HomeMy WebLinkAboutMS 800; Carlmart; 90-535184; Drainage Fee Agreement/ReleaseI* . -
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RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 ) f 'g!-VA f - -:!:* f ; :t,;,l,$& f
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Parcel No. 210-090-47
/ AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE
/
GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 3
,
THIS AGREEMENT is entered into this ,@ day of
5EP, 19 98 by and between Carlmart a Limited Partnership,
hereinafter referred to as "Developer" whose address is 4401
Manchester Avenue, Suite 206 Encinitas, California 92024 and THE
CITY OF CARLSBAD, a municipal corporation of the State of
California, hereinafter referred to as "Cityl@ whose address is
1200 Elm Avenue, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit lVA*':, attached hereto and made a part of
this agreement, hereinafter referred to as *VPropertyll; and
WHEREAS, The Property lies within the boundaries of the
City; and
WHEREAS, Developer proposes a development project as
follows:
dividing a 18.9 acre lot into a 12.9 acre and 6.0 acre lot on
said Property, which Development carries the proposed name of
Floral Trade Center and is hereinafter referred to as
'lDevelopmentll; and
WHEREAS, Developer filed on the 26 day of MM&--
I 19 r? , with the City as a request for Minor
II Subdivision 800 hereinafter referred to as I'Request"; and
AGREEMENTS AC-9.frm 1 REV. 6/23/90
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\ Sv+- \8, \WO WHEREAS, On
658
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 3, 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 3 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 3 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
AGREEMENTS AG-9.frm 2 REV. 6/23/90
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required by the Local Facilities Management Plan for Zone 3 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 3. 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 3 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
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
AGREEMENTS AG-9.fm 3 REV. 6/23/90
660
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
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
AGREEMENTS AG-9.frm 4 REV. 6123190
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661 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
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
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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
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AGREEMENTS AG-9.fr-m 6 REV. 6/23/90
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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:
Carlmart, L.P. c/o Carltas Development Company 4402 Manchester Avenue, Ste. 206 Encinitas, CA 92024
Executed by Developer this If 19po. day of SEp I
DEVELOPER:
Carlmart, L.P.
CITY OF CARLSBAD, a municipal corporation of the State of California
John 6. . Whrte. (print name here)
lo~nt C%nqa.ny, General partner of
(print name here)
Carltas~ylymimtCuqx3ny, General Partner of Secretarv. Carlmar (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:
VINCENT F. BIONDO, JR. City Attorney
By: Deputy City Attorney
AGREEMENTS AG-9.fm 7 REV. 6/23/90
CAT. NO. NNOO536
TO 1954 CA (9-54)
(Corporation as a Partner of a Partner& fl TICOR TITLE _ .dSlJRANCE
STATE OF CALIFORNIA
COUNTY OF SAN DIEiGO ss.
t
On Se~tertber 18. 1990 664 before me, the undersigned, a Notary Public in and for
said State, personally appeared . J&n C. w
ii personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed
3 the withm instrument as the C!au President, and m C. .
2 - personally known to me or proved to me on the basis of satisfactory evidence
'Z t be the e on who executed the within instrument as the &1td BevelopIutnt cm&m.n&l Secretary of
1 the corporation hat executed the within instrument on behalf of 6 ARLNART, L.P.
the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. ,
Signature c?z434@6M (This ML for official notarial seal)
, ’ ,
EXHIBIT "A" LEGAL DESCRIPTION
665
PARCEL 1OF PARCEL MAP NO. 14009, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 1, 1985.
AGREEMENTS AG-9.frm 8 REV. 6/23/90