HomeMy WebLinkAboutCT 90-14; Bramalea California Inc; 1991-0515452; Drainage Fee Agreement/Releasec .’ . .
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- 1832 rz # 1991-0515452
RECORDING REQUESTED BY AND ) OQ-OCT-1991 11=54 All
WHEN RECORDED MAIL TO: 1 1 OFFICIAL RECORDS
CITY OF CARLSBAD SBN DIEGO COUNTY RECORDER’S OFFICE
1200 Elm Avenue ; Carlsbad, California 92008 )
ANNETTE E;;N;i COUN;EEiECORDER
;;; 15: 00
: 26.00
Space above this li!& for k&&orderts use
Parcel No. APN 215-040-16 0
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE *';
GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL ' ;
FACILITIES MANAGEMENT PLAN FOR ZONE 19 \ ‘.*./
e
THIS AG~~MENT is entered into this ,30& day of
19q 1 by and between Bramalsa California, Inc., A
California Corporation, hereinafter referred to as FIDeveloperl@
whose address is One Park Plaza, Suite 1100 Iwine, CA'92417 and
THE CITY OF CARLSBAD, a municipal corporation of the State of
California, hereinafter referred to as rrCktyV1 whose address is
1200 Elm Avenue, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, DElveloper is the owner of the real property
described on Exhibit aA1V:, attached hereto and made a part of
this agreement, hereinafter referred to as "Propertyl'; and
WHEREAS, The Property lies within the boundaries of the
City; and
WHEREAS, Developer proposes a development project as
follows:
a 56 unit condominium project on said Property, which Development
carries the proposed name of Aldea at Aviara and is hereinafter
referred to as l'Developmentf'; and
WHEREAS, Developer filed on the 5th day of April, 1990, with
the City as a request for a Tentative Tract Map hereinafter
AGREEMENTS AG-9.frm 1 REV. 8/23/90
r-r- On-14
referred to as 1tRequest8U; and
WHEREAS, On April 5, 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, Developer and City rscognize the correctness of the
Local Facilities Planageme& Plan for Zone 19, on file with the
City Clerk and incorporate& 3sy the reference, and that the City's
drainage faciI.itt;ies 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 ali public
facilities, incfuding drainage, necessary to serv~c 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 aQaifable 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
covenants contained herein, the parties agree as follows:
AGREEMENTS AC-9.frm 2 REV. 8/23/90
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 in conformance with the City's Growth
Management performance standard, This drainage fee shall be in
addition to any fees, dedications or i&provements required
pursuant to Titles 18, 20 and 21 of the Carlsbad Hunicipal 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. ff the fee is
not paid as provided herein, the City will not have the funds to
provide drainage facilities and services, and the Deklopment
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 permit for the Development shall be
void. No building or atha?l: 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
established. Developer hereby waives his right to challenge said
AGREEMENTS AG-9.frm 3 REV. 8/23/90
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 Faciilfties Management Flan 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 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 applir;&blo 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
AGREEMENTS AC-9.frm 4 REV. B/23/90
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 autharlized 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 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 Devekspw by personal
delivery thereof to Developer or by depositing the same in the
United States Mail, enclcrsed in a seal;ed envelope, addressed to
Developer at the address as indicated in this agreement or at
another place as des%gna+zed 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,
AGREEMENTS AG-9.frm 5 REV. a/23/90
e 18?+
heirs, assigns and transferees of Developer and shall run with
the real property and create an equitable servitude upon the real
I 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 nun-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 s&hall be
presumed to h&V@ been made on the date of mailing regardless of
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AGREEMENTS AG-9.frm 6 REV. a/23/90
.- - 1838
receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
One Park Plaza, Suite 1100 Irvine, CA 92714
Executed by Developer this 12th day of September I 19 91 .
DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of Bramalea California, Inc. California 'A California Corporation
:,~~;LiYxJ&gY ,,
: " . ...*. Bruce J. Varkesr ,.; (print name here)
(print name here)
Vice President, Land Development (title and organization of signatory)
(Proper notarial acknowledgement of execution 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. City Attorney
By: Deputy City Aytorney
AGREEMENTS AG-9.frm REV. a/23/90
I STATE OF CALIFORNIA Orange I= COUNTY OF I
On SPW 13. 1991 , before me, the undersigned, a Notary Public in and for
said State, personally appeared Bruce J . Varker and
Jack Reimer , personally known to me F&B
%rz&%sfM~~&Mazt&tq~~I~~ to be the persons who executed the within instrument a& -V . P . . FULL
Admin. & Asst -mandV.P., Land ~~~~zftXtz& on behalf of
Bramalea California, Inc.
the corporation therein named, and acknowledged to me that
such corporation executed the within instrument pursuant to its
by-laws or a resolution of its board of directors.
WITI;(ESS my hand and official seal.
Q4 W& Signature
My Cmnmiuion Erp. Apr. 19. 1992
n.
(This area for official notarial seal)
.
THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOT 90 OF CITY OF CARLSBAD TRACT 85-35, AVIARA PHASE I - UNIT B, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12410, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 29, 1989.
EXCEPTING THEREFROM ALL OIL, OTL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERNAL STREAM AND ALL PRODUCTS DERIVED FROM ANY QF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PROPERTY, TOGETHER WITH THE PERPETUAL RTGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR, AND STORING IN AND REMOVING THE SAME FROM THE PROPERTY OR ANY OTHER LAND, INCLUDING THE RIGHT TO WH3[PSTCCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE PROPERTY OIL AND GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE PROPERTY, AND TO BOTTOM SUCH WHSPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT HOWEVER, THE RIGHT TO ENTER UPON, REMOVE, WHIPSTOCK DIRECTIONALLY DRILL, DRILL, MINE, STORE EXPLORE OR OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500) FEET OF THE SUBSURFACE OF THE PROPERTY, AS RESERVED ITN THAT CERTAIN GRANT DEED RECORDED JANUARY 31, 1990, RECORDER'S FILE NO 90-054126.
AGREEMENTS AG-9.frm 8 REV. a/23/90