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HomeMy WebLinkAboutCT 89-19; Odmark & Thelan; 1991-0491976; Drainage Fee Agreement/ReleaseB (3 \ \ / 9 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 ) Space above this lin%'for R&&rder's use 214-170-17, 21, 22 Parcel No. 216-150-03, 05, 16 AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 19 THIS AGREEMENT is entered into this s? day of 4t I 19- hy and between Odmark~ & Thelan and the Davidson Companies Partnership a California General Partnership, hereinafter referred to as "Developer" whose address is 3200 Fourth Avenue, Suite 101, San Diego CA 92103 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, IXweloper 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 WHEREAS, Developer proposes a development project as follows: Major Subdivision on said Property, which Development carries the proposed name of Brocatto Carlsbad Tract Ct 89-19 and is hereinafter referred to as "Development": and WHEREAS, Developer filed on the 15th day of June AGREEMENTS AG-9.ftm - l- REV, e/23/90 F3 iae II M WAQ I , 19 89 , with the City as a request for a Major Subdivision hereinafter referred to as VVReguest'V; and WHEREAS, On &A) xc. Iv@ I 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, Develuper and City recognfzethe correctness of the Local Facilities Management Plan for Zone 19 , 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 19 requires that al;1 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, Developcsr 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 19 by the payment of drainage fee. NOW, THEREFORE, in consideration of the recitals and the AGREEMENTS AG-9.frm -2- REV. 8/23fQo ‘710 - 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 19 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 fn conformance with the City's Growth Management performance standard. This drarinage fee shall be in addition to any fees, deUicatiuns or improvements required pursuant to Titles 18, 20 ztnd 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 19. If *he 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 19 and any approval or pernit for the Development shall be void. No building or other construction permit or entitlement for use shall be issued unt%l 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-Q.frm -3- REV. elnlso 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 tU 0unstNCt, 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 pafd pursuant to this agreement in a drainage fund for the finaking of drainage facilities as needed in the City of Carlrsbad when the City Council determines the need exists to provide the facilities and sufficient funds from the payment of this and similar fees are availabh. 7. Subject to paragxaphs 3 and 4, the City agrees to issue building and other development permits pursuant to the provisions of the Carlsbad Municipal Code 'rit3.e 38, 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 AG-Q.frm -4- REV. 8/23/90 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 b&e party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly authorkzed 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 sin the United States Nail, addressed to the City at the address &et 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 Deweloper by personal delivery thereof to Developer or by depositing the same in the United States Mail, enolosed in a sealed envelope, addressed to Developer at the address a&i inUfcated 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. 9/23/90 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 lrave 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 certif,ied mail postage prepaid. Delivery of notice to Developer shall be presumed to have been made on the date of mailing regardless of /// /// /// /// /// /// /// /// /// /// /// /// /// AGREEMENTS AG-Oh -6- REV. 8/23/90 . . ‘- , : ” . - receipt by DP?loper. Notices required -be given to Developer shall be addressed as follows: 3200 Fourth Avenue, Suite 101 San Diego, CA 92103 Executed by Developer this 3aflB 19 91. day of+, DEVELOPER: CITY OF CARISBAD, a municipal corporation of the State of Odmark & Thelan and the California Davidson Companies Partnership A California General Partnership By: By: By: John D. Thietl n, President (print namei gere] By: (sign here) (print name hetie) By; Davidson Coscan Partners By: The Davicfson Company, A California Ozporation General PWtner ZL Georse W. Walker. V$ce President Stephen H. Dawe, C.F.O. (print name here) (Proper notarial acknowledgement of execution by DEVELOPER must be attached) (President or vice-president and secretary or assistantsecrettz must sign for corporations. If only one officer signs, corporation must attach a resolution certified by the s,ecretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: 1 Deputy City Atiorney AGREEMENTS AG-9.frm - 7 - REV. 8/23/90 - _- Sl!?i!CN OF CALIFORWUI) ) ss. CODN!lT OF SAW DIEGO) ‘I5 on f534J4 /99/ ,bef0reme,cBTBpL.sAMlELs a Notary Public &u &d f6r said State, personally appeared George W. Walker 11, Vice President Forward Pl arming and Stephen H. Dawe, Chief Finaucial Officer of The Davidson Company, the corporation that executed the within instrument aud knowu to me to be the persons who executed the within instrument on behalf of said corporation, said corporation being knowu to me to be one of the partuers of Davidson Coscau Partners, the partnership that executed the within instrument, aud ackuowledged to me that such corporation executed the same as such partner aud that such partnership executed the same. WI!EWESS my hand aud official seal. signature &xb Cathy L. Samuels STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On @&ja9,/?7/ before me, the undersigned, for said &aee, personally appeared JOHN D. THELAN ___ . a Notary Public in and personally known to me to be the person who executed the within instrument-as the President of ONTARIOVILLE HOLDING COMPANY, the corporation that executed the within instrument on behalf of ODMARX & THELAN, THE PARTNERSHIP THAT EXECUTED TBE WITHIN INSTRUMENT ON BEBALF OF ODMARX &I THELAN/BATIQUITOS LTD., AND acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. Signature &i2f%$L~~& Cathy 35. Samuels ’ ,* ‘Ll6 _- - i EXHIBIT A i j: 1 LEGAL DESkIPTION . : : z I I THE h0JD REFERRED TO HEREIN IS 1 SIT ATED IN THE STATE UP C&,?FbdNIA,- CO$0j! OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: i I PAR+, A: , / THAk I)ORTION OF. LOTS 11 AND 12 IM SECTION 33, I RAN& 4 WEST, ii ToWNskIP 'i2 &LVi, AN EERNARDINO COUiiTY OF SAN t@EGO, MER DIM, f IN THE CITY; OF CAk&$i, STATE OF f%LX!ORNIA/ ACCORDING TO THE OFPXX1ct. AS FOLLOWS: 1 i NORTHWEST CORNER: OF THE NORTHEAST QUARTER Cl? THE OF SAIO SECTION 13; THENCE ALONG THE' WES+ bINI? b# SOUTH 6O45#06" EAST, 787.61 FE@T (REc?OTiti NOR~RWEST CORNE EAST, 788.13 'FEET] TO THE OF SAID LOT 11 THE TRUE POINT OF ~r;GT-fjN~NG; THE!jKE LEAVING NORTHEASTEtiY 8o;UNI)ARY; OF SAIfI 1103' 11, TH& FOLLOWING 69*05'16" EAST, 228.16 FEET EAST, 228,23 FE$T) AdD 2 ! , : , PAFwm. 0: i LO& IN 'MERLfDT&N, IN T 33, TOWNSNXP 12 sd"TH, RANGE 4 WEST, SAN ijERNJ+RbI& CITY OF CARL&BAD, COUNTY OF SAN DiEGO;, s'c&-fE 6~ CAI;TFOi?NTA, ACCO~ING TO OFFICIAL P+AT THEREOF. I AL& THAT PORTIAN OF THE SOUTHWEST! QUARTER OF THE SOUTHEAST QUART& OF isi$?rfON 28 MERib?AN, IN Ti 4 TOWNSHIP 12 sOUT+, RANGE 4 WEST, SAN bEtW.M&bINO CALkFOPNIA, CITY OF CARLSBAD, COUNTY OF SAN DXEGO, STATE 6P FOI,~&S : ACC()RDING TO THE OFF?ZiX., PT.,AT THEREOF' DESCRrRkD is __ --- v7.c .C_I ..1 i / B&?NING AT THi SOUTHEASTERLY CO&R OF SAID SO&HWE'sT QTJARS‘FR ,j THgt ~OirrHEAST QbRTER OF SECTION 2!8; THENCE ALONG THE EAST I,& d$ sAy3 33uTHwEsT &JARTER 0~ THE S~U&EAST QUARTER NORTH 6412'25" eEs9; 746.00 FEET; THENCE SOUTH 8g447'35* 43455i25l WEST, WEST, 334.09 FEETi THFNCE N6RTH 205.17 FEF$, FEET; MORE OR L SS, t THEdCE SOUTH 89°47035n‘WEST ,474 i6 DEE@ l'd A.H. TO THE EASTERLY LINE OF THAT I& DE&B&N VA1 DEEDS; , RECORDED JANUARY:31, 1890 IN BOOR 15?, PAGE 49i $Ei THENCE AidNG THE EASTERLY ILTNE OF SAID VAIL'S tiND SdtJTH 23*~7'r~5" EAST kRECORD MAGNETIC B&ING SOUTH 38O20': EAST) '146.86 FEE2 TO AN ANGLE POINT; 174>2'15" EAST, THENCE ‘ALONG SAID EASTERf,Y LTHE sdU'TH h 477.94 FEET) AND THENC, FEET (RECOHD SOUTH 31°55'OO" iEAS-T, 483.89 034$6'PO" WEST, SOUTH 1S425'45" !WEST, 926.50 322.56 FEET (RECORD S6UTfi FEET) TO THE' SOUTHERLY LINE OF SAID SOUTHrJEST cp.3ap%R 0F THE Soum-imsT QU~~RTER; WHENCE ALONG SAID SOUTHERL~Y I;mE SOUTH 89*54'14'f EAST, BEGTh'N1NG. 855.00 FEETi MORE OR LESS, TO THE POINT' dP t ExCiwT'mG THEREFkoM THOSE PORTIONS DESIGNATED BY THE CALIFOR~IIA s$AT~~ HIG$XAY DFPARTllE!NT FOR FREEWAY AN bES$NEiED BELOW !AS PARCEL 1 AND P SERVICE-ROAD PURPOSES, LEG&Lr;y' POR7'fON OF SAID P CEL 2A, RESPECTIV$LY, T i THAT LIES WES?~ERLY OF SAID PARCEL 1. 1 AND THAT PAR~E1,~ 1: i I i 3 BEGSNNING AT TH ALCI@G THE NORTH SAID SECTION 33;j TRENCE FEEiF TO A LINE 33, SOUTH 89"21'06'i EAST, 263.68 COOBDfNATES LINk 'SOUTH SOu$H 36*16'49" FEE$ TO THE LOT' LXNE AND 33"99'27" WEST, I I 7s-- ,- S'M6)M A POINT; BEXNG AT COORDINATES . X=i,67'7,302183 &ET; Y=330,207,is FEET 3$ THENCE ALONG' LAST SAID LINE NoRTH '31'00:'45" WJqT , 381.54 FEBT TO LAST SAX@ POflNT; THENCE NORTH 1f3°04’lo” Y&T, 'k+O6 FEET; THkNCE NORTH 25*07'11' LI?fE OF SAID LQ$ 1; THENCE ALONG WEST, 43.40 FEET TO THE WEsTBRtY 724.72 FEET TO ID LOT LINE NORTH ee54'5d" V&T, POINT OF BEGINNIPG. PA+ 2A: i i i j A &R;rP OF i FEET WIDE, THE CENTER LINE OF SAID60 FOoT sTRl+ BEIhC DESCRIEED PS FOLLOWS: I . t . IEGO COUNTY, I '0 LIN$; THENCE S&H 89.47'35" WEkT, 334.09 FEET; :THENCE.' N6RTH 430~5'25" WEST, 205.17 FEET; THEN&.. SOUTH 89947’35” :WEST; +#$;.14; FEET t MORE OR TO THE EASTERLV LXNE OF THAT LAND: DESCRfRGD Xti i DEED T0 A.H. VA@, RECORDFD JANuARY,31, DEE%-&; 1890 XN BOOK 157, PAGi 493 bb , THENCE ALONG THZ EASTERLY LINE OF SAID VAIL’S LAND; N0RTN 23~47~ip WEST,' FEET TO THE NOR (RECORD MAGNETIC BEARING NORTH 3a920' WES’J?),’ 456.25 i QU?@F+ OF SAID LINE OF THE $OUTHWE~T QUARTER OF THE SO~TH~~AST I EX&WNG THEREFbOM THAT PORTION OFbAID iAND LYING WITHIN A S'f%lp bF : LA&J 6b.00 FEET: WIDE, THE CENTERLtNE OF SAID 60 FOOT STBIP.ZN 'THE : AFDjWitD LANDS $S PARTIClJLARLY DESFRIBED AS FOLLOWS: : BEGiNNING AT TH 12 'S!X.?'?H, RANGE WEST LINE OF THE kAST HALF OF SECTION 28 T&7N& . OF )YARLSBAD, WEST, SAN BERNAPPiNO BAi.+ AND MERTDIAIJ, Xk THE 0fTY CO+NTY OF SAN DIEG'O, ISTATE OF CALIFOBNIA, ACCOP~TH~ TO THE OFFfcJAL PLAT THEREOF DISTANT: NORTHERLY ALONG SAID ti& iIfiE 192&.$! FEET FR6M THE SOUTHWEST CORNER OF THE NORTHWEST QUABTEZi GF 1 THE' SQkI'HEAST QbARTER OF SAID SEC$ION 28, SAID POINT OF PEGINtiING FEET AND Y*342,771.44 F&F'k# WEST, 743.06 FEETj TH$NtE : A RADTWS OF 1;OOO OF 373.92 FEm;'TtfENOE 3088.43 FE&T ?'O A SOUTH L$tW CF l@T LOT LINE NORTH {9005'40n 4 WEST; TH$N~$ AUGUST RECPRDtiD ? AS FILE NO.;136233 OF OFFICIAL RECORDS.' i