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HomeMy WebLinkAboutMS 794; Schmitt, Paul J.; 89-594906; Payment of Fees for Undergrounding UtilitiesRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF CARLSBAD 1200 Elm Avenue Carlsbad, California 92008 t \ il. - Space above this line for Recorder's use Documentarv transfer tax: No fee Parcel No. 156-190-13 AGREEMENT TO PAY FEES FOR UNDERGROUNDING EXISTING OVERHEAD UTILITIES THIS AGREEMENT is entered into this 14th day of September, 1989 by and between Paul J. Schmitt, Janette L. Schmitt, and Maria J. Schmitt Hunnicutt, tenants in common, hereinafter referred to as "Developer" whose address is 1182 Casa Bonita Way, Vista, CA 92083 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 "A" 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: a Minor Subdivsion creating two parcels on said Property, which Development carries the proposed name of Minor Subdivsion Number 794 and is hereinafter referred to as "Development"; and t - .i 2078 , WHEREAS, Developer filed on the 9th day of January, 1989, with the City as a request for Minor Subdivsion Number 794 hereinafter referred to as "Request." 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 fee for undergrounding existing overhead utilities along the boundary of his property as required by a condition of approval of his requests. This undergrounding 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. Payment shall be due 30 days from the date the undergrounding fee is established or prior to the final map approval, which ever occurs last. 4. Developer hereby waives his right to challenge said undergrounding fees. Developer further waives any rights to pay the undergrounding fees referred to herein under protest. 5. City agrees to deposit the undergrounding fees paid pursuant to his agreement in a undergrounding fund for the financing of undergrotiding utilities in the City of Carlsbad when the City Council determines the need exists to provide the undergrounding and sufficient funds from the payment of this and similar fees are available. 6. Subject to Paragraph 3, 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. 2 - 0 2079 7. 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 undergrounding fee. 8. In addition to the other remedies available to the City, it is hereby agreed that if Developer does not pay the undergrounding 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. 9. 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: 9.1 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 prepared and certified. 9.2 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 enveloper, 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. 3 10. 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. 11. 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. 12. 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 fees paid to record a release, City shall record the release. 13. The prevailing party in any dispute between the parties shall have the right to recover from the non-prevailing party all costs andattorney's fees expended in the course of such dispute. 14. 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 - 4 - shall be 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: \\&i! cA5fi bdm\dav VET-, Ca 42083 IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of date first written above. DEVELOPER-OWNER CITY OF CARLSBAD a municipal i&L/ 7. -LLlM- (Name) for City Manager BY, PauHSchmitt /&474?-/ar. *r-J . (Title) . j&%&td-b Janette L. Schmitt ’ 3iiiLzzu- -/kL PW _ P&/o- (Title) . (n-fl~ > ATTEST: ED AT TO FORM: VINCENT F. BIONDO, JR./o,Lq,e City Attorney (Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached) 5 - t STATE OF CALIFORNIA T 9 COUNTY OF n I ss. 2 $ On this- day of2!&33&-, in the ,ear~-&G!$!-, 3 t 3 3 % 5 personally known to me or proved to me on the basis of satisfactory evidence E to be the person whose name is subscribed to this instrument, and acknowledged that he (she or they) executed it. 2 oz 6 -7 Signat E ‘I’ 2082 FOR NOTARY SEAL OR STAMP OFFICIAL SEAL EDWINA I MINCE NotwyRlJbcIHfonrb w4DEmcovNTy - :‘I 2083 EXHIBIT "A" LEGAL DESCRIPTION Parcel 2 of Parcel Map No. 15282, in the City of Carlsbad, County of San Diego, State of California, Filed in the Office of the County Recorder of San Diego County, June 30, 1988 as File/Page No. 88-317307 of Official Records. 6