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Home My WebLink AboutSDP 97-24; Islands Restaurant LP; 1998-0496161; Public Facilities Fee Agreement/Release. ’ ’ l 247 DOC-# 1998-0496161 q, ‘I \ RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) City Clerk ; CITY OF CARLSBAD 1 AUG 07. J-998 8:44 FIM oFFIcIclL REm !HH MEG0 !lJlMY REWRDER’S OFFICE GREGORY ;.$ITH, ~~~~~ : . 1200 Carlsbad Village Drive > Carlsbad, California 9200% 1989 1 Space above this line for Recorder’s use AGREEh4ENT BETWEEN OWNER, DEVELOPER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE FOR OUTSJDE THE BOUNDARIES OF COMMUNITY FACILITIES DISTRICT NO. 1 THIS AGREEMENT is entered into this 24th day of June 2 RA!!L> byandbetween(nameofdeveZoper) Islands Restaurants, L-P= I a Delaware -Limited Partnership a (corporation, partnership, etc.) Limited Partnership, hereinafter referred to as “Developer” whose address is (street, city, state, zip code) 740 Lomas Santa Fe Dr., Ste. 210 Solana Beach, CA 92075 Winters, Trustees or the R a (individual, corporation, etc.) Trust , hereinafter referred to as “Owner” whose address is (street, city, state, zip code) Barbara and Ray Winter 1745 Rocky Road, Fullektq CA 92831 AND the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as “City”, whose address is 1200 Carlsbad Village Drive, Carlsbad, California, 92008- 1989. . . . . . . sap 97-z4/clwwz-- Form Approved By City Council July 2, 1991 Resolution No. 91-194/KJH 1 Form 18 Per Jane Mobaldi, Rev. 01/l l/96 . ’ ’ . .I 3 248 - RECITALS 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 $%%#& property and proposes a development project as follows: Construction of a 5,116 S. F. restaurant on said Property, which development carries the proposed name of Is lands, Restaurant and is hereafter referred to as “Development”; and WHEREAS, Developer filed on the 8th day of October ,19 g7 -3 with the City a request for SDP 97-24 / CDP 97-45 -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 City recognize the correctness of Council Policy No. 17, dated July 2, 1991, on file with the City Clerk and incorporated 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 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, Developer and Owner propose to help satisfy the General Plan as implemented by Council Policy No. 17 by payment of a public facilities fee. Form Approved By City Council July 2, 1991 2 Form 18 Resolution No. 91-l 94/KJH Per Jane Mobaldi, Rev. 01/l 1196 . * ’ . . C 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 3.5% 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 2 1 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 3.5% 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 shalf 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 City a public facilities fee in the sum of $1,150 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 Titles 18, 20 or 2 1 of the Carlsbad Municipal Code. 2. The Developer and Owner may offer to donate a site or sites for public facilities in lieu of all or part of the financial obligation agreed upon in Paragraph 1 above. If Developer and Owner offer to donate a site or sites for public facilities, the City shall consider, but is not 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 Form Approved By City Council July 2, 1991 3 Form 18 Resolution No. 91-l 94/KJH Per Jane Mobaldi. Rev. 01/l 1196 . ’ . . c 250 - Titles 18 or 20 of the Carlsbad 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. 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 Genera1 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 suffkient 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 authorized representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: 7.1 If notice is given to the City of 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 address as many have been designated, postage prepaid and certified. Form Approved By City Council July 2, 1991 Resolution No. 91-194/KJH 4 Form 18 Per Jane Mobaldi, Rev. 01/l l/96 , . * . . 251 - 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 City, 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. If 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. . . . . . . . . . . . . . . . . . . . . . Form Approved By City Council July 2, 1991 Resolution No. 91-l 94/KJH 5 Form 18 Per Jane Mobaldi, Rev. 01/l l/96 . . * ’ . 252 -4 . IN WITNESS WHEREOF, this agreement is executed in San Diego County. California as of the date first written above. OWNER: Ray @( Winter . hl!381 r (P L LLU3L Ray l? Barbara Winter Trustees (title) Barbara Winter (print name) Ray & Barbara'Winter Trust dated 5-l 5-1981 CITY OF CARLSBAD, a municipal corporation of the State of California By: MA'RTIN ORENY- City Manager ATTEST: ant City Clerk APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: L &;6( Ehputy City Attorney (title) Ray & Barbara Winter Trustees DEVELOPER: Islands Restaurants, L.P., A Delaware Limited Partnership era1 partner, Seneca Partners, Inc. (Notarial acknowledgment of execution of DEVELOPER and OWNER must be attached). Douglas E. Kollus (print name) President (title and organization of signatory) By: (signature) (print name) (title and organization of signatory) Form Approved By City Council July 2, 1991 Resolution No. 9 1-l 94/KJH 6 (President or vice president Aa secretary or assistant secretary must sign for corporations. If only one o@cer signs, the corporation must attach a resolution certiJed by the secretary or assistant secretary under corporate seal empowering that o&er to bind the corporation). (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument). Form 18 Per Jane Mobaldi. Rev. 01/l l/96 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of CRC/ Fo&J iA County of okwcorz On 334 15 !99rP before me, Date Name and Title of Officer (e.g., “Jane doe. Notary Public”) personally appeared @I?I~ M,. LJ \,Jr ~49 &f&&J -I -rm f Name(s) of Signer(s) to me on the basis of satisfactory evidence to be the person(s) whose name(s) #are subscribed to the within instrument and acknowledged to me that +&she/they executed the same in f&he&heir authorized capacity(ies), and that by -M+b&their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS rnEm Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer’s Name: cl Individual 0 Corporate Officer Title(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: L Signer’s Name: 0 Individual 0 Corporate Officer Title(s): 0 Partner - 3 Limited 0 General 0 Attorney-in-Fact C Trustee C Guardian or Conservator 0 Other: Signer Is Representing: 0 1995 National Notaly Association l 6236 Remmet Ave., P.O. Box 7164 a Canoga Park, CA 91309.7164 Prod. No. 5907 Reorder: Call Toll-Free 1-600-676-6827 i . . I 234 - EXHIBIT “A” LEGAL DESCRIPTION THE LAND REFERRED TO HEREON IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO AND IS DESCRIBED AS FOLLOWS: THAT PORTION OF LOT “H” OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARSLBAD, IN THE CoUNfy OF sAN i%33o, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEEO COUNTY, NOVEMBER 16,1896. Form Approved By City Council July 2, 1991 Resolution No. 9 l-l 94/KJH 7 Form 18 Per Jane Mobaldi. Rev. 01/I l/96 255 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On .Llu 7. 1946 before me, rndfD/’ 1. n%iJh~l Notary Public, personally appeared -&?(JL;I \ ~5 4, I(6 1 [or 4 , [ jf 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 person(s) acted. executed the instrument. WITNESS my hand and offkial seal. Form Approved By City Council July 2, 1991 Resolution No. 91-l 94/KJH Form 18 Per Jane Mobaldi. Rev. 01/l l/96