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Home My WebLink AboutMS 797; Yung, Joseph S.; 90-417426; Drainage Fee Agreement/ReleaseRECORDING RE&ESTED BY AND ) 1805 -<s9o 417426 WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue C&bad, California 92008 Space above this line for R Documentary transfer tax: $No Fee & Signature of &C&a& deterzi;g f Carlsbad Parcel No. 216-190-05 AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE - 6 THIS AGREEMENT is entered into this Z’k , 19% and between day of MR Joseph S. Yung, hereinafter referred to as “Developer” whose address is 10221 Slater A.venue Suite 2 0 2 Fountain Valley, CA 92708 and THE CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as “City” whose address is 1200 Elm Avenue, Carlsbad, California, 92W3. 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 the City; and WHEREAS, Developer proposes a development project as follows: convert an existing rental duplex into a two unit condominium on said Property which Development carries the proposed name of Minor Subdivision No. 797 and is hereinafter referred to as “Development”; and WHEREAS, Developer filed on the 24th day of July, 1989, with the City as a request for a tentative parcel map for two unit condominium conversion hereinafter referred to as “Request”; and AGREEMENTS AGS.FRM -1 - O-IS-Y?7 WHERE&, On February 5, 1989 Developer enterer Into an agreement with the City to pay Public Facilities fees of 3.5 percent of the building permit valuation. A copy of the agreement is on tile with the City Clerk and is incorporated by this reference. WHEREAS, Developer and City recognize the correctness of the Local Facilities Management Plan for Zone 6, on file with the City Clerk and incorporated by the reference, and that the City’s drainage facilities may be at or near capacity in the drainage sub-basin where this development is located and will may not be avaihrble to accommodate the additional need for such facilities and services resulting from the proposed Development; and WHEREAS, said plan for Zone 6 requires that all public facilities, including drainage, necessary to serve a development will be available in conformance with the City’s adopted performance standard (said Zone Plan is on f5le with the City Clerk and is incorporated by this reference); &d I! ‘, ~, Developer has asked the City to find that drainage faciflties aad services will be available to meet the future needs of the Development as it is presently proposed; but the Developer is awme that the City cantlot and will not be able to make any such finding without financial assistance to pay for such services and facilities; and therefore, Developer proposes to satisfy the Local Facilities Management Plan for Zone 6 by the payment of drainage fee. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. That the foreguing re&&a& true and correct. 2. The Developer shall pay to the City a drainage fee as required by the Local Facilities Management Plan for Zone 6 as may be detailed in said plan and incorporated by reference and as determined through the revised Master Drainage Plan necessary to provide drainage facilities in conformance with the City’s Growth Management performance standard. This drainage fee shall be in addition to any fees, dedications or improvements required pursuant to Titles 18, 20 and 21 of the Carlsbad Municipal Code. 3. This agreement and the drainage fee paid pursuant hereto are required to ensure AGREEMENTS AG-S.FRM -2 - the consistency or &ne Development with the City’s General Plan, the Growth Management Program and the Local Facilities Management Plan for Zone 6. If the fee is not paid as provided herein, the City will not have the funds to provide drainage facilities and services, and the Development will not be consistent with the General Plan, the Growth Management Program or the Local Facilities Management Plan for Zone 6 and any approval or permit for the Development shall be void. No building or other construction permit or entitlement for use shall be issued until the drainage facilities fse is paid or this agreement is executed. 4. That Developer agrees to pay the drainage fees identified by the City Council as necessary to pay for the cost of providing the drainage improvements or facilities which are required by the Growth Management Program and the Local Facilities Management Plan for Zone 6, or any other provision of Chapter 21.90 of the Carlsbad Municipal Code, or any other provision of law. Payment shall be due 30 days for the date the drainage fee is established. Developer her&y waives his right to challenge said drainage fees. Developer further waives any rights to pay the drainage fees referred to herein under protest and that any protest shall immediately subject the project to the provisions of Section 21.90 of the Carlsbad Municipal Code, or any provision of law. 5. Developer agrees to construct, or participate in financing the construction of public facilities and improvement identified in the citywide facilities and improvements plan or the Local Facilities Management Plan to the extent that those facilities or improvements are allocated to Developer’s property or project and are not financed by the fees referenced hereto. 6. City agrees to deposit the drainage fees paid pursuant to his agreement in a drainage fund for the financing of drainage facilities as needed in the City of Carlsbad when the City Council determines the need exists to provide the facilities and sufficient funds from the payment of this and similar fees are available. 7. Subject to paragraphs 3 and 4, the City agrees to issue building and other development permits pursuant to the provisions of the Carlsbad Municipal Code Title l&20, and 21 to the extent such permit comply with applicable provisions of law. AGREEMENTS AG-8.FRM -3 - - 1808 - 8. In LZ event that the payment required by this agreement is not made when due the City may pursue any remedy, legal or equitable (including those specifically referred to herein), against the Developer and the Develope/s successors, heirs, assigns and transferees. Without waiving its rights under the section, City, upon request of Developer, may allow additional time to pay the drainage fee. 9. In addition to the other remedies available to the City, it is hereby agreed that if Developer does not pay the drainage fees spee&d by this agreement the City may revoke the building permit for the project or may deny or revoke a Certificate of Occupancy for the project or both upon 15 days written notice to beloper of the revocation or denial. 10. 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 author&d representative of such part. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: 10.1. If n&ice is given to the City by personal delivery thereof to the City or by depositing same in the United States Mail, addressed to the City at the address set forth herein, enclosed in a sealed envelope, addressed to the City for attention of the City Manager, postage and prepared and certified. 10.2. 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 as indicated in this agreement or at another place as designated to the City by the Developer in writing, postage prepaid and certified. 11. The City shall not, nor shall any officer, employee of the City, be liable or responsible for any loss or damage happening or occurring to Developer’s building for the exercise of any of the remedies provided to the City pursuant to this agreement, regardless of the nature of the loss or damage. 12. This agreement and the covenants contained herein shall be binding upon and enure to the benefit of the successors, heirs, assigns and transferees of Developer and shall run AGREEMENTS AG-S.FRM -4 - . . . . l II . 1809 - with the real proptl~y and create an equitable servitude upou the real property. 13. This agreement shall be recorded but shall not create a lien or security interest in the Property. When the obligations of tbis agreement have been satisfied and appropriate fee paid to record a release, City shall record the release. 14. The prevailing party in any dispute between the parties shall be the right to recover from the non-prevailing party all costs and attorney’s fees expanded in the course of such dispute. 15. Except as otherwise provided herein, all notices required or provided for under this agreement shall be in writing and shah be delivered in person or sewed by certified mail postage prepaid. Delivery of notice to Developer shall be presumed to have been made on the date of mailing regardless of receipt by Developer. Notices required to be given to Developer shall be addressed as &Mows: Joseph S. Yung 10221 Sfater Ave., Suite 2 02 Fountain Valley, CA 92708 IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of&e first written above. , DEVELOPER-OWNER CITY OF CARLSBAD a municipal corporation of J OS~PII s. u;tiG (NAME) nager ATTEST: -&LETHA L. RAUTENKRANZ, City Clerk (Title) . City Attorney (Title) (Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached) AGREEMENTS AG6.FRM -5 - STATE OF CALIFORNIA ; ss. 1 3 l 0 li (Acknowledgement) County of 0 Q&J & On this 22 day of k,intheyearIgw. before me, wisT( N*\F v a Notary Public in and for the said County and State, residing therein, duly commissioned and sworn, personally appeared ckE#m 5. Yh(? perso d Ily known to me C ) to be the person(s): ( INDIVIDUAL) Whose name is subscribed to this instrument, and acknowledged that he (she or they) executed it. (0 CORPORATION) Who executed the within instrument as - president and -secretary, on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its articles and by-laws and a resolution of (0 PARTNERSHIP) its Board oi Directors. That -executed the within instrument on behalf of the part- nershio. and acknowledged to me that the partnership executed it. . set my hand and affixf My commission expires: FLMB I OFFICIAL SEAL k KRISTIME E. CARDWELL NOTARY PUBtlC - CALIFORNIA PRlNClPAt OFFICE IN LOS ANGELES COUNTY My Commissien Expires Sspt l&l992 te, EXHIBIT “A’ LEGAL DESCRIPTION Lot 111 pf La beta South, Unit No. 1 according to Map No. 6117 AQREEMENTS AQ-S.FRM -6 -