HomeMy WebLinkAboutPE 2.90-30; Carlsbad Partners; 1991-0035780; Drainage Fee Agreement/Release*: .- . lh 1 1 8g . . ,-.. RECORDING REQUdSTED BY AND ) DE7!;u ~~?91-#~3~7~~ ‘I WHEN RECORDED MAIL TO: ! L.-r .I,- i IO:51 RI?
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CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 )
Sfiw DIEGO CDUNTY RECFJRDER’S OFFICE AHMETTE NANS , CDLIHTY RECCRDEW RF: Il. GO FEES: 21. GO
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Space above this li&'for R&!%rder's use
Parcel No. 209-082-2. 3
AGREEMENT TO PAY DRAINAGE FEES AS REQUIRED BY THE GROWTH MANAGEMENT PROGRAM AND THE ADOPTED LOCAL FACILITIES MANAGEMENT PLAN FOR ZONE - 5 SUNNYCREEK DRAINAGE AREA
THIS AGREEMENT is entered into this y c day of
d&id, dL- by and between Carlsbad Partners, a California
General Partnership, hereinafter referred to as llDeveloperfll whose
address is 23705 Via De1 Rio, Yorba Linda, CA 92686 and THE CITY
OF CARLSBAD, a municipal corporation of the State of California,
hereinafter referred to as "CityI' whose address is 1200 Elm
Avenue, Carl&ad, California, 92008.
WITNESSETH:
WHEREAS, Developer is the owner of the real property
described on Exhibit "A":, attached hereto and made a part of
this agreement, hereinafter referred to as DfPropertyll; and
WHEREAS, The Property lies within the boundaries of the City
and the SunnyCreek Drainage Sub-basin; and
WHEREAS, Developer proposes a development project as
follows:
246,000 sq. ft. corporate office and manufacturing facility on
said Property, which Development carries the proposed name of The
Upper Deck and is hereinafter referred to as llDevelopmentll; and
WHEREAS, Developer filed on the 25 day of July, 1990, with
the City as a request for a planned industrial permit hereinafter
AGREEMENTS AS-8.FRII -1 - Rev. 4/9Cl
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referred to as lfRequest~f; and
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1190
WHEREAS, On July 20, 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 and City recognize the correctness of the
Local Facilities Management Plan for Zone 5, adopted August 4,
1987, on file with the City Clerk and incorporated by the
reference, and that the City's drainage facilities are at
capacity in the SunnyCreek Drainage Sub-basin and will not be
available to accommodate the additional need for such facilities
and services resulting from the proposed Development; and
WHEREAS, said 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 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 5 by the
1 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.
AGREEHENTS AG-8.FRM -2 - Rev. b/Xl
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e h . 1191 2. The Developer shall pay to the City a drainage fee as
required by the Local Facilities Management Plan for Zone 5 as
detailed on Page 66 of 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 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 consistent with the General Plan, the Growth
Management Program or the Local Facilities Management Plan for
Zone 5 and any approval or permit for the Development shall be
void. No building cr 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 Local
Facilities Management Plan for Zone 5, 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 for the date the
drainage fee is established. Developer hereby waives his right
AGREEMENTS AG-8.FRH -3 - Rev. 4/90
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to challenge said drainage fees. Developer l'!tJes any further wa
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 his agreement in a drainage fund for the financing of drainage
facilities in the SunnyCreek Drainage Sub-basin 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-8.FRH -4 - Rev. 4/90
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City, it is nereby agreed that if Developer does
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 BaSl, addressed to the City at the address set forth
herein, enclosed in a sealed envelope, addressed to the City for
attentian 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-8.FRM -5 - Rev. 4/90
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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, 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-8.FRM -6 - Rev. 4/W
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A e 1195 presumed to have been made on the date or mailing regardless of
receipt by Developer. Notices required to be given to Developer
shall be addressed as follows:
Carlsbad Partners 23705 Via De1 Rio Yorba Linda, CA 92686
IN WITNESS WHEREOF, this agreement is executed in San Diego
Counby, California as of date first written above. A 1 I Executed by Subdivider this -1. A-
~=:yg: : ; -+/$& day of 19 .
SUBDIVIDER CITY OF CARLSBAD a municipal corporation of the State of California
ATTEST: Manaaina Par&&e! (title and organrzation of signatory)
By:
City Clerk
(print name here)
(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 3 r\
By: 7 Deputy City At'tbrney
AGREWNTS Md.FRM -7 - Rev. 4/W
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6 On this / 7 - h / , in the year 19a
nd for said State, personally appeared
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(or proved to me on the basis of satisfac!ry evidence) to be the person who executed the
within instrument on behalf of the s&D Partnership named therein, and acknow-
ledged to me that the 75A-2/3 Partnership executed it.
WITNESS my hand and of
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EXHIBIT "A" LEGAL DESCRIPTION
LOTS 26 AND 27, MAP NO. 10372 FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER APRIL 13, 1982.
AGREEMENTS AG-8.FRH -8 - Rev. 4/90