The URL can be used to link to this page

Home My WebLink AboutCT 90-15; Aviara Land Associates; 1992-0011004; Drainage Fee Agreement/Release441 ZL--j ~~~~E#~~ ‘iOQ4 RECORDING REQUESTED BY AND ) 08-ml+1995 Q3:28 ffl WHEN RECORDED MAIL TO: 1 zFFl:l#. ;ECCl;lg: CITY OF CARLSBAD i $#j [);rt':n ggqy pErg;ypg; flgyt 1200 Elm Avenue fiH!{ETTE E!,!$HS ‘i C?ilHTY REK!RDEfi Carlsbad, California 92008 ) RF: !!*$Q FEES: ??, $ #: 17,$ Space abov fir: 1 nn i. vu Parcel No. 215-040-18, 21 & 22, 215-070-25 AGREEMENT TO PAY DRAXNAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PI&W FOR ZONE 19 THIS A~~~~'is entered into this ,$' 4 day of izlzkli, dizL by and between Aviara Land Associates Limited Partnershgp, A Delaware Limited Partnership hereinafter referred to as *Develop&r I) whose adcfress is 2011 Palomar Aixport Road, #206, Carl&ad CA 92008 and THE CITY OF CARLSBAD, a iunicipal corporzltion of the State of California, hereinafter referred to as ,ICity*@ %&as& address is 1200 Elm Avenue, Carlsbad, California, 92008. WITNESSETH: WHEREAS, D&vdiCKoper is the owner of the real property described on Exhibit )lA":, attzkch~d 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 124 lot/118 dwelling unit tentative tract map on 54.6 acres of land on said Property, which Development carries the proposed name of Aviara Planning Area 24, Carlsbad Tract 90-15 and is hereinafter referred to as llDevelopmentlW; and AGREEMENTS AG-9.frm 1 REV. 8/23/90 /4 -42 WHEREAS, Developer filed on the 4th day of April, 1990, with the City as a request for a tentative tract map for Aviara Planning Area 24 hereinafter referred to as "Request"; and WHEREAS, On March 31, 1989 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 this referen .( _" .() -.~, ,(_( and is incorporated by sr; :i'ri' f (,l,( ,_i i-q -:;-,. )E zr.::"' I( n( ,I" ~,, “ ho_ ,,O' ;..i i ‘(: (),( : WHEREAS@ of the 6, oh &Se with the performance stan 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 19 by AGREEMENTS AG-9.frm 2 REV. 8/23/90 -- 443 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 19 as may be detailed in said plan &nd incorporated by reference and as determined through U&e rmfised Master Drainage Plan necessary to provide drainage ~Pacilities in conformance with the City's Growth Management p&@rmance standard. This drainage fee shall be in addition to any fees, dedications or improvements required pursuant to T%kles 18, 20 and 21 of the Carlsbad Municipal Code. 3. This agreement and the drainage fee paid pursuant hereto'hre‘regufred to ensure the consistency OP the Development with the Cityss General Plan, the Growth Management Program and the Local Faailities Management Plan for Zone 19. If the fee is not paid as prcvided herein, the City will not have the funds to provide drainage facilities and services, and the Development will not be cunsistent 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 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 AGREEMENTS AG-9.frm 3 REV. 8/23/90 m- h- 444 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 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 C~~~~~a~~i~i~al Code, or any provision of law. 5. r agmrk to construct, or participate in financing the canstructfon af public facilities and improvement identified in *he citywide facilities and improvements plan or the Local Facil%ties 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 paed'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 rdetermk%es the need exists to provide the facilities and sufficient funds from the payment of this and similar fees are available. 7. Subject to p&r$qrq$hs 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 AGREEMENTS AG-9.frm 4 REX. 8/23/90 - A 445 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 fur W&project or both upon 15 days written notice to Developer of the revocation or denial. 10. Any naf5& fro@ one party to the other shall be in writing, and &hall be dated and signed by the party giving such notice or by a duly authorised representative of such part. Any such notice shall not be effective for any purpose whatsoever unless served fn one of the following manners: l&3.. If notice is given to the City by' personal delivery thereef to the City or by depositing sama in the United States Hail, addressed to the City at the address set forth herein, enclosed in a sealed envelope, addressed to the City for attention ai the City Manager, postage and prepared and certified. 10.2. Sf 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 AGREEMENTS AG-9.frm 5 REV. 8/23/90 ’ . - - 446 m - ag,reement, 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 sb&k~“be tiecarded but shall not create a lien or securi;l=y lint&rest in the Property. When the obligations of this agre&mt have been satisfied and appropriate fee paid to record a release, City shalP record the release. 14. The prevailing party in any dispute between the parties shall bl$ the right to recover from the non-prevailing party all costs and attorney's fees expanded in the course of such dispute. Es. 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 AGREEMENTS AG-9.frm 6 REV. 8/23/90 - 447 ? /-- - receipt by Developer. Notices required to be given to Developer shall be addressed as follows: Hillman Properties 2011 Palomar Airport Road, #206 Carlsbad, CA 92008 19 9H xecuted by Developer this 27th day of September I -0 DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of Aviara Land Associates Limited California Partnership, A Delaware Limited Partnership, formerly Pacific Rim Lana Assczciate?s Limited Par#zn@rship, a Delaware Limited Partnership, as Inner d Company, A Delaware n, A General Partne Ted L, HOQver, Attest: Assistant Secretary 2R- * Development Company, ALETHA L. RAUTENKWZ rnia Corporation, City Clerk By: b&A $@?---, Ted L. Hoov8 I Assistant Secretary (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. c!JE ~, Deputy City Attor e /* L* w AGREEMENTS AG-9.frm 7 REV. 8/23/90 -_ - - - 448 STATE OF CALIFORNIA COUNTY OF San Diego I 1 ss. I On September 27. 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me 7 . . . 3 to be the person who executed the within instrument as the Vice President and Ted L. Hoover personally known to me me . . C to be the person who executed the within instrument as the Assistant Secretary of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, 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. lcrc/u, a. B$3W& NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF San Diego I 1 ss: I On Sentember 27. 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me vn . . . 1 to be the person who executed the within instrument as the Vice President, and Ted L. Hoover, personally known to me me . . Sto be the person who executed the within instrument as the Assistant Secretarv of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, 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. [.ucm/ a- (9 &p/L- NOTARY PUBLIC I . . -- 449 kdV 08-27-91 (MMA) MARCH 29-90 (DWA) 310,3** SV 10562 10562.00 EXHIBIT "A" THOSE PORTIONS OF SECTIONS 22 AND 27, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 27, THENCE ALONG THE NORTH LINE OF SAID SECTION 27 AND ALONG THE NORTH BOUNDARY LINE OF RECORD OF SURVEY MAP NO. 10774, SAID MAP RECORDED OCTOBER 30, 1986 AS FILE NO. 86-494180 AND ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SOUTH 86O58'35" EAST, 306.21 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTH BOUNDARY LINE THE FOLLOWING: THENCE SOUTH 86O58'35" EAST, 1012.49 FEET; THENCE NORTH OlO49'26" WEST, 331.02 FEET; THENCE SOUTH 86O57'18" EAST, 660.66 FEET; THENCE SOUTH OlO36'42" EAST, 330.67 FEET; THENCE SOUTH OO"07'05" WEST, 1340.78 FEET; THENCE SOUTH 87O31'09" EAST, 372.00 FEET; THENCE LEAVING SAID NORTH BOUNDARY LINE SOUTH 02O28'51' WEST, 326.91 FEET,TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF ALGA ROAD AS DESCRIBED IN DEED RECORDED JUNE 29,1989 AS FILE NO. 89-345765 OF OFFICIAL RECORDS; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY LINE NORTH 59O47'00" WEST, 392.63 FEET TO THE BEGINNING OF A TANGENT 1001.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTH; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27°08'OO" A DISTANCE OF 474.04 FEET; THENCE NORTH 86O55'00" WEST, 354.23 FEET, TO THE BEGINNING OF A TANGENT 799.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 73O11'40" A DISTANCE OF 1020.71 FEET; THENCE NORTH 13O43'20" WEST, 338.79 FEET; THENCE NORTH 14O43'00" WEST, 355.88 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF POINSETTIA LANE AS DESCRIBED IN DEED RECORDED JUNE 29, 1989 AS FILE NO. 89-345765 OF OFFICIAL RECORDS SAID POINT BEING THE BEGINNING OF A TANGENT 25.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTHEAST; THENCE NORTHEASTERLY ALONG THE EASTERLY RIGHT-OF-WAY LINE OF SAID POINSETTIA LANE AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 87°30'OO" A DISTANCE OF 38.18 FEET; THENCE NORTH 17°13'OO" WEST, 51.00 FEET; THENCE SOUTH 72O47'00' WEST, 2.76 FEET; THENCE NORTH 17°13'OO' WEST, 51.00 FEET; THENCE LEAVING SAID EASTERLY RIGHT OF WAY LINE, NORTH 72O47'00" EAST, 40.48 FEET TO THE TRUE POINT OF BEGINNING. THE HEREINABOVE DESCRIBED PARCEL OF ACRES MORE OR LESS. THIS LEGAL DESCRIPTION WAS PREPARED 9-sv DALE A. DAVIS, L.S. 5894 DATE LICENSE EXPIRES: 12-31-92 LAND CONTAINS 54.593