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Home My WebLink AboutCT 99-06; Greyhawk Associates; 2007-0114039; Drainage Fee Agreement/ReleaseDOC# 2007-0114039 FEB 20, 2007 3:30 PM RECORDING REQUESTED BY AND ) , SAN DiEGn%FuTTY™RDSER's OFFICE WHEN RECORDED MAIL TO: ) ^. GREGORY,!. SMITH, COUNTY RECORDER \ V—Q FEES: 22.00 ' I O PiHFQ- cCity Clerk ) ; p b CITY OF CARLSBAD ) ^l 1200 Carlsbad Village Drive ) onnT rn i >inon Carlsbad, California 92008-1989 ) ^UU7-D114039 Space above this line for Recorder's use AGREEMENT BETWEEN DEVELOPER/OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A LOCAL DRAINAGE AREA FEE INCREASE Parcel No.(s) 221-015-03 and 04 THIS AGREEMENT is entered into this % day of £t-W^cct-^ 2007, by and between Greyhawk Associates, A California Corporation, hereinafter referred to as "Developer" whose address is 949 South Coast Drive, Suite 600, Costa Mesa California, 92626, Attn: Rudy Baldoni, and the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City", whose address is 1200 Carlsbad Village Drive, Carlsbad, California, 92008-1989. WITNESSETH: WHEREAS, Developer is the owner of the real property described as Lots 6 and 7 of Carlsbad Tract No. 99-06, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 14831 filed in the Office of the County Recorder of San Diego County, dated June 29, 2004, hereinafter referred to as "Property"; and, WHEREAS, the Property lies within the boundaries of Local Facilities Management Plan (LFMP) Zone 18 within City; and, WHEREAS, Developer proposed a development project as follows: building permits on said Property, which development carries the proposed name of Greyhawk Business Park and is hereafter referred to a "Development"; and, Local Drainage Area fee increase 1 1-04-06 11403 WHEREAS, Developer intends to file a request for City approval of building permits for Development; and, WHEREAS, the conditions of approval for Local Facilities Management Plan Amendment No. 87-18(B) for Zone 18 approved by City Council Resolution No. 2001-351 on December 4, 2001, require Developer to pay the City's existing Planned Local Drainage Area fee and agree to abide by any fee increase (or decrease) adopted for the Planned Local Drainage Area fee by City Council for Development; and, WHEREAS, Developer's payment and/or credit for payment of the Planned Local Drainage area fee is required prior to building permit issuance for Development; and, WHEREAS, it has been determined that certain drainage facilities located downstream of Development do not meet the facility performance standards unless certain mitigating flood control improvements are installed and/or the financing of such flood control improvements are guaranteed for construction in accordance with the City's adopted Growth Management Ordinance; and, WHEREAS, City is currently in the process of revising the City's Local Drainage Area fee program to provide the required financial guarantee for said flood control improvements; and, WHEREAS, Developer desires to proceed with Development in advance of the adoption by City of new Local Drainage Area fees; and WHEREAS, Developer agrees to abide by any fee increase (or decrease) in the Local Drainage area fee as may subsequently be adopted by City Council after City issuance of building permits for Development. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. The Developer paid to the City the Planned Local Drainage Area fee in the amount established by City Council on April 27, 2004 for the local drainage area into which the Local Drainage Area fee increase 2 1 -04-06 11404 Development drains. Notwithstanding the forgoing, said fee is subject to adjustment, based upon the amount of the Planned Local Drainage Area fee ultimately adopted by City Council which may occur after issuance of building permits for Development. Developer shall, within thirty (30) days of written notice thereof by City pay any shortfall; or City shall, within thirty (30) days of such determination, refund any overage of the Planned Local Drainage Area fee. This fee shall be in addition to any other taxes, fees, dedications or improvements required pursuant to Titles 18, 20, or 21 of the Carlsbad Municipal Code. 2. This agreement and the fee paid pursuant hereto are required to ensure the consistency of the Development with the City's General Plan and Growth Management Ordinance. If the fee is not paid as provided herein, the City will not have the funds to provide public facilities and services, and the development will not be consistent with the General Plan. The Developer therefore agrees that if Developer does not satisfy the terms and conditions of this agreement that any approval or permit for the Development issued after the effective date of this agreement shall be void. Thirty (30) days after City's written notification to Developer, pursuant to Paragraph 1 above, no building or other construction permit shall be issued for the Development until the Planned Local Drainage Area fee required by this agreement is paid in full. 3. All obligations to pay the aforementioned Planned Local Drainage Area fee relative to the approval of Development shall terminate in the event the building permits for Development are not approved by the City. In such event, the Developer is still obligated to pay the City's Planned Local Drainage Area fee for any subsequent building permit, final map or maps approved for the Property in accordance with the Planned Local Drainage Area fee requirements in effect at the time such map or maps are approved by City Council. 4. Any notice from one party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the Local Drainage Area fee increase 3 1-04-06 114Q5 following manners: 4.1 If notice is given to the City of personal delivery thereof to the City or by depositing same in the United States Mail, enclosed in a sealed envelope addressed to the City Manager of the City at the address set forth herein, postage prepaid and certified. 4.2 If notice is given to Developer by personal delivery thereof to Developer or by depositing the same in the United States Mail, enclosed in a sealed envelope, addressed to Developer at the address designated herein, postage prepaid and certified. 5. This agreement shall be binding upon and shall inure to the benefit of, and shall apply to, the respective successors and assigns of Developer and City, and references to Developer or City herein shall be deemed to be a reference to and include their respective successors and assigns without specific mention of such successors and assigns. If Developer should cease to have ay interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any successor to Developer's interest in the property shall have first assumed in writing the Developer's obligations hereunder. 6. This agreement shall be recorded but shall not create a lien or security interest in the Property. When the obligations of this agreement have been satisfied, City shall record a release. Local Drainage Area fee increase 4 I -04-06 11406 7. If for any reason the Planned Local Drainage Area Fee has not been revised by the City Council within three years of the effective date of this agreement, the amount paid by the Developer, including any credits granted against payment of the Planned Local Drainage Area fee, shall be deemed to represent the Developer's fair share contribution to the City's Master Drainage Improvement program and no further payment will be due from or reimbursement due to Developer. IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNER: Greyhawk Associates, a California Corporation (signature) ctVv int n-a e L. (print n-ame and title) , Irf>Uc (signature) (print name and title) CITY OF CARLSBAD, a municipal corporation of the State of California By: RAYMOND R. PATCHETT, City Manager, ordesignee ATTEST: APPROVED AS TO FORM: RONALD R. BALL, City Attorney Assistant City Attorney /- 3-0?- (Notarial acknowledgment of execution of DEVELOPER and 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). (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). Local Drainage Area fee increase 1-04-06 11407 STATE OF CALIFORNIA COUNTY ORGAN DIEGQ On OG.VM£A Mfl*Jx.s /I, appeared L- on u before me, _Notary Public, personally _. B^f Personally known to me - or [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/afe subscribed to the within instrument and acknowledged to me that he/sfre/they • executed the same in his/hef/thek authorized capacity(iee), and that by his/herftrreir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (Stature of Notary) JANET L. SCOBEY Commission #1449427 Notary Public - California Orange County My Comm. Expires Nov 4,2007