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Home My WebLink AboutMS 833; Packard, Garth; 90-626033; Drainage Fee Agreement/ReleaseRECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 ) Space above this line for Recorder's use Parcel No. 205-260-19 AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 7 THIS AGREEMENT is entered into this as4 day of I 1990 by and between Garth Packard and Mark Packard, co- owners, hereinafter referred to as llDeveloperl* whose address is 725 Grand Avenue, Carlsbad, CA 92008 and THE CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City" whose address is 1200 Elm Avenue, Carlsbad, California, 92008. WITNESSETH: WHEREAS, Developer is the owner of the real property described on Exhibit IIAll:, 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: Parcel Map for 2 parcels for single family residence on said Property, which Development carries the proposed name of MS 833 and is hereinafter referred to as llDevelopmentl'; and WHEREAS, Developer filed on the 13 day of December, 1989, with the City as a request for tentative map hereinafter referred AGREEMENTS AG-9.frm 1 REV. 6/23/90 to as ffReguestff; and WHEREAS, on December 13, 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 7, 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 7 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 7 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. 6/23/90 c . - h 152’8 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 7 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 7. 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 7 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.ft-m 3 REV. 6/23/90 h 1528 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 21 to 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 AG-9.frm 4 REV. 6/23/90 h 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 agreementandthe covenants contained herein shall be binding upon and enure to the benefit of the successors, AGREEMENTS AG-9.frm 5 REV. 6/23/90 - rl 1530 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 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 I// /// /// /// /// /// /// /// /// /// /// /// /// I// AGREEMENTS AG-9.frm REV. 6/U/90 . . . . . . - -. 1531 receipt by Developer. Notices required to be given to Developer shall be addressed as follows: Garth Packard & Mark Packard 725q Grand Avenue Carlsbad, CA 92008 Executed by Developer this d5d day of -y& c I 19 90. V DEVELOPER: CITY OF CARISBAD, a municipal (sign here) Garth Packard (print name here) for City Manager co- @#xe/- (title ization of signatory) By: (sign here) Mark Packard (print name here) co @ hdhU+ (title and organization of signatory) (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 AS TO FORM: VINCENT F. BIONDO, JR. City Attorney By: AGREEMENTS AC-9.frm 7 REV. 6/23/90 Individual AcKnowledgment STATE OF CALIFORNIA COUNTY $IJty Diego SS. 1532 On this ___ day of September , in the year 19 90 &, before me, the undersigned, a Notary Public in and for said County and State, personally appeared **** GARTH PACKARD AND MARK PACKARD ***** Personally known to me (e to be the persons whose name S are subscribed to this instrument and acknowledged that they executed it. WITNESS my hand and official seal. Notary Public in and for said County and State .- EXHIBIT "A" LEGAL DESCRIPTION h 1533 THAT PORTION OF TRACT 256, THUM LANDS, IN-THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1681. FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, DECEMBER 9, 1915. DESCRIBEDF AS FOLLOWS: BEGINNING AT A POINT ON THE CENTERLINE OF CHESTNUT AVENUE (FORMERLY COUNT AVENUE), DISTANT THEREON NORTH 87"57'30" EAST, 433.55 FEET FROM THE INTERSECTION OF THE CENTERLINE OF SAID CHESTNUT AVENUE AND MONROE STREET AS SHOWN ON SAID MAP, SAID POINT BEING THE NORTHWEST CORNER OF LAND DESCRIBED IN DEED FROM THE SOUTH COAST LAND COMPANY TO ORRIN THOMPSHON, ET US, DATED SEPTEMBER 19, 1935, RECORDED IN BOOK 437, PAGE 214 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH 28"39'00" EAST, 33.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID WESTERLY LINE SOUTH 28"39'00' EAST, 193.90 FEET TO AN ANGLE POINT THEREIN: THENCE SOUTH 61"21'00" WEST. 89.55 FEET; THENCE NORTH 28"39'00" WEST. 238.76 FEET TO THE SOUTHERLY LINE OF CHESTNUT AVENUE DESCRIBED IN DEED TO THE CITY OF CARLSBAD, RECORDED JUNE 7, 1968 AS FILE NO. 95866 OF OFFICIAL RECORDS; THENCE ALONG SAID SOUTHERLY LINE, NORTH 87"57'30' EAST, 100.15 FEET TO THE TRUE POINT OF BEGINNING. . AGREEMENTS AC-9.frm 8 REV. 6/23/M)