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Home My WebLink AboutLFMP 18; Opus West Construction Corporation; 2006-0557334; Drainage Fee Agreement/Release5128 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, California 92008-1989 DOC# 2006-0557334 AUG07, 2006 12:34 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 25.00 PAGES: 7 2006-0557334 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 Assessor Parcel Nos. 221-880-05,06,07,08,09,10,11,12,13 and 221-881-01,02,03,04,05,10,11 & 12 THIS AGREEMENT is entered into this IS day of._, 2006, by and between Opus West Corporation, A Minnesota Corporation, hereinafter referred to as "Developer" whose address is Opus West Construction Corporation 4350 La Jolla Village Drive, Suite 110 San Diego, CA 92122 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 on Exhibit "A", attached hereto and made a part of this agreement, hereinafter referred to as "Property"; and, WHEREAS, the Property lies within the boundaries of Local Facilities Management Plan (LFMP) Zone 18 within City; and, Local Drainage Area fee increase 1-04-06 5129 WHEREAS, Developer has proposed a series of development projects on said Property, which development carries the proposed name of Raceway Lots 5, 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, & 25, and is hereafter referred to as "Development"; and, WHEREAS, Developer has or will file a request for City approval of Grading and Building Permits for the above mentioned projects over the proposed Development; and, WHEREAS, the conditions of approval for Local Facilities Management Plan Zone 18, pursuant to Planning Commission Resolution 5026 and City Council Resolution No. 91-76, require Developer to agree to abide by any fee increase (or decrease) adopted for the Local Drainage Area fee by City Council prior to payment or credit for payment of the Local Drainage Area fee for Development; and, WHEREAS, Developer's payment and/or credit for payment of the Local Drainage Area fee is required prior to City approval of the Grading or Building permit 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 the new Local Drainage Area fees; and, Local Drainage Area fee increase 2 1-04-06 5130 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 approval of the projects for Development. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. The Developer will receive credits for payment made to the City for the Local Drainage Area fee in the amount established by City Council at the time of original subdivision of CT 98-10 for the local drainage area(s) into which the Development drains. Notwithstanding the forgoing, said fee is subject to adjustment, based upon the amount of the revised Local Drainage Area fee ultimately adopted by the City Council after approval of the Developer's final map. If the Developer has paid this fee prior to such Council final action, then this fee will automatically be adjusted, and 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. 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 Local Drainage Area fee required by this agreement is paid in full. Local Drainage Area fee increase 3 1-04-06 5131 3. 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 following manners: 3.1 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. 3.2 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. 4. 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 any 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. 5. 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. 6. If for any reason the 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 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. Local Drainage Area fee increase 4 1-04-06 5132 IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNER: Opus West Corporation, A Minnesota Corporation (signature) (print name) (title) By: (signature) (print name) CITY OF CARLSBAD, a municipal corporation of the State of California _ RAYMOND R. PATCHETT, City Manager, or designee ATTEST: *\> ONCTUULb). Lorraine Wood, City Clerk APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: ^_ Istant City Attorney (title) (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 5133 STATE OF ARIZONA } ss. COUNTY OF MARICOPA } On July 19, 2006 _before me, Kim A. Hennis a notary public in and for said State, personally appeared Paul Marshall, Division President, Southern California and/or Vickie M. Sixta, Secretary of Opus West Corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that his/her/their 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. Signature [Seal] OFFICIAL SEAL MM A. HENNIS NotatyPuWte-Artzont Marioopa County Comm. Expires Dec 08, 2008 / 5134 EXHIBIT "A" LEGAL DESCRIPTION Lots 5, 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, 20, 21, 22, 23, 24, & 25 of Carlsbad Raceway, as shown on Carlsbad Tract 98-10, Map No. 15013 Recorded on May 3, 2005 in the office of the County Recorder in San Diego County, State of California. LFMZ Transportation Fee 6 4/99