HomeMy WebLinkAboutMS 750; Benacka, Thomas & Lynda; 90-383693; Future Improvement Agreement/Release/-
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CITY OF CARLSBAD 1200 Elm Avenue
CITY OF CARLSBAD
Parcel No.
CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as llCitytl, and Thomas J. and
Lynda M. Benacka, hereinafter referred to as "Property Owner."
RECITALS
WHEREAS, Property Owner has applied to City for a Minor
Subdivsion of the real property hereinafter described, now under
Property Owner's ownership; and
WREREAS, it has been found
for development in its present
that said property is not suitable
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
WREREAS, the Municipal
improvements and dedications
Minor Subdivsion; and
WREREAS, Property Owner
be granted by City in advance
be made; and
to City; and
Code of City requires certain
as a condition of approval of this
has requested said approval of MS 750
of the time said improvements are to
ms-75’0
.
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184
WREREAS, Property Owner, in consideration of the approval of
said Minor Subdivsion 750 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 irrevocable offers
of dedication made by Property Owner for roadway purposes on James
Drive.
Section 2. That Property Owner, in lieu of making the
hereinafter described improvements before approval of said Minor
Subdivsion 750 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 make said
improvements before May 10, 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
mayI 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
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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
City to form
streets.
herein described has frontage, have petitioned the
an improvement district for the improvement of said
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 $15,000
and no/100 DOLLARS ($15,000). 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 $15,000 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 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 improvements
done, and install and construct said improvements by contract or
otherwise. City or its contractor and contractor's employees may
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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 transferrees 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.
WI 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.
(cl 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
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_- ., ’ I- . ’ * 187
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.
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
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188
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.
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:
That portion of tract one hundred twenty three (123) of Carlsbad lands, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof No. 1661, filed in the office of the County Recorder of San Diego County March 1, 1915 bounded by a line described as follows, to-wit;
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Beginning at a point on the center line of Highland Street, distant thereon south 24"23' east 188 feet from the intersection of the southwesterly prolongation of the northwesterly line of said Tract 123 and said center line of Highland Street; said point being the true point of beginning thence south 24"33' east of a distance of 62.67 feet to a point: thence north 55"27' east a distance of 452.02 feet to a point: thence north 31'33' west a distance of 61.71 feet to a point; thence south 55"27' west a distance of 441.22 feet to the true point of beginning.
Section 10. The required improvements to be constructed and
the estimated costs thereof are as follows:
IMPROVEMENTS ESTIMATED COSTS
Curb, gutter, sidewalk, paving, portion of street light, undergrounding power lines 63
IN WITNESS WHEREOF,
L.F.
TOTAL
we have hereunto
/ 19q0
$15,000.00
$15,000.00
set our hands and seals
this fz'" day
PROPERTY OWNER
of HAY I s*
CITY OF CARLSBAD, a Municipal Corporation of the State of California
/
‘Lynda M. Benacka
By:
.d
. APPROVED AS TO FORM:
OEM-Y CtTi AT’TORNEY
Vincent F. Biondo, Jr. City Attorney
(NOTARIAL ACXNOWLEDGEMENT OF EXECUTION OF OWNERS MUST BE ATTACHED.)
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-ENERAL ACKNOWLEDGMENT .x
State of Q-1 F- I 5 JR* On this the )a. day of la. before me,
.
County of nh
ss. &---
.
the undersigned Notary Public, personally appeared
nowu T.
0 personally known to me
5l. proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) subscribed to the &
within instrument, and acknowledged that
WITNESS my hand and official seal. ___Zb*texecuted it.
Notary’s Signature
ATTENTION NOTARY: AJmoqh me nf-bon requested be& rs OpTlONAL A aid fxevmt ftaudulent anachment of thts cmkate lo amhe dcmmm’. a
THIS CERllflCAJ-E
MUST BE AlTACHED
TO THE DOCUMENT
- Titie or Type of Document cfo?c%k
Number of Pages 5 Date of Document 5 //r/ 9 3
DESCRIBED AT RIGHT: Signer(s) Other Than Named Above