rev. 11/04/92
h 1633
I Section 10. The required improvements to be constructed and the estimated costs thereof are as follows:
IMPROVEMENTS OUANTITY UNITCOST ESTIMATED COSTS
Curb & Gutter 314LF 12.60 LF 8 3,956.OO
A. C.Paving 628 SF 3.60 SF 2,260.OO
Street fights 2 3,150.OO Each 6.300.00
$12,516.00
10% Contingency 1,250.OO
15% Design & Admin 1,877.OO
TOTAL
Executed by Property Owner this
199c.
16 A6? day of $15'643 OOd,
PROPERTY OWNER
Martin W. Huffman & Finbarr F. Whooley, a General Partnership of Property Owner)
CITY OF CARLSBAD a municipal corporation' of the State of California
Martin W. Huffman (print name here)
for City Manager
By: PATRICK KELLEY
for Martin Orenyak
General Partner
Finbarr F. Whoolev (print name here)
General Partner (title and organization of signatory)
(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:
RONALD R. BALL
eputy City Attorney
AGREEHENTS\AG-12.FRM 7 Rev. 11/04/92
1 PARCEL "A"
EXHIBIT "A" 1634
THAT PORTION OF GOVERNMENT LOT 2, IN SECTION 32, TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY APPROVED DECEMBER 27, 1870, LYING SOUTHERLY OF A LINE DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY LINE OF SAID LOT 2, DISTANT
ALONG SAID EASTERLY LINE NORTH 32"19'48" EAST 568.54 FEET FROM THE
SOUTHEASTERLY CORNER OF SAID LOT 2; THENCE ALONG SAID EASTERLY
LINE SOUTH 32"19'48"WEST, 34.27 FEET; THENCE LEAVING SAID EASTERLY
LINE, NORTH 69"08'09" WEST, 299.41 FEET; THENCE NORTH 83'11'46" WEST, TO POINT "A", 166.57 FEET; THENCE SOUTH 83"22'43" WEST, 199.45 FEET; THENCE SOUTH 24"42'44" WEST, 109.03 FEET; THENCE SOUTH 77"31'24" WEST, 88.55 FEET; THENCE NORTH 64"41'12" WEST, 84.09 FEET; THENCE NORTH 6"32'16 WEST, 120.10 FEET; THENCE NORTH 75"52'25" WEST, 102.55 FEET: THENCE ALONG A CURVE TO THE LEFT, HAVING A RADIUS OF 750 FEET THROUGH A CENTRAL ANGLE OF 16"58'33" A DISTANCE OF 222.21 FEET TO A POINT WHICH IS RADIALLY SOUTH l"23'38" WEST, 298.74 FEET FROM ENGINEER'S STATION 121+49.97 ON THE "A" LINE OF FREEWAY IN SAID COUNTY, ROAD ll-SD-78, BASED ON 1962 SURVEY OF THE DEPARTMENT OF PUBLIC WORKS BETWEEN INTERSTATE ROUTE 5 IN OCEANSIDE AND 1 MILE WEST OF VISTA.
TOGETHER WITH A PORTION OF LOT 3 OF SECTION 32 TOWNSHIP 11 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN ACCORDING TO OFFICIAL PLAT THEREOF, BEING IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 3, BEING AN ANGLE POINT IN THE BOUNDARY OF PARCEL 2 AS SHOWN ON PARCEL MAP NO. 487,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
MARCH 30, 1971; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID
LOT 3, NORTH 89"28'35" EAST, 725.63 FEET TO A POINT ON THE NORTHWESTERLY BOUNDARY OF RANCH0 AGUA HEDIONDA ACCORDING TO THE
PARTITION MAP THERETO NO. 823, FILED NOVEMBER 16, 1896 IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SAID POINT BEING THE TRUE POINT OF BEGINNING: THENCE SOUTHERLY ALONG SAID BOUNDARY SOUTH 32"56'12" WEST, 41.96 FEET; THENCE LEAVING SAID RANCH0 BOUNDARY SOUTH 89"28'35" WEST, 194.48 FEET; THENCE NORTH 50"59'14" WEST, 54.98 FEET TO A POINT ON SAID NORTHERLY LINE OF
LOT 3; THENCE NORTH 89"28'35" EAST, 260.01 FEET TO THE TRUE POINT
OF BEGINNING.
AGREEMENTS\AG-12.FRM Rev. 11/W/92
rh
State of California
County of San Diego
1635
On November 16, 1995 before me, Jeanette Child, Notary Public
personally appeared * * * * *Martin W. Huffman and Finbarr F. Whooley* * **************************************
personally known to me (or proved to me on the basis 0; satisfactory evidence) to be the person(s) whose name(s) /$$/are subscribed to the within instrument and acknowledged to me that hefHhp/they executed the same in fi$$tmp/their autynriE;z capacity(ies), and that by &A.,q,#$~fltheir signature(s) instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal
JEANETTE CHIID~
Camm. #I 0405~1 n
NOTAAY PUXIC CA:IW?NIA
AGREEMENTS\AG-12.FRM
(SEAL) ,
Rev. 11/04/92
I_ 1
CALIFCiRNIA ALL-PURPOSE ACKNOWLEDGMENT rc36: No. 5907
State of ccl l4xJOl~
County of 5jq nj Ii3r F&n
before me, Rb P&JR S. S-rii~reoa , &-mey b.& L1C.r
NAME, TITLE OF OFFICER - E.G.. ‘JANE DOE, NOTARY PUBLIC
personally appeared 6%I%\CK )G%u?-/ l I
NAME(S) OF SIGNER(S)
$Ipersonally known to me - OR - n
to be the person@r$ whose namew @a&+
subscribed to the within instrument and ac-
knowledged to me tha@$I&/thdy executed
the same in @fj&/t&Gr authorized
capacity(@e), and that by @/~/tJ&ir
signature@ on the instrument the person&$
or the entity upon behalf of which the
person&) acted, executed the instrument.
WITNESS my hand and official seal.
comln. (3 961046 RYPUBLIC-CALIF- 5 n / 1 . . . A A&” E-. I Il--h?MA.&J.~~~ # .A/ IV, w-
/ C&.,ATl lEIE “,Z NOTARY -IYI.-l VI I.. WI
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITYCLAIMED BYSIGNER
0 INDIVIDUAL
0 CORPORATE OFFICER
mu(s)
DESCRIPTIONOFATTACHEDDOCUMENT
\A q349,~
TITLE OR TYPE OF DOCUMENT
0 PARTNER(S) 0 LIMITED
0 GENERAL Q\ I
u ATTORNEY-IN-FACT NUMBER OF PAGES
0 TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER: II- ((,-4s
DATE CF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTIl-Y(IES)
@v@ch
pllwfld Id +#nhn &nkdk@ FL1it.c~
SIGNER(S) OTHER THAN NAMED ABOVE
Q1993 NATIONAL NOTARY ASSOCIATION l 6236 Remmet Ave., P.O. Box 7164 l Canoga Park, CA 91309-7164