HomeMy WebLinkAboutCT 85-34; Western National Homes I Ltd; 90-383701; Drainage Fee Agreement/ReleaseC . 230 ^a-383701
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CITY OF CARLSBAD
1200 Elm Avenue 1 Carlsbad, California 92008 )
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SignaturPec!ia
name City of Carlsbad
Parcel No. 215-050-03, 04, 05
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE
GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL
FACILITIES MANAGEMENT PLAN FOR ZONE 6
CT 85-34
THIS AGREEMENT is entered into this 6th day of March , 192
by and between Western National Homes I, Ltd, a California Limited Partnership
hereinafter referred to as "Developer" whose address is 901 Dove Street, Suite
299, Newport Beach, CA 92660 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 . *, 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 90 lot residential subdivision, on said Property, which Development carries
the proposed name of Viewpoint (CT 85-34) and is hereinafter referred to as
"Development"; and
WHEREAS, Developer filed on the 28th day of March, 1988, with the City a
request for a tentative tract map for a 90 unit single family detached subdivsion
hereinafter referred to as "Request"; and
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WHEREAS, on March 29, 1988 Developer entered into an agreement with theCity
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 plan
and incorporated by reference and as determined through the revised Master
Drainage Plan necessary to provide drainage facilities in conformance with the
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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
facilities and improvements plan or the Local Facilities Management Plan to the
extent that those facilities or improvements are allocated to Developer's
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property or project and are not financed by the fees referenced hereto.
6. City agrees to deposit the drainage fees paid pursuant to his
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
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:
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
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. the address set forth herein, enclosed in a sealed envelop add e sed
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to the prepaid
City for attention of the City Manager, postage v d PJ tified.
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 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:
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I *
_ . Western National Homes I, Ltd.
901 Dove Street, Suite 299
Newport Beach, CA 92660
IN WITNESS WHEREOF, this agreement is executed in San Diego County,
California as of date first written above.
DEVELOPER-OWNER CITY OF CARLSBAD a municipal
corporation of the State of
California
Western National Homes I, Ltd.
A California Partnership
Western National Homes, a
BY Joh
Assistant Secretary
(Title)
APPROVED AT TO FORM:
MREN ,I HIRATA
DEPUTY CITY ATTORNEY
VINCENT F. BIONDO, JR.
City Attorney
(Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached)
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said State. personally appeared-.-.. .l%%l&x 25&?9??2% - -__-__-_- - .-- - and John J. Stephens --.- ------. - .--- -. personally known to me (or proved to me on the basis
of satisfactory evidence) to be the persons who executed lhe within instrument as- .______~.
xx ~- President and-Assistant ~._____ Secretary. on behalf of Western - National Homes
the corporation therein named. and acknowledged to me thal said
corporation executed the within inslrumenl pursuant to its by-
bwsoratesolutionof itsboardof directors.saidcorporationbeing
Western known to me to be one of ihe partners of--- National Homes 1, Ltd. :
the partnership that executed the within instrument. and ack-
nowledged to me that such corporation executed the same as
such parlner and that such partnership executed the same.
(This area for official notarial seal)
23 5 Agreement To Pay Drainage Fees As Required By The
STATE OF CALIFORNIA
COUNTY OF-- O=m3c-- -._ ___ is’. Growth Management Program and the Adopted Local
On March 6, 1990 Facilities Management Plan for Zone 6, CT 85-34 - __.____.___ __ --- __. before me. Ihe undersigned. a Notary Public in and for
. .*
2-I h
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. EXHIBIT "A“ 237
LEGAL DESCRIPTION
THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 26, TOWNSHIP 12 SOUTH,
RANGE 4 WEST, SAN BERNARDINO MEDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
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