HomeMy WebLinkAboutCT 85-24; Upland Industries Corporation; 1991-0208523; Drainage Fee Agreement/Release,: , .a., . ! . ?
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RECORDING RELJESTED BY AND WHEN RECORDED MAIL TO:
CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008
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SW DIEt;‘U CUt!HTY RECORDER’S OFFICE 9HHETTE E&N 7 COUHTY RECORDER
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/ Space above this lid& for R&%rderls use
ParcelNo.212-020-25. 37, and a portion of 39
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AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE - 5 SUNNYCREEK DRAINAGE AREA \
THIS AGREEMENT is entered into this aq a- ‘ day of, w
I 19 9-L by and between Upland Industries Corporation, a
Nebraska Corporation, hereinafter referred to as "Developer"
whose address is 2390 Faraday Avenue Suite A Carlsbad, CA 92008
and THE CITY OF CARLSBAD, a municipal corporation of the State of
California, hereinafter referred to as I'Cityl' whose address is
1200 Elm Avenue, Carlsbad, 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 "Property"; and
WHEREAS, The Property lies within the boundaries of the City
and the SunnyCreek Drainage Sub-basin; and
WHEREAS, Developer proposes a development project as
follows:
a 35 unit industrial subdivision on said Property, which
Development carries the proposed name of Carlsbad Research Center
Unit 5, CT 85-24 and is hereinafter referred to as "Development";
and
WHEREAS, Developer filed on the 22nd day of May, 1985, with
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the City as a request for tentative cract map hereinafter
referred to as ffReguestff; and
WHEREAS, On May 6, 1985 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 recognizethe correctness of the
Local Facilities Management Plan for Zone 5, adopted August 4,
1987, on file with the City Clerk and incorporated by this
reference, and that the City's drainage facilities are at
capacity in the SunnyCreek Drainage Sub-basin and will not be
available to accommodate the additional need for such facilities
and serv%ces resulting from the proposed Development: and
WWEREAS, said plan for Zone 5 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 5 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.
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2. The Developer shall pay to the City a drainage fee as
required by the Local Facilities Management Plan for Zone 5 as
detailed on Page 66 of 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 to Tftles 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 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 Facilities Management Plan for
Zone 5 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 Local
Facilities Management Plan for Zone 5, 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 established. Developer hereby waives his right
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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 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 in the SunnyCreek Drainage Sub-basinwhenthe
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 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.
9. In addition to the other remedies available to the
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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:
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, ad&essed 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, prepaid 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,
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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 pa-y 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
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receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
2390 Faraday Avenue, Suite A Carlsbad, CA 92008
IN WITNESS WHEREOF, this agreement is executed in San Diego
County, California as of date first written above.
d Executed by Subdivider this 2/- 1990. day ofa,
SUBDIVIDER CITY OF CARLSBAD a municipal corporation of the State of California Upland Industries Cornazation
B By: MARTImENYAK
L. E. Olson, for City Manager
(print name here)
Vice President,+)~l~o WWWZI~~ Q)RPOWW ATTEST:
tory)
t L. MacLachlan City Clerk
(print name here)
Assistant Secretary,,ptido Irlo~S~~~ &%v?~noE]
(title and organization of signatory)
(Proper notarial. acknowledgement of execution by SUBDIVIDER must be attached)
(President or vice-presider&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 p/J--J- , By: Deputy City Ad+!orney
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STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE 1
On before me, a Notary Public in and for said State, personally Appeared L. E. OLSON, personally known to me cr r-m th- basic or . w--r 1 e to be the person who executed the within instrument as the Vice President, and JANET L. MacLACHLAN, personally . known to me or yrove? tc mo cn the ha-s:- of . Sto be the person who executed the within instrument as the Assistant Secretary of UPLAND INDUSTRIES CORPORATION, the corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its By-Laws or a Resolution of its Board of Directors.
WITNESS my hand and official seal.
Notary Pubwe
My Commission Expires:
My Canm. Exp. Feb. 7,1992
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ORDER NO. 912634-15
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT F OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNiZR OF LOT 44 OF CARLSBAD TRACT f!O.
85-24, UNIT NO. 3 (CARLSBAD RESEARCH CENTER), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11810, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 19, 1987 AS FILE NO. 87-276652 OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID MAP NO. 11810, SOUTH 88O31'30"
WEST, 430.44 FEET; THENCE NORTH 47O31'46" WEST, 263.27 FEET; THENCE
NORTH 89O19'21" WEST, 1107.96 FEET TO A POINT ON A NON-TANGENT
2051.00 FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 6OO35'03" EAST; THENCE SOUTHWESTERLY ALONG
SAID CURVE THROUGH A CENTRAL ANGLE OF 17O55'46", A DISTANCE OF 641.82 FEET (RECORD 681.81 FEET PER SAID MAP NO. 11810) TO AN ANGLE POINT IN THE BOUNDARY OF CARLSBAD TRACT NO. 85-24, UNIT NO. 4 (CARLSBAD RESEARCH CENTER), IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 11811, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 19, 1987; THENCE ALONG THE BOUNDARY OF SAID MAP No. .11811, RADIAL TO SAID CURVE NORTH 42O39'17" WEST, 102.00 FEET TO THE BEGINNING OF A NON-TANGENT 2,349.OO FOOT RADIUS CURVE, CONCAVE NORTHWESTERLY, A RADIAL #LINE TO SAID POINT BEARS SOUTH 42O39'17" EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF OO"OO'44", A DISTANCE OF .50 FEET TO THE BEGINNING OF A COMPOUND 25.00 FOOT RADIUS CURVE; THENCE SOUTHWESTERLY AND WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°19'43", A DISTANCE OF 39.41 FEET; THENCE TANGENT TO SAID CURVE NORTH 42O18'50" WEST, 81.15 FE.ET TO THE BEGINNING OF A TANGENT 1,242.OO FOOT RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 30°13'54", A DISTANCE OF 655.33 FEET; THENCE TANGENT TO SAID CURVE NORTH 72O32'44" WEST, 165.37 FEET TO THE BEGINNING OF A TANGENT 1,158.OO FOOT RADIUS CURVE, CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05O16'48", A DISTANCE OF 106.71 FEET; THENCE RADIAL TO SAID CURVE SOUTH 22O44'04" WEST, 379.85 FEET; THENCE SOUTH 12O20'45" WEST, 661.80 FEET; THENCE SOUTH 46OO8'17" WEST, 320.38 FEET; THENCE NORTH 71O23'09" WEST, 429.99 FEET; THENCE SOUTH 36O48'27" WEST, 229.50 FEET; THENCE SOUTH 71O58'34" EAST, 777.05 FEET TO A POINT IN THE BOUNDARY OF RECORD OF SURVEY MAP NO. 7938, IN THE CITY OF CARLSBAD, COUNTY OF SAN 'DIEGO, STATE OF
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CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 29, 1974 AS FILE NO. 74-313938 OF OFFICIAL RECORDS, SAID POINT BEING POINT 14 OF SAID LOT F AND POINT 7 OF LOT G OF SAID MAP NO. 823 AS SHOWN ON SAID R.O.S. 7938; THENCE LEAVING THE,BOUNDARY
OF SAID R.O.S. 7938 ALONG THAT LINE SHOWN AS "TIE LINE" ON SAID R.O.S. TO AND ALONG THE BOUNDARY OF SAID R.O.S. 7938, NORTH lOO25'01" WEST, 2155.73 FEET {RECORD NORTH lOO58'35" WEST, 2155.40 FEET PER SAID R.O.S. 7938) TO POINT 5 OF SAID LOT F; THENCE CONTINUING ALONG THE BOUNDARY OF SAID R.O.S. 7938, NORTH OO"12'07" EAST, 547.65 FEET (RECORD NORTH OO"21'09" WEST, 547.88 FEET PER SAID R.O.S. 7938);
THENCE SOUTH 89O59'57" EAST, 1548.86 FEET (RECORD NORTH 89O26'51" EAST, 1548.97 FEET PER SAID R.O.S. 7938) TO AN ANGLE POINT IN THE BOUNDARY OF RECORD OF SURVEY MAP NO. 8467, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 28, 1980 AS FILE NO. 80-068523 OF OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID RECORD OF SURVEY, SOVTH 52O31'17" EAST, 1,214.54 FEET (RECORD SOUTH 52O31'31" EAST, 1,214.54 FEET P.cR SAID R.O.S. 8467); THENCE NORTH 35O50'53" EAST, 2215.91 FEET (RECORD NORTH 35O50'37" EAST, 2216.13 FEET PER SAID R.O.S. 8467) TO THE BEGINNING OF A NON-TANGENT 2045.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 32"32'20" WEST; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 16"57'44", A DISTANCE OF 605.42 FEET (RECORD CENTRAL ANGLE OF 16"59'03", A DISTANCE OF 606.20 FEET PER SAID R.O.S. 8467); THENCE TANGENT TO SAID CURVE SOUTH 74"25'24" EAST, 429.17 FEET (RECORD SOUTH 74"25'34" EAST, 428.41 FEET PER SAID R.O.S. 8467); THENCE SOUTH OO"O2'12" WEST, 1290.47 FEET (RECORD SOUTH 00'02'26" WEST, 1290.24 FEET PER SAID R.O.S. 8467); THENCE SOUTH 32'40'39" EAST, 915.24 (RECORD SOUTH 32'41'07" EAST, 915.53 FEET PER SAID R.O.S. 8467; LEAVING THE BOUNDARY OF SAID R.O.S. 8467, SOUTH 18'26'06" EAST, FEET TO THE POINT OF BEGINNING.
4/17/90 J.K.
FEET THENCE 49.67