HomeMy WebLinkAboutMS 828; Reed, Kenneth & Donna; 90-626029; Future Improvement Agreement/ReleaseCORDING REQUhtiTED BY AND ) EN RECORDED MAIL TO
ITY OF CARLSBAD 200 Elm Avenue CA 92008 .'_ : _ i i
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Parcel No. 156-110-79
THIS AGREEMENT is made by the City of Carlsbad, a municipal
hereinafter referred to as "City", and Kenneth E. and
Reed, hereinafter referred to as "Property Owner."
RECITALS
WEEREAS, Property Owner has applied to City for a Minor
Wbdivsion of the real property hereinafter described, now under
Property Owner's ownership; and
WEEREAS, 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, theMunicipal Code of City requires certain improvements
and dedications as a condition of approval of this minor subdivsion;
nd
WHEREAS, Property Owner has requested that approval of Minor
bubdivsion 828 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
X3 828 desires to enter into this agreement securing the construction
of said improvements, and City has determined it to be in the public
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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 MS 828.
Section 2. That Property Owner, in lieu of making the
hereinafter described improvements before approval of said MS 828 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 August 1, 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,
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
improvement at the time of signing this contract is fourteen thousand
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four hundred and OO/lOO DOLLARS ($14,400.0~). 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
$14,400.00 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 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
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.
(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
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the Property Obller, 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.
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
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employee thereoL, 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 improve-
ments, 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, sufts 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:
Parcel 2 According to Map No. 14102
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Section 10. ,T.he required improvements Lo be constructed and the
estimated costs thereof are as follows:
IMPROVEMENTS ESTIMATED COSTS
Curb, Gutter, Sidewalk, A.C Paving 134 L.F. Portion of Street Light $14,400
Executed this $a$, day of &f, I 19&l .
CITY OF CARLSBAD a municipal corporation of the State of California
Donna L. Reed
-ziii!lr for City Manager
ATTEST:
City Clerk
(Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached)
(President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corpo- ration 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. BIONDG, JR. City Attorney
By: 9 Ld-” v
Deputy City Att'6rney
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Individual Arxnowledgment
%TATE OF CALIFORN.IA
COUNTY OF - a@b ss. 1506
On this a* day of dC% , in the year 19x, before me, the undersigned, a Notary Public in
and for said County and State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the personf
whose name -M subscribed to this instrument and acknowledged that * executed ft.
WITNESS my hand and official seal.
Notary Public in and for said County and State
Notary Seal 1
‘7X FsyiZ!% l!sc. 22, 19 =--.;