HomeMy WebLinkAboutCT 97-13; Carlsbad Oaks North Partners LP; 2004-1201221; Drainage Fee Agreement/ReleaseRECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: ) 1
City Clerk )
CITY OF CARLSBAD )
1200 Carlsbad Village Drive ) Carlsbad, California 92008-1 989 )
DOC # 2004-1 201 221 i llllllll Ill IIIII lllll Ill11 Ill11 11111 Ill11 Ill11 lllll IIIII 11111 Ill1 Ill1
DEC 21,2004 457 PM
OFFICIAL RECORDS
SkN DIEGO COUNTY RECORDER'S OFFICE GREGORY J SMITH, COUNTY RECORDER FEES: 32.00 . PAGES: 9
Space abovb IUI newraers use
AGREEMENT BETWEEN DEVELOPEWOWNER
AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A'
LOCAL DRAINAGE AREA FEE
Assessor Parcel Nos. 209-050-04
209-050-21
209-050-22
209-050-23
209-050-24
THIS AGREEMENT is entered into this ?* dayof ./dwo51~-b- ,2004, by
and between Carlsbad Oaks North Partners, L.P., a California Limited Partnership, as
"Developer" whose address is 3575 Kenyon Street, San Diego, CA 921 10, and the CITY OF
CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City",
whose address is 1200 Carlsbad Village Drive, Carlsbad, California, 92008-1 989.
WITNESSETH:
WHEREAS, Developer is the owner of the real property described on Exhibit "A",
attached hereto and made a part of this agreement, hereinafter referred to as "Property"; and
WHEREAS, the Property lies within the boundaries of Local Facilities Management Plan
(LFMP) Zone 16 within City; and
WHEREAS, Developer proposed a development project as follows: planned industrial
development containing 23 industrial lots, three open space lots, and one sewer pump station
lot on said Property, which development carries the proposed name of Carlsbad Oaks North
and is hereafter referred to as "Development"; and
WHEREAS, Developer filed a request for City approval of a final map for Carlsbad Tract
97-1 3 (CT 97-1 3) over the proposed Development; and
WHEREAS, the conditions of approval for CT 97-13, pursuant to Planning Commission
Resolution No. 5249, require Developer to agree to abide by any fee increase (or decrease)
adopted for the Local Drainage Area fee by City Council prior to payment or credit for payment
of the Local Drainage Area fee for Development; and,
WHEREAS, Developer's payment and/or credit for payment of the Local Drainage Area
fee is required prior to City approval of the final map for Development; and,
WHEREAS, it has been determined that certain drainage facilities located downstream
of Development do not meet the facility performance standards unless certain mitigating flood
control improvements are installed and/or the financing of such flood control improvements are
guaranteed for construction in accordance with the City's adopted Growth Management
Ordinance; and,
WHEREAS, City is currently in the process of revising the City's Local Drainage Area
fee program to provide the required financial guarantee for said flood control improvements;
and,
WHEREAS, Developer desires to proceed with Development in advance of the adoption
by City of the new Local Drainage Area fees; and,
WHEREAS, Developer agrees to abide by any fee increase (or decrease) in the Local
Drainage Area fee as may subsequently be adopted by City Council after City approval of the
final map for Development.
NOW, THEREFORE, in consideration of the recitals and the covenants contained
herein, the parties agree as follows:
1. The Developer shall pay andor receive credits for payment to the City for the
Local Drainage Area fee in the amount established by City Council as of the effective date of
this Agreement for the local drainage area(s) into which the Development drains. The fee shall
be paid by, and/or credits will be awarded by City to Developer against payment of the fee for
constructed Master Drainage Plan facilities, prior to City approval of the final map for CT 97-1 3.
2
Notwithstanding the forgoing, said fee is subject to adjustment, based upon the amount of the
Local Drainage Area fee ultimately adopted by the City Council after approval of the
Developer's final map. If said fee has not been paid by Developer prior to final Council action
formally adopting such fee, the Developer's fee shall automatically be adjusted to be the same
as the Council-approved fee. If the Developer has paid this fee prior to such Council final
action, then this fee will again automatically be adjusted, and Developer shall, within thirty (30)
days of written notice thereof by City pay any shortfall; or City shall within thirty (30) days of
such determination, refund any overage. This fee shall be in addition to any other taxes, fees,
dedications or improvements required pursuant to Titles 18, 20, or 21 of the Carlsbad Municipal
Code.
2. This agreement and the fee paid pursuant hereto are required to ensure the
consistency of the Development with the City's General Plan and Growth Management
Ordinance. If the fee is not paid as provided herein, the City will not have the funds to provide
public facilities and services, and the development will not be consistent with the General Plan.
The Developer therefore agrees that if Developer does not satisfy the terms and conditions of
this agreement that any approval or permit for the Development issued after the effective date
of this agreement shall be void. Thirty (30) days after City's written notification to Developer,
pursuant to Paragraph 1 above, no building or other construction permit shall be issued for the
Development until the Local Drainage Area fee required by this agreement is paid in full.
3. All obligations to pay the aforementioned Local Drainage Area fee relative to the
~ approval of CT 97-1 3 shall terminate in the event the final map for CT 97-1 3 is not approved by
the Carlsbad City Council. In the event of such termination, the Developer is still obligated to
pay the City's Local Drainage Area fee for any subsequent final map or maps approved for the
Property in accordance with the Local Drainage Area fee requirements in effect at the time such
map or maps are approved by the City Council.
3
4. 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 party. Any
such notice shall not be effective for any purpose whatsoever unless served in one of the
following manners:
I
4.1 If notice is given to the City of personal delivery thereof to the City or by
depositing same in the United States mail, enclosed in a sealed envelope addressed to the City
Manager of the City at the address set forth herein, postage prepaid and certified.
4.2 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 designated herein, postage prepaid and certified.
5. This agreement shall be binding upon and shall inure to the benefit of, and shall
apply to, the respective successors and assigns of Developer and City and references to
Developer or City herein shall be deemed to be a reference to and include their respective
successors and assigns without specific mention of such successors and assigns. If Developer
should cease to have any interest in the Property, all obligations of Developer hereunder shall
terminate; provided, however, that any successor to Developer's interest in the property shall
have first assumed in writing the Developer's obligations hereunder.
6. 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, City shall record a
release.
Ill
Ill
Ill
Ill
Ill
4
7. If, for any reason, the Local Drainage Area Fee has not been revised by the City
Council within three years of the effective date of this agreement, the amount paid by the
Developer, including any credits granted against payment of the Local Drainage Area fee, shall
be deemed to represent the Developer's fair share contribution to the City's Master Drainage
Improvement Program and no further payment will be due from or reimbursement due to
Developer.
IN WITNESS WHEREOF, this agreement is executed in San Diego County, California,
as of the date first written above.
DEVELOPER-OWNER:
Carlsbad Oaks North Partners, L.P.,
a California Limited Partnership
Sun Tech Investments Corp., a
California corporation,
Its General Partner
(Name of Develop
By: -1''
(signature)
Paul K. Tchang
(print name)
President
(tit le)
By:
(signature)
CITY OF CARLSBAD, a municipal
corpor tion of the tate of California A 1 %
BYM/%%W--- dAYMOND R. PATCHETT, City Manager,
or designee
ATTEST:
- &A.%'( &
LORRAINE M. WOOD, City Clerk'
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:
beputy City Attorhey
(print name)
(tit1 e)
(Notarial acknowledgment of execution of DEVELOPER and OWNER 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).
(If signed by an individual partner, the partnership must aftach a statement of partnership authorizing the partner to execute this instrument). 5
~~ ~~ ~~~ ~ ~ ~~~
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On October 18, 2004 before me,
Kimberly L. Aeria Notary Public, personally
appeared Paul K. Tcm , [XI personally known to me -
or [ ] proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed 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 instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
6
EX HI BIT "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
PARCEL 1 :
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT I'B" OF SAID RANCHO AGUA
HEDIONDA, AS SHOWN ON RECORD OF SURVEY NO. 517, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935; THENCE
ALONG THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP NO. 517, SOUTH 89'45'
EAST 5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "D" OF SAID RANCHO AGUA
HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B", SOUTH
DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY OF SAID LOT "B",
SOUTH 89'54'00" EAST 2362.36 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID BOUNDARY SOUTH 89'54'00" EAST 11 09.57 FEET; THENCE
SOUTH 3'05'08" EAST 5839.45 FEET TO THE SOUTHERLY BOUNDARY OF SAID LOT "B";
89'53' EAST 2666.00 FEET AND SOUTH 0'17'57" EAST 2657.96 FEET - RECORD SOUTH
0'32'00" EAST 2655.2 FEET - TO POINT 14 OF SAID LOT "B" OF SAID POINT 14 IS
THENCE ALONG SAID SOUTHERLY BOUNDARY, SOUTH 79'09'09" WEST - RECORD
SOUTH 79'12' WEST - 645.60 FEET TO AN ANGLE POINT THEREIN; AND NORTH
73'54'02" WEST - RECORD NORTH 73'50' WEST - 495.70 FEET TO AN INTERSECTION
WITH A LINE WHICH BEARS SOUTH 3'05'08" EAST FROM THE TRUE POINT OF
BEGINNING; THENCE ALONG SAID LINE, NORTH 3'05'08" WEST, A DISTANCE OF
5825.40 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF THE NORTHERLY
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13,1982.
LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP NO. 10372, FILED IN THE
PARCEL 2:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, BOUNDED AND DESCRIBED AS FOLLOWS:
PAGE 1
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA AS SHOWN ON RECORD OF SURVEY NO. 517, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935; THENCE ALONG
THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP NO. 517, SOUTH 89'45' EAST
5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "D" OF SAID RANCHO AGUA
HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B" SOUTH
89'53' EAST 2666.00 FEET AND SOUTH 0'17'57" EAST 2657.96 FEET - RECORD SOUTH
0'32'00" EAST 2655.2 FEET - TO POINT 14 OF SAID LOT "B" AS SAID POINT 14 IS
DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY OF SAID LOT "B",
SOUTH 89'54'00" EAST 1205.46 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID BOUNDARY SOUTH 89'54'00" EAST 1156.90 FEET; THENCE
SOUTH 3'05'08" EAST 5825.40 FEET TO THE SOUTHERLY BOUNDARY, NORTH 73'54'02"
INTERSECTION WITH A LINE WHICH BEARS SOUTH 3'05'08" EAST FROM THE TRUE
POINT OF BEGINNING; THENCE ALONG SAID LINE, NORTH 3'05'08" WEST A DISTANCE
OF 5487.77 FEET TO THE TRUE POINT OF BEGINNING.
WEST - RECORD NORTH 73'50' WEST - A DISTANCE OF 1233.04 FEET TO AN
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF THE NORTHERLY
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13,1982.
LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP THEREOF NO. 10372, FILED
PARCEL 3:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA AS SHOWN ON RECORD OF SURVEY NO. 517 FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935; THENCE ALONG
THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP NO. 517, SOUTH 89'45' EAST
5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "D" OF SAID RANCHO AGUA
HEDIONDA; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT "B" SOUTH
89'53' EAST 2666.00 FEET AND SOUTH 0'17'57" EAST 2657.96 FEET - RECORD SOUTH
0'32'00" EAST 2655.2 FEET - TO POINT 14 OF SAID LOT "B" AS SAID POINT 14 IS
DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE BOUNDARY OF SAID LOT "B",
SOUTH 89'54'00" EAST 3471.98 FEET TO THE TRUE POINT OF BEGINNING; THENCE
CONTINUING ALONG SAID BOUNDARY, SOUTH 89'54'00" EAST, 1142.07 FEET TO POINT
15 OF SAID LOT "B" AS SAID POINT 15 IS DESIGNATED ON SAID MAP NO. 823; THENCE
ALONG THE EASTERLY BOUNDARY OF SAID LOT SOUTH 3'05'08" EAST 5620.55 FEET -
RECORD SOUTH 3'3' EAST 5621.2 FEET - TO THE SOUTHEAST CORNER THEREOF;
- RECORD SOUTH 79'12' WEST - 1150.85 FEET TO AN INTERSECTION WITH A LINE
THENCE ALONG THE SOUTHERLY BOUNDARY OF SAID LOT "B" SOUTH 79'09'09" WEST
WHICH BEARS SOUTH 3'05'08" EAST FROM THE TRUE POINT OF BEGINNING; THENCE
ALONG SAID LINE, NORTH 3'05'08" WEST, A DISTANCE OF 5839.45 FEET TO THE TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF THE NORTHERLY
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13,1982.
LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP THEREOF NO. 10372, FILED
PAGE 2
PARCEL 4:
ALL THAT PORTION OF LOT "B" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, NOVEMBER 16,1896, BOUNDED AND DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF LOT "B" OF SAID RANCHO AGUA
HEDIONDA AS SHOWN ON RECORD OF SURVEY NO. 517, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 30, 1935; THENCE ALONG
THE BOUNDARY OF SAID LOT AS SHOWN ON SAID MAP NO. 517, SOUTH 89'45' EAST
5173.00 FEET TO THE SOUTHEAST CORNER OF LOT "D" OF SAID RANCHO AGUA
HEDIONDA; THENCE CONTINUING 89'53' EAST 2666.00 FEET AND SOUTH 0'17'57" EAST
"B" AS SAID POINT 14 IS DESIGNATED ON SAID MAP NO. 823; THENCE ALONG THE
BOUNDARY OF SAID LOT "B" SOUTH 89'54'00" EAST 23.41 FEET TO THE TRUE POINT
OF BEGINNING; THENCE CONTINUING ALONG THE BOUNDARY OF SAID LOT, SOUTH
89'54'00" EAST 1182.05 FEET; THENCE SOUTH 3'05'08" EAST 5487.77 FEET TO THE
SOUTHERLY BOUNDARY OF SAID LOT "B"; THENCE ALONG SAID SOUTHERLY
2657.96 FEET - RECORD SOUTH 0'32'00" EAST 2655.2 FEET - TO POINT 14 OF SAID LOT
BOUNDARY NORTH 73'54'02" WEST - RECORD NORTH 73'50'00" WEST - 23.20 FEET TO
AN ANGLE POINT THEREIN AND SOUTH 84'34'38" WEST - RECORD SOUTH 84'38 WEST
- 1159.28 FEET TO AN INTERSECTION WITH A LINE WHICH BEARS SOUTH 3'05'08"
EAST FROM THE TRUE POINT OF BEGINNING; THENCE ALONG SAID LINE, NORTH
3'05'08" WEST, A DISTANCE OF 5593.1 1 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION LYING SOUTHERLY OF THE NORTHERLY
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 13,1982.
LINE OF CARLSBAD TRACT NO. 74-21, ACCORDING TO MAP THEREOF NO. 10372, FILED
PAGE 3