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Home My WebLink AboutRP 84-16; Foodmaker Inc; 85-109306; Public Facilities Fee Agreement/Release‘ - . ,* 1074 - 85-1093()6 IA.+ 6 e ,RECORDING REQUESTED BY AND*'-) WHEN RECORDED MAIL TO: ; I ----Y-KECQRj--gf) 1f.J ----I WFICIAL RSXlAlfs I CITY OF CARLSBAD 1 ~~SAHO!FGL!COU~~('IY,C:. 1200 Elm Avenue . Carlsbad, California 92008 ; 1985 APR -I A# II: 04 I VERA i.. Lr LC Space above this line foLmUd e mwey Documentary transfer tax: $ No fee WL Srgnature of declarant determining tax-f'irm name City of Carlsbad Parcel No. 02 a3 -3L+d7 AGREEMENT BETWEEN OWNER, DEVELOPER AND THE CITY OF CARLSEAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE THIS AGREEMENT is entered into this lltl+Uay of March , 1985 by and between Foodmaker, Inc. (Name of DeveloperJand Legal Owner of sub-sublease- hold estate) a Delaware corDor-n , hereinafter (Corporation, partnership, etc.) "Developer" whose addr.ess is 9330 Balboa Avenue, ‘P.0. Box 783. r (Ht~reet) .- San Diego, CA 92112 (CltY, State, Zip Code) 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. REV 4-2-82 /eP - By-4 RECITALS,, 10;3 r a sub-subleasehold estate in and to WHEREAS, Owner is the owner of the real property described on Exhibit “A”, attached to and made a part of this agreement, and hereinafter referred to as “Property”; and WHEREAS, the Property lies within the boundaries of City; and WHEREAS, Developer kaa-tentiac~ed-wi9k-~~e*-te-+ke- Property-and proposes a development project as follows: restaurant remodel on said Property, which development carries the proposed name of WALLY ’ S and is hereinafter referred to as “Development”; and WHEREAS, Developer filed on the 13th day of March 1985 ) with the City a request for desiqn review , . 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 ,secessary 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 incorporated by this reference); and WHEREAS, Developer, Owner and City recognize the correctness of Council Policy No. 17 dated April 2, 1982, on file with the City Clerk. and incorporat.ed by this reference, and that the City’s public facilities and services are at capacity and will not be available to accommodate the additional need for public facilities and services resulting from the proposed Development; and -2- REV 4-2-82 c f . l eb . 16‘6 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 and Owner are aware that the City cannot and will not be able tp make any such findings without financial assistance to pay for such services and facilities; and, therefore, 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 2% 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 Titles 18, 20 or 21 of the Carlsbad Municipal Code. *+ . The terms "other construction permits", "other construction permit" and "entitlement for use" as used in this agreement, except in reference to mobilehome sites or -3- REV 4-2-82 -. ,’ ‘.. ‘., _- .’ I. ‘.. ‘, *. + 0 r- 1077 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. public facilities to be constructed pursuant to the Reques hall be paid prior to the issuance of other construction permits for the development. provements required according to Titles 18, 20 or 21 for public facilities in lieu of all or part of the fina obligation agreed upon in Paragraph 1 above. If offers to donate a site or sites for publi the City shall consider, but is not obligated to The time for donation and amount of cr st the fee shall be determined by City prior to the is any building or other permits. Such determinati shall become a part of this agreement. under this paragraph shall not include improvements 3. This agreement and the fee paid pursuant hereto are required to ensure the consistency of the Development with the City's General Plan. If 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- .’ -_, , :. (1’. . .- . *- 1078 _ I, : I -; , "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 and Owner 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 Requests made by Developer are 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 authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: bY 7.1 If notice is given to the City& 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 prepaid and certified. 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 set forth herein, address . r.d,.,___ 0 , postage prepaid and certified, return receipt requested. -5- REV 4-2-82 . . l . . . ” . 1. . I . . ‘,- . -. . . ’ I I- QO79 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, Owner and the City, and references to Developer, Owner or City herein shall be deemed to be reference to and include their respective successors and assigns without specific mention of such successors and assigns. If Developer should cease to have any interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any successor of 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 on the Property. When the obligations of this agreement have been satisfied, City shall record a release. -6- n F 1, L-2-82 * c-5 . , 1 * ?- ‘* ; _ . 9 4- 1080 - IN WITNESS WHEREOF, this agreement is executed in San Diego County, California as of the date first written above. OWNER: (Name) DEVELOPER AND OWNER FOODMAKER, INC. , (Signature) (Name) (Signature) (Name) (Signature) TITLE I Vice President BY TITLE W" Assistant Secretary ATTEST: CITY OF CARLSBAD, a municipal corporation of the ALETHA L. City Clerk APPROVED AS TO FORM VINCENT F. BIONDO, JR., City Attorney (Notarial acknowledgement of execution by DEVELOPER and OWNER must be attached.) -7- REV 4-2-82 F . . :’ ,S’TA’lE 0-r CALlFOR?vlk-- . 1081 - . ,.j - ; ss l ‘- COUIiTY OF SAN DIEGO 1 On March 11, 1985 , before me, the qndersigned, a Notary Public in and for said County and State, personally appeared Jack Keilt , known to me to be the Vice -~- President, and J. E. Morrow, known to me to b& the Assistant Secretary of Foodmaker, Inc., the corporation that executed the within Instrument, known to me to be the persons who executed the within Instrument on behalf of the Corporation therein named, and ack'nowledged to me that such Corporation executed the within Instrument pursuant to its By-Laws or a Resolution of its Board of Directors. \V’ITliESS my hand and official seal. Signatur / &&- Lyme B. Smith _ __--__-- . ..__ __- !:ame (Typed or Printed) ?Gotary Public in and for said County and State Tix,G^i~~~ OFFIC!AL SEAL $, LYNNE B. SMiTH Msmmission Expires July 25. 1988 NOTARY PUBLKXALIFDRNM PRINCIPAL owx IN SAN DJEGO COUNTY .- ; 8’ ’ if)82 - ;;&:!:::lsbad, CA EXRIBIT "A" LEGAL DESCRIPTION That certain real property consi.sting of the restaurant building commonly known as 1025 Elm Street, Carlsbad, California, and the land uuon .which it is situated, together with an additional area of approximately 2,000 square feet lying Northwesterly of and adjacent to the front(Northwesterly) line of the existing restaurant building together with the non-exclusive right to use the parking areas, driveways, access and perimeter roads and any and all other areas devoted to public use within the shopping center within which said real property is situated. The "shopping.center" referred to above is that certain real property described in the Agreement dated June 5, 1961 attached to and recorded as a part of that certain Lease dated April 1, 1961 by and between Peter D. Aguilar and Luise W. Aguilar, husband and wife, as Lessor and Dawson Homes, Incorporated, a California corporation, as Lessee, recorded in the Office of the County Recorder of San Diego County on October 31, 1963 as File $195252, said real property being more particularly described in said Agreement as follows: Lots 17 to 32 inclusive in Block 66, Lots 1 to 16, inclusive in Block 74 and those portions of Blocks 74 and 80 together with portions of 6th and 7th Streets and Oak Avenue as closed and vacated to public use, and the alleys adjoining and lying within the said Blocks in the TOWN OF CARLSBAD, in the City of Carlsbad, County of San Diego, State of California, according to IMap thereof NO. 535, filed in the office of the County Recorder of said County, the above-described Blocks and portions thereof, being also a portion of Tract 115 of the Town of Carlsbad, according to the amended Map thereof No. 775, filed in the office of the County Recorder of said County, lying within the following-described land: Commencing at a point on the center line of Oak Avenue, distant thereon North 5S021'20" East 664.26 feet from a 1 inch iron pin set for the intersection of said center line with the center line of Harding Street (formerly 5th Street) as shown on said Map No. 775; thence North 29°12'10" West 139.89 feet; thence North 25'=16'04" West 228.47 feet, thence along a tangent curve to the left uith a radius of 65 feet through an angle of 99'22'36" a distance of 112.74 feet to the Southeasterly line of Elm Avenue; thence along the Southeasterly line of said Elm Avenue South 55O21'20" West to the Northwest corner of said Tract 115; thence along the Southwest line thereof; South 34'33' East 140.20 feet to said center line of Oak Avenue; thence along said center line North 55"21'20" East to the point of commencement. EXCEPTING therefrom that portion described as follows: Cc.nmencing at a point on the center line of Oak Avenue, distant thereon :iorth jS"21'20" East 664.26 feet from a 1 inch iron pin set for the intersection of said center line with the center line of Harding Street (formerly 5th Street) as shown on said Map No. 775; thence Sorth 29O22'10" Kest 139.89 feet; Thence North 25'16'04" Xest 228.47 feet to the true point of 'beginning; thence along a tangent curve to the left with a radius of 65 feet throuoh an anale of 99O22'36" a distance of 112.74 feet to the Soucheasteriy line of Elm Avenue; thence along the Southeasterly line of said Elm Avenue South 55"21'20" Kest, 100 feet: thence South 34'38'40" East 125 feet; thence Sorth 55°21'20" East 155.97 feet to a point in the boundary line of the iand described in deed to the State of California: recorded April 4, 1952, in Book 4425, page 246 of Official Records; thence along said boundary line North 25"16'04" Xest 50.08 feet to the true Taint of beginning. Dated: 10-4-84