HomeMy WebLinkAboutMS 837; Price Company; 1991-0530619; Drainage Fee Agreement/Release’ .
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RECORDING REQUESTED BY AND ) L=- - WHEN RECORDED MAIL TO:
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Parcel No. 211-040-08. 09. 12
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE 5
THIS AGREEMENT is entered into this kd' day of&
, 19TI, by and between The Price Company, -a California
Corporation hereinafter referred to as "Developera whose address
is 4649 Morena Boulevard, San Diego, CA 92117 and THE CITY OF
CARLSBAD, a municipal corporation of the State of California,
hereinafter referred to as aCitynt whose address is 1200 Elm
Avenue, Carlsbad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit nAll:, attached hereto and made a part of
this agreement, hereinafter referred to as wPropertyll; and
WHEREAS, The property lies wfthin the boundaries of the II City; and
WHEREAS, Developer proposes a development project as
follows:
a four parcel subdivision on said Property, which Development
carries the proposed name of the Price Club and is hereinafter
referred to as "Development"; and
WHEREAS, Developer filed on the 13th day of February, 1990,
with the City as a request for a Minor Subdivision hereinafter
AGREEMENTS AG-9.frm -l- REV. 8/23/90
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/I referred to as "Request"; and 1415
WHEREAS, On February 13, 1990 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 aW City recqnizethe correctness of the
Local Facilities Management Plan for Zone 5, on file with the
City Clerk and incorporated by the reference, and that the City's
drainage facilities may ba at or near capacfty 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
WHHRHAS, sraid plan for Zone 5 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 avalilable 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 5 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
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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 5 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 requfred to ensure ths consistency of the Development
with the City's General Plan, the Growth Management Program and
the Local, Facilfties Management Plan for Zone 5. 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 c&nsfstent with the General Plan, the Growth
Management Prugram or the Local Facilities Management Plan for
Zone 5 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 execute&
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 fboilities
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 developzmntpermits pursuant to the provisions
of the Carlsbad Municipal Code Title 18, 20, and 21to the extent
such permit comply with appfic&le 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 DeveloperIs 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. 8/23/90
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1418 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 authorised represrentative of such part. Any
such notice shall not be effect;ive for any purpose whatsoever
unless served $n one of the Pollowing manners:
10.1. Tf 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, enolosed 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 depasiting the same in the
United States Hafl, enclased 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. 8/23/90
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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, Giky shall record the release.
14. The prevailing party in any dispute between the parties
shall be the rfghk 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
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AGREEMENTS AG-9.frm -6- REV. 8/23/90
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shall be addressed as follows: .
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receipt by Developer. Notices required to be given to Developer
The Price Company P.O. Box 85466 San Diego, CA 92186-5466
Executed by Developer thisa/* day of 2 ePtem49e& I
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DEVELOPER: CITY OF CARLSBAD, a municipal corporation of the State of The Price Company California
Assistant Se ret rv (title and o&anfzation of signatory)
_ BY: (sign hers)
(print name here)
(title and organization of signatory)
(Proper notarial acknowledgement of @Xecution by DEVELOPER must be attached)
(President or vice-presider&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 Aytorney
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BY
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On$&91Mb e# 27, /*I before m mk.m/?,e* &9&B /e
Sheila O’Brien Marbte NOTARY PUBLfGCALIFORNIA PRINCIPAL OFFICE IN SAN DIEGO COUNTY My Commission Expires Feb. 22. 1994
(Seal)
(here insert name and title of the otllcer),
personally appeared .?N!hud %flI-on/. &s, s TA hlT reC4e7fi 4 L/
personally known to me (n
tRetmsisaatacrarpePtsmTce) to be the person@?) whose name& is/are subscribed to the
within instrument and acknowledged to me that be/she/they executed the same in kis/her/th&
authorized capacity(ies), and that by tt&/her/tMr signature(b) on the instrument the person(f),
or the entity upon behalf of which the person(b) acted, executed the instrument.
WITNESS my hand and
ACKNOWLEDGMENT--AU Purpose--Wolcotl~ Fotm 237CA-Rm. 1-91 / Signature
i ~31991 WULCOTTS. INC. (pcice class 8-2)
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EXHIBIT ” A ”
LEGAL DESCRIPTION
c
PARCEL A OF PARCEL MAP NO. 2949, IN THE CITY OF CARLSBAD, COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 9, 1974 AS FILE NO. 74-216632 OF OFFICIAL RECORDS.
ALONG WITH THAT PORTION OF LOT H OF RANCH0 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, DESCRIBED AS
FOLLOWS :
BEGINNING AT THE NORTHEASTERLY CORNER OF RECORD OF SURVEY NO. 7155,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
NOVEMBER 4, 1969, BEING ALSO A POINT ON THE SOUTHERLY LINE OF
PALOMAR AIRPORT ROAD AS GRANTED TO THE CITY OF CARLSBAD, BY DEED
RECORDED DECEMBER 7, 1959 IN BOOK 8030, PAGE 216 OF OFFICIAL
RECORDS ; THENCE ALONG THE SOUTHERLY LINE OF SAID PALOMAR AIRPORT
ROAD SOUTH 87’ 48’ 39” EAST 348.13 FEET TO THE TRUE POINT OF
BEGINNING; THENCE CONTINUING EASTERLY ALONG THE SOUTHERLY LINE OF SAID PALOMAR AIRPORT ROAD TO THE EASTERLY LINE OF LAND DESCRIBED IN DEED TO SAN DIEGO COUNTY WATER COMPANY, RECORDED JUNE 17, 1940
IN BOOK 1635, PAGE 301 OF OFFICIAL RECORDS; THENCE ALONG SAID
EASTERLY LINE SOUTH O” 32’ 0” EAST TO THE NORTHEASTERLY CORNER OF
PARCEL MAP NO. 2949, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAII DIEGO COUNTY, AUGUST 9, 1974; THENCE ALONG THE NORTHERLY LINE
OF SAID PARCEL MAP NO. 2949) NORTH 89’ 27’ 10” WEST TO THE
SOUTHEASTERLY CORNER OF LAND CONVEYED TO THE STATE OF CALIFORNIA
BY DEED RECORDED MARCH 11, 1966 AS FILE NO. 41661 OF OFFICIAL
RECORDS; THENCE ALONG THE EASTERLY LINE OF SAID LAND AND THE
NORTHERLY PROLONGATION THEREOF NORTH 02’=’ 09’ 37” EAST 448.63 FEET
MORE OR LESS TO THE TRUE POINT OF BEGINNING.
ALONG WITH THAT PORTION OF LOT H OF RANCH0 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, DESCRIBED AS
FOLLOWS :
BEGINNING AT THE NORTHEASTERLY CORNER OF RECORD OF SURVEY NO. 7155,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
NOVEMBER 4, 1969, BEING ALSO A POINT ON THE SOUTHERLY LINE OF
PALOMAR AIRPORT ROAD, AS GRANTED TO THE CITY OF CARLSBAD, BY DEED
RECORDED DECEMBER 7, 1959 IN BOOK 8030, PAGE 216 OF OFFICIAL
RECORDS; THENCE ALONG THE SOUTHERLY LINE OF SAID PALOMAR AIRPORT
ROAD, SOUTH 87’ 48’ 39” EAST 348.13 FEET TO A POINT; THENCE SOUTH
2’ 09’ 37” EAST 170 FEET, MORE OR LESS, TO THE NORTHEASTERLY CORNER
OF THE LAND DESCRIBED IN DEED TO THE STATE OF CALIFORNIA, RECORDED
MARCH 11, 1966 AS FILE NO. 41661 OF OFFICIAL RECORDS; THENCE NORTH
87O 48’ 39” WEST, 348.13 FEET TO THE SOUTHEASTERLY CORNER OF PARCEL
3 OF PARCEL MAP NO. 195, FILED IN THE OFFICE OF THE COUNTY RECORDER
OF SAN DIEGO COUNTY, JANUARY 30, 1970 AS FILE NO. 18100 OF OFFICIAL
RECORDS; THENCE NORTHERLY ALONG THE EASTERLY LINE AND THE NORTHERLY
PROLONGATION OF PARCEL 3, NORTH 2’ 10’ 50” EAST 170 FEET TO THE
POINT OF BEGINNING, EXCEPTING THEREFROM THAT PORTION THEREOF Co;i;‘E.‘,‘ED TO ..--.. THE ~111 OF CiAIILSBAD, RECORGED DECEMBER 25, 1969 AS
FILE NO. 234554 OF OFFICIAL RECORDS.
Sebtember 27, 1991
DATE