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HomeMy WebLinkAboutCT 02-16; Calavera Hills LLC; 2007-0232492; Drainage Fee Agreement/ReleaseRECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) City Clerk )' CITY OF CARLSBAD ) 1200 Carlsbad Village Drive ) Carlsbad, California 92008-1989 ) 5764 DOC# 2007-0232492 APR 06, 2007 11:22 AM OFFICIAL RE CORDS SAN DIEGO COUNTY RECORDER'S OFFICE Li R E G 0 RY J. S MIT H. CO U N TY R E CO R D E R FEES: 25.00 PAGES: 7 2007-0232492 Space above this line for Recorder's use AGREEMENT BETWEEN DEVELOPER/OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A LOCAL DRAINAGE AREA FEE INCREASE 168-050-47 Parcel No. 168-050-56 THIS AGREEMENT is entered into this day of 2007, by and between Calavera Hills II.LLC, a California limited liability company, hereinafter referred to as "Developer" whose address is 2750 Womble Rd., San Diego, CA 92106 and the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City", whose address is 1200 Carlsbad Village Drive, Carlsbad, California, 92008-1989. WITNESSETH: WHEREAS, Developer is the owner of the real property described in 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 Local Facilities Management Plan (LFMP) Zone 14 within City; and, WHEREAS, Developer proposes a development project as follows: Robertson Ranch East Village, CT 02-16 said Property, and is hereafter referred to a "Development"; and, 1 H:\Development ServicesVPROJECTSXCT FILES\CT 02\CT 02-16 Robertson Ranch\bonds & agreements\AGREEMENT TO PAY Local Drainage Area FEE INCREASE (DWG 433-6).doc 5765 WHEREAS, Developer has filed a request for City approval of a final map for Robertson Ranch East Village, CT 02-16; and, WHEREAS, the Developer agrees to abide by any fee increase (or decrease) adopted for the Local Drainage Area fee by City Council prior to payment or credit for payment of the Local Drainage Area fee for Development; and, WHEREAS, Developer's payment and/or credit for payment of the Local Drainage area fee is required prior to City approval of the final map for Development; and, WHEREAS, it has been determined that certain drainage facilities located downstream of Development do not meet the facility performance standards unless certain mitigating flood control improvements are installed and/or the financing of such flood control improvements are guaranteed for construction in accordance with the City's adopted Growth Management Ordinance; and, WHEREAS, City is currently in the process of revising the City's Local Drainage Area fee program to provide the required financial guarantee for said flood control improvements; and, WHEREAS, Developer desires to proceed with Development in advance of the adoption by City of new Local Drainage Area fees; and WHEREAS, Developer agrees to abide by any fee increase (or decrease) in the Local Drainage area fee as may subsequently be adopted by City Council after City approval of the final map for Development. NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. The Developer shall pay and/or receive credits for payment to the City for the Local Drainage Area fee in the amount established by City Council as of the effective date of this Agreement for the local drainage area(s) into which the Development drains. The fee shall be paid by, and/or credits will be awarded by City to Developer against payment of the fee for 2 H:\Development Services\PROJECTS\CT FILESVCT 02\CT 02-16 Robertson Ranch\bonds & agreements\AGREEMENT TO PAY Local Drainage Area FEE INCREASE (DWG 433-6).doc 5766 constructed Master Drainage Plan facilities, prior to City approval of the final map for CT 02-16. Notwithstanding the forgoing, said fee is subject to adjustment, based upon the amount of the Local Drainage Area fee ultimately adopted by City Council after approval of the Developer's final map. If said fee has not been paid by Developer prior to final Council action formally adopting such fee, the Developer's fee shall automatically be adjusted to be the same as the Council-approved fee. If the Developer has paid this fee prior to such Council final action, then this fee will again automatically be adjusted, and Developer shall, within thirty (30) days of written notice thereof by City pay any shortfall; or City shall, within thirty (30) days of such determination, refund any overage. This fee shall be in addition to any other taxes, fees, dedications or improvements required pursuant to Titles 18, 20, or 21 of the Carlsbad Municipal Code. 2. This agreement and the fee paid pursuant hereto are required to ensure the consistency of the Development with the City's General Plan and Growth Management Ordinance. If 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. The Developer therefore agrees that if Developer does not satisfy the terms and conditions of this agreement that any approval or permit for the Development issued after the effective date of this agreement shall be void. Thirty (30) days after City's written notification to Developer, pursuant to Paragraph 1 above, no building or other construction permit shall be issued for the Development until the Local Drainage Area fee required by this agreement is paid in full. 3. All obligations to pay the aforementioned Local Drainage Area fee relative to the approval of CT 02-16 shall terminate in the event the final map for CT 02-16 is not approved by the Carlsbad City Council. In the event of such termination, the Developer is still obligated to pay the City's Local Drainage Area fee for any subsequent final map or maps approved for the Property in accordance with the Local Drainage Area fee requirements in effect at the time such map or maps are approved by City Council. 3 H:\Development Services\PROJECTS\CT FILES\CT 02\CT 02-16 Robertson RancrAbonds & agreementsVAGREEMENT TO PAY Local Drainage Area FEE INCREASE (DWG 433-6J.doc 5767 4. Any notice from one party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: 4. 1 If notice is given to the City of personal delivery thereof to the City or by depositing same in the United States Mail, enclosed in a sealed envelope addressed to the City Manager of the City at the address set forth herein, postage prepaid and certified. 4.2 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 designated herein, postage prepaid and certified. 5. This agreement shall be binding upon and shall inure to the benefit of, and shall apply to, the respective successors and assigns of Developer and City, and references to Developer 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. If Developer should cease to have ay interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any successor to Developer's interest in the property shall have first assumed in writing the Developer's obligations hereunder. 6. 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. 4 H:\Development Services\PROJECTS\CT FILES\CT 02\CT 02- 1 6 Robertson Ranch\bonds & agreements\AGREEMENT TO PAY Local Drainage Area FEE INCREASE (DWG 433-6). doc 5768 7. If for any reason the Local Drainage Area Fee has not been revised by the City Council within three years of the effective date of this agreement, the amount paid by the Developer, including any credits granted against payment of the Local Drainage Area fee, shall be deemed to represent the Developer's fair share contribution to the City's Master Drainage Improvement program and no further payment will be due from or reimbursement due to Developer. IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNER: Calavera Hills II, LLC, a California limited liability company By: McMillin Companies, LLC, a Delaware limited liability company, Its: Manager .CARLSBAD, a municipal of California (signature) / Don Mitchell, First Vice President (print name and title) APPROVED AS TO FORMED RONALD R. BALL, City By: (signature) _ Brian Milich, Senior Vice President (print name and title) aoiotant City Attorney CITY OF CXRLSBAD, a municipal corporation of the State of California RAYMOND R. PATCHETT, City Manager or designee, LISA HILDABRAND, Assistant City (Notarial acknowledgment of execution of DEVELOPER arMaGfttfttER must be attached). Manager (President or vice president AND secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation). (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). H:\Development Services\PROJECTS\CT FILES\CT 02\CT 02-16 Robertson RanchAbonds & ajjreements\AGREEMENT TO PAY Local Drainage Area FEE INCREASE (DWG 433-6).doc STATE OF CALIFORNIA COUNTY OF SAN DIEGO 5769 } }ss.} On February 12, 2007 before me, Ann M. Futo, Notary Public . personally appeared Brian Milich and Don Mitchell, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that be/sbe/they executed the same in his/her/their authorized capacity(ies), and that by bJs/hef/their signature(s) on 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. Signature ANNM.FUTO Commission #1546838 I Notary Public-California | San Diego County MyComm. This area for official notarial seal Notary Form-2 McMillin Companies 7 EXHIBIT "A" LEGAL DESCRIPTION Those portions of Lots D and E of Rancho Agua Hedionda, in the City of Carlsbad, County of San Diego, State of Califonria. According to Map thereof No. 823, filed in the Office of the County Recorder of San Diego County, November 16, 1896, described as follows: Parcel 1: Parcel 1 on Certificate of Compliance recorded November 28, 2001; as File No. 2001-0865064 of Official Records. Parcel 2: The remainder parcel of Carlsbad Minor Subdivision 02-10 as shown on Parcel Map No. 19804 recorded August 3, 2005, as File No. 2005-0659805 of Official Records.