HomeMy WebLinkAboutCT 84-41; Fieldstone Company; 89-158476; Drainage Fee Agreement/Releasei -. !I 88
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RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: 1
CITY OF CARLSBAD i 1200 Elm Avenue 1 Carlsbad, California 92008 )
Parcel No. 215-480-13, 14.15
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE
GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL
FACILITIES MANAGEMENT PLAN FOR ZONE 6
THIS AGREEMENT is entered into this 14th day of Februarv , 1989
by and between the Fieldstone Company, a California Corporation hereinafter
referred to as "Developer" whose address is 5465 Morehouse Drive, Suite 250 San
Dieqo California 92121 and THE CITY OF CARLSBAD, a municipal corporation of the
State of California, hereinafter referred to as "City" whose address is 1200 Elm
Avenue, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property described on Exhibit
II A N , * 7 attached hereto and made a part of this agreement, hereinafter referred
to as "Property"; and
WHEREAS, The Property lies within the boundaries of the City; and
WHEREAS, Developer proposes a development project 'as follows:
A 240 unit subdivision of single family houses
on said Property, which Development carries the proposed name of Alqa Hills and
is hereinafter referred to as "Development"; and
WHEREAS, Developer filed on the 30 day of November, 1984, with the City
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as a request for a tentative map and a planned unit development hereinafter
referred to as "Request"; and
WHEREAS, On Feburarv 14th, 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 and City recognize the correctness of the Local
Facilities Management Plan for Zone 6, 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 6 requires that all public facilities,
including 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 6 by the payment of drainage fee.
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 6 as may be detailed in said
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plan and incorporated by reference and as determined through the revised Master
Drainage Plan necessary to provide drainage facilities in conformance with the
City's Growth Management performance standard. This drainage fee shall be in
addition to any fees, dedications or improvements required pursuant to Titles
18, 20 and 21 of the Carlsbad Municipal Code.
3. This agreement and the drainage fee paid pursuant hereto are
required to ensure the consistency of the Development with the City's General
Plan, the Growth Management Program and the Local Facilities Management Plan for
Zone 6. 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 6 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 shall
be due 30 days for the date the drainage fee is established. Developer hereby
waives his right to challenge said drainage fees. Developer further waives any
rights to pay the drainage fees referred to herein under protest and that any
protest shall immediately subject the project to the provisions of Section 21.90
of the Carlsbad Municipal Code, or any provision of law.
5. Developer agrees to construct, or participate in financing the
construction of public facilities and improvement identified in the citywide
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facilities and improvements plan or the Local Facilities Management Plan to the
āS extent that those facilities or improvements are allocated to Developer
property or project and are not financed by the fees referenced hereto.
6. City agrees to deposit the drainage fees paid pursuant to h is
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
Code Title 18, 20, and 21 to the extent such perm i
provisions of law.
8. In the event that the payment required by
of the Carlsbad Municipal
t comply with applicable
this agreement is not made
when due the City may pursue any remedy, legal or equitable (including those
specifically referred to herein), against the Developer and the Developer's
successors, heirs, assigns and transferees. Without waiving its rights under
the section, City, upon request of Developer, may allow additional time to pay
the drainage fee.
9. In addition to the other 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 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 part. Any such notice shall not be effective
for any purpose whatsoever unless served in one of the following manners:
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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 agreement, regardless of the nature of the loss or damage.
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
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Developer shall be presumed to have been made on the date of mailing regardless
of receipt by Developer. Notices required to be given to Developer shall be
addressed as follows:
The Fieldstone Company
5465 Morehouse Drive, Suite 250
San Diego, CA 92121
IN WITNESS WHEREOF, this agreement is executed in San Diego County,
California as of date first written above.
DEVELOPER-OWNER
Jib7 /YanSeJ
CITY OF CARLSBAD a municipal
for City Manager
(Title)
ATTEST:
City Attorney I
(Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached)
-
CAT. NO. NNOO632
TO 1948 CA (l-83)
(Agent of Corporation) m TICOR TITLE INSURANCE
STATE OF CALIFORNIA .
COUNTY OF &Iv d) w
t
fidr4&Zf y >$ /Pgp
> ss. !ā 94
On before me, the undersigned, a Notary Public in and for
said State, personally appeared 3~ hkwse~
r personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed X the within instrument as the agent of the corporation
! that executed the within instrument, and acknowledged to me that such corporation executed the within instru- ment pursuant to its by-laws or a resolution of its board
NSfAEY PK?iiC . C,!iIFOPNjA
(This are. for offi noti seal)