HomeMy WebLinkAboutMS 92-04; Palomar and Company; 1992-0667485; Drainage Fee Agreement/Release2003 DK # 1992-0667485 20 ACT-1992 11~16 AN
OFFICIhL RECORDS
RECORDING REQUESTED BY AND ) ! '(' SAN OIEGO COUNTY RECORDER’S OFFICE
WHEN RECORDED MAIL TO: i ANNETTE E;;Nii COUN;;E;ECORDER RF: . : 26.00
CITY OF CARLSBAD i P 1200 Carlsbad Village Drive ) Carlsbad, California 92008 )
f : 15.00 : 1.00
Space above this line for Recorder's use
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Pare 170-09. 11, 12 f 13
AGREEMENT T& PAY D'INAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACXLITIES M&NAGEMENT PLAN FOR ZONE 3
THIS OGRES is entered into this 3 day of ~~~~
I 19z by and between Palomar and Co., a California General
Partner~shfp, hereinafter referred to as #'Developer" who& address
is 5856 Avenitia Encinas, Carlsbad, CA 92008 and THE'"CITY OF
CARLSBAD, a municipal corporation of the State of California,
hereinafter eeferreb to as "City" whose address is '1200'Carlsbad
Village Drive, Carlsbadi California, 92008.
WITNESSETH:
WHEREAS, DeWtildper is the owner of thla real property
described on Exhibit plAR:, attached hereto and made a part of
this agreement, herofnafter referred to as @Propertyn; and
WHEREAS, The Property lies within the boundaries of the
City; and
WHEREAS, Developer proposes a development project as
follows:
a four lot residential subdivision on said Property, which
Development carries the proposed name of Palomar Place and is
hereinafter referred to as llDevelopmentll; and
WHEREAS, Developer filed on the 5th day of March, 1992, with
the City as a request for Minor Subdivision MS 92-04 hereinafter
AGREEMENTS AG-9.frm 1 REV. 8/23/90
referred to as mReguestU; and
WHEREAS, On December 10, 1991 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. ,, :~ _ _- ,: xi '( % ,, O.(,( .( 0,' ,( .i,,Y _" WHEREAS, D~~~~~~~~~~ C%4zyrecognfze the correctness of the
Local Facilitiks Managem&it Plan for Zone 3, on file with the
City Clerk and incorporated by the reference, and that the City's
drainage facilrties may be at ur near capacity in the drainage
sub-basin whare this development is located, and may not be
'( available to accommodate the additional drainage demands on such
facilgtfes anit services resulting from the proposed Dev~elopment;
and * (,
W3bEkEAS; said:pYlan for Zone ,' 3 requires that: all public
facilities, including drainage, necessary to serve a development
will be availabI@ in conformance with the City's adopted
performance st&ndard (said Lone Plan is on file with the City
Clerk and is inco~srated by this reference); and
WHEREAS, Develop&h$UB'&k 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
AGREEMENTS AG-9.frm 2 REV. 8/23/90
-.
2’105
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 3 as
may be detailed in said plan and incorporated by reference and as
determined through the ~~~~~~~~~~~~~~ Drainage Plan necessary to
provide drainage facflftKe& in conformance with the City's Growth
Management pWformance st=&indard, This drainagea fee shall be in
addition to any fees, dedic&tions or improvements required
pursuant to Titres 18, 20 and 21 of the Carlsbad Municipal Code.
3.‘ Thi's agreement and the drainage fee pakdpursuant
hereto ake rewired to ensure the consistency of the D&elopment )'
with the, City*'& General Plan, the Growth Management P&gram and
the Local Faclilllities Management Plan for Zone 3, rf iA& fee is
not paid as provided borein, 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‘EaCa% Facilities Management Plan for
Zone 3 and any approval or plekmft for the Development shall be
void. No building or o%her'c&st%uction 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
AGREEMENTS AC-9.frm 3 REV. 8/23/90
,- 2006
I 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
of Section 21.90 of the c?B%%'& Mufiicipal Code, or any provision
of law.
5. Dev%!k&per 'agr&k to ccrnstruct , or participate in
financing the corrstkzti'on &I! $kbY.ic facilities and improvement
identified in the citywide facilities and improvements plan or
the Local Facilities Management Plan to the extent khat those
facilities or fmprovements are allocated to Developer's property
or proj'sot and are not financed by the fees referenced hereto.
6. City agrees to deposit the drainage fees paid 'pursuant
to this agreiment en a drainage fund for the ffntincing of
drainage Pkzilitfes as needed in the City of Carlsbad when the
City Counc$l~detsrmknes the need exists to pravide the facilities
and sufficient funds from %2&a! payment of this and similar fees
are available.
i 7. Subjectto'pa'~~g~~~~s 3:-,tin& 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
AGREEMENTS AG-9.frm 4 REV. 8/23/90
2007
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, ~$%bti$~& or may deny or revoke a
Certificate of Ocoupancy L"ar the project or both upon 15 days
written notice to Developer of the revocation or denial.
10. Any notice frum on8 party to the other shall be in
writing, and sh&H be dated and signed by the party giving such
notice or by aduly authorized representative of such p&-t. Any
such notice shall not be effective for any purpose whatsoever
unless Ier%W"in one of the following manners: _',
0 loA., If notice is given to the CStp: by'-,f$ersonal
delivery thereof to the City or by depositing same in the United
States Mail, atiddressed to the City at the address set forth
herein, enclosed in a sealed envelope, addressed to the City for
attention of the City 'Hanager, postage and prepared and
certified.
10.2. If notf&&"$s"gf%n 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
AGREEMENTS AG-9.frm 5 REV. 8/23/90
. 2008
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 cre&tci %n&#uitaIz+le servitude upon the real
property.
13. This aigreement~ &all be recorded but shall not create
a lien or security irrttmwti’ in the Property, When the
obligations of this agreement have been satisfied an4 appropriate
fee paid to re:ldord a release, City shall record the release.
14. The prevailing party in any dispute between thk parties
shall be %fi@ rJlght to recover from the non-prevailing $arty all
costs md ~attoz?neyrs fees expanded in the course of sucn'dispute.
15. Except as otherwise provided her&n, 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 prepafd. Delivery of n&ice to Developer shall be
presumed to have been mado on the date of mailing regardless of
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AGREEMENTS AG-9.frm 6 REV. 8/23/90
I
2009
receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
5840 Avenida Encinas Carlsbad, CA 92008
Executed by Developer this 3 day of 525?7- , 19 %.
DEVELOPER: is _, li’.) :I< ::' I.n, :' CXTP OF CARLSBAD, a municipal corporation of the State of Palomar & Co., A Cal.Xfoznia California
Russell W,. we (print name here) :: ( j )' _',(
ization of signatory) ,; 6'
By:
- * (print name here)
> : / _'
(title and or&nization of signatory)
(Proper notarial acknowJedgement of executfon by DEVELOPER must be attached)
(President or vice-pre&fntand secretary or assistant secretary must sign for corporations, If only one officer signs, the corporation must attach a reaolut%on certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL City Attorney
By: @%--%' l&A
Deputy City Attorney
AGREEMENTS AG-9.frm 7 REV. 8/23/90
State of California
County of San Diego r 10
On before me, .rnan R n0nifrl rlr
(here insert name and title of the officer)
personally appeared RussellW-ar & Co - . A Par+nP;LSbip
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the ~&son(s) acted, executed the
WITNESS my official hand and seal.
Signature
h h
EXHIBIT "A" LEGAL DESCRIPTION
PARCEL A:
PARCEL 2 OF PARCEL MAP NO 13955, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,SEPTEMBER 16, 1985 AS FILE NO. 85-340585 OF OFFICIAL RECORDS.
TOGETHER WITH :. PARCELS 2, 3 AND '4' bF'R&RCEt MAP NO. 14OL4, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNLA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 8, 1985 AS FILE NO. 85-422552 OF OFFICIAL RECORDS.
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8 AGREEMENTS AG-9.frm REV. 8/23/90