HomeMy WebLinkAboutMS 641; McInerny, Brian; 85-407195; Future Improvement Agreement/Releasea. ’ - I
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RECORDING REQUESTED BY AND >
WHEN RECORDED MAIL TO: >
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CITY OF CARLSBAD
; 1200 Elm Avenue
Carlsbad, CA 92008 > \ I
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Recorder's use.
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Signa‘tGre of declarant determining
tax-firm name City of Carlsbad
Parcel No. 156-110-64
.CONTRACT FOR FUTURE PUBLIC IMPROVEMENT
THIS AGREEMENT is made by the City of Carlsbad, a
municipal corporation, hereinafter referred to as “City”, and
Brian G. McInerny, hereinafter referred to as “Property Owner”.
RECITALS:
WHEREAS, Property’ Owner has applied to City for a Minor
Subdivision No. 641 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
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WHEREAS, the Municipal Code of City and conditions
attached hereto and incorporated by reference herein require
certain improvements and dedications as a condition of approval
of this Minor Subdivision No. 641; and
WHEREAS, Property Owner has requested said Minor
Subdivision No. 641 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 Minor Subdivision No. 641 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 record any
offers of dedication made by Property Owner for Forest
Section 2. That Property Owner, in lieu of
hereinafter described improvements before approval of
Subdivision No. 641 is granted, agrees to install and
irrevocable
Avenue.
making the
said Minor
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 September 1, 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
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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 EIGHT THOUSAND SEVEN HUNDRED AND NO/100 DOLLARS
($8,700.00). 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 $8,700.00 plus any future increases of cost in
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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 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
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.
(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.
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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’
purchase money mortgage or purchase money deed
Section 5. That at any time during
provided, the Property Owner, Property Owner’s
sale of any such
of trust.
the period herein
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
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imposed.
Section ,6. 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 City, nor any officer or
employee thereof, be liable for any injury to persons or property
caused by or resulting from, in whole or in part, the 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
until such improvements are completed and fully accepted by the
City. 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 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
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the City Engineer of City.
Section 0. 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 Northerly 140.00 feet of the South 10 acres of the North 12.25 acres of the West Half of the
Southeast Quarter of the Southwest Quarter of
Section 31, Township 11 South, Range 4 West, San
Bernardino Meridian, in the City of Carlsbad,
County of San Diego, State of California, according
to Official Plat thereof.
EXCEPTING THEREFROM the Easterly 8.00 feet, and
also excepting therefrom the Westerly 510.00 feet.
Section 10. The required improvements to be constructed
and the estimated costs thereof are as follows:
Improvements
Type “G” curb & gutter (143 L.F.)
Std. Dwg. G-2
Estimated Costs
$ 1,570.oo
P.C.C. sidewalk (5 ft. wide)
(715 sq. Ft.) Std. Dwg. G-7.1
$ 1,930.oo
Street Light - Type E-l - 1 each $ 2,900.OO
A.C. Pavement (3" thick) (715 Sq. Ft.) $ 790.00
AGG. Base (4" thick) (715 Sq. Ft.)
SUBTOTAL
+15% ENGINEERING CONTINGENCY
TOTAL COST
$ 360.00
$ 7,550.oo
$ 1,150.00
$ 8,700.OO
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IN WITNESS WHEREOF, we have hereunto set our hands and
seals this %?L. day of LR3&&- , 1985.
CITY OF CARLSBAD, a Municipal Corporation of the State of California
By:
F. D. ALESHIRE, City Manager
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
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On the 22% day of &k&z&~ 198c before me the undersigned, a Notary Public in and fbr sam State, personally appeared -F, D. Al&shire, known to me to be the Citi 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,.
APPR ‘OVED AS TO
Vine ent F . Bio
City Attorney ndo, Jr.
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oFFICIAL SEAL i KAREN Ft. KUNDTZ *
NOTARY FlJBllC-CALlFOftNlA $ SAN OIEGO COUNTY ;f My Comm. fxp. Sep~ 27. 1989 a ******a***********************
(Notarial acknowledgement of execution of owners must
be attached.)
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GENERAL ACKNOWLEDGMENT NO. 2Ul
State of CALIFORNIA On this the 4th day of October 1985, before me,
ss.
Countyof SAN DIEGO Gisela Hauser
the undersigned Notary Public, personally appeared
i
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OFFICIAL SEAL l
GiSELA HAUSER i
NOTARY PUBLIC-CALIFORNIA $ t NOTARY BOND FILED IN $ x SAN DIEGO COUNTY *
t my Commission Expires July 14, 1989 I ~********+*+,****+*****************~
m personally known to me
0 proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) issubscribed to the
within instrument, and acknowledged that he executed it.
WITNESS my hand
Notary’s Signatire
,110 lZ NATIONAL NOTARY ASSOCIATION l 23012 Ventura Blvd. l P.O. Box 4625 l Woodland Hills, CA 91364