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HomeMy WebLinkAboutCT 85-17; Huntington Beach Company; 1991-0616245; Drainage Fee Agreement/ReleaseRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 200 Parcel No. 212-041-06, 07, 08. 09, 10 & 11 AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACZLXTIES MANAGEMENT PLAN FOR ZONE 5 PE 2,9X.27. CT 85-27. THIS AGREEMENT is %nter%d into this f3 -t-L" day of *,199 by and between Huntington Beach Company a California Corporation, hereinafter referred to as llDev%lopergg whose address is 18300 Von Karman, Suite 850, Irvine, CA 92715 and THE CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as IcCityl' whose address is 1200 Elm Avenue, Caslrabad, 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 "PropertyI'; and WHEREAS, The Props&y lies; within the boundaries of the City: and WHEREAS, Developer proposes a development project as follows: industrial business park composed of 26 lots on said Property, which Development carries the-pr.oposed name of College Business Park CT 85-17 and is hereinafter referred to as I'Development"; and WHEREAS, Developer filed on the 15th day of May, 1985, with AGREEMENTS AG-9.frm 1 REV. 8/23/90 (-?F >._ i /” - , ,‘s ’ ‘, . the City as a request for tentative tract ma IPQ reinafter referred to as llReguest'*; and WHEREAS, On September 17, 1990 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, Dev%lop%r and City recognize the correctness of the Local Faciliticas Manag%m%nt Plan for Zone 5, on file with the City Clerk and incorporated by the referencra, and that the City's drainage facilities may be at or near capacity in the drainage sub-basin where this development is located, and Bay not be available to accommodate the additional drainage dmands on such facilitiies and services resulting from the proposed D%v%lopment; and WHEREAS, said plan for Zone 5 requires that a31 public facilities, including drainage, necessary to serve a development will be available in conformance with the City's adopted performance standard (safd Zone Plan is on'fiP% with the City Clerk and is incorporated by this reference); and WHEREAS, Develop%r has arked 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 5 by the payment of drainage fee. NOW, THEREFORE, in consideration of the recitals and the AGREEMENTS AC-9.frm 2 REV. 8/23/90 . . .‘. h - 202 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 5 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 performanc% staiildard, This drainage fee shall be in addition to any fees, dedications or improviements required pursuant to Titles 18, 20 and 21 of the Carlsbad Municipal Code. 3. This agreement and the drainaga 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 5. 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 Facilitie% Management Plan for Zone 5 and any approval ur 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 from the date the drainage fee is AGREEMENTS AG-9.frm 3 REV. 8/23/90 . . I . . : . . h cl 233 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 ta 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 availably, 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 21to 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 the section, City, upon request of Developer, may allow additional time to pay the drainage fee. AGREEMENTS AC-9.frm 4 REV. 8/23/90 ‘< . . . . . ’ . . . Yr 2 0 4 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 une party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly autharized 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 Hail, 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 indicmted 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 AGREEMENTS AG-9.frm 5 REV. 8/23/90 . . .- .-: , 205 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 agreementhavebeen satisfied and appropriate fee paid to record a release, City shall record the release. 14. The prevailing party in any dispute IbetWeen 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 /// /// //I /// /// /// /// /// /// /// /// /// /// AGREEMENTS AG-9.frm REV. 8/23/90 . , 8 , il e m receipt by Developer. xv3 Notices required to be given to Developer shall be addressed as follows: Lawrence M. Netherton, Vice President Huntington Beach Company 18300 Von Karman, Suite 850 Irvine, CA 92715 Executed by Developer this 19$?/ . s-%/day of -&?k&k& I CITY OF CARLSBAD, a municipal corporation of the State of California Lawrence M ~Netherton (print nam;? here) Vice Punt. (title and organization of signatory) By: MichaelK, Mavens (print name here) Assistant .Sewe airv (title and orgakization of signatory) (Proper notarial acknowledgement of exeoution 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. By:/ ,.2., G (apcnQ Deputy City Attorney AGREEMENTS AG-9.frm 7 REV. 8/23/90 CORPORATE ACKNOWLEDGMENT 20’9 NO. 202 State of California County of Orange On this the-..-.- 25 day of October 1991, before me, JoseDhine Hoval I the undersigned Notary Public, personally appeared Laurence M. Netherton KZ personally known to me ccc to be the person(Kj who executed the within instrument as Vice President Non behalf of the corporation therein named, and acknowledged to me that the corporation executed it. nd official seal. NATIONAL NOTARY ASSOCIATION . 23012 Ventura 13~3. l ~0. BOX 4625 * woodland Hills. CA 91364 LL-PURPOSE ACKNOWLEDOMENT NO 2( State of Oa u County of w > On m 2:) /&j before me, 5. I!- . .D0W@fi WSk DATE NAME. TITLE OF OFFICER E.G., “JANE DDE, NOTARY P”SL,C” personally appeared mhL4 K. f?wqeR_ - NAME(S) O&GNER(S) W personally known to me - OR - 0 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 ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. SIGNATURE OF NOTARY CAPACITY CLAIMED BY SIGNER 0 INDIVIDUAL(S) Bf- CORPORATE /%j d OFFICER(S) Se + 0 PARTNER(S) 0 ATTORNEY-IN-FACT 0 TRUSTEE(S) t-J SUBSCRIBING WITNESS 0 GUARDIAN/CONSERVATOR 0 OTHER: SIGNER IS REPRESENTING: AlTENTlON NOTARY: Although the information requested below is OPTIONAL, it could prevent fraudulent attachment of this certificate to unauthorized document. THIS CERTIFICATE Title or Type of Document MUST BE ATTACHED TO THE DOCUMENT Number of Pages DESCRIBED AT RIGHT: Signer(s) Other Than Named Above 0 1991 NATIONAL NOTARY ASSCXIATION - 8236 Remmet Ave. * P.O. Box 7184 - Canoga Park. CA91304-71 EXHIBIT “A” - 208 THAT PORTION OF LOT G OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN ON THE PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO, COUNTY, NOVEMBER 16,1896, BEING A PORTION OF THAT CERTAIN PARCEL SHOWN AND DESIGNATED AS “DESCRIPTION NO. 3,78.07 ACRES” ON RECORD OF SURVEY MAP NO. 5715 FILED DECEMBER 19, 1960 IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, LYING NORTHERLY OF THE CENTER LINE OF COUNlY ROAD SURVEY NO. 1534 AS SHOWN ON SAID RECORD OF SURVEY MAP NO. 5715 (NOW KNOWN AS PALOMAR AIRPORT ROAD), AND PARCELS 1 THROUGH 4 OF PARCEL MAP NO. 6331, FILED SEPTEMBER 8,1977 AS FILE NO. 77-369645 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY. LEROY-C. BODAS R.C.E. 22312 No. C 22312