HomeMy WebLinkAboutMS 750; Benacka, Thomas & Lynda; 90-383694; Drainage Fee Agreement/Release0 , *’ . .
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CITY OF CARLSBAD 1200 Elm Avenue i sbad, California 92008 )
Parcel No. 205-060-03
/ AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 4
THIS AGREEMENT is entered into this 31 day of MAY
I 19s by and between THOMAS J. AND LYNDA BENACKA, Husband
and Wife, hereinafter referred to as l*DeveloperV1 whose address is
3264 Highland Drive, Carlsbad, California 92008, and THE CITY OF
CARLSBAD, a municipal corporation of the State of California,
hereinafter referred to as IICity" whose address is 1200 Elm
Avenue, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit IrAll:, attached hereto and made a part of
this agreement, hereinafter referred to as "Propertyll; and
WHEREAS, The Property lies within the boundaries of the
City; and
WHEREAS, Developer proposes a development project as
follows:
Dividing one lot into two single family residential lots on
said Property, which Development carries the proposed name of
Benacka Minor Subdivision and is hereinafter referred to as
"Development@l; and
WHEREAS, Developer filed on the 7th day of July, 1987, with
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the City as a request for a minor subdivision hereinafter
referred to as "RequesttV; and
WHEREAS, On July 17th, 1987, 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 4, 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 4 requires that alP 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 4 by the
payment of drainage fee.
NOW, THEREFORE, in consideration of the recitals and the
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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 4 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 Carl&ad 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 4. 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 4 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 for the date the drainage fee is
AGREEMENTS AG-9.frm 3 REV. 5/21/90
194 -4
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 alfoeated 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 his 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.
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.
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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
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
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!. *.
'9% be binding upon and enure to t e 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 partyin any dispute between the parties
shall be the right to recuver 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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AGREEMENTS AG-9.frm REV. 5/21/90
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receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
3264 Highland Drive
Carlsbad, California 92008
IN WITNESS WHEREOF, this agreement is executed in San Diego
County, California as of date first written above.
DEVELOPER CITY OF CARLSBAD a municipal corporation of the State of California
By:
(Title) ATTEST:
By:
(Title)
ALEALETHA L. RAIJTENKRANZ, City Clerk
(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 AT TO FORM:
VINCENT F. BIONDO, JR.
Deputy City Attorney
AGREEMENTS AG-9.frm REV. 5/21/90
h
iENE.SAL ACKNOWLEDGMENT 109
State of GL ,-e&k On this the x day of 19%. before me,
county of rsn
ss.
\
the undersigned Notary Public, personally appeared
OFFICIALSEA1: X q> DI\VID ~YODKOVIK $+OTARY PUBLlCCALIFOW’4l
” SAN DIEGO COUNTY
MY COM!il. EXT;. JUHE 14,199
Cl personally known to me
‘K&proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) subscribed to the &Cl
within instrument, and acknowledged that “T&executed it.
WITNESS my hand and official seal. 1 .
Notary’s Signature
AllENTlON NOTARY: AJthouqh the 11-4-m requested b&w (5 OPTIONAL it oxId prevent frmdukmt attachment of ti cemicate to arather clccumm’.
THIS CERTlflCATE Title or Type of Document 4cLQ
MUST BE ATTACHED
TO THE DOCUMENT Number of Pages A Date of Document
OESCRlE3EO AT RIGHT: Signer(s) Other Than Named Above
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EXHIBIT "A" LEGAL DESCRIPTION
That portion of tract One Hundred Twenty Three (123) of Carlsbad
Lands, in the City of Carlsbad, County of San Diego, State of
California, according to Map thereof No. 1661, filed in the
Office of the County Recorder of San Diego County March 1, 1915
bounded by a line described as follows, to-wit:
"Beginning at a point on the center line of Highland Drive, distant thereon south 24'33' east 188 feet from the intersection of the southwesterly prolongation of the northwesterly line of said tract 123 and said center line of Highland Drive,said point being the true point of beginning; thence south 24'33' east a distance of 62.67 feet to a point; thence north 55'27' east a distance of 452.02 feet to a point: thence north 34'33' west a distance of 61.71 feet to a point; thence south 55'27' west a distance of 441.22 feet to the true point of beginning."
AGREEMENTS AC-9.frm 8 REV. 5/21/90