HomeMy WebLinkAbout2000-10-03; City Council; Resolution 2000-310RESOLUTION NO. 2oao-310
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING
EXECUTION OF A PETITION, WAIVER AND CONSENT TO
CREATION OF A FACILITY IMPACT FEE PROGRAM, AND
AGREEMENT TO PAY FAIR SHARE COSTS OF COLLEGE
BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE
DRIVE AND CANNON ROAD FROM EL CAMINO REAL TO A
POINT LOCATED APPOXIMATELY 1200-FEET EAST OF
COLLEGE BOULEVARD AND CREDIT AGREEMENT FOR
PORTION OF COLLEGE BOULEVARD TO BE CONSTRUCTED
PER CT 96-02
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WHEREAS, as a condition of approval, The Terraces at Sunny Creek, LLC, a California
limited liability company (the “Property Owner”) is required to pay their Fair Share cost of the
10 construction of College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon
” Road from El Camino Real to a point located approximately 1200-feet east of College Boulevard
l2 (the “Improvements”) prior to further development of CT 96-02 (the “Project”) as defined in the
13 Agreement attached as Exhibit “A”; and
14 WHEREAS, the City Council of the City of Carlsbad has required that the funding of the
l5 Improvements must be guaranteed before any development takes place in the area bounded by
,6 Local Facilities Management Zone 15; and,
17 WHEREAS, City staff is actively pursuing formation of a Facility Impact Fee Program to
finance the Improvements (“Fee Program”); and,
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WHEREAS, the Project contains a condition for the Property Owner to construct a portion
of College Boulevard that lies within proposed Fee Program (the “College Boulevard
20 improvements”); and,
21 WHEREAS, the City Council finds that, with the construction of the College Boulevard
22 improvements by the Property Owner, the existing circulation improvements are adequate to
23 serve the needs of the Project and that all growth management circulation standards will be met
24 for the Project; and,
25 WHEREAS, although the Council anticipates the Fee Program will be formed in the near
26 future, the Council is willing to consider alternative financing proposals during the period from the
27 present to the formation date of the fee program; and,
WHEREAS, such interim financing program will only be considered as long as the Council
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finds that the formation of the fee program is proceeding in a reasonable manner; and,
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WHEREAS, the Council finds that the formation of the Fee Program is proceeding in a
2 reasonable manner; and,
3 WHEREAS, the Council finds that the guarantee provisions related to the Improvements
4 may be met through an interim financing program using an agreement between certain property
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owners and the City whereby the property owner agrees to secure prepayment of his/her Fair
Share cost of the Improvements within the Fee Program; and,
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WHEREAS, the Council finds that The Terraces at Sunny Creek, LLC, a California limited
liability company, may enter into the attached agreement entitled “Petition, Waiver and Consent to
8 Creation of a Facility Impact Fee Program, and Agreement to Pay Fair Share Cost of College
g Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real
IO to a point located approximately 1200-feet east of College Boulevard, and Credit Agreement for
11 Portion of College Boulevard to be constructed per CT 96-02” (Exhibit “A”) in satisfaction of their
12 obligation under the Project financing conditions.
13 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
14 California, as follows:
1. That the above recitations are true and correct.
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2. That the form of the “PETITION, WAIVER AND CONSENT TO CREATION OF A
16 FACILITY IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COST OF
I7 COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE DRIVE AND
I8 CANNON ROAD FROM EL CAMINO REAL TO A POINT LOCATED APPOXIMATELY 1200-
‘9 FEET EAST OF COLLEGE BOULEVARD, AND CREDIT AGREEMENT FOR PORTION OF
20 COLLEGE BOULEVARD TO BE CONSTRUCTED PER CT 96-02”, Exhibit “A” attached hereto, is
21 hereby accepted.
22 3. That the Mayor is hereby authorized to execute the Agreement shown in Exhibit “A
23 that has been executed by The Terraces at Sunny Creek, LLC, a California limited liability
24 company.
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4. That the City Clerk is hereby directed to transmit the executed Agreement for
*ecordation with copies to the City Engineer and The Terraces at Sunny Creek, LLC, a California
imited liability company, 2006 Palomar Airport Road, Ste 113, Carlsbad, CA 92008.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
leld on the 3rd day of October , 2000 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Nygaard and Kulchin
NOES: None
until Member
4TTEST
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA. 92008
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Project no. CT 96-02
Parcel No. 209-090- 1 - 10,
209-090-12 209-060-59
Legal Description: Attached Exhibit “A”
PETITION, WAIVER AND CONSENT TO CREATION OF A FACILITY
IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COST
OF COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD
VILLAGE DRIVE AND CANNON ROAD FROM EL CAMINO REAL TO A
POINT LOCATED APPROXIMATELY 1200-FEET EAST OF COLLEGE
BOULEVARD AND CREDIT AGREEMENT FOR PORTION OF COLLEGE
BOULEVARD TO BE CONSTRUCTED PER CT 96-02
RECITALS:
A. WHEREAS, The Terraces at Sunny Creek, LLC (the “Property Owner”) is
processing a development within the City of Carlsbad (the “City”). The development project is
known and identified as The Terraces at Sunny Creek, CT 96-02 (the “Project”), located within
real property owned by Property Owner; the legal description of said real property is attached
hereto as Exhibit “A” and is incorporated herein by reference; and,
8. WHEREAS, the City has determined Project to be located within the boundaries
of a proposed benefit area for a Facility Impact Fee Program to be known as Bridge and
Thoroughfare District No. 4 - Cannon Road East and College Boulevard North (the “Fee
Program”); and,
C. WHEREAS, the Fee Program is intended to be formed to finance those
Improvements generally described in Paragraph 1 below; and,
D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area of
benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code (CMC)
Section 20.08.140); amendment to the Traffic Impact Fee (CMC Chapter 18.42); a new
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development Impact Fee enacted pursuant to Government Code Section 66000 et seq.; any
combination thereof; or otherwise; and,
E. WHEREAS, the Property Owner desires to proceed with processing of the Project
prior to City determination of the form or establishment of the Fee Program; and,
F. WHEREAS, the Local Facilities Management Plan for Zone 15 requires a
guarantee for the construction of segments of College Boulevard and Cannon Road, described in
Paragraph 1 below, prior to the recordation of any final maps or the issuance of building permits
within the zone; and,
G. WHEREAS, Condition Number 11 (as that condition relates to the funding and
construction of College Boulevard and Cannon Road) of the tentative tract map approved for the
Project, pursuant to Planning Commission Resolution No. 4292 and City Council Resolution No.
98-3 37, requires the Property Owner to provide for the construction of certain public
improvements including a portion of College Boulevard; and,
H. WHEREAS, compliance with the applicable Local Facilities Management Plan
for Zone 15 and tentative map conditions for the Project is a condition of approval for the final
map for the Project; and,
I. WHEREAS, the City and the Property Owner desire to agree to a guarantee which
ensures the Property Owner’s Fair Share cost of the financing for the Improvements described in
Paragraph 1 below that will allow the Property Owner to proceed with the processing of a final
map and development of the Project in advance of the formation of the Fee Program for the
construction of College Boulevard and Cannon Road; and,
J. WHEREAS, City Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the Fair Share cost of the Improvement described herein, has
met the requirement set forth in the Local Facilities Management Plan for Local Facilities
Management Plan Zone 15 and related tentative map Condition Number 11 (as that condition
relates to the funding and construction of College Boulevard and Cannon Road) for the Project to
provide a financial guarantee for the construction of those Improvements described in Paragraph
1 below; and,
K. WHEREAS, the Property Owner voluntarily enters into this Agreement; and,
L. WHEREAS, the City Council has determined that due to the size of the Project,
there will be no major impacts on the circulation system at the present time if the development of
the Project is allowed to proceed with sufficient financial guarantees for actual construction to
meet Property Owner’s Fair Share cost of the Improvements.
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NOW, THEREFORE, in consideration of proceeding with the processing of the Project,
the undersigned Property Owner hereby agrees, waives and consents as follows:
1. Petition for Proceedings
The Property Owner hereby petitions the City for the initiation of proceedings of a Fee Program
which will cause the construction and installation and/or financing of the following arterial
improvements (the “Improvements”) which are more specifically described as follows:
College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon
Road from El Camino Real to a point located approximately 1200-feet east of
College Boulevard. The Improvements proposed for inclusion may include full-
width grading for an 82-foot wide major arterial roadway within a 102-foot
wide road right-of-way, with related drainage Improvements, and two M-foot
wide paved travel lanes, median curbs along both edges of a raised unimproved
median strip for College Boulevard from El Camino Real to Carlsbad Village
Drive and Cannon Road from El Camino Real to a point located approximately
1200-feet east of College Boulevard, all built to City of Carlsbad major arterial
standards. The improvements also include transition improvements to full
major arterial improvements at existing and future intersections with arterial
roadways.
The costs of construction, engineering, design, construction inspection, contract
administration, construction engineering, environmental mitigation, condemnation costs for
the necessary right-of-way and slope easements, legal and other incidental expenses of the
Improvements will be funded by the Fee Program.
2. Waiver of Protest Rights.
The Property Owner acknowledges its right to notice of, and participation in, all phases of the
establishment of Fee Program and expressly waives any right to protest or oppose the imposition
or formation of the Fee Program, including, but not limited to those provided for under
California State Law. Property Owner’s waiver of its right to protest establishment or formation
of the Fee Program shall not, notwithstanding the cost and fee estimates below, prevent the
Property Owner from protesting the amount of the fee or extent of the Improvements for College
Boulevard and Cannon Road.
3. Fair Share Obligations.
a. The Property Owner agrees to pay City the estimated fair share costs for the
Improvements (“Fair Share”). Fair Share, as defined in this Agreement, shall be a figure based
on the amount of traffic generated by projects within the subject facilities management zone and
Terraces Petition Agreement Final Version 9nuoo
the actual cost of those Improvements. Currently, the parties estimate that the Fair Share unit cost
would be based on $950 per average daily trip (ADT) generated by each dwelling unit or units
within the Project (“estimated Fair Share Unit Cost”).
b. The Property Owner is obligated by Condition Number 11 of the tentative map for
the Project to construct portions of College Boulevard, some of which are within the Fee
Program and some of which are not within the Fee Program. The cost of those portions of
College Boulevard constructed by the Property Owner which are described in Paragraph 1 and
are included within the Fee Program (“Creditable Work”) are fully creditable and/or
reimbursable against payment of future fees into the Fee Program pursuant to the provisions of
this Agreement. Those portions of College Boulevard constructed by the Property Owner that
are not described in Paragraph 1 or are not included within the Fee Program are not considered
creditable and/or reimbursable against payment of future fees into the Fee Program. The
Property Owner and City agree that, for purposes of this Agreement, the dollar amount of the
Creditable Work of the Property Owner’s College Boulevard improvement obligation is
estimated at $488,418.00 (“Estimated Credit”) as detailed within Exhibit “B” and by this
reference made a part hereof. The future calculation of Creditable Work shall be based on the
categories provided in Exhibit “B”. These amounts are based on the work described in
Paragraph 1 and may change if the description of the work changes, subject to approval by City.
No credit shall be made for work that is not covered by the Fee Program.
C. The Property Owner shall enter into a standard City Subdivision Improvement
Agreement for CT 96-02, incorporated herein and by this provision made a part hereof, for the
Creditable Work and post the required improvement security in accordance with City
requirements. Among other construction, the Creditable Work for College Boulevard is reflected
on approved City Drawing number 36 l-6. The Property Owner shall cause construction of the
Creditable Work within the time limits established by the conditions of approval for the Project
and/or as provided for in the Subdivision Improvement Agreement. City shall grant reduction
and/or release of the improvement security used to secure the Creditable Work in accordance
with the terms of the Subdivision Improvement Agreement, not by this Agreement.
d. The actual amount of Property Owner’s Fair Share cost under the Fee Program
shall be determined by City Council, based on a preponderance of evidence and consistent with
Paragraph 7 of this Agreement, when the City Council establishes the Fee Program.
e. The City’ s current estimate of the Property Owner’s Fair Share cost under the Fee
Program is $2,078,600, based upon the following calculation: 172 single-family units at 10
ADT/unit, plus 50 apartment units at 6 ADT/unit, plus 28 granny flats at 6 ADT/unit, each
multiplied by the estimated Fair Share Unit Cost of $950/ADT. In order to secure payment of
Property Owner’ s Fair Share cost, in addition to agreeing to construct the Creditable Work, the
Property Owner shall deposit with the City a security bond for facilities Improvements in the
amount of $616,522 (the “Bond”) and a letter of credit in the amount of $973,660 (the “Letter
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of Credit”). The Property Owner shall provide the Bond and Letter of Credit to the City before
recordation of a final map for any phase or phases within the Project. Both the Bond and Letter
of Credit shall be in a form reasonably acceptable to City.
f. Prior to issuance of building permits for the Project, the Property Owner shall
deposit funds with the City that are intended to pay Property Owner’s Fair Share cost (the “Fee
Deposit”) to the extent the estimated Fair Share exceeds the estimated Creditable Work. The
City agrees to grant the Property Owner a credit towards the Fair Share costs in an amount equal
to that of the estimated Creditable Work ($488,4 18), provided the Creditable Work is constructed
with good faith effort by the Property Owner as determined by City. It is estimated that the
Property Owner’s credit will be exceeded once the City has issued the Property Owner enough
building permits generating more than a total of 5 14 ADT. This figure is based on 5 14 ADT
multiplied by $950/ADT, near the Estimated Creditable amount of $488,418. Once the amount
of the Creditable Work has been exceeded through the issuance of building permits, the Property
Owner shall then pay the Fee Deposit before the issuance of each building permit thereafter. The
Fair Share shall equal the estimated Fee Deposit of $950/ADT times the number of ADT’s
generated by the development authorized by each building permit. After formation of the Fee
Program, the Property Owner shall pay the Fee Deposit as adopted by the City Council pursuant
to formation of the Fee Program prior to the issuance of any building permit for the Project
pursuant to Paragraph 7.
g. Once the Property Owner makes payments of the Fee Deposit, the City shall allow
the reduction and release of the Letter of Credit and Bond; however, the reduction of the Letter of
credit and Bond shall be in increments of not less than $100,000. Reductions shall first be made
against the-Letter of Credit and then against the Bond. However, the City shall not release the
last $100,000 of the Bond until both (i) completion of the audit of cost of the Creditable Work
and approval by the City, pursuant to Paragraph 9, and (ii) either (a) establishment of the Fee
Program or (b) termination of this Agreement pursuant to Paragraph 10.
h. Provision by the Property Owner of the Letter of Credit and Bond, and the
contractual covenant created by this Agreement, including actual construction of the Creditable
Work, satisfy Property Owner’s obligations for the construction of the Improvements, as required
by the Local Facilities Management Plan for Zone 15 and Condition Number 11 (as that
condition relates to the funding and construction of College Boulevard and Cannon Road). City
shall not impose any additional obligations on the Project or on the Property for land or
Improvements related to College Boulevard and/or Cannon Road.
4. Reimbursement.
In the event the actual dollar amount of Creditable Work done by the Property Owner exceeds
the Property Owner’ s Fair Share cost under the Fee Program as established by City Council, the
Property Owner is eligible to receive reimbursement from the proceeds of the Fee Program on a
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schedule as determined by the City Council. In no case shall the City reimburse the Property
Owner for any portion of the Creditable Work done by the Property Owner without first entering
into a subsequent reimbursement agreement between the City and the Property Owner. Any
reimbursement made pursuant to Paragraph 3 shall be made from funds available through the
collection of fees under the Fee Program and shall not be an obligation of City’s General Fund or
other revenue source. City makes no guarantee, implied or otherwise, that adequate funds will be
collected pursuant to the approved Fee Program to fully compensate the Property Owner for any
or all Creditable Work done by the Property Owner. This reimbursement shall be made
notwithstanding and in addition to any reductions in the Bond and/or Letter of Credit made
pursuant to Section 3g, because the Bond and Letter of Credit are only security for payment of
the Property Owner’s Fair Share obligation to the Fee Program and not an additional charge.
5. Voluntarv Participation.
The Property Owner acknowledges that this Agreement to pay its Fair Share and thereby
participate in the financing of Improvements is voluntary and that without this Agreement, the
Property Owner would be precluded from obtaining final map approvals or building and other
development permits under the provisions of the General Plan, Chapter 21.90 of the Carlsbad
Municipal Code, applicable zone plan, financing plans and related documents until a satisfactory
financing program had been developed to fund construction of the Improvements.
6. Other Fees and Assessments.
This Agreement does not waive, in any way whatsoever, the obligation of the Property Owner to
pay any fees or assessments associated with the Property Owner’ s development other than
obligations associated with College Boulevard and Cannon Road, nor does this Agreement
relieve the Property Owner from providing other public facilities required under conditions of the
Local Facilities Management Plan for Zone 15 or placed upon the Project by the City.
7. Financial Obligations.
a. If prior to January 1,2003, the Fee Program for College Boulevard and Cannon
Road is established, subsequent to deposit of the Bond and Letter of Credit by the Property
Owner pursuant to this Agreement, the Property Owner’s financial obligation shall be
recalculated at that time, using the fee formula established under the approved Fee Program. If
the Fee Program obligation is different from the Fee Deposit amount, Bond and Letter of Credit,
plus any accrued interest, plus any other amounts previously paid by the Property Owner to the
City, the City shall refund any excess (“Excess”), or the Property Owner will pay to the City any
additional amount due (“Shortfall”).
b. Although the Property Owner has secured the Fair Share cost via instruments of
security, the Property Owner is responsible to pay the Fair Share cost identified in this
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Agreement in order to finance the Improvements of the Fee Program, plus any Shortfall.
C. The City’s growth management plan identities the minimum level of service that
circulation roads must meet. At any point during construction of the Project, and in the event the
City’s roadway circulation elements begin to fail and are measured by the City to be below the
minimum level of service thresholds, then the City shall inform the Property Owner, via certified
mail, to pay to the City the Property Owner’s Fair Share cost, plus any Shortfall due to the Fee
Program. Upon notice to the Property Owner by the City, the Property Owner shall be
responsible to pay the total Fair Share cost, plus any Shortfall within 60 days of the City’s notice.
If within 60 days after written notification, the Property Owner has not provided funds to match
the amount of their total Fair Share cost, plus any Shortfall, the City shall have the option to call
for the Bond and/or Letter of Credit in an amount equal to the Property Owners total Fair Share
cost, plus any Shortfall.
d. Refund of any Excess shall be made from funds available through the collection
of Fee Program fees and shall not be an obligation of the City’s General Fund or other revenue
sources.
e. If a Shortfall exists, the Finance Director shall notify the Property Owner, via
certified mail, of the amount of such Shortfall. The amount of said Shortfall shall be due and
payable to the City 30 days after the mailing of such notice.
f. The computation of the amount of any Shortfall shall not include interest charges.
If payment in full of the Shortfall is not made by the Property Owner within ninety
(90) da; of notice of said Shortfall by the Finance Director, the amount due shall constitute a
lien on any portion of the property within the Project for which a building permit has not been
issued by the City. City may deny the issuance of building permits and/or take any other action
allowed by law to deny further development of Project property subject to this Agreement, and to
collect such Shortfall including, but not limited to, enforcement of the lien on the property. The
City’s recordation of a lien shall not affect its ability to recover the Shortfall by other legal means
concurrently, but no double recovery will be allowed. The cost of such collection shall be an
obligation of the Property Owner and shall be added to the amount of the Shortfall payment due
to the City.
h. Any payment received by the City under this Agreement shall be deposited in a
special fund and may only be used to fund the construction of the facilities described herein.
Upon the establishment of a Fee Program to fund these same facilities, any amount remaining in
the special fund may be transferred to the Facility Fee Fund, at the discretion of the Finance
Director.
8. Termination of Agreement.
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On or after the effective date of the Fee Program adopted by the City Council, the Property
Owner may elect to terminate this Agreement. The Property Owner shall give written notice to
the City of its intent to terminate this Agreement. Upon receipt of such notice, the City shall
review the Fee Deposit amount, Bond and Letter of Credit for the Project and determine the
amount of any Shortfall or refund due under the provisions of this Agreement and the amount of
any remaining credits pursuant to this paragraph 7, if any. Upon payment of the Shortfall, if any,
by the Property Owner and upon the determination by the City that the Project is subject to the
adopted Fee Program, the City shall file a notice of release and termination of Agreement with
the Office of the County Recorder of the County of San Diego. Termination of this Agreement
by the City shall affect only those portions of the Project that have not recorded a final map prior
to the filing of the notice of release and termination of Agreement. All money or credits received
in satisfaction of the terms of this Agreement for any portion of the Project for which a final map
has been recorded prior to termination of the Agreement shall be considered to have satisfied the
Fee Program requirements for those lots or units included within such recorded map. Any
additional credits in excess of the needs created by the recording of a phased final map shall be
made available to the Property Owner for use on the remaining unrecorded portion of the project
in accordance with any provisions for the allowance of credits under the adopted Fee Program.
9. Audit Request.
a. Within 90 days of the completion of the Creditable Work, and acceptance by the City
pursuant to the terms of the Subdivision Improvement Agreement, the Property Owner shall submit
an Audit Request for the Creditable Work. The purpose of the Audit Request is to conclusively
establish the amount of credit that the Property Owner will receive against payment of the Fair Share
contribution to the Fee Program for the construction of that portion of the Improvements required by
Condition No. 11 for the Project.
b. The Audit Request shall include copies of plans, specifications, engineer’s cost estimates,
bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back),
lien releases and other documentation reasonably required by City to evidence the completion and
payment for each item of Creditable Work. The Audit Request will be processed and audited for the
City by a reputable consulting engineer selected by the City (“Auditing Engineer”). The costs of the
Auditing Engineer shall be paid by the Property Owner, but shall be added to the cost of the
Creditable Work. Upon selection of the Auditing Engineer, the Property Owner shall within 30 days
of written notification by the City deposit with the City a sum of money in an amount estimated by
the City to complete the audit.
C. Exhibit B sets forth the preliminary cost estimate for the Creditable Work. The parties
acknowledge that Exhibit B, which was prepared by the Property Owner’s engineers, is for
illustrative purposes only and that all costs are subject to audit for eligibility for credit and/or
reimbursement in accordance with the provisions of this Agreement.
Terraces Petition Agreement Final Version 9/22mo
d. The cost of Creditable Work may include an overhead allocation limited to four percent
(4%) the total of actual Creditable Work in lieu of other credit for the Property Owner’s costs
incurred for salary and benefits for staff of the Property Owner’s home offices, purchasing
department expense, supervision above the level of on-site superintendent, and general corporate,
legal and accounting fees.
e. The cost of Creditable Work may include the cost of premiums paid by the Property
Owner for Creditable Work and/or performance bonds relating to the construction of Improvements
limited to one and one half percent (1.5%) of the total of all Creditable Work for such construction.
f. The cost of Creditable Work may include amount paid by the Property Owner and limited
to one and eight tenths percent (1.8%) of the total of all Creditable Work relating to the construction
of Improvements as an allowance to cover the allocable portion of premiums paid by the Property
Owner for blanket liability insurance coverage.
g- The City shall, within 30 days after the Audit Engineer’s approval, make a final
determination on the final Creditable Work costs to be credited towards the Property Owner’s
obligation of fees due for the Project.
10. Sunset Provision for Fee Promam.
If the Fee Program has not been established for any reason by January 1,2003, the amount paid
or obligated to be paid by the Property Owner under this Agreement, including any credits or
reimbursements due pursuant to this Agreement, shall be deemed to represent the Property
Owner’s Fair Share cost for provision of the Improvements and no further payment will be due
from or reimbursement due to the Property Owner.
11. Compliance with Applicable Law.
Compliance with this Agreement shall be accepted by the City as an alternate to the method
described in the current Local Facilities Management Plan for Zone 15 for financing the
Improvements described in Paragraph 1, above. This Agreement does not require the City to
issue building permits or other development permits or grant approvals or relieve the Property
Owner of the obligation to comply with all applicable provisions of law, including but not
limited to, Carlsbad Municipal Code Titles 18, 19,20 and 2 1.
12. Compliance with Proiect Conditions. .
Compliance with the provisions of this Agreement is a condition of all future discretionary
approvals for the Project. If the Property Owner does not comply with the provisions of this
Agreement, approval of the Project will not be consistent with the General Plan, the Growth
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Management Program, the Local Facilities Management Plan, or the applicable financing plan
for Zone 15 and all subsequent discretionary approvals and permits for the Project shall be
withheld by the City.
13. Disputes.
If a dispute should arise regarding the performance or interpretation of this Agreement, the following
procedure shall be used to resolve any question of fact or interpretation not otherwise settled by
agreement between parties. Such questions, if they become identified as a part of a dispute among
persons operating under the provisions of this Agreement, shall be produced to writing by the
Property Owner or by the City’s Public Works Director. A copy of such documented dispute shall be
forwarded to both parties involved along with recommended methods of resolution, which would be
of benefit to both parties. The Public Works Director or the Property Owner receiving the letter shall
reply to the letter along with a recommended method of resolution within ten (10) days. If the
resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be
forwarded to the City Council for their resolution through the Office of the City Manager. The City
Council may then opt to consider the directed solution to the problem. In such cases, the action of the
City Council shall be binding upon the parties involved, although nothing in this procedure shall
prohibit the parties from pursuing other remedies available to them at law.
14. Covenants.
This Agreement and the covenants contained herein shall be binding upon and inure to the
benefit of the successors, heirs, assigns, and transferees of the Property Owner and the City, and
run with the Property and create an equitable servitude upon the Property. However, the Property
Owner, as the term is used in this Agreement, shall not include the Property Owner of any real
property for which a residential building permit has been issued, and the City shall record a
release of this Agreement as to any individual lot for which a building permit has been issued.
The City may, at its discretion, elect to pursue any remedy, legal or equitable against the Property
Owner or Property Owner’s successors, heirs, assigns, and transferees, with the exception of
owners of individual lots for which a building permit has been issued, to secure compliance with
this Agreement.
15. Liabilitv.
The City shall not, nor shall any officer or employee of the City, be liable or responsible for any
loss or damage incurred by the Property Owner or any successor or assign of Property Owner, or
by any occupant in Project, as a result of the exercise of any remedies provided to the City in this
Agreement. The Property Owner agrees to indemnify the City for any liabilities incurred by the
City as a result of the City’s exercise of these remedies.
16. Notifications.
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All notices 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 shall be presumed to have been
made on the date of delivery or three (3) days after the date of mailing regardless of receipt.
Notices required to be given to the Property Owner shall be addressed as follows:
The Terraces at Sunny Creek, LLC
c/o Gateway Ivey Ranch Associates, Inc.
Attention: Mr. Chris Dahrling
2006 Palomar Airport Road, Suite 113
Carlsbad, California 92008
Telephone: (760) 639-6390
Facsimile: (760) 639-6305
Notices to the City shall be delivered to the following:
Public Works Director
CITY OF CARLSBAD
163 5 Faraday Avenue
Carlsbad, CA 92008
Each party shall notify the other immediately of any changes of address that would require any
notice delivered hereunder to be directed to another address.
17. Other Provisions.
a. Neither the Property Owner nor any of Property Owner’ s agents or contractors
are or shall be considered to be agents of the City in connection with the performance of Property
Owner’ s obligations under this Agreement.
b. Performance by the Property Owner of this Agreement shall not be construed to
vest Property Owner’ s right with respect to any change in zoning or building law or ordinance.
C. The Recitals to this Agreement are hereby incorporated into the terms of this
Agreement.
d. This Agreement shall be interpreted and enforced under the laws of the State of
California and the parties agree and hereby stipulate that the proper venue and jurisdiction for
resolution of any disputes arising out of this agreement is San Diego County, California.
II
II
II
Terraces Petition Agreement Final Version
9122100
11
e. The undersigned entity further states, under penalty of perjury, that it is the owner
of the property described herein, or an authorized agent of the owner, and has the authority to
sign this document including the creation of the covenants herein.
Executed this 22nd day of September , XmJ
PROPERTY OWNER:
THE TERRACES AT SUNNY CREEK, LLC,
A California limited liability company
By: GATEWAY IVEY RANCH
ASSOCIATES, INC., a California
George Szabo, Jr./President
Name and Title of Signatory
By:
Sign here
CITY- L
APPROVED AS TO FORM:
::#;~;jl:
ATTEST:
By::-
City Clerk
Name and Title of Signatory
By: CANAM PROPERTIES, LLC, a
zzmd liability company,
Name and Title of Signatory
(Attach Notarial Acknowledgements)
Terraces Petition Agreement Final Version
9122100
12
CALIFORNIA
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF San Diego
On September 22, 2000 beforeme, Jeanette Taylor, Notary Public
’ DATE NAME, TITLE OF OFFICER - E.G., “JANE OOE, NOTARY f’WK=
personally appeared, George Szabo, Jr.
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 oapacity(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 offiiial seal.
OPTIONAL INFORMATION
TITLE OR TYPE OF DOCUMENT The Terraces at Sunny Creek Bridge R Thorouqhfare Agreement
DATEOFDOCUMEIUT September 22. 2000 NUMBER OF PAGES l6
SIGNER(S) OTHER THAN NAMED ABOVE -
CALIFORNIA
ALL-PURPOSE
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
DATE
personally appeared,
me (or proved to me on the basis of satisfactov evidence) to be the person@&
whose name@ is/et+subscribed to the within instrument and acknowledged to me that he/w
they executed the same in his/be##& authorized capacity(ies), and that by his/he##&i+
signature(s$on the instrument the person&, or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
.<
OPTIONALINFOItMATION
TITLE OR TYPE OF DOCUMENT
DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
Page 1 of 2
LEGAL DESCRIPTION FOR
SUNNYCREEK PORTION OF
COLLEGE BOULEVARD
BRIDGE AND THOROUGHFARE DISTRICT
EXHIBIT “A”
Lots 1 through 9 inclusive, a portion of Lot 10 and a portion of the Remainder Parcel of Carlsbad Tract No. 83-36, according to Map thereof No. 11242, filed in the Office of the County Recorder of San Diego County on May 23,1985, together with a portion of Lot B
of the Ranch0 Agua Hedionda, according to Map thereof No. 823, filed in the Office of the County Recorder of San Diego County on November 16, 1896, in the City of Carlsbad, County of San Diego, State of California, described as follows:
Beginning at the intersection of the Easterly Right of Way Line of College Boulevard (102.00 feet wide) with the Northerly Boundary of said Map No. 11242; thence along said Easterly Right of Way Line South 22’49’22” West, 31.17 feet to the beginning of a tangent 25.00 foot radius curve concave Northeasterly; thence leaving said Easterly Right of Way Line counterclockwise along the arc of said curve through a central angle of 90°00’OO” a distance of 39.27 feet; thence tangent to said curve South 67°10’38” East, 226.14 feet to the beginning of a tangent 242.00 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 02”45’38’ a distance of 11.66 feet to a point in the arc of said curve to which a radial line bears North 25°35’OO” East; thence leaving said curve North 22’53’11” East, 56.33 feet to an angle point in the Boundary of said Map No. 11242; thence along said Boundary North 22’53’11” East, 252.87 feet; thence leaving said Boundary South 47’27’35” East, 355.16 feet; thence South 82’45’06” East, 39.00 feet; thence South 25°51’OO” East, 70.46 feet; thence South 64°09’OO” West, 93.60 feet to the beginning of a tangent 188.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 17°14’OO” a distance of 56.55 feet; thence tangent to said curve South 8 l”23’OO” West, 67.42 feet to the beginning of a tangent 88.00 foot radius curve concave Northeasterly; thence Southwesterly, Westerly and Northwesterly along the arc of said curve through a central angle of 36°26’04” a distance of 55.96 feet; thence tangent to said
curve North 62” 11’00” West, 53.06 feet to the beginning of a tangent 57.00 foot radius curve concave Southerly; thence Northwesterly, Westerly and Southwesterly along the arc of said curve through a central angle of 55°25’44” a distance of 55.14 feet to a point of cusp with a 50.00 foot radius curve concave Southwesterly, a radial line to said point from said 50.00 foot radius curve bears North 31°12’02” East, thence leaving the arc of said 57.00 foot radius curve Southeasterly along the arc of said 50.00 foot radius curve through a central angle of 47’52’13” a distance of 41.77 feet to a point of reverse curvature with a 30.00 foot radius curve concave Southerly, a radial line to said point
Page 2 of 2
from said 30.00 foot radius curve bears North 41°14’18” West thence leaving the arc of said 50.00 foot radius curve Northeasterly, Easterly and Southeasterly along the arc of said 30.00 foot radius curve through a central angle of 69°03’18” a distance of 36.16 feet; thence tangent to said curve South 62°11’OO” East’ 35.93 feet to the beginning of a tangent 112.00 foot radius curve concave Northeasterly; thence Southeasterly, Easterly and Northeasterly along the arc of said curve through a central angle of 36°26’04” a distance of 71.22 feet; thence tangent to said curve North 81°23’OO” East, 67.42 feet to the beginning of a tangent 212.00 foot radius curve concave Northwesterly; thence Northeasterly along the arc of said curve through a central angle of 17°14’OO” a distance of 63.76 feet; thence tangent to said curve North 64°09’OO” East, 93.60 feet; thence South 25°51’OO” East, 63.50 feet; thence North 55’24’29” East, 38.85 feet; thence North 85’06’08” East, 30.87 feet; thence South 72°15’OO” East’ 61.73 feet; thence South 88O57’00” East, 99.26 feet; thence South 83°41’OO” East, 141.32 feet; thence South 72’23’22” East, 66.27 feet; thence South 51°51’30” East, 246.42 feet; thence South 00”58’00” East, 59.51 feet; thence South 30°17’OO” East, 184.06 feet; thence South 85O46’44” East, 27.96 feet; thence South 27’56’45” East, 55.50 feet; thence South 11’06’22” East, 63.25 feet; thence South 30°17’OO” East, 109.31 feet; thence South 22’32’12” East, 57.33 feet; thence South 38’47’09” East, 65.94 feet; thence South 76°03’19’ East’ 101.50 feet to the East Boundary of the Remainder Parcel as shown on said Map No. 11242; thence along said Boundary South 20’49’45” West, 550.70 feet to a point in the arc of an 1863.00 foot radius curve concave Southwesterly, a radial line to said point bears North 36’12’15” East; thence Northwesterly along the arc of said curve through a central angle of 20’43’58” a distance of 674.14 feet; thence tangent to said curve North 74’31’43” West, 917.75 feet; thence North 69°56’OO” West, 97.59 feet; thence North 72’30’00” West, 18.58 feet to a point in the arc of a non-tangent 1932.00 foot radius curve concave Northeasterly, a radial line to said point bears South 18’54’33” West; thence Northwesterly along the arc of said curve through a central angle of 07°38’11” a distance of 257.49 feet to a point of compound curvature with a 25.00 foot radius curve concave Northeasterly, a radial line to said point from said 25.00 foot radius curve bears South 26°32’44” West; thence clockwise along the arc of said curve through a central angle of 86O16’38” a distance of 37.65 feet; thence North 22’49’22” East, 870.12 feet to the Point of Beginning.
This legal description was prepared by me or under my direction.
-=FiGI Lo. p$&gA.J
Francis W. Fitzpa&k L. S. 4539 License expires Sept. 30,2002
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EXHIBIT B
TRAFFIC SlGRAL IYPROVWENTS lTEM QN UNIT PRlCE EXTENSION MODIFY EXISTING STREET LIGHT AT ECR 1 83250.00 8325o.w a32so.w I
REMAlNlNG IMPROVEMENTS
STREET LIGHTS
TOTAL
4 2997.00 119SS.ocl
394810.96 a32so.w
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