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HomeMy WebLinkAboutCT 90-23; Fieldstone/La Costa Associates; 1991-0397189; Drainage Fee Agreement/Release- RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: j 1 CITY OF CARLSBAD 1200 Elm Avenue ; Carlsbad, California 92008 ) gFFIcI&l 5gORES S&H DIEGE CEUHT’! RECORDER’S OFFICE $#jETTE EVAHS 3 CE!%Y KECOEDER RF: 1:. o!J FEES: 7i n I?!-: 9. aa 2E iI ~~~1~~3~~1~~ 07--AUF-1991 I#=34 fw! il. tJ (I 4 1 l Ii/ Space above this‘ %' .___ I.!?0 Parcel No. 216-130-61 AGREEMENT TO PAY DR&E FI$ES AS REQUIRED BY THE GROWTH MANAGEME#T' #!&$I3 THE ADOPTED LOCAL FACILITIES ~AG~NT PLAN FOR ZONE 6 ,~ THIS AGREEMENT is en&&red into this CrpFG day of + ** I 19 ?/ by and' behween F$sldstone/La Costa Associates Limited Partnership a California Limited Partnership, 'hereinafter referred to as VeveloperVV whose address is 5465 Morehoutie Drive, Suite 250 San Diego, CA 92121 and THE CITY OF CA&&BAD, a )' ,,~, municipal corporation of the State of California, h&&inafter :(i _$ referred la as "City- whose address is 1200 Elm AvenUQ, earlsbad, California, 92008. ,/ WITNESSETH: WHEREAS, Davelqmr ,is the owner cf 'the real property described on Exhibit VIA":, at&wWd hereto and made a part of this agreement, hereinaft& referred to as "Property"; and ,. WHEREAS, The Property' "l&s"ui%khin the boundaries of the City: and WHEREAS, Developer proposes a development project as follows: 132 single family residential units on a 41 acres of said Property, which Development carries the proposed name of the Fairways Carlsbad Tract CT 90-23 and is hereinafter referred to as l@Developmentll; and AGREEMENTS AC-9.frm 1 REV. 8/23/90 I GO2 . A -\ WHEREAS, Developer filed on the 11th day of July, 1990, with the City a request for Tentative Tract Map CT 90-23, Planned Development Permit PDP 90-23 and a Hillside Development Permit HDP 90-29 hereinafter referred to as 11Reguest81; and WHEREAS, on July 11, 1990 Developer entered into an agreement with the City to pay Public Facilities fees of 3.5 percent of the building,:,l *@&Nation. A copy of the ,( IS lib, ,'(,_ (i agreement is on fjf@ %&&&he City C&k and is incorporated by this reference. ; WHEREAS, Developezr&~G$ty ~~~~~~ the correotness of the Local Facilitieh #arnagement BZan for Zone 6, on file with the City Clerk and bncorporated by the reference, and that &e City's '( drainage facilities may be at or near capacity in the '&rainage _' (: :: sub-basfn wti&re this development is located, and 'ma@, not be available to accommodate the additional drainage dema&':'on such facilities and services resulting from the proposed Dev8iopmentt and WHEREAS,' said plan for Zone 6 reguires tha% all public facilities, fnoluding'drz&mge, necmm&y to serve a development will be availabzcr in confomance w%th *he City's adopted performance standard (&&d Zone PIair 5;s on file with the City Clerk and is incorporated by this reference): and WHEREAS, Developer has asked the City to find that drainage facilities and services will be available to meet the future needs of the Development as it is presently proposed; but the Developer is aware that the City cannot and will not be able to make any such finding without financial assistance to pay for such services and facilities; and therefore, Developer proposes to satisfy the Local Facilities Management Plan for Zone 6 by the AGREEMENTS AG-9.frm 2 REV. 8/23/9G \ /4 payment of drainage fee. Gw NOW, THEREFORE, in consideration of the recitals and the covenants contained herein, the parties agree as follows: 1. That the foregoing recitals are true and correct. 2. The Developer shall pay to the City a drainage fee as required by the Local Facilities Management Plan for Zone 6 as may be detailed in said p&a&,&& '%&$oxrporated by reference and as ._ _ ),,, '_". determined through the" ised Wastez! Drainage Plan necessary to provide drainage facilitie& in confamance with *be City's Growth Management psr'fomance ~s~tid~rd, This arafnage fee shall be in addition to any fees, dedications or ilnprovements required pursuant to Ti%%!&s 18, 20 and 21 of the Carl&ad Muni&al Code. 3. This agreement and the drainage fee paid$ursuant hereto are required to ensure the consistency of the Deklopment ,, with the Cityus General Plan, the Growth Management PrkJram and the Local FaeilLties Management Plan for Zone 6, " !, ff tW fee is not paid “as p&m&Bed herein, the city will not ItLave th& funds to provide drainage facilities and services, and the Development will not be consistent with the Oe-lreral Plan, the Growth Management Progrm or the 'Lo&l Facil&ie& Mkagement Plan for Zone 6 and any approval @-pernit f& %ha Development shall be : void. No building or other construction permit or entitlement for use shall be issued until the drainage facilities fee is paid or this agreement is executed. 4. That Developer agrees to pay the drainage fees identified by the City Council as necessary to pay for the cost of providing the drainage improvements or facilities which are required by the Growth Management Program and the revised Master Drainage Plan, or any other provision of Chapter 21.90 of the AGREEMENTS AG-9.frm 3 REV. 8/23/9G . Carlsbad Municipal Code, or any other provision of law. Payment shall be due 30 days from the date the drainage fee is established. Developer hereby waives his right to challenge said drainage fees. Developer further waives any rights to pay the drainage fees referred to herein under protest and that any protest shall immediately subject the project to the provisions of Section 21.90 of the Cap% i&pal Code, or any provision (( of law. :: I"", _I: ",;;J'$: 'i, :, i( (.( : i 3' _, 5. Devek&& agr&kV~ to construct; or participate in '(_ : financing the comtrucit=Y&&'sf publf@ kacilitiea and improvement identified in the citywide'faci.%ities and improvements plan or the Locar Facflities Management Plan to the extent that those : facilities or itaproveaents are allocated to Devefoper"s broperty ,( )' / or project and are not financed by the fees referencedbereto. 6. : ;I-: ,: City agrees to deposit the drainage fe:es paidpursuant ‘( 3: to this agmemknt in a drainage fund for the fina&cing of drainage 15acflities as needed in tI'%s'City of Catlsbadwhen the City Council&etemines the need exists to provide the facilities and sufficient funds ire@ the payment of this atid similar fees are available. 7. Subject to p&t 3 iC'~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 AGREEMENTS AG-9.frm 4 REV. 8/23/9G h 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 %2?: or both upon 15 days a(, 0( : written notice to Detrel r of thQc r&&W&-&on or denial. ,- 0 10. Any natfce fro& one party to the &her shall be in writing, and shall be da%&3 ancl #fgned by the party giving such notice or by a duly authoriied representatfve of such part. Any such notice shaE1 not be effective for any purpom whatsoever : unless served in one of the foflowPng manners: '( 10.1. If notice is given to the City by':'gersonal I_ delivery thareaf to the City or by depositing same fz+'i%@ United j.: I( )' States Mail, address&d to the City at the address s;irt forth herein, ehelosecl fn a se&led envelupe, addres#&d to thica'city for attention af the City Manager, postage and prepared and certified. 10.2. If notfoe is"given t& D&ve&aper by personal delivery thereof to ~~~~~~ or by&bos%ting 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. 8/23/9G - 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 1 the real property and create an equitable servitude upon the real property. 13. This agreement ded but shall not create ': i', a lien or securkty -~M&&3t'~fn the Property. When the obligations of this agreetint have been satisfied and appropriate fee paid to record a reIeagie,@ City shtrlE~'record the release. 14. The prevailing pa'rty in any dispute between the parties shall be the right to recover from the non-prevailing *arty all costs and attorney's fees expanded in the course of @%&dispute. IS. Except as otherwise provided herein, all. notices ,.:' * required or provided for under this agreement shall be $nVwriting and shall be delivered in person or served by certified mail postage prepaid. Delivery of notice to WWd~hqx&r shall be presumed to have been made on the date of mrPfling regardless of /// O( //// . * :i ,i, : ., )( I‘ /// ,, ‘_$ _ i : ,( .- _ II:: .i, I i, i(_i () ,( ‘.: _ 3, ,:: :_,, : ,:_: /// /// /// /// /// /// /// /// AGREEMENTS AG-9.frm 6 REV. a/23/90 .- - receipt by Developer. Notices required to be given to Developer ~ shall be addressed as follows: Fieldstone/La Costa Associates L.P. 5465 Morehouse Drive, Suite 250 San Diego, CA 92121 1941 Executed by Developer this so! day of . DEVELOPER: _ ; : :: .: )( QE!$X OF CARLSBAD, a municipal : . Fieldstone/La Costa Aa&@#ites 'qcrporation of the State of CkLiBt3rni~ Limited Part By: The Fieldstone Company A Californfa CWporation ,: :', ; '3 1 ,3" _ ()( (print -me heE*) 73, 0 ,, &bwfstan~:~tarv. :i '(,. tion of signatory) Mike Stew ,, (print name here) Assistant ,_ (title and organizaticn o& sfgnatory) (Proper notarial acknowI~~~~~~t~'~~.'~xecution 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 Attbrney AGREEMENTS AG-9.frm 7 REV. 8/23/90 COUNN OF On 3D4 sald State, personally appeared I below me, the underslgned, a Notary Public in and lor . \m ~n&!w~ end , personally known lo me (or proved to me on Ihe e within instrument as Secretary. on behall Ihe corporation lherein named, and acknowledged lo me lhat such cofporalion executed lhe wilhin instrument pursuent toits by-laws or a resolulion of its board of directors. WT~ESS my hand and otficial seal. Sipnatur; tid*&-GAz (This area for ofticial notarial seal) \ ’ og EXHIBIT "A" LEGAL DESCRIPTION PARCEL 2 OF PARCEL MAP 11722, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER ON OCTOBER 9, 1981, AS FILE NO. 81-322184 OF OFFICIAL RECORDS. AGREEMENTS AG-9.ft-m 8 REV. 8/23/9G