HomeMy WebLinkAbout1995-04-04; City Council; 13073; Bramalea California, Inc.CITY OF CARLSBAD - AGENA BILL
APPROVAL OF A
PRE-PAYMENT AGREEMENT FOR ALGA ROAD AND
POINSETTIA LANE FACILITY FEE PROGRAM
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RECOMMENDED ACTION: (0 y/--/a )
Adopt Resolution No. 9413 approving a Petition, Waiver, and Consent Agreement with
Bramalea California for the pm-payment of Facility Impact Fees for the construction of Alga
Road and Poinsettia Lane.
ITEM EXPLANATION:
Bramalea California is the developer of Carl&ad Tract 91-l 2 located adjacent to the west
side of Alga Road just north of its intersection with Poinsettia Lane within the boundaries
of Local Facilities Management Zone 20.
The Zone 20 Local Facilities Management Plan (LFMP) requires that prior to the recordation
of any final maps or the issuance of building permits within the zone, a guarantee for the
construction of Alga Road and Poinsettia Lane must be provided acceptable to the City
Council.
Staff for some time has been working with property owners in Zones 5, 19, 20, and 21 to
develop a facility fee program to insure the uttimate construction of these two major
circulation element roads. A final report and documents are currently being prepared
which will be presented for final adoption by the Council within the next several months.
In order to not delay their development, Bramalea California has requested that Council
approve the consent and waiver agreement with pre-payment of projected fees.
Under conditions of the agreement, Bramalea will pre-pay the projected fee prior to final
map approval and agree to pay any additional amount in the future should the fee exceed
that currently projected in the preliminary estimates.
This agreement is similar to agreements previously approved by the City Council for
funding programs being developed for Cannon Road West and Ranch0 Santa Fe Road.
This agreement differs from past agreements in that the developer is required to install a
significant segment of Alga Road and will be eligible for reimbursement for those expenses
when the improvements have been completed and costs confirmed. The agreement
stipulates a 5Oday period within which to process the reimbursement.
Development in the southwest quadrant of the City has become quite active, which has
lead to acceleration of the Alga Road-Poinsettia Lane finance program. Several other
developments within the area may seek similar pre-payment agreements in the near future.
Page 2 of Agenda Bill No. 4 473
FISCAL IMPACT:
The funding of Alga Road and Poinsettia Lane Is tial to the completion of these significant
major arterial highways. These projects are estimated to cost approximately $15 million
and will serve an estimated 30,000 average daily trips (ADT). This will result in a per trip
fee of approximately $500 per trip payable at the building permit following fee adoption.
The proposed agreement will prepay just under $1500,000. It is expected that a
significant portion of this amount would be reimbursed upon completion of the portions of
Alga Road assooiated with the project.
It is expected that most of Alga Road and Poinsettia Lane will be constructed by
developers with reimbutswnents made available through the fee program. This will best
reflect a benefii distribution for these major facilities.
EXHIBITS:
1. Location map.
2. Resolution No. -73 approving a Petition, Waiver, and Consent to Creation
Agreement with Bramalea California for the pre-payment of Facility Impact Fees for the
construction of Alga Road and Poinsettia Lane.
NOT TO SCALE
CITY OF ENCINITAS
PRoJECT NAME ALGA RD. & POINSETTIA LN. EXHIBIT
FACILITY FEE PROGRAM 1
4wN By: SCOTT EVANS, CARLSBAD ENGINEERING DEPT.
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EXHIBIT 2
RESOLUTlON NO. 95-73
A RESOLUTlON OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CAUFORNIA, APPROVING A PRE-PAYMENT AGREEMENT BETWEEN
THE CITY OF CARLSBAD AND BRAMALEA CAUFORNIA
WHEREAS, the City Council of the Clty of Carl&ad has required that the funding of Alga
Road and Poinsettia Lane (Project) must be guaranteed before any development takes place in
the area bounded by Local Facilities Management Zone 20.
WHEREAS, Clty staff is actively pursuing formation of a facility fee district to finance the
Project; and
WHEREAS, although the Council anticipates the facility fee district will be formed in the
near future, the Council is willing to consider alternative financing proposals during the period
from the present to the formation date of the fee district; and
WHEREAS, such interim financing program will only be considered as long as the Council
finds that the formation of the fee district is proceeding in a reasonable manner; and
WHEREAS, the Council finds that the formation of the fee district is proceeding in a
reasonable manner; and
WHEREAS, the Council finds that the guarantee provisions related to the Project may be
met through an interim financing program using an agreement between certain property owners
and the City whereby the property owner agrees to prepay his/her fair share of’the costs
associated with the Project; and
WHEREAS, Bramalea California intends to build 166 single-family and 176 multi-family
units in Local Facilities Management Zone 20; and
WHEREAS, the Council finds that Bramalea California may enter into the attached
Agreement to Pay Fair Share (Exhibit A) in satisfaction of their obligation under the Project
financing conditions.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the form of the PETITION, WAIVER, AND CONSENT TO CREATION OF A
FACIUTY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE, Exhibit A attached
hereto, is hereby approved.
3. That the Mayor is hereby authorized to enter into the agreement shown in Exhibit A
with Bramalea California.
4. That the City Clerk is hereby directed to transmit the executed agreement for
recordation with copies to the City Engineer and Dorian Johnson, Bramalea California, Inc.,
100 Bayview Circle, Suite 2000, Newport Beach, California 92660.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carl&ad City Council
held on the 18th day of APRIL , 1995 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST:
T
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
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SPACE ABOVE THIS UNE FOR RECORDER’S USE
Parcel Nos. 212-050-22. 29, 30 & 34
PETITION, WAIVER, AND CONSENT To CREATlON
OF A FACILITY IMPACT FEE PROGRAM
AND AGREEMENT TO PAY FAIR SHARE COST OF
ALGA ROAD AND POlNSElllA LANE
(“AGREEMENT”)
A. WHEREAS, the undersigned Property Owner is processing for development within
the City of Carlsbad (‘City’) a development project known and identified as Carlsbad Tract 91-l 2
(“Project”); and
8. WHEREAS, City has determined Project to be located within the boundaries of a
proposed benefii area for a Facility Impact Fee Program to be known as Alga Road and
Poinsettia Lane Facility Fee Program (‘Fee Program’); and
C. WHEREAS, 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 Sectlon 66484 and Carlsbad Municipal Code (CMC)
Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), a new
Development Impact Fee enacted pursuant to Government Code Section 66000 et seq, any
combination thereof, or otherwise; and
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E. WHEREAS, Property Owner desires to proceed with processing of the Project
prior to City determination of the form or establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Plan for Zone 20 requires a
guarantee for the construction of the segments of Alga Road and Poinsettia Lane, 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 2 (as that condition relates to the funding and
construction of Alga Road and Poinsettia Lane) of the Tentative Tract Map approved for Carlsbad
Tract 91-12 requires Property Owner to provide for the construction of certain public
improvements including a section of Alga Road; and
H. WHEREAS, compliance with the applicable Local Facilities Management Plans for
Zone 20 and tentative map conditions is a condition of approval for the final map for the Project;
and
I. WHEREAS, City and Property Owner desire to agree to a guarantee which insures
the project’s fair share of the financing for the improvements described in Paragraph 1 herein that
will allow Property Owner to proceed with the processing of a final map and development of the
Project in advance of the formation of a Fee Program for the construction of Alga Road and
Poinsettia Lane; and
J. WHEREAS, City Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement set
forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 20 and
related tentative map condition number 2 (as that condition relates to the funding and
construction of Alga Road and Poinsettia Lane) for Carlsbad Tract Map CT 91-12, to provide a
financial guarantee for the construction of those improvements described in Paragraph 1 below;
and
K. WHEREAS, Property Owner voluntarily enters into this Agreement; and
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L WHEREAS, the City Council has determined that due to the size of the Project,
there will be no major impact on the circulation system at the present time if development of the
Project is allowed to proceed with sufficient financial guarantees for actual construction to meet
Property Owner’s fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of Project, the
undersigned Property Owner hereby agrees and certifies to the following:
1. 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
improvements which are more specifically described as follows:
a Alga Road from Polnsettla Lane to Palomar Alrport Road
and Poinsettla Lane from Alga Road to El Camlno Real
(Alga Road and Poinsettla Lane)
The improvements proposed for inclusion 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 18 foot wide paved travel lanes,
median curbs along both edges of a raised unimproved
median strip for Poinsettia Lane from Alga Road to El
Camino Real and Alga Road from Poinsettia Lane to
Palomar Airport Road, all built to City of Carisbad major
arterial standards.
2. 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 will be funded
by the Fee Program.
3. 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 Fee Program. Property Owner’s waiver of its right to protest
establishment or formation of the Fee Program shall not prevent Property Owner from protesting
the amount of the fee or extent of the improvements for Alga Road and Poinsettia Lane.
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4. a) Property Owner agrees to pay to City its fair share for the improvements
described in paragraph one (1) above (“Deposit’), currently estimated to be $500 per “Average
Daily Trip’ (‘ADT”) allocable to each dwelling unit In the Project. Ten (10) ADT’s are allocable to
each single-family dwelling unit in the Project and six (6) ADT’s are allocable to each multi-family
dwelling unit in the Project. The total amount of Deposit contemplated under the terms of this
Agreement is estimated to be $1,458,000 (Based upon the following calculation: 186 single-
family units x 10 ADT/unit x $500.OO/ADT + 176 multi-family units x 6 ADT/unit x $500/unit).
b) Prior to the recordation of a final map for any phase or phases within the
Project, Property Owner shall pay the Deposit to City in an amount calculated in accordance with
Paragraph 4.a) above for the number of units proposed within that final map, minus the amounts
of the credits provided for in subparagraphs 4.~) and 4.d) below, to the extent those amounts
have not previously been subtracted from the Deposit. Forthe purpose of computing the Deposit
amount required pursuant to this Agreement, recordation of ail or a portion of the multi-family lots
shall require full payment of that portion of Deposit allocable to each of the multi-family units
included with the lot or lots being recorded.
c) Property owner has, prior to the date of this Agreement, advanced $25,000 in
connection with the preparation of a report that will establish cost estimates for the Fee Program.
This advance was made pursuant to that certain agreement between Property Owner and City
(“Cost Agreement”). All amounts advanced by Property Owner under the Cost Agreement,
including the $25,000 previously advanced, shall be credited against the Deposit.
d) Property Owner is obligated by the conditions 101~ and 101d of the tentative
map for the Project to construct portions of Alga Road, some of which are within the Fee
Program and some of which are not within the Fee Program. Those portions of Alga Road
constructed by the Property Owner which are described in paragraph one (1) and are included
within the Fee Program (Reimbursable Portion) are fully reimbursable pursuant to the provisions
of this paragraph. Those portions of Alga Road constructed hy the developer which are not
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described in paragraph one (1) or are not included within the Fee Program are not considered
reimbursable. Property Owner and City agree that, for purposes of this Agreement, the dollar
amount of the Reimbursable Portion of the Property Owner’s Alga Road improvement obligation
is estimated at $918,000 (‘Reimbursement’). The actual amount of the Reimbursement shall be
determined upon completion of the engineering report for the Fee Program and upon adoption
of the Fee Program by the City Council. Upon substantial completion of any grading work,
improvement, or property acquisition of the Reimbursable Portion of the Alga Road improvement,
City shall within sixty (60) days reimburse Property Owner an amount equal to the cost of the
work as determined by the engineering report used to determine the adopted fee. In the event
that the engineering report is not completed or the Fee Program has not been adopted by the
City at the time of substantial completion of the Reimbursable Portion of the Alga Road
improvements, City shall reimburse Property Owner an amount equal to the estimated cost of the
Reimbursable Portion of improvements constructed by the Property Owner as determined by the
City Engineer. Upon completion of the engineering report and adoption of the Fee Program by
City Council, City shall determine the actual amount of the Reimbursable Portion of the
constructed improvements. Any difference in cost between the estimated and actual value of the
Reimbursable Portion of constructed Improvements shall be added to or subtracted from the
Deposit due pursuant to paragraphs 8.a) through 8.1) below. lf Reimbursement exceeds the
amount of the Deposit previously paid by Property Owner to City, then the excess shall be a
credit to be applied against Property Owner’s future Deposit obligations. In no case shall the City
reimburse the Property Owner pursuant to this Agreement in an amount greater than the amount
of the total fee due under the adopted fee program without first entering into a subsequent
‘reimbursement agreement between the City and Property Owner.
e) The actual amount of Property Owner’s fair share payment under the Fee
Program shall be conciusively determined by City Council at the time the Fee Program is
established.
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f) Deposit by Property Owner of its fair share of improvement costs as determined
herein, and the contractual covenant created by this Agreement satisfies Property Owner’s
obligations for the construction of th8 improvements described in paragraph one (1) above, as
required by the Local Facilities Management Plan for Zone 20 and Tentative Subdivision Map CT
91-12 condition numbers 2 (as that condition relates to the funding and construction of Alga
Road and Poinsettia Lane). .
5. Property Owner acknowledges that this Agreement to pay its fair share and
participate in the financing of improvements is voluntary and that without this Agreement 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 the construction of the Improvements described
in Paragraph 1 above.
6. Property Owner hereby waives its right to challenge the establishment or
imposition of Fee Program. Property owner’s waiver of its tight to challenge the establishment
or imposition of Fe8 Program shall not prevent Property Owner from protesting the amount of
the fee or extent of the improvements for Alga Road and Poinsettia Lane.
7. This Agreement does not affect, in any way whatsoever, the obligation of Property
Owner to pay any other fees or assessments associated with Property Owner’s development,
nor does this Agreement relieve Property Owner from providing other public facilities required
under conditions of the Local Facilities Management Plan for Zone 26 or placed upon Tentative
Map CT 91-12 by the City.
8. a) If prlor to January 1, 1999, the Fee Program for Alga Road and Poinsettia Lane
is established, subsequent to Deposit by Property Owner pursuant to this Agreement, Property
Owner’s financial obligation shall be recalculated at that time, using the fee formula established
under the approved Fe8 Program. If the initial Fee Program obligation is different from Deposit,
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plus accrued interest, amount previously paid by Property Owner to City pursuant to Paragraph
4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amount
due (Shortfall).
b) Any refund shall b8 made from funds available through the collection of fees
and shall not be an obligation of City’s General Fund or other revenue sources.
c) In the event that insufficient funds are available from the fee revenues, Property
Owner shall be reimbursed in the order In which funds were deposited with City as soon as
sufficient funds become available, as determined by the City Council.
d) No reimbursement is required until the City Council determines that sufficient
funds are available.
e) If a Shortfall exists, Property Owner shall be notified of the amount of such
Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be due and
payable to City 30 days after the mailing of such notice.
9 The computation of the amount of any Shortfall shall not include interest
charges.
g) If payment in full of the Shortfall is not made by Property Owner within ninety
(90) days 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 pen-nit 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.
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 Property Owner and shall be added to the amount of the Shortfall payment due 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.
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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.
i) On or after the effective date of the Fee Program adopted by City Council, the
Property Owner may elect to terminate this Agreement. The Property Owner shall notify the City
of their intent to terminate this Agreement in writing in accordance with the provisions of
paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit account
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 paragraph 4.d) above, if
any. Upon payment of the shortfall, if any, by the Property Owner and upon the determination
by the City that th8 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 which 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. If the Fee Program has not been established for any reason by January 1, 1999,
th8 amount paid by Property Owner under this Agreement, Including any credits or
relmbursements due pursuant to paragraph 4.~) and 4.d) above, shall be deemed to represent
Property Owner’s fair share cost for provision of those facilities described in paragraph one (1)
above and no further payment will be due from or reimbursement due to Property Owner.
10. Compliance with thls Agreement will be accepted by City as an alternate to the
method described in the current Local Facilities Management Plan for Zone 20 for financing the
improvements described In paragraph one (1) above. This Agreement does not require City to
issue building permits or other development permits or grant approvals or relieve Property Owner
of th8 obligation to comply with all applicable provisions of law, including but not limited to,
Carlsbad Municipal Code Titles 18, 19, 20 and 21.
11. Compliance with the provisions of this Agreement is a condition of all future
discretionary approvals for the Project. If 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
Management Progrdm, the Local Facilities Management Plan, or the applicable financing plan
for Zone 20 and all subsequent discretionary approvals and permits for the Project shall be
withheld by City.
12. The City may, at its discretion, elect to pursue any remedy, legal or equitable
against Property Owner or Property Owner’s successors, heirs, assigns, and trarsferees, with the .
exception of owners of individual lots for which building permits haV8 been issued, to secure
compliance with this Agreement.
13. Ci shall not, nor shall any officer or employee of city, be liable or responsible
for any loss or damage Incurred by 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 City
in this Agreement. Property Owner agrees to Indemnify City for any liabilities incurred by City
as a result of City’s exercise of these remedies.
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14. This Agreement and the covenants contained herein shall be binding upon and
inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and City,
and run with the real property and create an equitable servitude upon the real property.
15. 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 to Property
Owner shall be presumed to have been made on the date of mailing regardless of receipt by
Property Owner. Notices required to be given to Property Owner shall be addressed as follows:
Mr. Dorian Johnson
BRAMALEA CAUFORNIA, INC.
100 Bayview Circle, suite 2006
Newport Beach, CA 92660
NOtiC8s to the City shall be delivered to the
Finance Director,
City of Carlsbad,
1200 Carlsbad Village Drive,
Carlsbad, California, 92008.
Each party shall notify the other immediately of any changes of address that would require ,
any notice delivered hereunder to be dim&d to another address.
16. The obligation and benefits of this Agreement shall be transferred upon saiebf the
Project. As used in this Agreement, “Property Owner’ shall be the owner of the real property
which comprises the Project, except as to any real property for which residential permits have
been issued. Notwithstanding any provision of this Agreement to the contrary, upon written
notice to the City pursuant to Paragraph 15 above, all obligations, benefits and responsibilities
of this agreement shall move to the new owner of the real property which comprises the Project.
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17. The undersigned entity further states, under penalty of perjury, that it is the owner
of the property described herein, or an authorited agent of the owner, and has the authority to
sign this document Including the creation of the covenants herein.
Executed this &day of ADril
PROPER-W OWNER:
Dorian A. Johnson
(print name here)
Vice President n
(print name here)
Senior Vice President
(title and organization of Signatory)
(Notarial ecknowledgmeud d oxacutkn by PROPERTY OWNER must k aMached.)
(President 01 vkeprestietd and rocretary or auktad ucratary nwsl rlgn fu corporrdkh If only or-a dfkw rlgns, tha corporatkn
must attach a resolution certiibd by the ciecratay or essistd secretary under corparata aeal empowering thd officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
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STATE OF CALIFORNIA
COUNTY OF Orange
On April 4, 1995 , before me, Dee Baker, Notary Public I
personally appeared Dorian A. Johnson and Emile K. Haddad--------------------------
--------------------------------------------------------------, personally known to me
(aat~u~~~e~~~~~~~~~to be the person(s) whose name(s)&are
subscribed to the within instrument and acknowledged to me that l&&e/they executed the same
in Iu@ti/their authorized capacity(ies), and that by&&#&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.
Signature ?lidedw
(This area for olficlal notarial seal)
Title of Document Petition, Waiver, and Consent to Creation of a Facilit Impact
Date of Document Fee Program & Agreement to,$;~o~~;g~~are Cost of AlgayRoad, etc.
Other signatures not acknowledged
3008 (1194) (General)
Fvst American Title Insurance Company