HomeMy WebLinkAboutCT 90-38; Aviara Land Associates; 1994-0056014; Drainage Fee Agreement/Release/ 0 A 9 \
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. DC, # ~994-0056014 25-JAW-1994 02=36 F’M 2016
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: 1 City Clerk CITY OF CARLSBAD ; 1200 Carlsbad Village Drive ) Carlsbad, California 92008 )
OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER’S OFFICE ANNETTE ‘:;N;; COUN;fE;ECORDER
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Space above this line for Recorder's use
Parcel No. 215-040-23
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 19 CT 90-38, UNITS 1, 2, AND 3
THIS AGREEMENT is entered into this 2oE day of De&
I 199-2 by and between AVIARA LAND ASSOCIATES LIMITED
PARTNERSHIP, a Delaware Limited Partnership, hereinafter referred
to as Weveloper " whose address is 2011 Palomar Airport Road,
Suite 206, CarLsbad, CA 92009, and THE CITY OF CARLSBAD, a
municipal corporation of the State of California, hereinafter
referred to as "City@ wham address is 1200 Carlsbad Village
Drive, Carlsbad, California, 92008.
~~~ESS~~
WHEREAS, Developer is the owner of the real property
described on Exhibit lIA)I:, 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: A 71-Lot/68 single-family residential dwelling unit
tract map on 28.9 acres of land on said Property, which
AGREEMENTS AG-9.frm 1 REV. 10/29/92
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Development carries the proposed name of Aviara Planning Area 26
North, Carlsbad Tract 90-38, Units 1, 2, and 3, and is
hereinafter referred to as llDevelopmentll; and
WHEREAS, Developer filed on the 30th day of April, 1991,
with the City as a request for a tentative tract map for Aviara
Planning Area 26 North hereinafter referred to as llReguestll; 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 with the City Clerk and is incorporated by
this reference.
WHEREAS, Developer and City recognizethe 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 all 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, 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
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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:
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 improvements required
pursuant to Titles 18, 20 and 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 the 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 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
AGREEMENTS AG-9.frm 3 REV. 10/29/92
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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
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 Facilities Management Plan to the extent that those
facilities or improvements are allocated to Developer's property
or project and are not ffnanced 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 applicable provisions of law.
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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
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 authorized 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 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
AGREEMENTS AG-9.fm 5 REV. 10/29/92
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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 afid the covenants contained herein shall
be binding upan 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 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 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 certified mail
postage prepaid. Delivery of notice to Developer shall be
presumed to have been made on the date of mailing regardless of
receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
///
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AGREEMENTS AG-9.fi-m REV. 10/29/92
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Aviara Land Associates Limited Partnership 2011 Palomar Airport Road, Suite 206 2082
Carlsbad, CA 92009
Executed by Developer this $oe day ~f/$.~ /??? ,
19 93.
DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of Aviara Land Associates Limited California Partnership, A Delaware Limited Partnership, formerly Pacific Rim Land Associates Limited Partnership, a Delaware Limited Partnership, Owner
By: Aviara Land Company, A Delaware General Partner ATTEST:
ALETHA L. RAUTENKRANZ
I Ted L. Hoover, Asst. Secretary City CLerk
fc Development Company, fornia Corporation,
Ted L. Hoover, Asst. Secretary
(Proper notarial acknuwledgement 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: RONALD R. BALL Acting City Attorney
By: .
' Deputy City Attorney
AGREEMENTS AG-9.ft-m REV. 10/29/92
c
STATE OF CALIFORNIA
g I= COUNTY OF L fl /&fQ&-- 1 S.S.
before me,
P 2
6 F g personally known to me (c
E mce) to be the person(s) whose name(sj+sfare subscribed to the
B 0 within instrument and acknowledged to me that h&he/they executed
the same in -r/their author&d capacity(ies), and that bytrisMrltheir
signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
WITNESS my hand anp official seal
m P 07 Signature
2053
FOR NOTARY SEAL OR STAMP
Of%ML SEAL KATHLEEN A ARNOLD
“‘EWW SMOrOOaxlNM w-euwy3l.lm4
F 2492 (5-91)
EXHIBIT “A”
BEING ALL OF LOT 4 OF CITY OF CARLSBAD TRACT 89-37 AVIARA PHASE
II ACCORDING TO THE MAP THEREOF NO. 12967 IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY SEPTEMBER
16, 1992 AS FILE NO. 92-588283.
THIS LEGAL DESCRIPTION WAS PREPARED
BY ME OR UNDER MY DIRECTION.
REGISTRATION EXPIRES: 06-30-96