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Home My WebLink AboutPE 2.90.18; Carlsbad Oaks East Ltd.; 90-670961; Drainage Fee Agreement/Releaser .‘, :* . .-. 8 G o\O / % m 1338 Ci”fj~O$fij & RECORDING REQUESTED BY AND ) f-- "'. --S-W--. WHEN RECORDED MAIL TO: i .:I: .--,./-; :_ . . . . . . I ___ !fg {jFr&-&* fift;r2i{*qs gf f$a?$ B:hi;g gfj!$$i '$* L‘+y CITY OF CARLSBAD 1 i . 1200 Elm Avenue 1 fyJ@ F.-P Carlsbad, California 92008 ) B,f tt pg 355 l ;; ‘4 i :'I. i, *=:.. cm...* !... i {. _ MG space above this 1$&s&~ <k&$c--ep 8 s use 1, _- Parcel No. 209-082-06 AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE - 5 SUNNYCREEK DRAINAGE AREA THIS AGREEMENT is entered into this -CL 1% day of /\/oo, I 1992 by and between Carlsbad Oaks East, Ltd. a California Limited Partnership, hereinafter referred to as "DeveloperI whose address is 322 8th Street, Ste. 100 De1 Mar, CA 92014 and THE CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as llCityll whose address is 1200 Elm Avenue, Carlsbad, California, 92008. WITNESSETH: WHEREAS, Developer is the owner of the real property described on Exhibit rrAli:, attached hereto and made a part of this agreement, hereinafter referred to as llPropertylV; and WHEREAS, The Property lies within the boundaries of the City and the SunnyCreek Drainage Sub-basin; and WHEREAS, Developer proposes a development project as follows: an industrial building on a previously graded 4 acre industrial lot on said Property, which Development carries the proposed name of Lot 29 Carlsbad Oaks and is hereinafter referred to as ltDevelopmentll; and WHEREAS, Developer filed on the 18th day of January, 1990, AGREEMENTS AG-8.FRH -1 - Rev. 4/90 . . . 1399 with the City as a request for Planned Industrial Permit hereinafter referred to as "Request"; and WHEREAS, On January 24, 1990 Developer entered 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 file with the City Clerk and is incorporated by this reference. WHEREAS, Developer and City recognizethe correctness of the Local Facilities Management Plan for Zone 5, adopted August 4, 1987, on file with the City Clerk and incorporated by the reference, and that the City's drainage facilities are at capacity in the SunnyCreek Drainage Sub-basin and will not be available to accommodate the additional need for such facilities and services resulting from the proposed Development: and WHEREAS, said plan for Zone 5 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 file with the City Clerk and is incorporated by this reference): and WHEREAS, Developer has asked the City to find that drainage facilities and services will be available to meet the future needs of the Development as it is presently proposed; but the Developer is aware that the City cannot 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 5 by the payment of drainage fee. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: AGREaERTS AG-8. FRM -2 - Rev. 4/90 .’ .’ . ’ . 1. That the foregoing recitals are true and correct. 2. The Developer shall pay to the City a drainage fee as required by the Local Facilities Management Plan for Zone 5 as detailed on Page 66 of 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 the consistency of the Development with the City's General Plan, the Growth Management Program and the Local Facilities Management Plan for Zone 5. 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 5 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 fee 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 5, 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 AGREEMENTS AS-8. FRM -3 - Rev. 4190 .’ :’ * ’ . * m -. drainage fee IS established. Developer hereby 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 in the SunnyCreek Drainage Sub-basin 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 18, 20, and 21to the extent such permit comply with applicable provisions of law. 8. In the 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 Developer'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. AGREEBENTS AS-8.FRM -4 - Rev. 4/90 0 ? 9. In addition to the other wde dies available to the City, it is hereby agreed that if Developer does not pay the drainage fees specified 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 Developer 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 authorized 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 notice 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 agreementandthe covenants contained herein shall AGREEMENTS AS-8.FRR -5 - Rev. 4/!JO ..’ . . *. . . r - be binding upon and enure to the MA fit of the successors, heirs, assigns and transferees of Developer and shall run with the real property and create an equitable servitude upon 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 this 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 shall be delivered in person or served by certified mail postage prepaid. Delivery of notice to Developer shall be I// /// /// /// I// /// I// /// /// /// /// /// /// /// AGREMERTS AS-8.FRM -6 - Rev. 4/90 *’ ’ . . . . iling regardless of receipt by Developer. Notices required to be given to Developer shall be addressed as follows: Carlsbad Oaks East, Ltd. 322 8th Street, Suite 100 De1 Mar, CA 92014 IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of date first written above. Executed by Subdivider this day of &T6P/E+ 2%' 19% . I SUBDIVIDER Carlsbad Oaks East, Ltd. CITY OF CARLSBAD a municipal corporation of the State of eneral Partner By: MARTIN ORENY- for City Manager ATTEST: City Clerk (Proper notarial acknowledgement of execution by SUBDIVIDER must be attached) (President 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.) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: Deputy City Attorney AGREMEllTS AG-8.FRH -7 - Rev. 4/90 I--. 8TATB 01 cAu1o~IA cclcImxor~Q*qo i u. - . on thh e dav af 19,nf2BmhLf . in tlm yearf49o , bafora ma, .t. for 8aid St per8onally IaGm~to ma (or p%red t'o : Tnhn d+ f-@-L President, and &QC, to M on tha basi; of # personally known to Be (OK proved 4atisfactory evidence) to be the (JJ~FT~ fcJo& a N&ary_Pubi# ili and fyj l ate. pcrronally l pwared 'F* u on the basis of sat sfac- Secretary of the corporation that executed the vithin instrument, knovn to me to be the persons who executed the vithin instrument on behalf of‘the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board directors. - WITNESS my hand and official seal. NOTARY PUBLIC S. M. WESTBROOK NOTARY PlJZLlC - CALIFORNIA PRINCIPAL OFFICE IN MY Commission SAN DIEGO COUNTY Expires Ssptember 23, 1994 ,>-* - , L f I ’ . EXHIBIT "A" LEGAL DESCRIPTION 1406 LOT 29 OF MAP NO. 10372 FILED IN THE OFFICE OF THE SAN DIEGO 1 COUNTY RECORDER APRIL 13, 1982. ASREMElTS AS-8.FRH -8 - Rev. 4/W