HomeMy WebLinkAboutMS 751; Musser, Kurt & Sherryl Jo; 1991-0262225; Drainage Fee Agreement/Release. ; , )i - \
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F- D” #: 1991-0262~~5 CL-JUN-1991 RECORDING REQUESTED BY AND 10:s0’=FtM
WHEN RECORDED MAIL TO: 463 Sf#i fir:!% CfiUNTY RECORDER’S (jjFi[E
CITY OF CARLSBAD ;
ANNETTE EVANS, ~~~N~~E~E~~~~E~
;;; il. 00 : 1200 Elm Avenue 1 ?. QO 21.00
Carlsbad, California 92008 ) IIF: 1. UB
Space above this line for Recorder's use
Parcel No. 205-060-02
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 1 f+IS 751
THIS AGREEMENT is entered into this 3 s& day of
b!fbBL, 1991 by and between Kurt B. Musser and Sherry1 Jo Musser
hereinafter referred to as l@DeveloperV1 whose address is 3252
Highland Drive, Carlsbad, CA 92008 and THE CITY OF CARLSBAD, a
municipal carporation of the State of California, hereinafter
referred to as Vity*l whose address is 1200 Elm Avenue, Carlsbad,
California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit "AM:, 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:
Minor Residential Subdivision on said Property, which Development
carries the proposed name of MS 751 and is hereinafter referred
to as "Development"; and
WHEREAS, Developer filed on the 22nd day of March, 1990,
with the City as a request for extension of the tentative parcel
AGREEMENTS AG-9.frm 1 REV. 8/23/90
A 1464 -
* map hereinafter referred to as "Request": and
WHEREAS, on July 17, 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 recognize the correctness of the
Local Facilities Management Plan for Zone 1, 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
wI-mtEAs , said plan for Zone 1 requires tlrat 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 1 by the
payment of drainage fee.
NOW, THEREFORE, in consideration of the recitals and the
covenants contained herein, the parties agree as follows:
AGREEMENTS AG-9.frm 2 REV. 8/23/90
1465
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 1 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 1. 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 1 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
established. Developer hereby waives his right to challenge said
AGREEMENTS AG-9.frm 3 REV. 8/23/90
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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 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.
9. In addition to the other remedies available to the
AGREEMENTS AC-9.fm 4 REV. 8/23/90
h 1467 -
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 autharited 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,
AGREEMENTS AC-9.frm 5 REV. 8/23/W
1468 -
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 prevaflingpisrty 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 otherwfse 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
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AGREEMENTS AC-9.frm 6
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shall be addressed as follows: 1469 -
Kurt B. Musser 3252 Highland Drive Carlsbad, CA 92008
Executed by Developer this &"ld day of &Rf'L , 1991.
DEVELOPER:
Kurt B. Musser and Sherry1 Jo Musser. Joint Tenants
CITY OF CARLSBAD, a municipal corporation of the State of California
Kurt B. Musser (print name here)
Owner (title and organization of signatory)
Sherrvl o Musser (print nage here)
Owner (title and organization of signatory)
(Proper notarial acknowledgement of execution by DEVEWPER 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 Attorney
AGREEMENTS AG-9.frm REV. 8/23/90
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IDIVIDUAL ACKNOWLtDOMtNT 1470 No
1 On this th -day of kc2 SY
>
19-, before me,
5/47d &LSD Se County of SMQ~ q- s&&r/(
the undersigned Notary Public, personally appeared
0 proved to me on the basis of satisfactory evidence
n(s) whose name(s) subscribed to the
t, and acknowledged that
THIS CERTIFICATE
MUST BE Al-LACHED
TO THE DOCUMENT
DESCRIBED AT RIGHT:
Date of Document
Signer(s) Other Than Named Above
0 NATK)NALNoTARlAssocy~~Ip38Ranakn.*p.o.Box718).~Rrk,cA 91334-7194
h
1471
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EXHIBIT "A"
PARCEL MAP OF THAT PORTION OF TRACT 123 OF CARLSBAD LANDS, IN THE
CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP NO. 1661, FILED IN THE OFFICE OF COUNTY RECORDER
OF SAN DIEGO COUNTY ON MARCH 1, 1915. MORE PARTICULARY DESCRIBED
AS THE LAND CONVEYED TO KURT B. MUSSER AND SHERRYL JO MUSSER BY A
DEED RECORDED WITH THE COUNTY RECORDER OF SAID COUNTY ON DECEMBER
9, 1980 AS RECORDER'S FILE/PAGE NO. 80-413265, BOUNDED BY A LINE
DESCRIBED AS FOLLOWS: TO WIT: BEGINNING AT A POINT ON THE CENTER LINE OF HIGHLAND ST. DISTANT THEREON SOUTH 24O33' EAST 125.33
FEET FROM THE INTERSECTION OF THE SOUTHWESTERLY PROLONGATION OF
THE NORTHWESTERLY LINE OF SAID TRACT 123 AND SAID CENTERLINE OF
HIGHLAND STREET; THENCE SOUTH 24*33' EAST ALONG SAID CENTER LINE
OF HIGHLAND STREET, A DISTANCE OF 62.67 FEET TO A POINT; THENCE
NORTH 5927' EAST, A DISTANCE OF 441.22 FEET TO A POINT A LINE
DRAWN PARALLEL WITH AND DISTANT 451.97 FEET AT RIGHT ANGLES
SOUTHWESTERLY FROM THE CENTER LINE OF VALLEY STREET; THENCE NORTH 34'33' WEST ALONG SAID PWLEL LINE, A DISTANCE OF 61.72 FEET TO A POINT; THENCE SOUTH 55 27' WEST, A DISTANCE OF 430.25 FEET TO
THE POINT OF BEGINNING.
PARCEL MAP GUARANTEE ISSUED BY TRANSAMERICA TITLE INSURANCE COMPANY. ORDER NO. 6011350 ON APRIL 10, 1991. GROSS AREA = 0.6177 AC. TOTAL NO. OF LOTS = 2