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HomeMy WebLinkAboutCT 89-39A; Aviara Land Associates and Chanco Development; 1995-0064237; Public Facilities Fee Agreement/Release. RECORDING REQUESTED BY AND 1 13-FEB-1995 01=15 Pfl WHEN RECORDED MAIL TO: City Clerk CR-Y OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, California 92008-l 989 i OFFICIAL RECORDS 1 SAN DIEGO COUNTY RECORDER’S OFFICE ; 403 GREGORY Syf’t;; COUN;;E;ECIJRDER RF: : 1 zi , 1;:oJ 34.00 Space above this line for Recorder’s use I Parcel No. 215-612-10 AGREEMENT BEIVVEEN OWNER, DEVELOPER AND THE CllY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FAClLlTlES FEE FOR !NSIDE THE BOUNDARIES OF COMMlJNTP( FAClLlTlES DISTRICT NO. 1 THIS AGREEMENT is entered into this day of D&I&!%& /t 4 ,192$ by and between CHANCO DEVELOPMENT - EAST HIGHLANDS (name of developer) a Delaware corporation (corporation, partnership, etc.) ’ hereinafter referred to as “Developer” whose address is 209 Avenida Del Mar, Suite 204, San Clmente, Ca. 92672 (street) (city, state, zip code) and AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP (name of legal owner) a Delaware limited partnership , hereinafter referred to as “Owner”, whose address (individual, corporation, etc.) is 2Oli Palomar Airport Rd., Suite 206, Carlsbad, Ca. 92009 (S-N (city, state, zip code) AND the CRY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as “City”, whose address is 1200 Carisbad Village Drive, Carlsbad, California, 92008-1989. F-4m-d ByCity-Juiy2,1991 Reao # 91-194/KJH 1 -- -- . . * ,‘I ’ . 404 , REClTALS WHEREAS, Owner 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 City; and WHEREAS, Developer has contracted with Owner to purchase the property and proposes a development project as follows: 107 Clustered - single family detached condominiums on said Property, which development carries the proposed name of Treasure Island and is hereafter referred to as “Development”; and WHEREAS, Developer filed on the &z&b / 8*day of 48 , 192g with the City a request for approval of the Tentative Map hereinafter referred to as “Request”; and WHEREAS, the Public Facilities Element of the City General Plan requires that the Cii Council find that all public facilities necessary to serve a development will be available concurrent with need or such development shall not be approved (said element Is on file with the Cii Clerk and is incorporated by this reference); and WHEREAS, Developer and City recognize the correctness of Council Policy No. 17, dated July 2, 1991, on file with the City Clerk and Incorporated by this reference, and that the City’s public facilities and services are at capacity and will not be available to accommodate the additional need for public facilities and services resufting from the proposed Development; and WHEREAS, Developer and Owner have asked the Cfty to find that public facilttfes 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 Clty cannot and will not be able to make any such finding without financial assistance to pay for such senrices and facilities; and therefore, FatmAppIwcd ByCityUuncilJuly~1991 Rae # 91.194/KJH 2 - . . . : . 3 1 ’ . -- -- 405 Developer and Owner propose to help satisfy the General Plan as implemented by Council Policy No. 17 by payment of a public facilities fee. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. The Developer and Owner shall pay to the City a public facilities fee in an amount not to exceed 1.8296 of the building permit valuation of the building or structures to be constructed in the Development pursuant to the Request. The fee shall be paid prior to the issuance of building or other construction permits for the development and shall be based on the valuation at that time. This fee shall be in addition to any fees, dedications or improvements required pursuant to Tiles 18,20 or 21 of the Carlsbad Municipal Code. Developer and Owner shall pay a fee for’conversion of existing building or structures into condominiums in an amount not to exceed 1.8296 of the building permit valuation at the time of conversion. The fee for a condominium conversion shall be paid prior to the issuance of a condominium conversion permit as provided in Chapter 21.47 of the Carlsbad Municipal Code. Condominium shall include community apartment or stock cooperative. The terms “other construction permits”, “other construction permit” and “entitlement for use” as used in this agreement, except in reference to mobilehome sites or projects, shall not refer to grading permits or other permits for the construction of underground or street improvements unless no other permit is necessary prior to the use or ocoupancy for which the development is intended. Developer and Owner shall pay the Cii a public facilities fee In the sum of $598 for each mobilehome space to be constructed pursuant to the Request. The fee shell be paid prior to the issuance of building or other construction permits for the development. This fee shall be in addition to any fees, dedications or improvements required according to Titles 18,20 or 21 of the Carfsbad Municipal Code. 2. The Developer and Owner may offer to donate a site or sites for public facilities in lieu of all or part of the financial obligation agreed upon in Paragraph 1 above. ff Developer and Owner offer to donate a site or sites for public facilities, the City shall consider, but is not F-Approvrd ByCitycouncil July21991 lb30 # 91-194/mH 3 * (1 . ‘. -- e . -- 406 obligated to accept the offer. The time for donation and amount of credit against the fee shall be determined by City prior to the issuance of any building or other permits, Such determination, when made, shall become a part of this agreement. Sites donated under this paragraph shall not include improvements required pursuant to Ties 18 or 20 of the Carlsbad Municipal Code. 3. This agreement and the fee paid pursuant hereto are required to ensure the consistency of the Development with the City’s General Plan. lf 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 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 public facilities fee required by this agreement is paid. 4. City agrees to deposit the fees paid pursuant to this agreement in a public facilities fund for the financing of public facilities when the City Council determines the need exists to provide the facilities and sufficient funds from the payment of this and similar public facilities fees are available. 5. City agrees to provide upon request reasonable assurances to enable Developer to comply with any requirements of other public agencies as evidence of adequate public facilities and services sufficient to accommodate the needs of the Development herein described. 6. All obligations hereunder shall terminate in the event the Request made by Developer is not approved. 7. 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 duty authorized representative of such party. Any such notice shall not be effeotjve for any purpose whatsoever’ unless served in one of the following manners: 7.1 If notice is given to the City of personal delivery thereof to the City or by depositing same in the United States Mail, addrissed 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 Fonn~ ByCkyQunciiJuiy2,1991 RWJ # 91-194AuH 4 407 prepaid and certified. 7.2 ff 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 many have been designated, postage prepaid and certified, 8. This agreement shall be binding upon and shall inure to the benefit of, and shall apply to, the respective successors and assigns of Developer, Owner and City, and references to Developer, Owner 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. lf Developer should cease to have any interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any sucoessor to Developer’s Interest in the property shall have first assumed in writing the Developer’s obligations hereunder. At such time as Owner ceases to have any interest in the Property, all obligations of Owner hereunder shall terminate; provided, however, that if any successor to the Owner’s interest in the Property is a stranger to this agreement, such successor has first assumed the obligations of Owner in writing in a form acceptable to Cf. 9. 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. F-Applpved ByC%yCoundlJuly2,1991 fkso # 91-194/wH 5 I13 -- A- */ . .% 408 I IN WlTNESS WHEREOF, this agreement is executed in San Diego County, California , * . as of the date first written above. Aviara Land OWNER: ,&imited Part 2 (print name) SEE ATTACHED SIGNATURE PAGE (signature) (print name) (signature) DEVELOPER: Chance Development - East Highlands (name of developer) w F?lzlk-*- \ts;n;~~; cl Sr. V. P rint name) . Chance Development-East Highlands (title and organization of signatory) BY (signature) (print name) (title and organization of signatory) CRY OF CARLSSAD, a municipal corporation of the State of California ATTEST: -&% ALETHA L RAUTENKRANZ, City Clerk APPROVED AS TO FORM: RONALD R. BALL, City Attorney By for City Manager ‘-J (Notarial acknowledgement of execution of DEVELOPER and OWNER must be attached.) F-Approvled ByCityCamcilJuly2,1991 lb0 # 91-194/lu?i 6 - -. . 409 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership velopment Company, . . . 410 STATE OF CALIFO NIA cf ;ss. 2 COUNTY OF range ) 5 On October 19, 1994 before me, M. Karen Welch s , 2 personally appeared Hsiu Kwonq I I- c - .; personally known to me (or proved E to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within 1 .k IL instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), c F and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the s person(s) acted, executed the instrument. (This area for official notarial seal) . . - CALIFORNlkrALL-PURPOSE ACKNOViTEDGEMENT m STATE OF CALIFORNIA ) COUNTY OF \ ) OF OFFICER - E.G., “JANE DbE, NOTARY PUBLIC” personally appeared, personally known to me (c) to be the person@) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/&&hey executed the same in his/be&heir authorized capacity(ies), and that by his/h&their signature(sfon 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. - ’ (SEAL) L - OPTIONAL INFORMATION 3 TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT NUMBER OF PAGES r ’ SIGNER(S) OTHER THAN NAMED ABOVE - CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT - STATE OF CALIFORNIA ) COUNTY OF A5iL2?& ) On // A t5 1 /vdm4Y &5-L/C ! NAME, TITLE OF OFFICER - E.G., “JAb#i DOE, NOTARY PUBLIC” personally appeared, \ ~~~ personally known to me (3) to be the person+) whose name@) is/are subscribed to the within instrument and acknowledged to me that he&h&they executed the same in his&+&their authorized capacity(&), and that by his/he&&r signature@) on the instrument the person@, or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal. EAL) SAHWOOCQUNTY I OPTIONAL INFORMATION - TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT NUMBER OF PAGES SIGNER(S) OTHER THAN NAMED ABOVE .t ” 3”. I . ‘?. r.-. * . . . .’ - 412 EXHIBIT “A” LEGAL DESCRIPTION PLANNING AREA 12 LOT 230 OF CITY OF CARLSBAD TRACT 85-35, AVIARA PHASE 1 - UNIT “D”, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12412, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 29, 1989, TOGETHER WITH THAT PORTION OF BLACKRAIL COURT VACATED BY RESOLUTION RECORDED APRIL 15, 1991, AS FILED NO. 91-0168676 OF OFFICIAL RECORDS WHICH ADJOINS LOT 230 ON THE WEST, AS MORE PARTICULARLY DESCRIBED THEREIN. EXCEPTING THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MY BE WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING,A ND OPERATING THEREFOR, AND STORING IN AND REMOVING THE SAME FROM THE PROPERTY OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE PROPERTY OIL AND GAS WELLS, TUNNELS AN SHAFTS INTO THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY AND TO BOTTOM SUCH WHIPSTOCK OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO ENTER UPON, REMOVE, WHIPSTOCK DIRECTIONALLY DRILL, DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500) FEET OF THE SUBSURFACE OF THE PROPERTY.