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HomeMy WebLinkAbout1987-07-14; City Council; Resolution 9144Y 2 7 CI 4 5 e 7 E S LC Ll L2 13 14 15 L6 L7 !8 .9 !O tl 22 !3 !4 i5 !6 :7 8 RESOLUTION NO. 9144 A RESOLUTIOM OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE FOOTE DEVELOPMENT COMPANY FOR PROVISION OF PUBLIC FACILITIES AFFECTING ISSUANCE AND USE OF BUILDING PERMITS. The City Council of the City of Carlsbad, California, does hereby resolve as follows: 1. That certain agreement between the City of Carlsbad and the Foote Development Company for provision of public facilities affecting issuance and use of buildinq permits, marked Exhibit A and made a part hereof, is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 14th day of July , 1987, by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson NOES: None ABSENT: None ATTEST : AGREEMENT FOR PROVISION OF PUBLIC FACILITIES AFFECTING ISSUANCE AND USE OF BUILDING PERMITS. day of THIS AGREEMENT is made this 1 1987, between the CITY OF CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as CITY, and the FOOTE DEVELOPMENT COMPANY hereinafter referred to as DEVELOPER. RECITALS WHEREAS, the City's Growth Management Plan provides that building permits may not issue until all necessary public facilities are constructed or otherwise guaranteed as required by the Local Facilities Management Plan; and WHEREAS, a Local Facilities Management Plan has been approved by the City Council for Zone 2 which identifies certain public facilities deficiencies which must be remedied prior to the issuance of any building permits; and WHEREAS, developer has secured a final map for CT 84-35, a 151 unit residential subdivision locat,ed in Zone 2; and WHEREAS , developer wishes to assume responsibility for the correction of all the existing deficiencies and wishes to obtain building permits for his project so that the houses can be constructed at the same time the necessary public facilities are being constructed recognizing that the houses will not be occupied until all the necessary public facilities are available thereby avoiding a further burdening of the City's public facilities capacities and ensuring compliance with the Growth Management Ordinance. 0 0 NOW, THEREFORE, in consideration of the recitals and mutual obligations of the parties as herein expressed, City and Developer agree as follows: 1. Developer will pay the City $42,500.00 for improvements to the intersection of Elm Avenue at El Camino Real as required by the Local Facilities Management Plan for Zone 2. The City will use this money to supplement the existing construction contract for work in the area and will assume the responsibility for completing the improvements. 2. Developer will deposit $270,000.00 with the City, which is the estimated cost of making the improvements to the intersection of Tamarack Avenue at El Camino Real as required by the Local Facilities Management Plan for Zone 2. City will assume responsibility for constructing these improvements. When the Citywide Traffic Study is completed a judgement will be made by the City Council as to the exact nature and extent of these improvements. The existing estimate will be refined at that time. Any deposit in excess of the refined estimate will be returned to developer. If the deposit is not sufficient to cover the refined estimate then Developer shall promptly deposit any additional funds required. Any payments by developer pursuant to this section shall satisfy his obligation for the improvements. -2- 3 . Developer shall immediately commence construction of any necessary upgrades to the El Camino Real Kelly Sewer Interceptor to accommodate flows from Zone 2 and Zone 7 to the satisfaction of the City Engineer. This work shall be diligently pursued to completion by developer. Developer shall guarantee the construction of the sewer improvements by furnishing a Letter of Credit in a form acceptable to the City Attorney in the amount of $75,000.00. In connection with the construction developer shall maintain a liability insurance policy naming the City as an additional insured as required by the Risk Manager covering all aspects of the work to be performed by developer or a sub-contractor, developer may obtain the release of the posted security on completion of the project in accordance with the Cit.y Standard Subdivision Practice. Upon completion and acceptance of the work, the City will pay developer $29,427.00 which the parties agree is the City's share of the project. 4. After this agreement is executed and after developer has deposited the funds required by Sections 1 and 2 and furnish the security required by Section 3 then subject to compliance with all applicable laws, the City shall issue building permits for developer's project. -3- 5. Developer shall not occupy or allow occupancy of any of the houses constructed pursuant to building permits issued in accordance with this agreement and shall neither request, secure or permit: (a) A final building inspection of the structure; (b) Installation of a water meter; or (c) Installation of any gas or electric meter for any of the houses, until completion of both the sewer improvements required by paragraph 3 and the Elm and El Camino Real street improvements required by paragraph 1 has been certified in writing by the City Engineer as complete and operational . Temporary electric power for construction will be permitted only from temporary construction poles or pedestals. Developer agrees to comply with all of the provisions of the Local Facilities Management Plan for Zone 2 and the Citywide Facilities and Improvements Plan. 6. Further, developer understands the City Building Department will not schedule the foundation inspection or framing inspection on any of the houses to be constructed by developer unless the City Engineer certifies in writing that adequate progress is being made by developer toward completing the sewer improvements. Prior to the utilities inspection and release of utilities the City Engineer must certify that all of the public improvements required by this agreement have been - 4- completed, No units will receive final inspection prior to this certification, 7 . Developer understands that this agreement notwithstanding should any of the public facilities necessary to serve this project fall below the adopted Citywide Performance Standard in the future all previously available but unissued building permits will not be issued until those deficiencies can be corrected. 8. If developer wishes to sell any of the houses prior to final inspection he must comply with the disclosure provisions of this section. Any prospective purchasers must be made aware of the fact that they may not be able to occupy the house on it's completion because of the provisions of this aqreement at the time a specific buildiing permit is issued. A copy of this agreement shall be available to each prospective buyer and developer shall obtain a signed acknowledgment and receipt that the buyer has read and understands the agreement. The receipts must be filed with the Community Development Director. After completion of the sewer improvements and the Elm Avenue improvements and provided no other public facilities deficiencies have been identified prior to building permit issuance, then the Community Development Director shall have authority during the time that situation prevails of waiving the - 5- disclosure requirement for any particular house. 9. This agreement is intended to resolve any possible dispute between developer and City in regards to his development. Developer waives the right to litigate anything that's happened in the past in regards to this development and agrees to hold the City harmless and waive any rights to litigate in the future any matters arising out of this agreement . 10. Developer shall be entitled to a credit against the traffic impact fees required to be paid as a condition of the issuance of his building permits. The amount of the credit shall be equal to the monies required to be paid by developer pursuant to this agreement. As each building permit for the development is pulled the traffic impact fees due shall be deducted from this amount. When the project is complete and the credit has otherwise been adjusted as necessary for the Tamarack and El Camino Real improvements, then the City Engineer shall determine the amount remaining to be reimbursed to developer. City agrees to use it's best efforts to collect traffic impact fees from other developers building in Zone 2 and agrees to pay any amounts received on a monthly basis to developer until the remaining reimbursement amount has been satisfied. This reimbursement would include any additional funds collected from other - 6- I i t I developers in Zone 2 should the permanent traffic impact fee be established at a higher rate than the interim fee. No interest will be due on the reimbursement amount. 11. Developer expressly warrants that he is the owner of record or duly authorized agent of the owner of record of the land subject to this agreement and described on Exhibit A attached hereto and made a part hereof ( "The Property" ) . 12. Applicant shall record this agreement as affecting title to the property in the office of the County Recorder, County of San Diego, California and provide the City with a copy of the recorded agreement prior to the issuance of any building permits . 13. Provided allL requirements of the Growth Management Plan have been satisfied the City shall provide the Developer with a written release of this agreement for each house upon completion of the improvements required by this agreement. The form of (the release) agreement shall be prepared by Foote Development Company's Title Company and be approved by the City within 45 days of this agreement. 14. No amendment, modification, supplement, termination or waiver of any provision of this Agreement shall be effective unless executed in writing by both parties and then only in the specific instance and for the specific purposes given. -7- c i i 15. Any demand upon or notice required or permitted to be given by one party to the other party shall be in writingu Except as otherwise provided by law, any demand upon or notice required or permitted to be given by one party to the other party shall be effective (a) on personal delivery, (b) on the second business day after mailing by certified or registered United States mail, return receipt requested, or (c) on the succeeding business day after mailing by Express mail or after deposit with a private delivery service of general use (e.g., Federal Express) postage or fee paid as appropriate, addressed to the party at the address shown below . Developer: Michael J. Foote Foote Development Company 5205 Kearny Villa Way, Suite 211 San Diego, California 92123 City: City of Carlsbad Community Development Office 2075 Las Palmas Drive Carlsbad, California 92009 Attention: Community Development Director Notice of change of address shall be given by written notice the manner set forth in this paragraph. 16. This Agreement and all rights and obligations contained herein shall be in effect whether or not any or all parties to this Agreement have been succeeded by another entity, and all rights and -8- obligations of the parties signatory to this Agreement shall be vested and binding on their successor of interest. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the day and year first written above. APPROVED AS TO FORM: CITY OF CARLSBAD A Municipal Corporation of the State of California By : CLAUDE A. LEWIS, Mayor City of Carlsbad DEVELOPER: -- v”t- E$<. By: VINCENT F. BIONDO, JR., City Attorney ATTEST : ALETHA L. RAUTENKRANZ, City Clerk (SEAL) -9-