HomeMy WebLinkAboutCT 90-5; Barratt American Inc; 1994-0524581; Drainage Fee Agreement/Release1 I
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W-SEP-1994 08=Ci’ A%I
OFFiCIA! RECfiRDS
949 SAEI DIEGI CDUNTY RECORDER’S ?fFfCE C;REGCtRY SMITH i COUMTY REURDEA RF: !4.00 FEES: 34.00 tlF: 19.00 MF: 1.00
RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: City Clerk i CITY OF CARLSBAD 1 1200 Carlsbad Village Drive ) Carlsbad, California 92008 )
Space above this line for Recorder's use
Parcel No. 215-612-06
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 29" day of
aclc., 1994 by and between Barratt American Incorporated, a
Delaware Corporation, hereinafter referred to as "Developerl'
whose address is 2035 Corte De1 Nogal, Carlsbad, CA 92009 and THE
CITY OF CARLSBAD, a municipal corporation of the State of
California, hereinafter referred to as IrCitytl whose address is
1200 Carlsbad Village Drive, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit IIA*l:, attached hereto and made a part of
this agreement, hereinafter referred to as wPropertyw; and
WHEREAS, The Property lies within the boundaries of the
City; and
WHEREAS, Developer proposes a development project as
follows:
a 78 dwelling unit condominium project on 21.66 acres of land on
said Property, which Development carries the proposed name of
Aviara Planning Area 7, Carlsbad Tract 90-05, Unit 1 and is
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950 hereinafter referred to as "Development"; and
WHEREAS, Developer filed on the 20th day of February, 1990,
with the City as a request for 145 dwelling unit condominium
project hereinafter referred to as "ReguestN; 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
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.
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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
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
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952
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 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 otherdevelopmentpermits 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
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
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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
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
be binding upon and enure to the benefit of the successors,
heirs, assigns and transferees of Developer and shall run with
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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
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AGREEMENT9 AG.9.lrm 6 REV. 10&?9/9R
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receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
Barratt American Incorporated
2035 Corte De1 Nogal Carlsbad CA 92009
Executed by Developer this 5th day of August I
19 94 .
DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of BarrattAmericanIncorporated, California A Delaware Corporation
By:
MICHAEL D. PATTINSON
(print name here}
PRESIDENT
By: Martin. th$iyak for City Manager
STEPHEN R. REID (print name here)
SEC- (title and organization of signatory)
(Proper notarial acknowledgement of execution by SUBDIVIDER 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 City Attorney
By: - Deputy City Attorney
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II AGREEMENT9 AG.9.bm RN. 10129192
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STATE OF CALIFORNIA ) ) ss.
COUNTY OF SAN DIEGO )
On August 8, 1994 before me, Lynn C. Hanson, Notary Public, personally
appeared Stephen R. Reid and Michael Pattinson, Personally known to me to be
the persons whose names are subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized capacities,
and that by their signature on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
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State of California
County of San Diego $57
On 8129194 before me, Aletha L. Rautenkranz, City Clerk,
personally appeared Martin Orenyak, Community Development Director
, personally known to me (proved to
me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are suscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/
their authorized capacity(ies), and that by his/her/their signature(s)
on the within instrument the person(s), or entity upon which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal (SEAL)
.’ (Signature) I
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EXHIBIT "A" LEGAL DESCRIPTION
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LOT 92 AND LOT 93 OF THE CITY OF CARLSBAD TRACT NO. 85-35, AVIARA PHASE1 - UNIT C, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12411, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY JUNE 29, 1989. EXCEPTING THEREFROM THAT PORTION OF LOT 93 DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 93, SAID POINT BEING ON THE WESTERLY SIDELINE OF THE 60.00 FOOT WIDE STREET, AMBROSIA LANE AS DEDICATED ON SAID MAP NO. 12411, THENCE SOUTHERLY ALONG THE SAID WESTERLY SIDELINE AND ALONG THE EASTERLY LINE OF SAID LOT 93 THE FOLLOWING COURSES: SOUTH O"42'22" EAST 124.24 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A 380.00 FOOT RADIUS; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 52'09'38" AN ARC LENGTH OF 345.94 FEET; THENCE LEAVING SAID WESTERLY SIDELINE OF AMROBISA LANE AND EASTERLY LINE OF SAID LOT 93 SOUTH 37'08'00" WEST 10.00 FEET; THENCE SOUTH 42'17'00" EAST 165.00 FEET: THENCE NORTH 89'52'00" EAST 25.75 FEET: THENCE SOUTH 44'44'00" EAST 170.00 FEET; THENCE NORTH 86"39'00" EAST 36.50 FEET: THENCE SOUTH 48'21'00" EAST 165.00 FEET; THENCE SOUTH O"50'00" EAST 18.99 FEET; THENCE SOUTH 39"57'00" WEST 68.00 FEET: THENCE SOUTH 39"45'00" WEST 57.00 FEET: THENCE SOUTH 48"28'00" WEST 8.56 FEET: THENCE SOUTH 37'38'00" WEST 161.00 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF SAID LOT 93; THENCE NORTHWESTERLY ALONG SAID LINE NORTH 48"17'47' WEST 740.65 FEET; THENCE LEAVLNG SAID LINE NORTH 41"42'13" EAST 16.06 FEET; THENCE NORTH 48"17'47" WEST 13.00 FEET; THENCE NORTH 36'41'00" WFST 54.00 FEET: THENCE NORTH 8"19'00" EAST 2.83 FEET; THENCE NORTH 36"41'00" WEST 52.00 FEET; THENCE NORTH 19'12'00" WEST 18.84 FEET: THENCE NORTH 2"02'00" WEST 21.00 FEET; THENCE NORTH 39'32'00' EAST 12.00 FEET; THENCE NORTH 4"18'00" EAST 47.00 FEET: THENCE NORTH 49*18'00" EAST 2.83 FEET: THENCE NORTH 4'18'00" EAST 155.00 FEET; THENCE NORTH 26"39'00" EAST 30.04 FEET; THENCE NORTH O"42'22" WEST147.00 FEET TO THE NORTHERLY LINE OF SAID LOT 93; THENCE EASTERLY ALONG SAID LINE NORTH 89"17'38" EAST 207.61 FEET TO THE POINT OF BEGINNING.
AGREEMENT9 AG.O.lrm 8 RN. 10/29/92