HomeMy WebLinkAboutMS 832; Lyon/Copley Carlsbad Associates LP; 90-455896; Future Improvement Agreement/Release. --
,- r . I * < “. 658gg
RECORDING REQUESTED BY AND ) 61 1 .'"..--.. -*‘.,
WHEN RECORDED MAIL TO 1 : ,-f;yf-~j p( I ,.- i. .: ;-‘; .-.-.~(/~;r; f . . .
i
! _ . . . . . . . --r :-I -:ys - \, i ,'! f
CITY OF CARLSBAD 1200 Elm Avenue g$g @f 20 y$ 3 35
Parcel No.
CONTRACT FOR FUTURE PUBLIC IMPROVEMENTS MS 832
THIS AGREEMENT is made by the City of Carlsbad, a municipal
corporation, hereinafter referred to as "City", and Lyon/Copley
Carlsbad Associates, L.P., a California Limited Partnership, here-
inafter referred to as "Property Owner."
RECITALS
WHEREAS, Property Owner has applied to City for a minor subdi-
vision for the real property
Property Owner's ownership: and
WHEREAS, it has been found
for development in its present
hereinafter described, now under
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 to City; and
WHEREAS, the Municipal Code of City and Local Facilities
Management Plan Zone 7 incorporated by reference herein require
certain improvements and dedications as a condition of approval of
this minor subdivision; and
WHEREAS, Property Owner has requested said minor subdivision
be granted by City in advance of the time said improvements are to
be made; and
1 Rev. 5/21/90
.- -
J
1 .
WHEREAS, Property Owner, in consideration of the approval of
said minor subdivision desires to enter into this agreement secur-
ing 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 necessary right of way.
Section 2. That Property Owner, in lieu of making the herein-
after described improvements before approval of said minor subdivi-
sion 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 July 1,
1991, or within such further period of time as is granted by City,
provided, however, that upon the happening of either of the follow-
ing 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, be-
tween intersecting streets on both sides of the street upon which
the property herein described has frontage, have petitioned the
2 Rev. 5/21/90
‘..
. - -
City to form an improvement district for the improvement of said 53
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 nine
hundred forty nine thousand and OO/lOO DOLLARS ($949,000.00).
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 $949,000.00 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 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 comple-
tion, City may foreclose said lien as provided by law for the
3 Rev. 5/21/90
- c . *
-
foreclosure of mortgages.
(b) Direct the City Engineer to estimate the cost of
necessary engineering, and the work required to install and con-
struct 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 andtransferrees, 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 bene-
ficiaries 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 foreclo-
sure or trustees' sale of any such purchase money mortgage or
purchase money deed of trust.
Section 5. That at any tine during the period herein pro-
vided, 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
4 Rev. 5/21/90
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 speci-
fied 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.
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 inspec-
tion of improvements as may be required by the City Engineer of
5 Rev. 5/21/9(
-
i , .’ :
. . . :..
City. 61g
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:
Portion of Lots D and J of Ranch0 Agua Hedionda Map No. 823 in the City of Carlsbad, County of San Diego, State of California more particularly described as a portion of the land conveyed to Lyon/Copley Carlsbad Associates by a deed recorded with the County Recorder of said County on April 13, 1989 as File/Page No. 89-193426.
Rev. 5/21/90
- -
Section 10. The required improvements to be constructed and
the estimated costs thereof are as follows:
IMPROVEMENTS ESTIMATEDCOSTS (20% continsencvincluded)
A. Construction Storm Drainage $18,708 Sanitary Sewer 45,307 Water Distribution 82,963 Roadway Improvements 715,758
TOTAL $862,735
B. Engineering and Incidental 86,275
GRAND TOTAL $949,010 USE $949,000
Executed this 17 day of dQ y.&$ ,19?&
DEVELOPER CITY OF CARLSBAD a municipal corporation of the State of California Lyon/Copley Carlsbad Associates, L.P. A California Limited Partnership
Lyon Communities, Inc. era1 Partner By: MARTIN ORENYW for City Manager
ATTEST:
L-4 ALETBA L. RAUTENKRANZ, 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. BIONDO, JR. City Attorney
By: Deputy Citywtorney
7 Rev. 5/21/90
.’
’ STATE OF CALIFORNIA’ '=‘ COUNTY OF San Diego I 2
C, Ofl f r before me, the undersigned, a Notary Public in and for
r said State, personally appeared Garry M. Tarquinio and
2: Karen Klock xa , personally known to me ( 1 ii s to be the persons who executed the within instrument as Vice President and Ass t . Secretary, on behalf of Lyon-e S : Inc-
thecorporation thereinnamed,andacknowledgedtomethatsaid
corporation executed the within instrument pursuant to its by-
lawsoraresolution of its board of directors,saidcorporation being
known to me to be one of the partners of Lvon/Copley
Carlsbad Associates
the partnership that executed the within instrument, and ack-
nowledged to me that such corporation executed the same as
(D such oartner and that such partnership executed the same.
(This area for official notarial seal\