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HomeMy WebLinkAboutPE 2.90.18; Techbilt Construction Corporation; 90-286604; Drainage Fee Agreement/Release. . 1 - * . 1510 r ,* RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 1 > sc gvJ 22 pifj 8: 05 > ) --- -- Space above this line for Recorder’s use t Pat& No. 209-082-06 AGREEMEWI’ To PA% DRAINAGE FEES AS REQUIRED BY THE GROWTH MiWAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 5 - SUNNYCREEK DRAINAGE AREA THIS AGREEMENT is entered into this 27 , 19% by and between day of MR Techbilt Construction Corp, a California Corporation, hereinafter referred to as “Developer” whose adhess is 3575 Kenyon Street, San Diego, CA 92110 and THE CITY OF CARLSBAD, a municipal corp&at&n of the State of California, hereinafter referred to as “City’ whose address is 1200 E,;;;‘~~~~~~~ba~~~~~~~nij, ggj& n- . , =” _.,. , .-) ..1,171 WITNESSETII: WHEREAS, Developer is the owner of the real property described on Exhibit “A”:, attached hereto and made a part of Zhis agreement, hereinafter referred to as “Property”; and WHEREAS, The Property iii within the boundaries of the City and the SunnyCreek Drainage Sub-basin; and WHEREAS, Developer proposes a development project as follows: two one story concrete tilt-up buildings on said Property, which Development carries the proposed name of Lot 31 Carlsbad Oaks East and is hereinafter referred to as “Development”; and WHEREAS, Developer filed on the 20th day of December, 1988, with the City as a request for a planned industrial permit to develop one industrial/office building hereinafter referred to as “Request”; and WHEREAS, On December 20, 1988 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 recognize the 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 avaih&le to accommodate the additional need for such facilities and services resuhing: from the proposed Development; and WHEREAS, plan for Zone S requires that all public facilities, including drainage, necessary to serve a development will be available in c&ormance with the City’s adopted performance standard (said Zone Plan is on file with the City Clerk and is incorporated by this reference); a&d WF@Z&AS~ Developer has asked the City to find that drainage f&iiities ai%& services will be available to meet the future needs of the Development as it is presently propoged; but the Developer is aware that the City cannot and will not be able to make any such finding without ” . 7 ./ *, , , financial assistance to pay for such services and facilities; and therefore, Developer proposes to satisfy the L.ocal 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 foilw+w 1. That the foregoing 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 2 h -512 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 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 _, _~., - L .x _.I , 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 identifii 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 3 A -1513 21 to 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. 9. In addition to the Other medies 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 p-arty gi$&g 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: -. _, .- 1_ -_ L . . 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 certif5ed 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. -1514 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 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. in any dispute betweeri 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 provkkd herein, all notices required or provided for under this agreement sh&l be in w&g and shall be delivered in person or served by certifkd mail postage prepaid. D&very of notice to Developer shall be presumed to have been made on the date of mailing regati~ of receipt by Developer. Notices required to be g&en to Bz&kper shall be ,o : .1, (.‘( c o*‘,, ,’ ,‘j,l “, .” I_ Ill / Ill Ill ill Ill d . . ’ ; I ’ c . -1515 IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of date first written above. DEVELOPER-OWNER CITY OF CARLSBAD a municipal Corporation of the State of California ty Manager President (Title) BY (-r&b). ATTEST: APPROVED AT TO FORMz OY!_,,.... , . “% . ‘. ” STA .,,’ ‘. bi 0 bJ.. , i..,ib$t? VINCENT F. BIONDO, JR. City Attorney BY*- OEPUTY Cfti ATTORNEY (Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached) 6 - 1516 1 STATE OF CALIFORNIA COUNTY OF SAN DIEGO lss. I 0 = March 27, 1990 F On before me, the undersigned, a Notary Public in and for 5 said State, personally appeared PAUL K. TCIiANG and , personally known to me 7 Zf 5x p to be the persomho executed the within instrument as iiE President- S~S&‘A+. on behalf of g: TECHBILT CONSTRUCTION CORP. , .- a 50 5: the corporation therein named, and acknowledged to me that $2 o,C suchcorporationexecutedthewtthininstrument pursuanttoits I by-laws or a resolution of its board of directors. G ? SAN DIEGO COUNTY co r: a .: . ‘* , . . 3 ’ h EXHIBIT “A” LEGAL DESCRIPTION 1517 Lot 31 of Map No. 10372. 7