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Home My WebLink About1989-06-27; City Council; 10109; Final Maps Unit A,B,C,D,E, Aviara Phase 1. CIT’ -JF CARLSBAD - AGENt’ L .4ILL DEPT.- APPROVAL OF FINAL MAPS FOR CARLSBAD TRACT NUMBERS 85-35 Approve Final s for Carlsbad Tract Numbers CT 85-35, Unit A,B,C,D and E and, adopt Resolution No. a/3, authorizing the Mayor to execute agreements as listed below: I 1. Aviara Desiltation Basin/Storm Drainage Maintenance Agreement (Golf Course). 2. Aviara Desiltation Basin/Storm Drainage Maintenance Agreement (Planning Areas 5 and 28). I 3. Bridge and Thoroughfare Agreement. 4. Agreement to Execute Covenant for Easement. I ITEM EXPLANATION: Engineering staff has completed checking final maps of Carlsbad Tract Numbers CT 85-35, Unit A,B,C,D and E for conformance with the Subdivision Map Act and the Carlsbad Municipal Code. The tracts are located adjacent to the Batiquitos Lagoon between El Camino Real and Interstate 5. The final maps conform substantially with conditions of approval and the tentative map as approved by the City Council on December 22, 1987 per Resolution No. 9322. The project has been reviewed and found to be in conformance with the Zone 19 Local Facilities Management Plan approved on December 22, 1987. Ail public facility impacts were analyzed and mitigated as part of the local zone plan. The project density is 3.23 dwelling units per acre (d.u./ac.) which is slightly above the Growth Control Point of 3.2. The applicant requests that the 12.4 acre school site and the 24.25 acre park site dedications record after recordation of the final maps instead of before recordation of the final maps. Dedication before recordation of final maps was required in Planning Commission Resolution Number 2595, Condition Numbers 5 and 6. Approval for the proposed dedication is granted by the Carlsbad Unified School District in the attached letter. Establishment of escrow to deliver the deeds is documented in the attached letter by the Ticor Title Insurance Company. Upon recordation of final maps, Ticor will deliver the Park Deed to the City Engineer. The Park Deed will then be scheduled for acceptance by the City Council. The Aviara Desiltation Basin/Storm Drainaqe Maintenance Aqreements have been provided to satisfy Conditions 63, 64 and 65 of Planning Commission Resolution Number 2595. The agreements establish the applicant’s maintenance responsibility (in perpetuity) for public drainage within the golf course drainage channels, storm drain pipes, and desiltation basins. The applicant is responsible for removing and disposing of silts as well as necessary maintenance to assure that the facilities operate in a manner satisfactory to the City Engineer. - * I i . . PAGE TWO OF AB# /a, /oq _- The Bridoe and Thorouqhfare Aoreement establishes the applicant’s obligations to pay bridge, thoroughfare, and traffic impact fees. This agreement was required by Planning Commission Resolution Number 2596, Condition Number 35. The Aareement to Execute Covenant for Easement establishes the applicant’s obligations to execute and record a covenant for easement for reciprocal parking and drainage rights. The easements will be recorded as soon as precise locations are determined. This agreement was required by Planning Commission Resolution Number 2607, Condition Number 4. Recordation of the final maps will allow the applicant to build up to 1,234 residential units. Park land required for this development is 9.1476 acres according to Carlsbad Municipal Code, Chapter 20.44. The applicant is dedicating 24.25 acres of park land. This provides for a 3.2 acre credit for other developers and a credit of 11.09 acres to the applicant. FISCAL IMPACT The exact amount of development fees to be generated by this project is unknown until all building permit applications are submitted. No detailed economic impact analysis has been conducted. While increased operating expenses related to this development are expected to be offset from increased tax or fee revenue, no exact percentage of offset can be predicted. Public Facility Adequacy Status: Traffic Impact Fee At Buildinq Permits Bridge and Thoroughfare District At Buildins Permits Development Zone 19 Phasing Program Prior to Buildinq Permits Density of this Project 3.23 Growth Initiative Control Park Credit Point 3.2 Density EXHIBITS: :: 3. i: 6. ;: Location Map/Plat of Project. Resolution authorizing the execution of agreements. Letter by Carlsbad Unified School District. Letter by Ticor Title Insurance Company. Storm Drain Maintenance Agreement (Golf Course). Storm Drain Maintenance Agreement (Planning Areas 5 and 28). Bridge and Thoroughfare Agreement. Agreement to Execute Covenant for Easement. LOCATION Marl i NTS UNITS A, B, C, D, &E. PROJECT NAME AVIARA PHASE 1 I PROJ. NO CT 85-35 EXHIBIT A 1 .* 1 c 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 89-213 RESOLUTION NO. .' A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXECUTION OF AGREEMENTS ASSOCIATED WITH AVIARA, CT 85-35, UNITS A, B, C, D, AND E. WHEREAS, Condition Numbers 63, 64 and 65 of Planning Commission Resolution Number 2595 require drainage agreements to be approved by the City; and WHEREAS, Condition Number 35 of Planning Commission Resolution Number 2596 requires execution of a Bridge and Thoroughfare Agreement; and WHEREAS, Condition Number 4 of Planning Commission Resolution Number 2607 requires execution of an Agreement to Execute Covenant for Easement. WHEREAS, the agreements have been reviewed and found to be satisfactory to the City Engineer and the City Attorney; and WHEREAS, the agreements have been executed by the developer; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. iiit,the Mayor is authorized to execute the agreements as listed . . A. Desiltation Basin Maintenance Agreement (Planning Areas No. 5 and 28.) B. Desiltation Basin Maintenance Agreement (Golf Course). C. Bridge and Thoroughfare Agreement. D. Agreement to execute Covenant for Easement. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 27th day of June , 1989 by the following vote, to wit: AYES: Council Members Lew NOES: None ABSENT: None Mamaux and Larson ATTEST: ALETHA L. RAUTENKRANZ, (SEAL) City Clehk _-- VILE 5 CT B’- -35 c- cAxaG5PI) Carlsbad Unified School District (13 IS hhiling Address: 801 Pine Avenue, Carlsbad, California 920082439 6350 Yarrow Drive, Suite A, Carlsbad, California 92009-1544 (619) 729-9291 FAX# (619) 438-5798 “All Students Can Learn” BOARD OF TRUSTEES J. EDWARD SWITZER,JR. President DONALD M. JOHNSON Vice President JOE ANGEL Clerk JAMESMcCORMICK Member JULL4NN-E L. NYGAARD Member DISTRICT ADMINISTRATION THOMAS K. BRIERLEX, Ed.D. Superintendent SUSAN-HABUMI BENTLEY, l3d.D Assistant Superintendent Instructional Services JOHN Ii. BLAIR Assistant Superintendent Business Services GERALD C. TARMAN Assistant Superintendent Personnel Services CHERYL ERNST Director Elementary Education DBWAYNE L. FJUSBL Manager Facilities/Maintenance/ Operations June 6, 1989 Lloyd Hubbs City Engineer City of Carlsbad 1200 Elm Avenue Carlsbad, CA 92008 Dear Mr. Hubbs: Properties, Inc. This is to inform you that Hillman satisfactorily met the dedication requ Unified School District by opening joining in a sign-off agreement consideration. has irements of the Carlsbad an escrow account and for the site under Thank you for your assistance. Sincerely, Thomas K. Brierley, Ed.D/ District Superintendent aw Distinguished School Board Award 1984, United States Department of Education *I i @,TICOR TITLE IN$iNCE . v\=: c - “f-35 ~~~US--~ June 7, 1989 Hillman Properties Attn: Larry Clemens 2011 Palomar Airport Suite 206 Carlsbad, CA 92009 Rd. Re: Aviara Park Site & School Site Order Nos: 1177402 & 1175731 Dear Larry, In regard to the above referenced orders, please be advised of the fqllowing: An escrow has been opened at Ticor Title Insurance by which a deed from Aviara Land Associates Limited Partners to the City of Carlsbad and a deed to the Carlsbad Unified High School District together with partial reconveyances will be recorded. This will convey the property and reconvey the trust deeds described as Exhibit "A" and Exhibit "B" attached to this letter. This recording will take place after the recordation of the final maps of Carlsbad Tract 85-35 Units A,B,C,D & E. Any questions, please feel free to call me. Sincerely, Tom Vote1 Senior Title Officer Map Title Department TV/sf cc: JOHN BLAIR-CARLSBAD UNIFIED SCHOOL DISTRICT RON BALL-CITY OF CARLSBAD Ticor Title Insurance Company of California 925 “B” Street, San Diego. California 92101 (619) 239-6081 y@j TICOR TIT’ ? INSURANCE- EXHIBIT "A" THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THOSE PORTIONS OF THE SOUTH ONE HALF OF THE SOUTH ONE HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER AND OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 26, TOGETHER WITH A PORTION OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 27, ALL IN TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SOUTH ONE HALF OF THE SOUTH ONE HALF,OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 26; THENCE ALONG THE EASTERLY LINE THEREOF, SOUTH OO”21’21” EAST 293.56 FEET TO A POINT ON A NON-TANGENT 1151.00 FOOT RADIUS CURVE, CONCAVE SOUTHERLY, A RADIAL LINE TO SAID POINT BEARS NORTH 04°10’50” WEST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 39’32’20” A DISTANCE OF 794.28 FEET TO THE BEGINNING OF A REVERSE 20.00 FOOT RADIUS CURVE, CONCAVE NORTHERLY, A RADIAL LINE BEARS SOUTH 43’43’10” EAST; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 87’33’10” A DISTANCE OF 30.56 FEET; THENCE TANGENT TO SAID CURVE, NORTH 46”lO’OO” WEST 95.89 FEET TO THE BEGINNING OF A TANGENT 430.00 FOOT RADIUS CURVE, CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 09”46’00” A DISTANCE OF 73.30 FEET; THENCE TANGENT TO SAID CURVE NORTH 55’56’00” WEST 416.30 FEET TO THE BEGINNING OF A TANGENT 320.00 FOOT RADIUS CURVE, CONCAVE EASTERLY; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 55’13’38” A DISTANCE OF 308.45 FEET; THENCE TANGENT TO SAID CURVE, NORTH 00’42’22” WEST 18.83 FEET TO THE WESTERLY PROLONGATION OF THE NORTHERLY LINE OF SAID SOUTH HALF OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SECTION 26; THENCE TO AND ALONG SAID NORTHERLY LINE, SOUTH 89’19’14” EAST 1349.44 FEET TO THE POINT OF BEGINNING. SCHOOL SITE 1175731 PAGE 6 7-a TICOR TIT1 r INSURANCE- EXHIBIT "B" . _ - THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF AS SHOWN ON RECORD OF SURVEY NO. 10774, RECORDED OCTOBER 30, 1986 AS FILE NO. 86-494180, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 22; THENCE ALONG THE EASTERLY LINE OF SAID SECTION 22, NORTH 00’33’25” EAST, 1634.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID EASTERLY LINE, SOUTH 89”46’56” WEST, 678.27 FEET; THENCE SOUTH 44’18’06” WEST, 124.45 FEET; THENCE SOUTH 89’18’06” WEST, 566.00 FEET; THENCE NORTH 19’52’40” EAST, 92.87 FEET; THENCE NORTH 45’10’21” WEST, 54.44 FEET; THENCE NORTH 13’28’04” EAST, 60.92 FEET; THENCE NORTH 00’22’40” WEST, 320.06 FEET; THENCE NORTH 12’18’08” WEST, 92.73 FEET; THENCE NORTH SO”59’09” EAST, 201.72 FEET; THENCE NORTH 14°03’08” WEST, 251.61 FEET TO A POINT ON THE NORTHERLY LINE OF SAID RECORD OF SURVEY NO. 10774; THENCE SOUTH 89’28’30” EAST, 322.59 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTH 00’43’00” EAST, 121.77 FEET; THENCE SOUTH 49”41’33” WEST, 50.16 FEET; THENCE SOUTH 10’13’08” WEST, 45.76 FEET; THENCE SOUTH 34’30’47” EAST, 34.62 FEET; THENCE SOUTH 62”22’17” EAST, 25.68 FEET; THENCE SOUTH 19’35’24” WEST, 109.22 FEET; THENCE NORTH 75’32’32” EAST, 110.78 FEET; THENCE NORTH 35”50’10” EAST, 100.96 FEET; THENCE SOUTH 82’53’54” EAST, 31.50 FEET; THENCE NORTH 56’01’44” EAST, 225.45 FEET; THENCE NORTH 43’54’35” EAST, 93.91 FEET; THENCE NORTH 73”18’15” EAST, 133.63 FEET TO A POINT ON THE NORTHERLY LINE OF SAID RECORD OF SURVEY NO. 10774, THENCE ALONG SAID NORTHERLY LINE, SOUTH 89”28’30” EAST, 135.92 FEET; THENCE LEAVING SAID NORTHERLY LINE SOUTH 52’45’54” EAST, 325.96 FEET TO A POINT ON THE EASTERLY LINE OF SAID SECTION 22; THENCE ALONG SAID EASTERLY LINE, SOUTH OO”33’25” WEST, 661.79 FEET TO THE TRUE POINT OF BEGINNING. PARK SITE 1177402 PAGE 7 c -. s : _/.* -.* c AGREEMENT TO EXECUTE COVENANT FOR EASEMENT THIS AGREEMENT TO EXECUTE COVENANT FOR EASEMENT (the "Agreement") is entered into as of June 28 1989, by and between AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("Aviara"), and THE CITY OF CARLSBAD, a municipal corporation of the State of California (the l'City"), with reference to the following facts: A. The Planning Commission of the City adopted Resolution No. 2607 on November 4, 1987, approving PUD-102 relating to Aviara's development of the real property identified in Exhibit "A I1 attached hereto and incorporated herein by this reference ithe "Property"). Condition no. 4 of Resolution No. 2607 provides as follows: "4) Prior to approval of a final map or building permit parking and drainage agreement shall be established, and approved by the City of Carlsbad. A note identifying this agreement shall be placed upon the final map." B. Aviara desires to establish reciprocal parking and drainage easements over portions of the Property, which easements shall benefit and burden future owners of the Property or any portions thereof. Said easements shall be established as soon as the precise locations for said easements have been determined. C. The purpose of this Agreement is to memorialize the agreement of Aviara to execute and record a covenant for easement establishing such reciprocal parking and drainage rights at such time as the locations thereof have been determined. NOW, THEREFORE, the parties hereto agree as follows: 1. Execution of Covenant for Easement. Prior to (i) the issuance of the first building permit for a structure located upon the Property, or (ii) January 1, 1991, whichever first occurs, Aviara shall execute and record a covenant for easement in the form attached hereto as Exhibit "B", establishing reciprocal parking and drainage easements over the Property, which covenant for easement shall run with the land and be binding upon all successors to the Property or any portion thereof. Aviara shall deliver to the City a conformed copy of said covenant for easement reflecting its due execution and recordation. 2. Bindina Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their A013112M.DB6 5/24/89 -l- . * 'respective heirs, executors, administrators, successors and assigns. 3. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. A013112M.DB6 5/24/89 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land Company, a Delaware co?#&oration, General By: C)AJ h . By: Republic Development Company, a CaliforniAcorporation, . By: !LQL ho--- * -2- 1 I , . STATE OF CALIFORNIA ) before me, the undersigned, a for said State, personally appeared nown to me m personally known to me or proved t; me on the basis of satisfactory the within instrument as Company, the corporation General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same. WITNESS my hand and official seal. NOTARY PUBLIC (Seal) Z058201L.DW4 5/12/89 -3- -. - . STATE OF CALIFORNIA ) COUNTY OF ss. before me, the undersigned, a personally appeared known to me e-~~~&C1?me to be the person who WJ. President, and personally known to me or proved to me on be the person who executed v of Republic Development Company, at executed the within instrument as General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same. WITNESS my hand and official seal. (Seal) Z058201L.DW4 5/12/89 -4- . .Shaded portions are subject to this Agreement , -. EXHIBIT “A" . - 'RECORDING REQUESTED BY 1 AND WHEN RECORDED MAIL TO: 1 City of Carlsbad 1200 Elm Street 1 Carlsbad, California 92008 COVENANT FOR EASEMENT (Government Code Article 2.7 commencing with Section 65870 of Chapter 4 of Division 1 of Title 7; Carlsbad Municipal Code Section 20.04.140) 1. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, hereinafter referred to as "Owner," creates a covenant for easement for the purpose stated in paragraph 5 hereof, for the benefit of the property referred to in paragraph 4 hereof. This covenant for easement may be released only according to the procedures established by law if it is determined by the City that the covenant is no longer needed to achieve the land use goals of the City. 2. This covenant for easement is required by condition no. 4 of approval for PUD-102 in Planning Commission Resolution No. 2607 in connection with development of the real property described therein. 3. The property burdened by this covenant for easement is described as follows: 4. The property benefitted by this covenant for easement is described as follows: EXHIBIT "B" Page 1 of 2 5. This covenant for easement provides for over, across and upon the burdened property in favor of the benefited property and shall be enforceable by the City and the owner of the benefitted property and any successors in interest to the benefitted property. 6. This covenant for easement shall run with the land, and the burdens of the covenant shall be binding upon and the benefit of the easement shall inure to the benefit of all successors to the real property. Dated: AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: By: Aviara Land Company, a Delaware c oration, General Partner v BY: 9 ~?)z-‘-I Republic Development Company, eS;Foration, By: EXHIBIT "B" Page 2 of 2 -. ’ . STATE OF CALIFORNIA ) COUNTY 0 the undersigned, a e, personally appeared me r\r he person who ithin instrument as the President, and personally known to me w .e be the person who executed S& the within instrument as the SW of Aviara Land Company, the corporation that executed the within instrument as General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same& WITNESS my hand and official seal. (Seal) ZOS8201L.DW4 S/12/89 -3- . STATE OF CALIFORNIA COUNTY 0 ) ) ss. 1 \, /yf7 before me, the undersigned, a d f6r said State, personally appeared I personally known to me rrrw m to .the person who ithin instrument as the 7Ri.l President, and personally known to me wm_+d be the person who executed the within instrument Secretly of Republic Development Company, at executed the within instrument as General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same. WITNESS my hand and (Seal) official seal. ZOS8201L.DW4 S/12/89 -4- - t r 4 ! k- ‘-k- BRIDGE AND THOROUGHFARE FEE AGREEMENT THIS BRIDGE AND THOROUGHFARE FEE AGREEMENT (the "Agreement") is entered into as of june 28 PARTNERSHIP,'a 1989, by and between AVIARA LAND ASSOCIATES LIMITED Delaware limited partnership ("Aviara"), and THE CITY OF CARLSBAD, a municipal corporation of the State of California (the "Cityl'), with reference to the following facts: A. The Planning Commission of the City adopted Resolution No. 2596 on November 4, 1987, approving SDP 86-2 relating to Aviarals development of the real property identified in Exhibit "A " attached hereto and incorporated herein by this reference ithe "Property"). As a condition of said approval, condition no. 35 of Resolution No. 2596 provides as follows: "35) Before and as a condition of obtaining a final map, or final development permit or site plan approval under Title 21 of the Carlsbad Municipal Code, the subdivider shall enter into a contract with the City whereby the subdivider covenants on behalf of the subdividers and subdivider's successors in interest to the following: (a) Not opposing and consenting to the formation of a bridge and major thoroughfare district for the southern area of the City. (b) Payment of the bridge and major thoroughfare fee for the area of the district in which this development is located. (c) Payment of the traffic impact fee established for the area of the City in which the development is located." B. A bridge and major thoroughfare district as described in the above-referenced condition no. 35 (a) has already been formed (the "District"). C The purpose of this Agreement is to set forth the terms and conditions of the agreement between Aviara and the City required pursuant to the above-referenced condition no. 35. NOW, THEREFORE, the parties hereto agree as follows: 1. Pavment of Bridae and Major Thoroughfare Fee. Aviara and any successive owner of all or any portion of the Property shall pay the bridge and major thoroughfare fee assessed A013111H.DB6 -l- 4/16/89 'against and applicable to the area of the District in which the Property is located. Such fee shall be in an amount established by the City at the time Aviara or its successor obtains, or causes to be obtained, building permits for structures, other than public improvements, to be located on the Property. 2. Pavment of Traffic Imoact Fee. Aviara and any successive owner of all or any portion of the Property shall pay a traffic impact fee assessed against and applicable to the area of the City in which the Property is located. Such fee shall be in an amount established by the City at the time Aviara or its successor obtains, or causes to be obtained, building permits for structures, other than public improvements, to be located on the Property. 3. Citv Formation of Mello-Roos District. In the event a Mello-Roos Community Facilities District is formed which includes the subject property and includes assessments for major bridge and thoroughfare improvements or traffic impact improvements, then Aviara or its successors in interest shall remain obligated to pay the fees provided for in said Planning Commission Resolution No. 2596 but shall be entitled to a credit in an amount not to exceed the fees previously paid by Aviara to the extent said fees were paid for major bridge and thoroughfare improvements or traffic impact improvements included within the District. Aviara or its successors in interest shall not be entitled to a refund of any fees so paid. 4. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. 5. Entire Acrreement. This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter contained herein. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. ATTEST: ADDITIONAL SIGNATURES TO FOLLOW A013111H.DB6 4/16/89 -2- . . A013111H.DB6 4/16/89 AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land ompany, a Delaware co oration, General Republic Development Company, By'+~f)c;rporation, BY: -=i---/k- By: . . -3- . . STATE OF CALIFORNIA ) the undersigned, a known to me v-r erson who Company, the corporation that executed the within instrument as General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same. WITNESS my hand and official seal. (Seal) ZOS82OlL.DW4 . 5/12/89 -3- - - , STATE OF CALIFORNIA ) COUNTY OF- "a the undersigned, a me m .the person who President, and Development Company, the corporation that executed the within instrument as General Partner of Aviara Land Associates Limited Partnership, the partnership that executed the within instrument, and such person(s) acknowledged to me that such corporation executed the same as such General Partner pursuant to its by-laws or a resolution of its board of directors, and that such partnership executed the same. WITNESS my hand and official seal. NOMY PUBLIC (Seal) 2058201L.DW4 S/12/89 -4- , ‘I NAP OF AVIARA 3EK;OP?4Z:iT . 7 . . EXHIBIT A STATE OF CALIFORNIA ) > ss. COUNTY OF SAN DIEGO ) On June 28, 1989 Notary Public in and for said State, before me the undersigned, a 'personally appeared Claude A. Lewis and Aletha L. Rautenkranz , known to me to be the f the City of: Mayor and City Clerk 1 b d a Municipal Corporation of the State of California, &own to me to bCzrtEeap&sonswho executed the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same. WITNESS my hand the official seal. ***************+**************** 06kI~ l.\l, 5’ \I. * \ ** KAREN R. KUNDTZ t NOTARY PiJBLIC-CALIFORNIA SAN DIECD COUNTY :: My Comrn Exl, SW’ 27. 1989 $ *******t*****.fci*t************ --.----___ ------I_-x__- . . . . ..__ ~.- . . ’ IN WITNESS WHEREOF, this Agreement is executed by the City of Carlsbad, acting by and through its City Mayor, pursuant to Section 20.16.060 of the Code authorizing such execution, and by Subdivider. DATED this 28th day of June , 1989. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership By: Aviara Land Company, a Delaware corporation, By: ATTEST: CITY OF CARL&AD, a4&zLf?@& ALETHA L. RAUTENKRANZ I City Clerk A058205A.DA5 060689 -14- RECORDING REQUESTED BY AND RETURN TO: _.. City Clerk 1200 Elm Avenue Cfarlsb~d, CA 92008 - *. .~. DESILTATION BASIN/STORM DRAINAGE MAINTENANCE AGREEMENT (4 \ (GOLF COURSE) 1. 2. 3. 4. 5. 6. 7. DATE OF AGREEMENT: June 28 , 1989 NAME OF SUBDIVIDER: Aviara Land Associates Limited Partnership, a Delaware Limited Partnership NAME OF SUBDIVISION: Aviara Phase I, Unit A RESOLUTION OF APPROVAL NO. 2595, CT 85-35 (Adopted December 8, 1987) CITY OF CARLSBAD ENGINEERING DRAWINGS NO.: 286-9C, Sheets 5, 7, 9, 12 and 16; 286-9H, Sheets 14, 15, 17 and 18; 286-9A, Sheets 6 and 10; 290-3S, Sheets 13, 14, and 15; 290-3A, Sheets 5 and 6: 295-lS, Sheets 8, 9 and 10; 295-28, Sheets 14, 16, 17 and 18. ESTIMATED ANNUAL COST OF MAINTENANCE OF IMPROVEMENTS SUBJECT TO THIS AGREEMENT: $7,000 CASH SECURITY ACCOUNT: $50,000 (the llSecurityql) This Desiltation Basin Maintenance Agreement (gVAgreementV1) is made and entered into by and between the City of Carlsbad, a Municipal Corporation of the State of California, hereinafter referred to as @tCity,V1 and the Subdivider named in Item 2 of Page 1 hereof, hereinafter referred to as "Subdivider.lf -45 0,ocm -90 DE9Dr7 l-T g&ElIT NO- wb37 (dj bp9 A058205A.DA5 060689 -l- c -- RECITALS WHEREAS, Subdivider has presented to City for approval and recordation a final subdivision map of the proposed subdivision identified in Item 3 of Page 1 hereof (the "Subdivision"), pursuant to provisions of the Subdivision Map Act of the State of California and Title 20 of the Carlsbad Municipal Code, hereinafter referred to as l'Codell; and WHEREAS, a tentative map of the Subdivision has been approved, subject to the requirements and conditions contained in the resolution listed in Item 4 of Page 1 hereof. Said resolution is on file in the office of the City Clerk and is incorporated herein by this reference: and WHEREAS, Subdivider, in consideration of the approval and recordation of this map by the Council, desires to enter into this Agreement providing for the maintenance, at Subdivider's expense, of the desiltation basin or basins in the locations described in the attached Engineering Drawings (hereinafter referred to as the "desiltation basins"); and WHEREAS, said resolution states in Condition No. 63 that Subdivider shall enter into a desiltation basin maintenance agreement satisfactory to the City Engineer. Condition No. 63 further provides, among other things, that each desiltation A058205A.DA5 060689 -2- .1 'basins shall be served by an all weather access/maintenance road; and . WHEREAS, complete plans and specifications for the desiltation basins and storm drains have been prepared by Subdivider and approved by the City Engineer. The plans and specifications shown on the Engineering Drawings, listed in Item 5 of Page 1 hereof, are filed in the Office of the City Engineer and are incorporated herein by this reference: and WHEREAS, an estimate of the annual cost of maintaining the desiltation basins has been made and approved by the City Engineer in an amount stated in Item 6 of Page 1 hereof; and WHEREAS, said resolution also states in Condition No. 65 that a maintenance agreement for drainage across the golf course shall be approved by the City Attorney: and WHEREAS, Subdivider and City have entered into this Agreement as required pursuant to Condition No. 63 and 65 of the Resolution of Approval identified in Item 4 of Page 1 hereof: NOW, THEREFORE, in consideration of the mutual covenants contained herein, the approval and recordation by City Council of the final map of this Subdivision and other valuable consideration, Subdivider and City agree as follows: A058205A.DA5 060689 -3- . 1. Subdivider shall: . a. Comply with all of the requirements of said tentative map resolution and any amendments thereto, and with the provisions of the Code; b. Maintain, repair and reconstruct, as necessary (hereinafter these obligations shall be collectively referred to as ffmaintainff), the desiltation basins in a manner acceptable to the City Engineer: C. Maintain, repair and reconstruct, as necessary (hereinafter these obligations shall be collectively referred to as ffmaintainff), the drainage across and under that certain golf course ("Golf Courseff) also located within Unit A in a manner acceptable to the City Engineer: d. Make an inspection of the desiltation basins after each runoff producing rainfall and clean out the basins when the accumulation of silt has reached a point where it interferes with the design performance of the basins; e. The maintenance obligations established by Subparagraphs (b), (c) and (d) above are sometimes referred to herein as ffworkff or "the work." The desiltation basins and the storm drains are sometimes referred to herein as ffimprovementsff or "the improvements.ff A058205A.DA5 060689 -4- . 2. If any of the work contemplated by this Agreement is to be performed on land not owned by Subdivider, no work shall be commenced prior to the dedication to and acceptance by City of appropriate easements, and City shall not be responsible for the costs incurred in connection with said work. 3. The Security shall also secure the obligations of Subdivider or its successors-in-interest pursuant to that certain Desiltation Basin Maintenance Agreement (Planning Areas No. 5 and 28) dated June 28 , 1989 and executed by City and Subdivider. City shall deposit the Security into an interest- bearing account of a type and at a financial institution approved by City. All interest accruing in said account shall be payable pursuant to Government Code Section 53079 in annual installments directly to Subdivider. City shall be entitled to draw upon the Security only for reimbursement of the costs incurred by-City as a result of maintenance or repair work which City performs pursuant to the terms of this Agreement. Except in emergency situations as determined by the City Engineer in which prior notice is impractical, City agrees to give Subdivider prompt written notice of any request for withdrawal of funds by City from the Security. In the event funds are withdrawn from the Security, Subdivider agrees to promptly restore the funds in the account so the Security is maintained in the amount of $50,000. A058205A.DA5 060689 -5- .I 4. Subdivider agrees to service each desiltation basins with an all weather access/maintenance road as required by Condition No. 63 in Resolution of Approval No. 2595, pertaining to CT 85-35. 5. Subdivider shall maintain the desiltation basins in perpetuity; provided, however, such obligations shall cease in the event that (i) Subdivider transfers or assigns the maintenance obligations hereunder to City (provided that City has accepted such transfer in writing) or to an entity reasonably acceptable to City, including without limitation a golf course owner or operator, homeowner's association or maintenance assessment district, or (ii) the desiltation basins are no longer required, as determined by the City Engineer. 6. Upon the occurrence of a transfer under item (i) in Paragraph 5 above, the obligation of Subdivider to retain the Security shall be released, provided that the transferee accepts in writing its obligation to continue to provide the Security in an equivalent amount. 7. The City Engineer may approve the release of a portion of the Security upon application therefor by Subdivider demonstrating that the upstream slopes within the tributary drainage system have been satisfactorily stabilized or that there are other factors resulting in a material reduction in maintenance costs. A058205A.DA5 060689 -6- 8. Subdivider shall replace or have replaced, repair or have repaired, as the case may be, or pay to the owner, the entire cost of replacement or repairs of any property damaged or destroyed by reason of any work done hereunder, whether such property is owned by the United States or any agency thereof, or the State of California, or any public or private corporation, or by any person, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer, which approval shall not be unreasonably withheld. 9. Subdivider shall execute and cause to be recorded a Covenant of Easement for the benefit of City over the real property described on Exhibit lVB" attached hereto and made a part hereof (the lVEasement PropertyI'). Said Covenant shall provide that City shall have ingress and egress to the desiltation basins and the service/access roads or paths contained in the Easement Property, if and when it becomes necessary for City to assume maintenance responsibilities of the desiltation basins pursuant to Paragraph 5. The Covenant of Easement shall also provide City with an easement over the Easement Property for ingress and egress to inspect Subdivider's maintenance of the desiltation basins and Golf Course. The Covenant of Easement shall be binding upon all successors, assigns, and heirs of Subdivider and benefit the successors, assigns and heirs of City. A058205A.DA5 060689 -7- - Subdivider and City acknowledge that the Easement Property shown on Exhibit WB'I covers more land than will eventually be contained in the desiltation basins and the service/access roads or paths that will be built by Subdivider to provide access to the desiltation basins. Upon the written request of Subdivider following its identification of the specific areas to be contained in the desiltation basins and in such service/access roads or paths, and upon approval by City Engineer of such revised Easement Property description (which approval shall not be unreasonably withheld), City agrees to execute any documentation reasonably necessary to amend the Easement Property by reducing the amount of real property covered by said Covenant of Easement. #The parties acknowledge that such an amendment of the Covenant of Easement may require City to comply with the procedures set forth in Section 20.04.140 of the Code, and City agrees to use its best efforts to expedite this process. 10. In the event Subdivider fails to perform any work required by this Agreement, City may perform the work twenty (20) days after mailing written Notice of Default to Subdivider, except in cases of emergency as determined by the City Engineer, Subdivider agrees to pay the entire cost of such performance by City. If Subdivider does not perform the work in a timely manner, as reasonably determined by the City Engineer, City may take over the work and prosecute the same to completion by contract or by any other method City deems advisable, and City A058205A.DA5 060689 -8- . * 'may draw upon funds in the Security in order to complete said work. In such event, City, without liability for so doing, may take possession of and utilize in completing the work such materials, appliances, plans and other property belonging to Subdivider as may be on the site of the work and necessary therefor. Notwithstanding the above, in the event of an emergency, as determined by the City Engineer, affecting the work or the improvements, City may immediately perform any repair or maintenance work it deems necessary, provided that City uses its best efforts to give Subdivider immediate notice of any information City receives regarding the emergency situation and uses its best efforts to cooperate with Subdivider in making the necessary repairs. 11. In the event Subdivider fails to perform any obligation hereunder, Subdivider agrees to pay all costs and expenses reasonably incurred by City in securing performance of such obligations, including cost of suit and reasonable attorneys' fees. 12. Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement. 13. Until such time as all improvements required by this Agreement are accepted by City or other entity acceptable to A058205A.DA5 060689 -9- -1 ' City, Subdivider shall be responsible for the care, maintenance of, and any damage to such improvements. Subdivider shall give good and adequate warning to the traveling public of all dangerous conditions caused by its work or improvements hereunder and will protect the traveling public from such dangerous conditions. Subdivider hereby agrees to pay for such inspection of the work or improvements as may be required by the City Engineer. 14. City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Subdivi.der, its agents or employees in the performance of this Agreement. Subdivider further agrees to protect and hold harmless City, its officials and employees from any and all claims, demands, causes of action, liability or loss of any sort because of or arising out of acts or omissions of Subdivider, its agents or employees in the performance of this Agreement, including claims, demands, causes of action, liability, or loss because of or arising out of the maintenance of the work or improvements: provided, however, that the approved Security shall not be required to cover the provisions of this paragraph. Said indemnification and agreement to hold harmless shall extend to injuries to person and damages or taking of property resulting from the implementation of the work as provided herein, and to adjacent property owners as a consequence of the diversion of waters from the maintenance of drainage systems, streets and other improvements. Acceptance by A058205A.DA5 060689 -lO- . - _ City of the improvements shall not constitute an assumption by City of any responsibility for such damage or taking. City shall not be an insurer or surety for the maintenance of the improvements. 15. City shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of same, nor shall City, nor any officer or employee thereof, be liable for any persons or property injured by reason of said work or improvements, but all of said liabilities shall be assumed by Subdivider. 16. Notwithstanding anything herein to the contrary, sale or other disposition of all or any part of the Subdivision identified in Item 3 of page 1 hereof will relieve Subdivider from the obligations set forth herein, provided Subdivider shall notify City in advance of the identity of the transferee and shall provide evidence that the transferee has assumed in writing all obligations under this Agreement. 17. Time is of the essence of this Agreement. 18. In the event of any litigation to enforce the provisions of this Agreement, the prevailing party in such A058205A.DA5 060689 -ll- - . Ilitigation shall be entitled to reasonable attorneys' fees as fixed by the Court. 19. If either party shall be delayed or hindered in or prevented from performing any act required hereunder by reason of strikes, lock-outs, failure of power or other utilities, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature, not the fault of the party so delayed, then within ten (10) business days after the beginning of said delay the delayed party shall notify the other party, stating the reason for the delay and requesting an extension to.perform said act. The time period agreed to by the parties shall be added to the time for performance of said act. 20. All notices and demands of any kind which either party hereto may be required or desire to serve upon the other party under the terms of this Agreement shall be in writing and shall be served upon such other party by personal service upon such other party, or by mailing a copy thereof by certified or registered mail, postage prepaid, with return receipt requested, addressed as follows: If to City, to: City of Carlsbad 2075 Las Palmas Drive Carlsbad, California 92009-4859 Attention: City Engineer A058205A.DA5 060689 -12- - , If to Subdivider, to: Aviara Land Associates Limited Partnership 2011 Palomar Airport Road Suite 206 Carlsbad, California 92008 Attention: General Manager Notices shall be deemed to have been given when delivered personally or when deposited in the United States mail, addressed as provided above or to such subsequent address as either party may provide for that purpose by giving manner provided herein. 21. This Agreement may only consent of both of the parties to this such amendment. notice thereof in the be amended by the written Agreement at the time of 22. A memorandum of this Agreement may be recorded by either party hereof. 23. The parties hereby acknowledge that with reference only to Unit A, as identified in Item 3 of page 1 hereof, this Agreement supersedes and replaces that certain Drainage Basin Maintenance Agreement dated July 28, 1988 executed by Subdivider, and said Drainage Basin Maintenance Agreement is of no further force and effect with regard to Unit A following execution of this Agreement. Promptly upon the payment of the Security, City agrees to release any and all bonds posted as security by Subdivider pursuant to said Drainage Basin Maintenance Agreement. /// /// A058205A.DA5 060689 -13- 'STATE OF CALIFORNIA ) viara Land Company, a Delawar ation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS mv hand and (Seal) NOTARY PUBLIC . STATE OF CALIFORNIA ) COUNTY 0 before me, the undersigned, a e, personally appeared e e that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and (Seal) A058205A.DA5 -15- 060689 EXHIBIT A GOLF COURSE A-l City Drawing No. 286-9C, sheet 5 A-2 I, II I, , sheet 7 A-3 1, II II , sheet 9 A-4 II II II , sheet 12 A-5 II II II , sheet 16 A-6 City Drawing No. 286-9H, sheet 14 A-7 II II II , sheet 15 A-8 1, I, II , sheet 17 A-9 II II ,I , sheet 18 A-10 City Drawing No. 286-9A, sheet 6 A-11 II II 11 , sheet 10 A-12 City Drawing No. 290-3S, sheet 13 A-13 II II 11 , sheet 14 A-14 II II II , sheet 15 A-15 City Drawing No. 290-3A, sheet 5 A-16 II II II , sheet 6 A-17 City Drawing No. 295-lS, sheet 8 A-18 II II II , sheet 9 A-19 II 11 II , sheet 10 A-20 City Drawing No. 295-28, sheet 14 A-21 II II II , sheet 16 A-22 II II 1, , sheet 17 A-23 II II II , sheet 18 A-l A-2 A-3 i ! I i I 1: c A 1 t 1. I. ; -7~ 41 i I -1 !i c !! 0 ;i ; ;Ii ![ E I 0 2 m s2 i P L li iM.e- -.+- 72: A-4 E l I 2 t F 8 ” E i I II yy--7y ;w.ii my.-::. .- .._ . . ..- -r . ..-...... ..- - . -.._.._...., ._ _ _., . --T ..,..,.,. 1 .,.,. , .-I. - -. ., _ .,_ A-5 -.. h f :“)I 9 :. z %I ii’! i I g & * ia ! A-6 I .( t I -. 0 1 I I k / c c 1 n F ? a c 5 . B a i .- .i Ii --_ -.--.- -. -- r - .-.- . 0%. e‘ YI r, I. COI-- --.* > VI‘ S.J I---- TV- .-. c < I / 7,7--m-- 7-7. F-=7F?F, +=Tz- -* 3: /I .,./ ,. ;,I .A-9 I ., , I ,,, I , , ,, I ~~~i~,~ii~,~i~ic~r”i~~~~t~iii;;I;I;;;.;IIi:IIi 1 -_-_--- ---A-y / : , ,p-- ,*, / A-10 1 I ‘1 I;, n”: !“! ra; P! t8 :4’ 1: II . . 1 $J . . !I $ zji 13: lli Fj my: lu- I- *. = ,“o’ ,I! z. = z .‘: ,’ _ ‘: :. -~; ~ii ~ii ~i~~~~~r.i;r!ii~~!i!~!i~!.!~~i~~~i~rt!~rr,;~!!!., I I I I I, A-11 A-12 NId a? - AmpPRo”=D . --. .-. .a--, . i k I[ . I A-13 2: g a P =S i I 3s B: 15 jP 1 8 iJ I s ! ‘c4 I\ ‘3 .__. 1 h \ .I; \’ I +.+ ,:* 9 24 y. i \ & f i y ’ ‘,, II a2 i :I 3% -. r % ? y %, ‘)I, B x \ I \ I \ \ : - . . . - -.--- A-14 I , / i f : I gi : . : I ’ 1 : L c ;- rtl ’ 1 * _ 1: . y . ! p z ; : i I : ; : i J g I iv I- A-15 _ 1 I_--_ -- ?a 943 t ;IIII(//J/,I/, 4 TT’ITI- . , 1’ ,,#’ * ,’ . v llNn ,,I . . . ‘ . I i l ! i ----. . __. _ I A-19 -u 5 z VI a 9 % B z z 5 i A-21 .I 5; -1 u g h it i: ijl T % : i 411 I! !! :a 5,: Id r 0, 2: 0 y’ u’: =r, f’ u ;: ! - A-22 2 : 2:: Y=;; 5; a *:i :/ ‘\. zc ‘t ze 0, p \ ),\ i :P - 2: 0’ ; ?I \ .I ‘Qy i ,?P I A-23 ’ , , I , I 4 , I , , APPROVED FOR STORM DRAIJJ-OJ&Y’ . . ___... __7' -. . . . . T-' . . . * . . -__-. -- --.- . . . . . . . - 'J EXHIBIT "B" LEGAL DESCRIPTION OF PROPERTY BURDENED BY COVENANT OF EASEMENT A BLANKET EASEMENT FOR DRAINAGE, DESILTATION AND ACCESS OVER THE FOLLOWING DESCRIBED PARCELS AS FOLLOWS: BEING LOTS 1, 2 AND 10 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNITS A; LOT 91 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT B; LOT 229 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT D, AND; LOTS 30'4 AND 309 OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT E, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. A058205A.DA5 060189 B-l $ECORDING REQUESTED BY AND RETURN TO: City Clerk 1200'Elm Avenue Carlsbad, CA 92008 1 . ’ 1. 2. 3. 4. 5. 6. 7. DESILTATION BASIN MAINTENANCE AGREEMENT (PLANNING AREAS NO. 5 AND 28) DATE OF AGREEMENT: June 28 , 1989 NAME OF SUBDIVIDER: Aviara Land Associates Limited Partnership, a Delaware Limited Partnership NAME OF SUBDIVISION: Aviara Phase I, Unit C and Phase II, Unit F RESOLUTION OF APPROVAL NO. 2595, CT 85-35 (Adopted December 8, 1987) CITY OF CARLSBAD ENGINEERING DRAWINGS NO: 286-9c, Sheets 3,4 and 292-2S, Sheet 11 ESTIMATED ANNUAL COST OF MAINTENANCE OF IMPROVEMENTS SUBJECT TO THIS AGREEMENT: $4,000 CASH SECURITY ACCOUNT: $50,000 (the "Securityl*) This Desiltation Basin Maintenance Agreement ("Agreement") is made and entered into by and between the City of Carlsbad, a Municipal Corporation of the State of California, hereinafter referred to as I'City," and the Subdivider named in Item 2 of Page 1 hereof, hereinafter referred to as "Subdivider." RECITALS WHEREAS, Subdivider has presented to City for approval and recordation a final subdivision map of the proposed subdivision identified in Item 3 of Page 1 hereof (the * 5b,OOO- Qb 3G,7tiT -1657 A058209J.DA5 ~lgE~P-l- NO- b/ d 89 -l- 060689 . s 'llSubdivision*l), pursuant to provisions of the Subdivision Map Act of the State of California and Title 20 of the Carlsbad Municipal Code, hereinafter referred to as lVCodell; and WHEREAS, a tentative map of the Subdivision has been approved, subject to the requirements and conditions contained in the resolution listed in Item 4 of Page 1 hereof. Said resolution is on file in the office of the City Clerk and is incorporated herein by this reference: and WHEREAS, Subdivider, in consideration of the approval and recordation of this map by the Council., desires to enter into this Agreement providing for the maintenance, at Subdivider's expense, of the desiltation basin or basins in the locations described in the attached Engineering Drawings (hereinafter referred to as the "desiltation basins"); and WHEREAS, said resolution states in Condition No. 63 that each desiltation basins shall be served by an all weather access/maintenance road; and WHEREAS, complete plans and specifications for the desiltation basins have been prepared by Subdivider and approved by the City Engineer. The plans and specifications shown on the Engineering Drawings, listed in Item 5 of Page 1 hereof, are filed in the Office of the City Engineer and are incorporated herein by this reference; and A058209J.DA5 060689 -2- . _ ’ . . - WHEREAS, an estimate of the annual cost of maintaining the desiltation basins has been made and approved by the City Engineer in an amount stated in Item 6 of Page 1 hereof; and WHEREAS, Subdivider Agreement as required pursuant and City have entered into this to Condition No. 63 of the Resolution of Approval identified in Item 4 of Page 1 hereof; NOW, THEREFORE, in consideration of the mutual covenants contained herein, the approval and recordation by City Council of the final map of this Subdivision and other valuable. consideration, Subdivider and City agree as follows: 1. Subdivider shall: a. Comply with all of the requirements of said tentative map resolution and any amendments thereto, and with the provisions of the Code; b. Maintain, repair and reconstruct, as necessary (hereinafter these obligations shall be collectively referred to as **maintainl@), the desiltation basins in a manner acceptable to the City Engineer: c. Make an inspection of the desiltation basins after each runoff producing rainfall and clean out the basins A058209J.DA5 060689 -3- _ when the accumulation of silt has reached a point where it interferes with the design performance of the basins: d. The maintenance obligations established by Subparagraphs (b) and (c) above are sometimes referred to herein as "work** or **the work.** The desiltation basins are sometimes referred to herein as **improvements** or **the improvements.l* 2. If any of the work contemplated by this Agreement is to be performed on land not owned by Subdivider, no work shall be commenced prior to the dedication to and acceptance by City of appropriate easements, and City shall not be responsible for the costs incurred in connection with said work. 3. The Security shall also secure the obligations of Subdivider or its successors-in-interest pursuant to that certain Desiltation Basin/Storm Drainage Maintenance Agreement (Golf Course) dated June 28 , 1989 and executed by City and Subdivider. City shall deposit the Security into an interest- bearing account of a type and at a financial institution approved by City. All interest accruing in said account shall be payable pursuant to Government Code Section 53079 in annual installments. directly to Subdivider. City shall be entitled to draw upon the Security only for reimbursement of the costs incurred by City as a result of maintenance or repair work which City performs pursuant to the terms of this Agreement. Except in emergency situations as determined by the City Engineer in which prior A058209J.DAS 060689 -4- . _ 8 'notice is impractical, City agrees to give Subdivider prompt . written notice of any request for withdrawal of, funds by City from the Security. In the event funds are withdrawn from the Security, Subdivider agrees to promptly restore the funds in the account so the Security is maintained in the amount of $50,000. 4. Subdivider agrees to service each desiltation basins with an all weather access/maintenance road as required by Condition No. 63 in Resolution of Approval No. 2595, pertaining to CT 85-35. 5. Subdivider shall maintain the desiltation basins in perpetuity: provided, however, such obligations shall cease in the event that (i) Subdivider transfers or assigns the maintenance obligations hereunder to City (provided that City has accepted such transfer in writing) or to an entity reasonably acceptable to City, including without limitation a golf course owner or operator, homeowner's association or maintenance assessment district, or (ii) the desiltation basins are no longer required, as determined by the City Engineer. 6. City acknowledges that the location of the desiltation basin located in Planning Area No. 28 of the Subdivision may be changed by Subdivider with the consent of City, which consent shall not be unreasonably withheld or delayed. City shall cooperate fully with Subdivider in executing A058209J.DA5 060689 -5- _ I 'any amendments to this Agreement or any other documents necessary * to recognize said change in location. 7. City acknowledges that one of the desiltation basins, currently located in Planning Area No. 5 of the Subdivision, shall be moved to a new location on property adjacent to or in the vicinity of the Subdivision, which property is owned by a third party. City therefore agrees to use its best efforts to require said third party property owner, as well as any other owners or developers of real property in the vicinity of the Subdivision whose use is contributing to the siltation in said desiltation basin, to: (i) execute this Agreement or a similar agreement to assume an equitable proportion of the maintenance obligations hereunder or (ii) contribute to Subdivider an equitable proportion of the costs of maintaining said desiltation basin, including the cost of maintaining the Security. 8. Upon the occurrence of a transfer under item (i) in Paragraph 5 above, the obligation of Subdivider to retain the Security shall be released, provided that the transferee accepts in writing its obligation to continue to provide the Security in an equivalent amount. 9. The City Engineer may approve the release of a portion of the Security upon application therefor by Subdivider demonstrating that the upstream slopes within the tributary A058209J.DA5 -6- 060689 . ( 'drainage system have been satisfactorily stabilized or that there are other factors resulting in a material reduction in maintenance costs. 10. Subdivider shall replace or have replaced, repair or have repaired, as the case may be, or pay to the owner, the entire cost of replacement or repairs of any property damaged or destroyed by reason of any work done hereunder, whether such property is owned by the United States or any agency thereof, or the State of California, or any public or private corporation, or by any person, or by any combination of such owners. Any such repair or replacement shall be to the satisfaction and subject to the approval of the City Engineer, which approval shall not be unreasonably withheld. 11. Subdivider shall execute and cause to be recorded a Covenant of Easement for the benefitof City over the real property described on Exhibit lIB'I attached hereto and made a part hereof (the "Easement Property"). Said Covenant shall provide that City shall have ingress and egress to the desiltation basins and the service/access roads or paths contained in the Easement Property, if and when it becomes necessary for City to assume maintenance responsibilities of the desiltation basins pursuant to Paragraph 5. The Covenant of Easement shall also provide City with an easement over the Easement Property for ingress and egress to inspect Subdivider's maintenance of the desiltation basins. The Covenant of Easement shall be binding upon all A058209J.DA5 060689 -7- . - a I ’ 'successors, assigns, and heirs of Subdivider-and benefit the successors, assigns and heirs of City. Subdivider and City acknowledge that the Easement Property shown on Exhibit nBs covers more land than will eventually be contained in the desiltation basins and the service/access roads or paths that will be built by Subdivider to provide access to the desiltation basins. Upon the written request of Subdivider following its identification of the specific areas to be contained in the desiltation basins and in such service/access roads or paths, and upon approval by City Engineer of such revised Easement Property description (which approval shall not be unreasonably withheld), City agrees to execute any documentation reasonably necessary to amend the Easement Property by reducing the amount of real property covered by said Covenant of Easement. The parties acknowledge that such an amendment of the Covenant of Easement may require City to comply with the procedures set forth in Section 20.04.140 of the Code, and City agrees to use its best efforts to expedite this process. 12. In the event Subdivider fails to perform any work required by this Agreement, City may perform the work twenty (20) days after mailing written Notice of Default to Subdivider, except in cases of emergency as determined by the City Engineer, Subdivider agrees to pay the entire cost of such performance by City. If Subdivider does not perform the work in a timely A058209J.DA5 060689 -8- -. . ’ 'manner, as reasonably determined by the City Engineer, City may . take over the work and prosecute the same to completion by contract or by any other method City deems advisable, and City may draw upon funds in the Security in order to complete said work. In such event, City, without liability for so doing, may take possession of and utilize in completing the work such materials, appliances, plans and other property belonging to Subdivider as may be on the site of the work and necessary therefor. Notwithstanding the above, in the event of an emergency, as determined by the City Engineer, affecting the work or the improvements, City may immediately perform any repair or maintenance work it deems necessary, provided that City uses its best efforts to give Subdivider immediate notice of any information City receives regarding the emergency situation and uses its best efforts to cooperate with Subdivider in making the necessary emergency repairs. 13. In the event Subdivider fails to perform any obligation hereunder, Subdivider agrees to pay all costs and expenses reasonably incurred by City in securing performance of such obligations, including the costs of any law suit and reasonable attorneys' fees. 14. Neither Subdivider nor any of Subdivider's agents or contractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this Agreement. A058209J.DA5 060689 -9- -. . ’ 15. Until such time as all improvements required by this Agreement are accepted by City or other entity acceptable to City, Subdivider shall be responsible for the care, maintenance of, and any damage to such improvements. Subdivider shall give good and adequate warning to the traveling public of all dangerous conditions caused by its work or improvements hereunder and will protect the traveling public from such dangerous conditions. Subdivider hereby agrees to pay for such inspection of the work or improvements as may be required by the City Engineer. 16. City or any officer or employee thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees in the performance of this Agreement. Subdivider further agrees to protect and hold harmless City, its officials and employees from any and all claims, demands, causes of action, liability or loss of any sort because of or arising out of acts or omissions of Subdivider, its agents or employees in the performance of this Agreement, including claims, demands, causes of action, liability, or loss because of or arising out of the maintenance of the work or improvements; provided, however, that the approved Security shall not be required to cover the provisions of this paragraph. Said indemnification and agreement to hold harmless shall extend to injuries to person and damages or taking of property resulting from the implementation of the A058209J.DA5 -lO- 060689 - . 'work as provided herein, and to adjacent property owners as a consequence of the diversion of waters from the maintenance of drainage systems, streets and other improvements. Acceptance by City of the improvements shall not constitute an assumption by City of any responsibility for such damage or taking. City shall not be an insurer or surety for the maintenance of the improvements. 17. City shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the work or improvements specified in this Agreement prior to the completion and acceptance of same, nor shall City, nor any officer or employee thereof, be liable for any persons or property injured by reason of said work or improvements, but all of said liabilities shall be assumed by Subdivider. 18. Notwithstanding anything herein to the contrary, sale or other disposition of all or any part of the Subdivision identified in Item 3 of page 1 hereof will relieve Subdivider from the obligations set forth herein, provided Subdivider shall notify City in advance of the identity of the transferee and shall provide evidence that the transferee has assumed in writing all obligations under this Agreement. 19. Time is of the essence of this Agreement. A058209J.DA5 060689 -ll- . _ r 20. In the event of any litigation to enforce the . provisions of this Agreement, the prevailing party in such litigation shall be entitled to reasonable attorneys' fees as fixed by the Court. 21. If either party shall be delayed or hindered in or prevented from performing any act required hereunder by reason of strikes, lock-outs, failure of power or other utilities, restrictive governmental laws or regulations, riots, insurrection, war or other reason of a like nature, not the fault of the party so delayed, then within ten (10) business days after the beginning of said delay the delayed party shall notify the ,. . other party, stating the reason for the delay and requesting an extension to perform said act. The time period agreed to by the parties shall be added to the time for performance of said act. 22. All notices and demands of any kind which either party hereto may be required or desire to serve upon the other party under the terms of this Agreement shall be in writing and shall be served upon such other party by personal service upon such other party, or by mailing a copy thereof by certified or registered mail, postage prepaid, with return receipt requested, addressed as follows: If to City, to: City of Carlsbad 2075 Las Palmas Drive Carlsbad, California 92009-4859 Attention: City Engineer A058209J.DA5 060689 -12- . / If to Subdivider, to: Aviara Land Associates Limited . Partnership 2011 Palomar Airport Road Suite 206 Carlsbad, California 92008 Attention: General Manager Notices shall be deemed to have been given when delivered personally or when deposited in the United States mail, addressed as provided above or to such subsequent address as either party may provide for that purpose by giving notice thereof in the manner provided herein. 23. This Agreement may only be amended by the written consent of both of the parties to this Agreement at the time of such amendment. 24. A memorandum of this Agreement may be recorded by either party hereof. 25. The parties hereby acknowledge that with reference only to Units-C and F, as identified in Item 3 of page 1 hereof, this Agreement supersedes and replaces that certain Drainage Basin Maintenance Agreement dated July 28, 1988 executed by Subdivider, and said Drainage Basin Maintenance Agreement is of no further force and effect with regard to Units C and F following execution of this Agreement. Promptly upon the payment of the Security, City agrees to release any and all bonds posted as security by Subdivider pursuant to said Drainage Basin Maintenance Agreement. A058209J.DA5 060689 -13- STATE OF CALIFORNIA : COUNTY OF SAN DIEGO ; SS. > .- On June 28, 1989 before me the undersigned, a Notary Public in and for said State, p;rsonnally appeared Claude A. Lewis and Aletha L. Rautenkranz known to me to be the Mayor and Citv Clerk of the City of Carlsbad, a hunicipal Corporation of the Stal Ee --- ------ of: California, known to me to be the personswho execute2 the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same. WITNESS my hand the the official seal. *****************************$ Ofl~l( IAI. SEI. r KAREN R. KUNDTZ I NOTARY PUBLIC-CALIFORNIA * SAN CIEGO COUNTY * * My Comrn Erp Sep! 27. 1989 2 Y***X*****+****.~***********+** - IN WITNESS WHEREOF, this Agreement is executed by the City of Carlsbad, acting by and through its City Mayor, pursuant to Section 20.16.060 of the Code authorizing such execution, and by Subdivider. DATED this 28th day of June , 1989. AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership By: Aviara Land Company, a Delaware co w oration, General Pa&n By: Republic'Development Company, a California corporation, General Part ATTEST: ALETHA L. City Clerk A058209J.DA5 060689 -14- 'STATE OF CALIFORNIA ) c COUNTY OF before me, the undersigned, a State, personally appeared e er prove=! C,c x+emdeh he of Aviara Land the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. official seal. (Seal) STATE OF CALIFORNIA ) before me, the undersigned, a e, personally appeared known to me e Development Company, that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. - (Seal) A058209J.DA5 -15- 060689 - . , , r . A058209J.DA5 EXHIBIT "A" IMPROVEMENT DRAWINGS A-l , t . !, B ;r 83: ;; 4 'A .= .? it I 1 P, . ,- i: t ;i : ilf : : - XT :*: i;?i 3 ^-i :: * “. : = ;; : I = i ? u !? p H L C$ “a : = i . . ES 3; *a I 1 r j le A-2 :; :. :y I.. D -2 ,y I :: lb ; ! \’ Li : ; 1.. cl \,f p !,I, .-L-s*. __ ,f 4, cszz< y - il- *.(is*PIoq,~ , / , A-3 EXHIBIT "B" LEGAL DESCRIPTION OF PROPERTY BURDENED BY COVENANT OF EASEMENT A BLANKET EASEMENT FOR DRAINAGE, DESILTATION AND ACCESS OVER THE FOLLOWING DESCRIBED PARCEL AS FOLLOWS: BEING LOTS 123 THROUGH 127 INCLUSIVE OF THE CITY OF CARLSBAD TRACT 85-35, PHASE I - UNIT C, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. A BLANKET EASEMENT FOR DRAINAGE, DESILTATION AND ACCESS OVER THE FOLLOWING DESCRIBED PARCEL AS FOLLOWS: BEING ASSESSORS PARCEL NO. 216-111-06, IN SECTION 34, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY THEREOF. AO58209J.DAS B-l