HomeMy WebLinkAboutCT 83-19; Lyon/Copley Carlsbad Associates LP; 1992-0348029; Drainage Fee Agreement/Release* . / (’ ’ .,
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A I? -4 1992-0348029
RECORDING REQUESTED BY AND ) 1978 04-JUN-1992 08'16 '" WHEN RECORDED MAIL TO: QFFICIb RECORDS
CITY OF CARLSBAD
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!3N DIE60 CWlWTY RECORDER’S OFFICE
1200 Elm Avenue Carlsbad, California 92008 )
MNETTE YN;; CMN;;E;ECORllER RF: : ii%l
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Space above this lifie for Fk%order's use
Parcel No. 168-040-14, 23, 26, t 27
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES WAGF&!ENT PLAN FOR ZONE 7 CT 83-19
THIS ACRl$EMEW$ is entered into this Afic/ day of xfle
I 1991 by and between Lyon/Copley Carlsbad Associates, L.P.,
a California Limited Partnership, hereinafter referred to as
@~Developer" whose address is 4330 La Jolla Village Drive, Suite
130, San Dicsgo, CA 92122 and THE CITY OF CARLSBAD, a municipal
corporation of the State of California, hereinafter Mferred to
as ltCityrr whose address is 1200 Elm Avenue, Carl&ad, California,
92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit "A":, attached hereto and made a part of
this agreement, hereinafter referred to as "Propertyll; and
WHEREAS, The Property lies within the boundaries of the
City: and
WHEREAS, Developer proposes a development project as
follows:
Major Subdivision into 343 residential lots on said Property,
which Development carries the proposed name of Carlsbad Tract
83-19 - Calavera Hills Village "T1' and is hereinafter referred to
as lVDevelopmentV1; and
AGREEMENTS AG-9.frm 1 REV. 8/23/90
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WHEREAS, Developer filed on the 4th day of September, 1984,
with the City as a request for tentative tract map hereinafter
referred to as llReguestV1; and
WHEREAS, On December 7, 1989 Developer entered into an
agreement with the City to pay Public Facilities fees of 3.5
percent of the building permit valuation. A copy of the
agreement is on file with the City Clerk and is incorporated by
this reference.
WHEREAS, Developer andCity recognizethe correctness of the
Local Facilities Management Plan for Zone 7, on file with the
City Clerk and incorporated by the reference, and that the City's
drainage facilities may be at or near capacity in the drainage
sub-basin where this development is located, and may not be
available to accommodate the additional drainage demands on such
facilities and services resulting from the proposed Development;
and
WHEREAS, said plan for Zone 7 requires that all public
facilities, includinq drainage, necessary to serve a development
will be available in conformance with the City's adopted
performance standard (said Zone Plan is on file with the City
Clerk and is incorporated by this reference): and
WHEREAS, Developer has asked the City to find that drainage
facilities and services will be available to meet the future
needs of the Development as it is presently proposed: but the
Developer is aware that the City cannot and will not be able to
make any such finding without financial assistance to pay for
such services and facilities; and therefore, Developer proposes
to satisfy the Local Facilities Management Plan for Zone 7 by the
payment of drainage fee.
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NOW, THEREFORE, in consideration of the recitals and the
covenants contained herein, the parties agree as follows:
1. That the foregoing recitals are true and correct.
2. The Developer shall pay to the City a drainage fee as
required by the Local Facilities Management Plan for Zone 7 as
may be detailed in said plan and incorporated by reference and as
determined through the revised Master Drainage Plan necessary to
provide drainage facilities in conformance with the City's Growth
Management performance standard. This drainage fee shall be in
addition to any fees, dedications or improvements required
pursuant ta Titles 18, 20 and 21 of the Carlsbad Municipal Code.
3. This agreement and the drainage fee paid pursuant
hereto are required to ensure the consistency of the Development
with the City's General Plan, the Growth Management Program and
the Local Facilities Management Plan for Zone 7. If the fee is
not paid as provided herein, the City will not have the funds to
provide drainage facilities and services, and the Development
will not be consistent with the General Plan, the Growth
Management Program or the Local Facilities Management Plan for
Zone 7 and any approval or permit for the Development shall be
void. No building or other construction permit or entitlement
for use shall be issued until the drainage facilities fee is paid
or this agreement is executed.
4. That Developer agrees to pay the drainage fees
identified by the City Council as necessary to pay for the cost
of providing the drainage improvements or facilities which are
required by the Growth Management Program and the revised Master
Drainage Plan, or any other provision of Chapter 21.90 of the
Carlsbad Municipal Code, or any other provision of law. Payment
3 REV. 8/23/90
4. . shall be due 30 days from the date the drainage fee is
established. Developer hereby waives his right to challenge said
drainage fees. Developer further waives any rights to pay the
drainage fees referred to herein under protest and that any
protest shall immediately subject the project to the provisions
of Section 21.90 of the Carlsbad Municipal Code, or any provision
of law.
5. Developer agr&es to construct, or participate in
financing the construction of public facilities and improvement
identified in the citywide facilities and improvements plan or
the Local Facilities Management Plan to the extent that those
facilities or improvements are allocated to Developer's property
or project and are not financed by the fees referenced hereto.
6. City agrees to deposit the drainage fees paid pursuant
to this agreement in a drainage fund for the financing of
drainage facilities as needed in the City of Carlsbad when the
City Council determines the need exists to provide the facilities
and sufficient funds from the payment of this and similar fees
are available.
7. Subject to paragraphs 3 and 4, the City agrees to issue
building and other development permits pursuant to the provisions
of the Carlsbad Municipal Code Title 18, 20, and 21 to the extent
such permit comply with applicable provisions of law.
8. In the event that the payment required by this
agreement is not made when due the City may pursue any remedy,
legal or equitable (including those specifically referred to
herein), against the Developer and the Developer's successors,
heirs, assigns and transferees. Without waiving its rights under
1 the section, City, upon request of Developer, may allow
I AGREEHENTS AG-9.fm 4 REV. 8/23/90
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additional time to pay the drainage fee.
9. In addition to the other remedies available to the
City, it is hereby agreed that if Developer does not pay the
drainage fees specified by this agreement the City may revoke the
building permit for the project or may deny or revoke a
Certificate of Occupancy for the project or both upon 15 days
written notice to Developer of the revocation or denial.
10. Any notice frazg one party to the other shall be in
writing, and shall be date4 and signed by the party giving such
notice or by a duly authorized representative of such part. Any
such notice shall not be effective for any purpose whatsoever
unless served in one of the following manners:
10.1. If notice is given to the City by personal
delivery thereof to the City or by depositing same in the United
States Mail, addressed to the City at the address set forth
herein, enclosed in a sealed envelope, addressed to the City for
attention of the City Manager, postage and prepared and
certified.
10.2. If notice is given to Developer by personal
delivery thereof to Developer or by depositing the same in the
United States Mail, enclosed in a sealed envelope, addressed to
Developer at the address as indicated in this agreement or at
another place as designated to the City by the Developer in
writing, postage prepaid and certified.
11. The City shall not, nor shall any officer, employee of
the City, be liable or responsible for any loss or damage
happening or occurring to Developer's building for the exercise
of any of the remedies provided to the City pursuant to this
1 agreement, regardless of the nature of the loss or damage.
AGREEHENTS AG-9.ft-m 5 REV. 8/23/90
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12. This agreement and the covenants contained herein shall
be binding upon and enure to the benefit of the successors,
heirs, assigns and transferees of Developer and shall run with
the real property and create an equitable servitude upon the real
property.
13. This agreement shall be recorded but shall not create
a lien or security interest in the Property. When the
obligations of this agreement have been satisfied and appropriate
fee paid to record a release, City shall record the release.
14. The prevailing party in any dispute between the parties
shall be the right to recover from the non-prevailing party all
costs and attorney's fees expanded in the course of such dispute.
15. Except as otherwise provided herein, all notices
required or provided for under this agreement shall be in writing
and shall be delivered in person or served by certified mail
postage prepaid. Delivery of notice to Developer shall be
presumed to have been made on the date of mailing regardless of
< , a .. * , a~ 8 ;\. , . 6. - receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
Garry M. Targuinio, Vice President Lyon Communities, Inc. 4330 La Jolla Village Drive, #130 San Diego, CA 92122
Executed by Developer this 9 day of JULY I 1991.
DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of California Lyon/Copley CarZsbaU Associates, L. A California Limited Partnership
Garw M, amin .
(prilft name?ere)
Vice Presic&&, Lvon Communities, Inc.
Robin L. AUamson (print naate here)
Asst. Secretam. Jwm Communities. Inc. (title and organisation of signatory) (Proper notarial acknowledgement of execution by DEVELOPER must be attached)
(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.)
APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney
By: d Deputy City Attorney
AGREEMENTS AG-9.frm 7 REV. 8/23/90
STATE OF CALIFORNIA' SS. 1985 COUNTY OF SAN DIEGG,
ON Lu 4f1491 BEFORE ME, THE UNDERSIGNED, A NOTARY PUBLIC- IN AND 'FOR SAID STATE, PERSONALLY APPEARED GARRY M. TARQUINIO AND ROBIN L. ADAMSON, PERSONALLY KNOWN TO ME TO BE THE VICE PRESIDENT AND ASSISTANT SECRETARY, RESPECTIVELY, OF LYON COMMUNITIES, INC., THE CORPORATION THAT EXECUTED THE WITHIN INSTRUMENT ON BEHALF OF THE CORPORATION, SAID CORPORATION BEING PERSONALLY KNOWN TO ME TO BE THE MANAGING GENERAL PARTNER OF LYON/COPLEY CARLSBAD ASSOCIATES, L.P., SAID PARTNERSHIP BEING THE CALIFORNIA LIMITED PARTNERSHIP THAT EXECUTEDTHE WITHIN INSTRUMENT, AND ACKNOWLEDGED TO BE THAT SAID CORPORATION EXECUTED THE WITHIN INSTRUMENT AS SUCH PARTNER AND THAT SAID PARTNERSHIP EXECUTED THE SAME.
WITNESS MY HAND AND OFFICIAL SEAL:
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‘.THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY C!F SAN DIEGO. AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT “D” OF THE RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DiEGO COUNTY ON NOVEMBER 16, 1896,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF THE 493.70 ACRE PARCEL OF
LAND AS SHOWN ON RECORD OF SURVEY MAP NO. 9336, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGQ COUNTY ON MAY 12, 1983, SAID NORTHEASTERLY CORNER BEING THE NORTHERLY TERMINUS OF THAT CERTAIN
COURSE SHOWN THEREON AS “NORTH l”57’58” EAST 610.78 FEET”; THENCE
ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 9336 THE FOLLOWING FOUR COURSES: SOUTH 01*57’58” WEST 640.?8 FEET, THENCE NOR.TH 14”17’451 WEST, 173.74 FEET; THENCE SOUTH 55’39’43” WEST 223.82 FEET,
THENCE SOUTH 06”47”57” WEST 416.92 FEET; THENCE LEAVING SAID BOUNDARY SOUTH 66”33’35” WEST 219.99 FEET; THENCE SOUTH 76’52’35” WEST 238.67 FEET; THENCE NORTH 03’03’00” EAST 10.78 FEET; THENCE NORTH 66°27’OO” WEST 134.21 FEET TO A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADltJS OF 228.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 66”27’00” EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 13’55’00” AN ARC DISTANCE OF 55.38 FEET; THENCE TANGENT FROM SAID CIJRVE SOUTH 37’28’00” WEST 54.31 FEET TO A TANGENT CURVE, CONCAVE EASTERLY, HAVING A RADIUS.OF 20.00 FEET; THENCE SGUTHERLY ALONG SAID CURVE. THROUGH A CENTRAL ANGLE OF 52’17’04” AN ARC DISTANCE OF 18.25 FEET TO A TANGENT REVERSE CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 38..02 FEET; THENCE SOUTHERLY, WESTERLY,
AND NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 162°07’D3”
AN ARC DISTANCE OF 107.58 FEET TO A POINT ON A NgN-TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 70.00 FEET, A RADIAL LINE THROUGH
SAID POINT BEARS SOUTH 61’23’53” WEST; THENCE NORTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE DF 20”50’07” AN ARC DISTANCE OF 25.46 FEET ; THENCE SOUTH 82’14’00” WEST 167.00 FEET TO A POINT THAT LIES
NORTH 31”44’07” EAST 30.20 FEET FROM THE NORTHERLY TERMINUS OF THAT
CERTAIN COURSE DESCRIBED UN SAID RECORD OF SURVEY MAP NO. 9336 AS NORTH 07”40’28” EAST 190.85 FEET”; THENCE SOUTH 31”44’07” WEST 30.20 FEET TO SAID NORTHERLY TERMINUS; THENCE ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 9336 ‘it% FULLrJWING SIX COURSES: SOUTH 07’40’28” WEST 190.85 FEET; THENCE SOUTH 08’21’20” EAST 203.42 FEET (RECORD SOUTH 08”24’37” EAST 203.13 FEET), THENCE SOUTH 28’31’25” EAST 327.42 FEET (RECORD SOUTH 28”28’28” EAST 327.62 FEET), THENCE SOUTH 13”32’31” WEST 98.52 FEET; THENCE SOUTH 59”25’58” WEST 133.58 FEET; THENCE SOUTH 15’38’47” WEST 158.64 FEET; THENCE LEAVING SAID BOUNDARY SOUTH 29’16’30” WEST 1421.44 FEET; THENCE SOUTH 73”55’00” WEST 213.47 FEET; THENCE NORTH BO”46’DO” WEST 491.78 FEET TO A NON-TANGENT CURVE, CONCAVE NORTHEASTERLY, HAVING A RADIUS OF 460.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH %6”50’48” WEST; THENCE NORTHWESTERLY ALONG SAID CURVE Ti!ROUGli A CENTRAL ANGLE OF 67”49’12” AN ARC DISTANCE OF 544.49 FEET; THENCE TANGENT FRWM SAID CURVE N!XTlt D4”4O’i)O” EAST 27O.OD FEET TO A TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 190.00 FEET; THENCE NORTHWESTERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 60”40’00” AN ARC DISTANCE
OF 201. 18 FEET; THENCE TANGENT FROM SAID CURVE NORTH 56”OO’OO” WEST
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*.- - * 307.78 FEET; THENCE NORTH 38’22’40” EAST 473.96 FEET TO A TANGENT
‘- CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 1503.00 FEET; THENCE
NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03’24’23” AN ARC DISTANCE OF 89.36 FEET; THENCE RADIAL FROM SAID CURVE NORTH 55”01’43” WEST 2.00 FEET TO A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 1501.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 55’01’43” EAST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 07’09’45” AN ARC DISTANCE OF 187.64
FEET; THENCE RADIAL FROM SAID CURVE SOUTH 62’11’28” EAST 6.00 FEET TO
A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 1507.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 62’11’28” EAST; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 04’49’42” AN ARC DISTANCE OF 127.00 FEET; THENCE RADIAL FROM SAID CURVE NORTH 67”01’10” WEST 6.00 FEET TO A NON-TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 1501.00 FEET, A RADIAL LINE DF SAID CURVE
TO SAID POINT BEARS SOUTH 67°01’10” EAST; THENCE NORTHERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 03’57’50” AN ARC DISTANCE OF 103.84
FEET; THENCE TANGENT FROM SAID CURVE NORTH 19”01’00” EAST 776.25 FEET
TO A TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 903.00 FEET; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 12’59’08” AN ARC DISTANCE OF 204.66 FEET; THENCE RADIAL FROM SAID CURVE SOUTH 83’58’08” EAST .6.00 FEET TO A NON-TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 909.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 83”58’08” EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 07’58’39” AN ARC DISTANCE OF 126.56 FEET:
THENCE RADIAL FROM SAID CURVE SOUTH 88’03’13” WEST 6.00 FEET TO A NON-TANGENT CURVE, CONCAVE WESTERLY, HAVING A RADIUS OF 903.00 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH 88”03’13” EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 32’00’58” AN ARC DISTANCE OF 504.58 FEET TO AN INTERSECTION WITH THAT CERTAIN COURSE DESCRIBED ON SAID RECORD OF SURVEY MAP NO. 9336 AS NORTH 89’19’35” EAST 2,580.31 FEET”; THENCE ALONG THE BOUNDARY OF SAID RECORD OF SURVEY MAP NO. 9336 NORTH 89’19’35” EAST 2487.16 FEET TO THE POINT OF BEGINNING.
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