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
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, 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
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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.
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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
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AGREEMENTS AG-Oh -6- REV. 8/23/90
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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
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Sl!?i!CN OF CALIFORWUI) ) ss. CODN!lT OF SAW DIEGO)
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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
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i EXHIBIT A i
j: 1 LEGAL DESkIPTION
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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
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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
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AS FILE NO.;136233 OF OFFICIAL RECORDS.'
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