HomeMy WebLinkAboutCT 90-05A; SBS Realty Inc and WNH Aviara Partners Ltd; 1994-0431414; Public Facilities Fee Agreement/Release-. . ,‘. .
*. . * RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CllY OF CARLSBAD
1200 Carlsbad Village Drive
Carisbad, California 92008-l 989
1333 II--JUL-1994 $J@z~? $39
) UFFICIiX. REUlRDS ‘-
1
SAH DIEti CULIWTY REC0RDER’rj OFFICE GREGORY SI’IITH 3 COUNTY RECORDEF;
;
RF: 11.00 FEES: 28. OQ
1;: . Eoo I ; Space above this line for Recorder’s use
Parcel No. 215-612-07
AGREEMENT BETWEEN OWNER, DEVELOPER
AND THE CRY OF CARLSBAD FOR THE
PAYMENT OF A PUBLIC FACILRIES FEE
FOR INSIDE THE BOUNDARIES OF COMMUNTIY FACILITIES DISTRICT NO. 1
THIS AGREEMENT is entered into this.& day of 6)1A% ,192
by and between WAVIARAPARTNERS,LTD.
(name of developer)
a limited partnership I hereinafter referred to as ‘Developer’ whose address
(corporation, partnership, etc.)
is 19700 Fairchild Road, Suite 350, Irvine, CA 92715
(street) (city, state, zip code)
and SBS REALTY, INC.
(name of legal owner)
a Corporation , hereinafter referred to as “Owner, whose address
(individual, corporation, etc.)
is 18300 Von Karmm Avenue, Irvine, CA 92715
(street) (city, state, zip code)
AND
the Crpl OF CARLSBAD, a municipal corporation of the State of Callfomla, hereinafter referred
to as ‘city’, whose address is 1200 Carfsbad Village Drive, Cadsbad, California, 92008-l 989.
~~ Apprwcd
By’3cycoundJuiy2,1991
Rae # 91.1swKJH
c7=90 -5 (A) / CP-%Y --J(3)
.
. . .
RECITALS 1334
WHEREAS, Owner 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 City; and
WHEREAS, Developer has contracted with Owner to purchase the property and proposes
a development project as follows: ~~-~~~TIOIVCE?LMNXAREA~ WT
OFTHEUMLITY m WITHIN THE AVIARA MZIST~R -on said Property, which
development carries the proposed name of AVIAFlA7
referred to as “DevelopmenY; and
and is hereafter
WHEREAS, Developer filed on the 2.3 ,d mer day of I 19zz
with the City a request for TENTATIVE TRACT MAP REVISION, ~UMPEzlMITREvISIoN,
COASTAI,DEVELOPMEXl'PERMIT hereinafter referred to
as “Request”; and
WHEREAS, the Public Facilities Element of the City General Plan requires that the City
Council find that all public facilities necessary to serve a development will be available concurrent
with need or such development shall not be approved (said element Is on file with the City Clerk
and is incorporated by this reference); and
WHEREAS, Developer and Cii recognize the correctness of Council Policy No. 17, dated
July 2, 1991, on file with the Cii Clerk and incorporated by this reference, and that the Cii’s
public facilities ‘and services are at capacity and will not be available to accommodate the
additional need for public facilities and services resufting from the proposed Development; and
WHEREAS, Developer and Owner have asked the City to find that public 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,
F=-
Bycicycouncilsdy?, 1991
Rm # 91.194nuH 2
1335
Developer and Owner propose to help satisfy the General Plan as implemented by Council Policy
No. 17 by payment of a public facilities fee.
NOW, THEREFORE, in consideration of the recitals and the covenants contained herein,
the parties agree as follows:
1. The Developer and Owner shall pay to the City a public facilities fee in an amount
not to exceed 1.8296 of the building permit valuation of the building or structures to be
constructed in the Development pursuant to the Request. The fee shall be paid prior to the
issuance of building or other construction permits for the development and shall be based on
the valuation at that time. This fee shall be in addition to any fees, dedications or improvements
required pursuant to Tiiles 18,20 or 21 of the Carlsbad Municipal Code. Developer and Owner
shall pay a fee for conversion of existing building or structures into condominiums in an amount
not to exceed 1.8296 of the building permit valuation at the time of conversion. The fee for a
condominium conversion shall be paid prior to the issuance of a condominium conversion permit
as provided in Chapter 21.47 of the Carlsbad Municipal Code. Condominium shall include
community apartment or stock cooperative. The terms ‘other construction permits’, “other
construction permit” and “entitlement for use’ as used In this agreement, except In reference to
mobilehome sites or projects, shall not refer to grading permits or other permits for the
construction of underground or street Improvements unless no other permit is necessary prior
to the use or occupancy for which the development is intended. Developer and Owner shall pay
the Cii a public facflitles fee In the sum of $593 for each mobilehome space to be constructed
pursuant to the Request The fee shall be paid prior to the Issuance of building or other
construction permits for the development. This fee shall be in addition to any fees, dedications
or improvements required according to Ties 18, 20 or 21 of the Carfsbad Municipal Code.
I 2. The Developer and Owner may offer to donate a site or sites for public facilities
in lieu of a&or part of the financial obligation agreed upon in Paragraph 1 above. ff Developer
and Owner offer to donate a site or sites for public facilities, the Cii shall consider, but is not
F-Approved ByCiryCounciiJdy2,1991
lwo # 91-194/wH 3
. -
’ , ’ 1336
obligated to accept the offer, The time for donation and amount of credit against the fee shall
be determined by City prior to the issuance of any building or other permits. Such determination,
when made, shall become a part of this agreement. Sites donated under this paragraph shall
not include improvements required pursuant to Ties 18 or 20 of the Carisbad Municipal Code.
3. This agreement and the fee paid pursuant hereto are required to ensure the
consistency of the Development with the city’s General Plan. lf the fee is not paid as provided
herein, the city will not have the funds to provide public facilities and services, and the
development will not be consistent with the General Plan 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 public facilities fee required by this agreement is paid.
4. City agrees to deposit the fees paid pursuant to this agreement in a public facilities
fund for the financing of public facilities when the City Council determines the need exists to
provide the facilities and sufficient funds from the payment of this and similar public facilities fees
are available.
5. City agrees to provide upon request reasonable assurances to enable Developer
to comply with any requirements of other public agencies as evidence of adequate public
facilities and services sufficient to accommodate the needs of the Development herein described.
6. All obligations hereunder shall terminate In the event the Request made by
Developer is not approved.
7. 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 authortzed representatie of such party. Any
such notice shaff not be effective for any purpose whatsoever un!ess served in one of the
following manners:
7.1 If notice Is given to the City of personal dellvery 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
F-Apprwed
Bycity-J~?,1991
lb0 # 91-194AuH 4
.’ , ’
prepaid and certified. 1337
7.2 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 many have been designated, postage prepaid and certified.
8. This agreement shall be binding upon and shall inure to the benefit of, and shall
apply to, the respective successors and assigns of Developer, Cwner and Cii, and references
to Developer, Owner or City herein shall be deemed to be a reference to and include their
respective successors and assigns without specific mention of such successors and assigns.
ff Developer should cease to have any interest In the Property, all obligations of Developer
hereunder shall terminate; provided, however, that any successor to Developer’s interest in the
property shall have first assumed in writing the Developer’s obligations hereunder.
At such time as Owner ceases to have any interest in the Property, all obligations of
Owner hereunder shall terminate; provided, however, that if any successor to the Owner’s Interest
in the Property is a stranger to this agreement, such successor has first assumed the obligations
of Owner in writing in a form acceptable to City.
9. 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, City shall record a
release.
FmApprwed
ByCityCkmncilJuty& 1991
Ikso # 91-194m 5
I - ? 1338 IN WITNESS WHEREOF, ttiis agreement is executed in San Diego County, California
as of the date first written above. +* d &
(print name)
(signature)
~ ~~ (print name)
(signature)
DEVELOPEP:
WNH Aviara Partners, Ltd.,
a California limited partnership
A By: Western Nhional H&&s, a California
TITLE: Vice President
CllY OF CARLSBAD, a municipal
corporation of the
State of California
ATTEST:
.LllakiLic)
NEI-HA L RAtiNKRANZ, Cii Clerk
for Ctty Manager \ i
APPROVED AS TO FORM:
RONALD R. 8Au, City Attorney
(Notarial acknowledgement of execution of DEVELOPER and OWNER must be attached.)
Form Apprrmd ByCicy-JdyZ 1991
RBO # 91-194AuH
. 4 . .
I , 1339
STATE OF CALIFORNIA )
ORANGE ) COUNTY OF - )
on May 23, 1994 , beforeme, Patricia G. Thompson ,
Notary Public, personally appeared Matthew K. Osgood and Eric A. Wittenberg
%S personally known to me (e-d . bs 111b "II ;tTc t,, 111 -""I J . L.*tl)blwI ; to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that
he+&e/they executed the same in w/their authorized capacity(ies), and that
by m/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Qtizp L
Signature of Notary Public '
PATRICIA 0. THOMPSON 1
WMY. 8977550 s Noluy Publfc - Calilornia o
ORANGE COUNTY
’ Yr Carnrn. Exe. NOV 6. 1996 i
_-
STATE OF CALIFPRNIA )
1 COUNTY OF SAN DIEGO )
On MR-q d<,Iqaq , beforeme,
Notary PubHc, personally appeared c jc 0 -t-t ~c.hecx-w,c.
9 personally known to me @+proved . sractory e&enca$ to be the person(+whose name&+
isw subscribed to the within instrument and acknowledged to me that
he/sbe+he+executed the same in his/mauthorized capacity(w, and that
by his/her&h& signature&) on the instrument the person(s3-; or the entity upon
behalf of which the person&s-j-acted, executed the instrument.
Witness my hand and official seal.
t&3, izoxQ4kL
Signature of Notary Public
EXHIBITmA" 1341 -
LEGALDESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
LOTS 92 AND 93 .OF THE CITY OF CARLSBAD TRACT 85-35, AVIARA PHASE 1
UNIT C, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12411, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 29, 1989.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONOUS BY
WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM
ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PROPERTY,
TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND
OPERATING THEREFOR, AND STORING IN AND REMOVING THE SAME FROM THE
PROPERTY OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THE PROPERTY OIL AND GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUB; SURFACE OF THE PROPERTY, AND TO BOTTOM SUCH WHIPSTOCXED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, REPAIR/DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER, THE RIGHT TO ENTER UPON, REMOVE, WHIPSTOCK,
DIRECTIONALLY DRILL, DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH
THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE PROPERTY
AS RESERVED IN GRANT DEED RECORDED AUGUST 17, 1989 AS FILE NO. 89-
440103 OF OFFICIAL RECORDS.
Form Approved
By City Council April 22, 1986
Reso. No. 9169