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HomeMy WebLinkAbout2000-06-27; City Council; 15830; Street And Sidewalk Policy Committee Final Report8 3 . E 8 p 2 C,v OF CARLSBAD - AGENDAiLL a$,= :: -n 3 ; AB# 6 g30 TITLE: RECOMMENDATIONS FOR THE MTG. 6127100 IMPLEMENTATION OF THE STREET AND SIDEWALK POLICY COMMITTEE FINAL REPORT RECOMMENDED ACTION: 1. Introduce Ordinance No. r\ls -5 55 amending Municipal Code Chapter 18.40. 2. Introduce Ordinance No. fl 5 -s56 repealing Urgency Ordinance No. 518 & 5 2 7 l 3. Adopt Resolution No. a000 - 2.3 b naming Alternative Design Streets, approving Alternative Street Design Process and Alternative Street Design Criteria. 4. Adopt Resolution No. &I00 - a37 approving Responses to Street & Sidewalk Committee recommendation. ITEM EXPLANATION: Background On November 2, 1999 the City Council adopted Resolution No. 99-485 forming the citizens committee to study sidewalks and street improvements. The Street and Sidewalk Policy Committee was “directed to consider all relevant issues pertaining to street and sidewalk designs in formulating its recommendations to the City Council including, but not limited to, aesthetics, neighborhood compatibility and preferences, safety, liability, environmental impacts, and to consider all applicable laws including, but not limited to, Americans with Disabilities Act, Clean Water Act and the like.” “After careful study and consideration of all appropriate and relevant information including public input, it shall make its report and recommendations to the City Council. Its report shall consider street categories and whether or not they should be standard or special character and recommend a process to petition for installation of improvements.” On February 23, 2000, the Committee approved its final report, which was presented to the City Council on March 7, 2000. In conformance with Council’s direction, the Committee identified streets within the study area to be completed compatible with existing improvements and alternative design streets which were to remain in the current state until such time as a special study was triggered and the recommended “Alternative Street Design Approval Process” was completed. In addition to the street categories and “Alternative Street Design Approval Process”, the Committee approved an “Alternative Street Design Criteria” to guide the approval process. Beyond the specific direction of the Council, the Committee adopted fourteen (14) individual recommendations that further addressed concerns of the Committee. This report contains staffs analysis of the Committee recommendations and implementing measures incorporating changes into the City codes, policies and procedures to accomplish recommended actions. Page 2 of Agenda Bill No. I!$! ~3 0 Street Categories The Committee reviewed all streets within the study area and created two categories: 1. Compatible Improvement Streets 2. Alternative Design Streets Compatible improvement Streets are to be completed with curb, gutter and sidewalks compatible with existing improvements in the surrounding area and not in violation of state and federal law. Alternative Design Streets shall remain unimproved until the street has completed the Alternative Street Design Approval Process to establish a design most compatible with neighborhood and overall City goals. Staff supports the street categories and the Alternative Street Design Approval Process included in the Committee report. Implementation of the Committee recommendations requires revisions to Chapter 18.40 of the Carlsbad Municipal Code (See attached Exhibit 1). It is recommended that section 18.40.070 Deferral of Improvement Requirements be. revised by the addition of condition (5) stating “Improvement would be to a street designated by Resolution of the City Council as an ‘Alternative Design Street’ and subject to the ‘Alternative Street Design Approval Process”‘, and, (6) “Improvements are not continuous with existing improvements and construction would be impractical.” Also, attached for Council approval is a resolution adopting the Committee recommended list and maps showing Alternative Design Streets and incorporating the adoption of the Alternative Street Design Approval Process and Alternative Street Design Criteria. Miscellaneous other revision to findings have been incorporated into Municipal Code section 18.40 to be consistent with the Alternative Street Design concept. Changes to the code are shown by strikeouts and addition for ease of review on Exhibit 1. Section 18.40.130 establishing the moratorium on improvements is being eliminated. Street and Sidewalk Committee Recommendations Attached for Council review is a point-by-point review of the Committee’s recommendation and staffs responses. If Council agrees with staffs recommendations, a resolution has been provided responding to the Committee’s recommendations. Staff generally supports the Committee recommendations, except in the areas related to improvements and right-of-way dedications as they apply to residential remodels. Dedications Committee recommendation number seven (7) states that “street right-of-way dedication be required only for building permits which create new residential dwelling units. Residential remodels would be exempt from the requirement.” Staff Recommendation: Dedications shall remain as a requirement of residential remodels. The threshold for the requirement should be raised from $70,000 to $15,000 in building valuation with this threshold amount being indexed to increase with the international Conference of Building Officials (ICBO) determination of building valuations. Page 3 of Agenda Bill No. rL%! g 30 Discussion State law and generally accepted practice recognizes the obligation of each property owner to provide frontage rights-of-way and improvements to access property and provide continuity for the provision of services to the neighborhood and the community as a whole. These dedications need to be consistent with accepted City standards, unless they are modified by specific Council action. Consistent with Committee recommendation number 8, at such time as Alternative Design is adopted identifying a reduced right-of-way requirement, the excess dedication can be returned. Staff is further recommending that the Code be revised to allow an irrevocable offer of dedication in- lieu of the actual granting of easements. This would allow the property to be retained by the owner until such time as it is required to install required improvements. An irrevocable offer to dedicate real property may expire subject to California Code of Civil Procedures, Section 771.010. The appropriate language has been incorporated into the Ordinance for Council adoption. Improvements Committee recommendation number 9 states that “Future improvement Agreements apply to only new construction. Remodeling of existing residential dwelling units would be exempt from improvement requirements.” Staff Recommendation That the improvement requirements continue to be recognized for residential remodels and that agreements be required when permits exceed $75,000 in building permit valuation. This amount to be indexed to changes in the /CBO valuation schedule. $75,000 is an increase over the existing $50,000. Staff further recommends that the former Future Improvement Agreement be replaced with a “Neighborhood improvement Agreement”. This change is incorporated into the attached ordinance revision. Staff would support allowing existing Future Improvement Agreements to be substituted with a Neighborhood Improvement Agreement upon request of the property owner. (See attached Exhibit 7) Discussion As with the dedication requirement, frontage improvements are commonly recognized as a property owner obligation. To the extent that improvements are inadequate to meet the needs of the neighborhood and the community as a whole, the Council needs a mechanism to ensure the ability to gain property owner participation should improvements be required. Past practice of the City has been to obtain Future Improvement Agreements (FIA’s). These documents establish a lien obligation on the property and require installation of improvements upon demand of the City. The FIA represents a lien on the property, is recorded and runs with the property. FIA’s have been invoked in conjunction with City improvement projects. This has given rise to an equity concern that some citizens have been required to install and pay for improvements through FIAs, while their neighbors may not have been required to pay. A more equitable approach would be to form assessment districts and spread the cost equitably throughout the block. This approach is more consistent with a general obligation for all property owners, will allow a more equitable distribution where an alternative design varies for different frontages and would better lend itself to payment for improvements over time. Page 4 of Agenda Bill No. Staff working with. an assessment attorney has developed a “Neighborhood Improvement Agreement”. Under this agreement, the building permit applicant agrees to not protest the formation of an assessment district on their block and to pay their fair share of improvements not to exceed a * stipulated amount. This approach has the advantage of a more equitable distribution of cost and a reduction of cost to the City as a whole, but it will require an extensive public process to define and install needed improvements. In some instances, this may be very difficult to accomplish and frustrate needed improvements. Attached for Council review (Exhibit 6) is a survey of how other agencies deal with dedications and improvements related to building permits. Conclusion Staff supports the direction of the Street and Sidewalk Committee with exception of the noted differences related to dedication and improvement requirements. Ordinance revisions and resolutions are submitted for the Council’s consideration to implement those recommendations. ENVIRONMENTAL REVIEW The actions recommended to the Council at this time do not qualify as projects for purposes of environmental review and CEQA analysis. Follow-up actions to implement the Council’s decisions may qualify as projects and may be required to go through environmental analysis such as a specific proposal to design and adopt an Alternative Street Design. FISCAL IMPACT: The proposed program will involve significant staff resources to assist neighborhoods in the development of Alternative Street Designs. Depending on the scope and difficulty, each street design could cost from $50,000 to $150,000 including preliminary engineering studies. The cost of assessment district formation could range from $25,000 to $50,000 per block. Although it is estimated that only a small number of assessment districts would be developed, additional staff resources may be needed for administration of districts in subsequent years ($10,000 to $30,000 annually). All costs could be recovered with the successful formation of an assessment district. Adopting the assessment district approach will reduce the City’s involvement in funding the sidewalk program, which is currently budgeted at $800,000 per year through Traffic Impact Fees and Transnet. However, these funds would not be available to finance assessment districts. Instead, the assessment districts would need to issue bonds to fund the initial work with the bonds to be repaid by the property owners. EXHIBITS: 1. 2. 3. 4. Ordinance No. AI5- S5.5 amending Municipal Code Chapter 18.40. Ordinance No. k S- 55b repealing Urgency Ordinances No. NS-516 and No. NS-527. Resolution No. aoO- 2.3 b naming Alternative Design Streets, approving Alternative Street Design Process and Alternative Street Design Criteria. Resolution No. JOOO- a 37 approving Responses to Street & Sidewalk Committee recommendation. 5. Staff Analysis of Street & Sidewalk Committee Recommendations. 6. . Survey of Dedication and Improvement Requirements. 7. Neighborhood Improvement Agreement ORDINANCE NO. NS-555 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, REPEALING MORATORIUM ON IMPROVEMENTS, TITLE 18, SECTION 18.40.130 OF THE CARLSBAD MUNICIPAL CODE, AND AMENDING TITLE 18, CHAPTER 18.40, OF THE CARLSBAD MUNICIPAL CODE BY THE AMENDMENT OF SECTIONS 18.40.010,. 18.40.020, 18.40.030, 18.40.040. 18.40.070 AND 18.40.090. I The City Council of the City of Carlsbad, California, hereby ordains as follows: SECTION 1: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by 8 II the amendment of Section 18.40.010 to read as follows: I 9 10 18.40.010 Findings, purpose and intent. 11 (a) The city council finds as follows: 12 (1) There is a lack of adequate ou&+guW:s. sWwalksroadway edoe treatments, pedestrian ,3 facilities and streets in various areas of the city which is-may be prejudicial and dangerous to the ,4 public health, safety, and welfare of the inhabitants of the city. 15 (2) The lack of improved &&walk6pedestrian pathways in the city in many instances forces pedestrians, including school children, to walk in the streets and to be subject to the hazards of 16 vehicular traffic. 17 (3) The lack of improved si&+A&-pedestrian pathways during rainy weather has caused 18 unhealthy conditions resulting from pedestrians walking through mud or water along streets or dirt 19 sidewalks. 20 (4) Streets and highways of inadequate width and design hinder vehicular movement and 21 I/ constitute a hazard to the safety and health of users. 22 (5) The lack of curbs, storm drains and other street improvements results in poor drainage and 23 a collection of filth and waste. 24 (6) The lack of improved streets impedes the operation of fire trucks, police cars and other 25 emergency vehicles as well as the operation of street sweepers and refuse collection vehicles. (b) It is the purpose of the city council in adopting the provisions of this chapter to: 26 27 (1) Impose reasonable requirements of dedication and improvements upon persons engaged in .the development, construction, reconstruction or remodeling of buildings which tend to result in 28 increased demands upon the existing public rights-of-way and streets and highways in the city thereby increasing the danger to the public health, safety and welfare; 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) Extend the basic requirements of the Subdivision Map Act by establishing standards and requirements for dedication and improvements in connection with the development of land in which no subdivision is involved; (3) Alleviate the undesirable situation found to exist in subsection (a) by spreading the cost of public improvements upon abutting property in an equitable manner and by causing the installation of those improvements required by the city to serve property about to be developed at the time of its development. (c) The city council intends to require, in accordance with the provisions of this chapter, the dedication of portions of the public rights-of-way including streets, highways, alleys and storm drain facilities and the construction of improvements contiguous to the property from the property line to the centerline of the public rights-of-way as necessitated by the nature and type of building or structure being constructed and the use to which the property is being put. I SECTION 2: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by the amendment of Section 18.40.020 to read as follows: 18.40.020 Definitions. For the purposes of this chapter, the following words and phrases shall have the meaning respectively ascribed in them by this section: (1) “Alley” means a public or private way permanently reserved as a secondary means of access to abutting property. (2) “Building” includes any building, structure or dwelling of which the cost price of erecting the same is in excess of the sum of ten--fifteen thousand dollars as Determined by building permit valuation. (3) “Improvements” includes, but is not limited to, sidewalks, gutters, pavement, driveways, curbs, streets, alleys, storm drain facilities, water systems, sanitary sewer systems, street lighting, fire protection installation, undergrounding of utility facilities and pavement transitions. (4) “Person” means any person, firm, partnership, association, corporation, company or organization of any kind. The term “person” also includes any owner, lessee or agent constructing or arranging for the construction, modification, or alteration of a building or dwelling. I 1 (5) “Alternative Design Streets” means any street designated by Resolution of the Cite Council 2 as an “Alternative Design Street” subject to the Alternative Street Desion Approval Process used 3 to determine the final improvement standards for the designated street. 4 SECTION 3: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by 5 II the amendment of Section 18.40.030 to read as follows: 6 7 18.40.030 Dedications required 8 (a) Any person who constructs or causes to be constructed any building in the city shall have 9 provided by means of an irrevocable offer of dedication, grant of easement or other appropriate IO conveyance, as approved by the city attorney, the rights-of-way necessary for the construction of 11 any street, highway, or alley as shown on the circulation element of the general plan, any 12 applicable specific plans, or as otherwise required by the city engineer in accord with an 13 established street system or plan. Rights-of-way shall also be provided for any improvements to 14 existing facilities including rights-of-way for storm drains or other required public facilities. All rights-of-way shall be accompanied by a title examination report and be free of all liens and 15 encumbrances. 16 (b) The dedications or irrevocable offer of dedication required by subsection (a) shall also apply 17 to any person who alters, enlarges, expands, or causes to be altered, enlarged, or expanded any I8 building in the city if the cost of such work exceeds the sum of ten-fifteen thousand dollars as Is determined by building permit valuation. Said amount to be increased annually consistent with 20 International Conference of Building Officials valuation schedule for the appropriate construction 21 type. 22 23 (c) The dedications required by this chapter shall be made prior to issuance of the building 24 permit for the subject property. II Ill 25 Ill 26 tit 27 Ill . 28 l/l 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - SECTION 4: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by the revision of Section 18.40.040 to read as follows: 18.40.040 Public improvements required. (a) Any person who constructs or causes to be constructed any building in the city shall construct all necessary improvements in accordance with city specifications upon the property and along all street frontages adjoining the property upon which such building is constructed unless adequate improvements already exist. In each instance, the city manager shall determine whether or not the necessary improvements exist and are adequate. Each building permit application shall be so endorsed at the time it is issued. (b) The improvements required by subsection (a) of this section shall also apply to any person who alters, enlarges or expands or causes to be altered, enlarged or expanded any building in the city if the cost of such work exceeds fifty--seventh-five thousand dollars. Said amount to be increased annually consistent with International Conference of Buildino Officials valuation schedule for the appropriate construction type. SECTION 5: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by the revision of Section 18.40.070 to read as follows: 18.40.070 Deferral of improvement requirements. Upon written application, the city manager by written order may defer any of the improvements required by this chapter if he finds that the public health, safety and welfare of the inhabitants of the city will not be endangered by the deferment of the construction of the improvements and that any one of the following exists: (1) There is a lack of adequate data in regard to the grades, plans or surveys which complicate the construction of the improvements and indicate they should be deferred to a later time. (2) The construction of the improvements is included in an approved or pending assessment district or otherwise guaranteed as provided by city ordinance. (3) Construction of the improvements would be incompatible with the present state of the neighborhood’s development or be impractical or premature because of the condition of the surrounding property. (4) Construction of the improvements would create a hazardous or defective condition. - 1 (5) Improvement would be to a street desionated by Resolution of the City Council as an 2 “Alternative Desion Street” and subiect to the “Alternative Street Design Aporoval Process”. 3 (6) Improvements are not continuous with existing improvements and construction would be impractical. 4 5 II SECTION 6: That Title 18, Chapter 18.40 of the Carlsbad Municipal Code is amended by 6 the revision of Section 18.40.090 to read as follows! 7 I/ 8 II 18.40.090 Conditions of deferral. 9 Any deferral of improvements pursuant to Section 18.40.070 shall be conditioned on the filing with IO the city manager of] a neinhborhood improvement aoreement 11 Jin a form satisfactory to the city attorney which 12 provides that the property owner will construct the improvement at such time as an improvement 13 district or neiqhborhood improvement prooram is adopted. w to be 14 J . The city manager is authorized to execute such agreement on behalf of the city. Such agreement must be 15 received and recorded prior to issuance of a building permit. If the building permit is not exercised, 16 the city manager is authorized to execute a release of ken-agreement for the subject property. 17 I I8 Prior to the recordation of1 a neiohborhood improvement I9 aoreement, there shall be paid to the engineering department a fee as set by resolution of the city 20 council for the processing of the agreement. 21 22 SECTION 7: That Title 18, Chapter 18.40, Section 78.40.130 of the Carlsbad Municipal 23 Code is repealed. II 26 . tLn 27 28 II - 1 9s. T- . 26 . . tn I, 3FwW 4 5 /I-: crt II 6 8 I 9 EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after its adoption and IO the City Clerk, City of Carlsbad, shall certify to the adoption of this ordinance and cause it to be 11 published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen ,2 II (15) days after its adoption. 13 14 INTRODUCED AND FIRST READ at a regular meeting of said City Council held on the 15 day of , 2000, and thereafter, 16 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council 17 held on the of day , 2000 by the following vote, to wit: 18 AYES: 19 NOES: 20 II ABSENT: I 22 CLAUDE A. LEWIS, Mayor 23 II 24 /I ATTEST 25 II 26 /I LORRAINE M. WOOD, City Clerk 27 Il. 28 (SEAL) 10 ORDINANCE NO. NS-556 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, REPEALING URGENCY ORDINANCE NO. NS-516 PROHIBITING THE ISSUANCE OF BUILDING AND GRADING PERMITS IN SUBDIVISIONS FROM EL CAMINO REAL WEST TO THE OCEAN BETWEEN AGUA HEDIONDA AND BUENA VISTA LAGOONS AND REPEALING ORDINANCE NO. NS-527 WHICH EXTENDED ORDINANCE NO. NS-516 WHEREAS, on November 2, 1999, Council approved an urgency ordinance prohibiting the issuance of building and grading permits in the Northwest Quadrant pending a report and 8 recommendations of a citizens committee to study sidewalk and street improvement standards; 9 and 10 WHEREAS, Council appointed a 15-member citizens committee to study streets and 11 sidewalks in the area west of El Camino Real to the ocean, between Agua Hedionda and Buena 12 Vista Lagoons; and 13 WHEREAS, Council directed the Committee to consider all relevant issues in formulating 14 its recommendations to the City Council including, but not limited to, aesthetics, neighborhood 15 compatibility and preferences, safety, liability, environmental impacts, and to consider all applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and 16 the like; and 17 WHEREAS, the Committee gave its report and recommendation to City Council on March I8 7,200O; and 19 WHEREAS, Council has taken action regarding the Committee’s report and 20 recommendations and has determined that potential development no longer represents a current 21 and immediate threat to the public health, safety and welfare. 22 NOW, therefore, the City Council of the City of Carlsbad, California, does ordain as 23 fOllOWS: II 24 II SECTION 1. That the above recitations are true and correct. Ill 25 l/l 26 ill 27 ./II 28 Ill . - 1 SECTION 2. This ordinance hereby repeals in their entirety Ordinances No. NS-516 and 2 I/ Ordinance No. NS-527 pursuant to Section 2 of Ordinance No. NS-527. 3 4 EFFECTIVE DATE: This ordinance shall be effective thirty (30) days after its adoption and the City Clerk, City of Carlsbad, shall certify to the adoption of this ordinance and cause it to be 5 published at least once in a newspaper of general circulation in the City of Carlsbad within fifteen 6 (15) days after its adoption. 7 II 8 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council g held on the day of , 2000 by the following vote, to wit: IO AYES: 11 NOES: 12 ABSENT: 14 I/ CLAUDE A. LEWIS, Mayor I5 ATTEST: 16 17 I/ LORRAINE M. WOOD, City Clerk 18 19 20 21 22 23 24 25 26 27 28 (SEAL) 1 RESOLUTION NO. 2000-236 2 3 4 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE DESIGNATION OF ALTERNATIVE DESIGN STREETS, THE ALTERNATIVE STREET DESIGN APPROVAL PROCESS, AND THE ALTERNATIVE DESIGN CRITERIA. 5 WHEREAS, on November 2, 1999, the City Council appointed a 15-member Citizens 6 Committee to study streets and sidewalks in the area west of El Camino Real to the ocean, 7 letween Agua Hedionda and Buena Vista Lagoon; and 8 WHEREAS, Council directed the Committee to consider all relevant issues in formulating 9 ts recommendations to the City Council including, but not limited to, aesthetics, neighborhood IO :ompatibility and preferences, safety, liability, environmental impacts, and to consider all 11 applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and 12 he like; and 13 WHEREAS, the Committee gave its report and recommendation to City Council on March 14 7,2000; and WHEREAS, the Committee identified streets to be considered “Alternative Design 15 streets”, recommended an “Alternative Street Design Approval Process”, and identified 16 Alternative Design Criteria”; and 17 WHEREAS, Council concurs with the recommended Alternative Design Streets, 18 19 20 ilternative Street Design Approval Process and Alternative Design Criteria. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, Zalifornia, as follows: 21 I. That the above recitations are true and correct. 22 23 24 25 26 27 28 II II II Ii II II II tt II 1 2 a 3 4 5 6 7 8 9 10 11 12 13 14 - 2. Alternative Design Streets as designated, the Alternative Street Design Approval Process and Alternative Street Design Criteria, as presented in the Street & Sidewalk Policy Committee Final Report, are hereby approved. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the day of , 2000 by the following vote, to wit: AYES: NOES: ABSENT: CLAUDE A. LEWIS, Mayor ATTEST II LORRAINE M. WOOD, City Clerk 28 (SEAL) ‘4 1 RESOLUTION NO. 2000-237 2 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, RESPONDING TO STREET & SIDEWALK COMMITTEE RECOMMENDATIONS 4 WHEREAS, on November 2, 1999, the City Council appointed a 15-member Citizens 5 6 Committee to study streets and sidewalks in the area west of El Camino Real to the ocean, between Agua Hedionda and Buena Vista Lagoon; and 7 8 9 WHEREAS, Council directed the Committee to consider all relevant issues in formulating its recommendations to the City Council including, but not limited to, aesthetics, neighborhood compatibility and preferences, safety, liability, environmental impacts, and to consider all 10 applicable laws, including but not limited to, Americans with Disabilities Act, Clean Water Act and 11 the like; and 12 WHEREAS, the Committee gave its report and recommendation to City Council on March 7,200O; and 13 14 WHEREAS, City Council directed staff to evaluate the report and return to Council with recommendations for implementation; and 15 WHEREAS, staff has completed its analysis and has developed associated policy 16 changes and implementation strategies for the Committee’s recommendation; and 17 WHEREAS, said policy changes and recommendations are submitted by staff for Council 18 consideration and acceptance. 19 20 WHEREAS, City Council agrees with certain policy changes and implementation strategies presented in the Staff Analysis of Street 8. Sidewalk Recommendations. 21 22 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 23 24 25 26 27 28 ill Ill Ill Ill flf Ill 1. That the above recitations are true and correct. 1.5 The City Council hereby responds to the recommendations presented herein as follows: A. Street & Sidewalk Committee Recommendation No. 1: General Plan Amendment Council Response Council hereby refers committee recommendation to Planning Department for consideration in the annual review of the General Plan and other ongoing study efforts. B. Street 8 Sidewalk Committee Recommendation No. 2: Sound Walls Council Response Council hereby directs staff to monitor the environmental review process of the Caltrans l-5 widening project and advise council on appropriate measures to mitigate sound impacts. C. Street & Sidewalk Committee Recommendation No. 3 Underground Utilities Council Response Council hereby directs staff to. review the Underground Utilities Program and return to Council on the existing status of the program and options ‘for accelerating undergrounding during Fiscal Year 2000-2001. D. Street & Sidewalk Committee Recommendation No. 4 Traffic Calming Council Response Council hereby directs the Residential Traffic Management Program Committee to review and respond to this issue as part of their work program. 1 2 3 E. Street & Sidewalk Committee Recommendation No. 8 Dedications Council Response 4 5 Council Directs staff that at such time as rights-of-way are found to be in excess of that required, the excess will be presented to Council to be quitclaimed. 6 7 8 9 F. Street & Sidewalk Committee Recommendation No. 10 Future Improvement Agreements Council Response 10 11 12 Council hereby directs staff to issue building permit applicants a notification of potential improvement or “Neighborhood Improvement Agreement” obligation at receipt of the building permit application. 13 14 15 16 17 G. Adopt “Neighborhood Improvement Agreement” Council hereby approves and adopts the “Neighborhood Improvement Agreement”. Changes to this agreement may be made with approval of the City Attorney. 18 19 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council 20 21 22 qeld on the AYES: NOES: ABSENT: day of 23 24 CLAUDE A. LEWIS, Mayor 25 4TTEST 26 27 28 -‘ORRAINE M. WOOD, City Clerk - , 2000 by the following vote, to wit: (SEAL) 17 C-. STAFF ANALYSIS OF STREET & SIDEWALK POLICY COMMITTEE RECOMMENDATIONS June27,2000 GENERAL PLAN AMENDMENT 1. The Committee recommends that a General Plan Amendment be considered to reflect a slowdown and management of growth in the Northwest Quadrant. Lot size and densities will be an element of this amendment. The Committee recommends an adoption of a philosophy distinguishing the Northwest Quadrant as a unique, quaint, and special community. This philosophy would recognize the necessity for the protection and preservation of the qualities unique to each area. These qualities to include, but not be exclusive of: tree-lined narrower meandering streets, alternative pedestrian pathways, traffic calming and parking options. Special attention to the quality of life the residents have come to expect as delineated in the Municipal Code current ordinance Section 18.40. Dedications and Improvements. Specifically section 18.40.100 waiver or modifications. “The street fronting on the subject property has already been improved to the maximum feasible and desirable state, recognizing there are some such streets which may have less than standard improvements when necessary to preserve the character of the neiqhborhood and to avoid unreasonable interference with such things as trees, wall, yards and open space. STAFF RESPONSE This recommendation deals with a number of issues that are being addressed in ongoing work programs. The Planning Department recently completed a report on infill development. The Council has initiated a Residential Traffic Management Program. Ongoing studies are dealing with the Planned Development Ordinance with a focus on street standard options and walkable communities. The references to Section 18.40.100 are dealt with through the Alternative Design process. Approval of the Alternative Design Process may create an acceptable do- nothing option here. Growth management is a facility-based program adopted through a vote of the City. Revisions to growth management would require a vote of the citizens. It is staffs recommendation that concerns raised in this recommendation be referred to ongoing Planning efforts and the annual General Plan Review Process. SOUND WALLS 2. The Committee recommends sound walls on freeways, 1) City should begin negotiating with Caltrans for construction of soundwalls as part of freeway widening, and 2) City (or Caltrans) should construct sound walls where no freeway widening is anticipated. STAFF RESPONSE Caltrans has begun a project to widen Interstate 5 from Del Mar through Oceanside. . Current funding for the project will provide for freeway widening to Palomar Airport Road. Caltrans anticipates appropriating funds for the remainder of widening north of 1 Palomar Airport Road within the next few years. Caltrans anticipates beginning a five- year environmental review process for the entire project in the Summer of 2000. This will be followed by a two-year design phase before construction, which is set to begin in 2007-08. The project is estimated to be complete by the year 2020. Caltrans conducted a preliminary noise study in 1993 that identified nine potential soundwall locations along l-5 through the City of Carlsbad. Caltrans will engage in additional noise studies estimated to take place during the second year of the environmental review (2001-02). Caltrans anticipates revisiting the preliminary soundwall locations, as well as any additional recommendations developed during the process. All noise studies conducted by Caltrans will include public meetings and public hearings regarding noise abatement and the construction of soundwalls along the l-5 corridor. Caltrans will coordinate with affected cities, neighborhoods, and residences to ensure that the public has an opportunity to participate in determining whether the structures are necessary, reasonable, and feasible. Final locations for soundwalls to be constructed as part of the freeway widening project will not be determined until the completion of the noise study portion of the environmental review in 2001-02. Soundwalls should not be constructed in advance of the widening project. It is appropriate to defer this issue to be addressed as a part of the widening environmental process. UNDERGROUND UTILITIES 3. The committee recommends that “The Council direct staff to explore alternative funding approaches to accelerate the undergrounding of overhead utilities”. STAFF RESPONSE Staff recommends that Council request staff to review the Underground Utilities Program and return to Council on the existing status of the program and options for accelerating the undergrounding program. TRAFFIC CALMING 4. The Committee recommends: a. Based upon our review of the current state-of-the-art street design in other communities, the Committee recommends that instead of a single standard, the City of Carlsbad utilize different design methodologies committed to preserving the existing nature and character of each neighborhood. b. “Based upon the public testimony we have heard, the Committee has found that one of the most important concerns to the residents of “Olde Carlsbad” is excessive traffic speed. Vehicular traffic speed should be calmed using the state-of-the-art design methods, such as traffic lane narrowing, pseudo-shoulders, improved signage, textured paving, rumble strips, Botts’ Dots’, Traffic-Circles, and Elephant Ears.” STAFF RESPONSE Staff would recommend that the Street & Sidewalk Committee Final Report be distributed to the Residential Traffic Management Committee. 5. The committee encourages the City Council to form a Traffic Calming Committee as a follow-up to this committee’s efforts. STAFF RESPONSE Council has appointed a Residential Traffic Management Committee to explore traffic calming measures. DEDICATIONS 6. The Committee recommends that the Council adjust the Municipal Code requirement to dedicate rights-of-way as a condition of a building permit exceeding $10,000 in building permit by indexing the threshold from 1992 to increases in the International Conference of Building Officials (ICBO) valuation amount. STAFF RESPONSE Staff concurs in this recommendation. This has been incorporated into the ordinance for adoption. 7. The Committee recommends that street right-of-way dedication be required only for building permits that create new residential dwelling units. Residential remodels would be exempt from the requirement. STAFF RESPONSE State law and generally accepted practice recognizes the obligation of each property owner to provide frontage rights-of-way and improvements to access property and provide continuity for the provision of services to the neighborhood and the community as a whole. These dedications need to be consistent with accepted City standards, unless they are modified by specific Council action. Consistent with committee recommendation number 8, at such time as Alternative Design is adopted identifying a reduced right-of-way requirement, the excess dedication can be returned. Staff recommends that right-of-way dedications be retained on residential remodels, but the threshold be increased to $15,000 and be indexed consistent with recommendation number 6. Staff would further recommend that the Code be revised to allow irrevocable offers of dedication to be executed. This would allow the owner to retain title to the land until the rights-of-way are actually needed for construction of improvements. Staff’s recommendation has been incorporated into the ordinance for adoption. 8. The Committee recommends that at such time as rights-of-way are found to be in excess of that required, the excess will be quitclaimed. STAFF RESPONSE This recommendation is consistent with current City practice. Staff supports this recommendation. . FUTURE IMPROVEMENT AGREEMENTS 9. The Committee recommends that Future Improvement Agreements apply to only new construction. Remodeling of existing residential dwelling units would be exempt from improvement requirements. STAFF RESPONSE As with the dedication requirement, frontage improvements are commonly recognized as a property owner obligation. To the extent that improvements are inadequate to meet the needs of the neighborhood and the community as a whole, the Council needs a mechanism to ensure the ability to gain property owner participation should improvements be required. Past practice of the City has been to obtain Future Improvement Agreements (FIA’s). These documents establish a lien obligation on the property and require installation of improvements upon demand of the City. The FIA represents a lien on the property, is recorded and runs with the property. FIA’s have been invoked in conjunction with City improvement projects. This has given rise to an equity concern that some citizens have been required to install and pay for improvements through FIAs, while their neighbors may not have been required to pay. A more equitable approach would be to form assessment districts and spread the cost equitably throughout the block. This approach is more consistent with a general obligation for all property owners, will allow a more equitable distribution where an alternative design varies for different frontages and would better lend itself to payment for improvements over time. Staff working with an assessment attorney has developed a “Neighborhood Improvement Agreement”. Under this agreement, the building permit applicant agrees to not protest the formation of an assessment district on their block and to pay their fair share of improvements. This approach has the advantage of a more equitable distribution of cost and a reduction of cost to the City as a whole, but it will require an extensive public process to define and install needed improvements. In some instances, this may be very difficult to accomplish and frustrate needed improvements. Staff recommends that the former Future Improvement Agreement be replaced with a “Neighborhood Improvement Agreement”, that improvement requirements continue to be recognized for residential remodels, and that agreements be required when permits exceed $75,000 in building permit valuation. This amount to be indexed to changes in the ICBO valuation schedule. $75,000 is an increase over the existing $50,000. This recommendation has been incorporated into the ordinance for adoption. 10. The Committee recommends that building permit applicants be issued a notification of potential improvement or Future Improvement Agreement obligation at receipt of the building permit application. STAFF RESPONSE . Staff supports this recommendation. al - 11. 12. 13. 14. The Committee recommends Future Improvement Agreements be made subordinate to homeowner’s mortgages or trust deed financing at present and in the future. Staff will review language with the City Attorney’s office to make sure that the agreement is subordinate to trust deeds. STAFF RESPONSE Should the FIA continue, staff supports this recommendation to revise the language to make that intent clear. The intent is consistent with current practice. The Committee recommends that property owners be given 90 days to respond to demands to comply with Future Improvement Agreements rather than 30 days as currently contained in the agreement. STAFF RESPONSE If the FIA is retained, staff supports this recommendation. The Committee recommends the cost of all improvements be equitably all of the beneficiaries, and that no FIA exceed the property owner’s improvement cost. allocated among fair share of the STAFF RESPONSE Staff supports this recommendation. Assessment proceedings will assist in ensuring that this intent is complied with. The Committee recommends that the City retain its current policy of not building isolated improvements to curbs and sidewalks. The Committee recommends that the portion of Section 18.40.070 as amended in November 1999 pertaining to the policy regarding the deferral of improvement requirements remain as the permanent policy after the building moratorium has been lifted. STAFF RESPONSE Staff supports this recommendation and would recommend that Municipal Code section 18.40.070, Deferral of Improvement Requirements, be amended by the addition of (5) and (6) to read: (5) “Improvement would be to a street designated by Resolution of the City Council as an ‘Alternative Design Street’ and subject to the ‘Alternative Street Design Approval Process”‘, and, (6) “Improvements are not continuous with existing improvements and construction would be impractical.” The revised code section presented for Council action includes this section for Council adoption. STAFF DEDICATION, IMPROVEMENTS AND REPORT FUTURE IMPROVEMENT AGREEMENT SURVEY RESULTS PURPOSE OF THE SURVEY To determine how other agencies address the issues of dedications of right-of-way, improvement requirements and future improvement agreements (FIA). AGENCIES SURVEYED Staff was asked to survey all San Diego County agencies and three municipalities in each of Riverside County, Orange County and the rest of California (See attached Survey Results for exact agencies used). Agencies surveyed outside San Diego County (except City of Riverside) were surveyed based one or more of the following factors: 1. Agency population was similar to the City of Carlsbad at either current or estimated buildout 2. Agency showed greater than 25% estimated population growth since 1990 ’ Note: Not all agencies surveyed outside San Diego County responded. Only agencies that responded to survey were included in the survey results. INFORMATION REQUESTED Staff asked each agency if they required dedication of right-of-way, improvements or future improvement agreements as a condition to the issuance of building permits, similar to Carlsbad or otherwise. Each agency was given a copy the City of Carlsbad Municipal Code Chapter 18.40 to assist in making these determinations. INFORMATION PROVIDED Most agencies responded that they do require dedication of right-of-way, improvements or FlAs as a condition to the issuance of a building permit. However, most ofthe agencies also reported a variety of differing conditions for any of these requirements. Some agencies always require dedication while others never require dedication. Certain agencies place requirements on all residential development, while others only on “new” residential development. In a few agencies certain types or sizes of structures were exempt from dedication and improvement requirements while in others no structures were exempt (See attached Survey Results). CONCULSION The results of this survey do not support either requirement of or exemption from dedications, improvements of future improvement agreements. The results of the survey simply provide a true variety of how different public agencies address the issues of dedications of right-of-way, improvement requirements and future improvement agreements. The committee should be able to use the information presented to determine how best to recommend related policy changes to City Council as these issues pertain to the City of Carlsbad. ’ Population data was gathered from the Historical CitKountv Potdation Estimates, 1991-1999. with 1990 Census Counts: California Department of Finance. Demoprauhic Research Unit. 23 1. - . 2 B 8 E B Y i E E 5 - z - 2 % E ‘j h L i 6.5.00 - Clean RECORDING REQUESTED BY: Department of Public Works CITY OF CARLSBAD 1635 Faraday Avenue Carlsbad, CA 92008 WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Space above this line for Recorder’s use. CITY OF CARLSBAD NEIGHBORHOOD IMPROVEMENT AGREEMENT Permit No. Parcel No. NIA No. THIS AGREEMENT (the “Agreement”) is made this day of -9 20-by and between the City of Carlsbad, a municipal corporation (the “City”), and (the “Owner”). RECITALS 1. Owner is the owner of real property located in the City of Carlsbad, California and described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”). 2. . Owner has applied to the City for issuance of the above identified permit to authorize the development of the Property (the “Development Permit”). 3. The City has determined that additional public improvements and additional right- of-way for such public improvements may be necessary in the future in order to allow Owner to proceed with development and, therefore, the Property would be suitable for development as requested by Owner if certain public improvements as described in Exhibit B attached hereto and incorporated herein by this 1 C 6.500 - Clean 4. 5. 6. reference (the.“lmprovements”) are constructed and the rights-of-way for such Improvements are dedicated to the City. The Municipal Code of the City of Carlsbad requires either the dedication of the necessary rights-of-way for and the construction by Owner of the Improvements or an agreement for the same for certain developments as a condition of approval of the Development Permit. The Owner has requested that the City approve the Development Permit prior the construction of the Improvements. The City is willing to approve the Development Permit prior to the construction of the Improvements as requested by the Owner if Owner (a) grants to the City an irrevocable offer of dedication of the right-of-way necessary for the Improvements and-the subsequent maintenance and operation of the Improvements (the “Right- of-Way”) after acceptance of the Improvements by the City and (b) approves and consents to the formation of an assessment district to include the Property for the purpose of financing the construction of the Improvements. NOW, THEREFORE, IT IS AGREED between the parties as follows: Section 1. Recitals. The foregoing recitals are true and correct. Section 2. City’s Obligations. The City shall approve the Development Permit promptly following the occurrence of each of the following events: A. the execution of this Agreement by the Owner; and B. receipt by the City of an irrevocable offer of dedication for the Right-of- Way in a form satisfactory to the City Attorney. Section 3. Owner’s Obligations. Section 3.01. Owner’s Consent to and Approval of Formation of an Assessment District and Levy of Assessments. In consideration for the approval of the Development Permit prior to the completion of the construction of the Improvements, Owner hereby consents to and approves of: A. the inclusion of the Property in an assessment district which may be formed by the City Council of the City for the purpose of financing the construction of the Improvements (the “Assessment District”); B. the levy of an assessment against the Property (the “Assessment”) in an amount not to exceed the estimated cost of construction of the Improvements, together with the estimated incidental costs of such construction and the estimated costs of formation of the Assessment District and issuance of any bonds to be issued to represent the Assessment. The foregoing costs constituting the Assessment are set forth in Exhibit C 2 6.5.00 - Clean attached hereto and incorporated herein by this reference. The Assessment shall be subject to adjustment for inflation from the date first written hereinabove until the date the Assessment is confirmed and levied by the increase in the Construction Cost Cost Index for Los Angeles as contained in the Engineering News Record or, if the Construction Cost Index for Los Angeles is no longer published, an equivalent index reasonably selected by the City Engineer. In granting the consents and approvals set forth in this Section 3., Owner is acting for and on behalf of Owner, the Owner’s successors, heirs, assigns, and/or transferees and intends that such consents and approvals shall be binding upon each and every such person. Except as otherwise provided for in this Agreement, the consents and approvals given by Owner shall be irrevocable. Section 3.02 Owner’s Grant of a Proxy to the Citv fo’r Assessment Ballot Procedure. Owner hereby grants to the City a proxy to act for and on behalf of Owner, the Owner’s successors, heirs, assigns, and/or transferees for the limited purpose of completing and submitting an assessment ballot in support of the levy of the Assessment in the proceedings to form the Assessment District. In granting such proxy, Owner is acting for and on behalf of Owner, the Owner’s successors, heirs, assigns, and/or transferees and intends that such proxy shall be binding upon each and every such person. Except as otherwise provided for in this Agreement, the proxy granted by Owner shall be irrevocable. Section 4. Owner’s Representations and Waiver of Rights. Section 4.01 follows: Owner’s Representations. Owner hereby represents as A. Owner understands and acknowledges that: 1. Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (Article XIIID and the Implementation Act may be referred to collectively as the “Assessment Law”) establish certain procedures and requirements which apply when any agency such as the City considers the levy of assessments upon real property. 2. The requirements established by the Assessment Law include the following: a. The proportionate special benefit derived by each parcel to be assessed must be determined in relationship to the entirety of the capital cost of the improvement for which the assessment is to be levied ; 6.5.00 - Clean b. No assessment may be imposed on any parcel which exceeds the reasonable cost of the proportional special benefit conferred on that parcel from the improvement for which the assessment is to be levied; C. Only special benefits are assessable; and d. Parcels within an assessment district that are owned or used by any agency, the State of California or the United States of America shall not be exempt from assessment unless the agency proposing to levy the assessment can demonstrate by clear and convincing evidence that those publicly owned parcels in fact receive no special benefit from the improvement for which the assessment is being levied. 3. The procedures established by the Assessment Law include: a. The agency which proposes to levy an assessment (the “Agency”) shall identify all parcels which will have a special benefit conferred upon them from the improvement for which the assessment is proposed to be levied and upon which an assessment is proposed to be imposed. b. All assessments must be supported by a detailed engineer’s report prepared by a registered professional engineer certified by the State of California. C. Prior to levying a new assessment, the Agency must give written notice by mail (the “Assessment Notice”) to the record owner, i.e., the owner of a parcel whose name and address appears on the last equalized secured property tax roll, of each parcel proposed to be assessed. The Assessment Notice must include: (i) the total amount of the proposed assessment chargeable to the entire assessment district, (ii) the amount chargeable to the record owner’s parcel, (iii) the duration of the assessment payments, (iv) the reason for the assessment, (v) the basis on which the amount of the proposed assessment was calculated, and (vi) the date, time and location of a public hearing on the proposed assessment. d. The Assessment Notice must contain an assessment ballot that includes a place where the person returning the assessment ballot may indicate his or her name, a reasonable identification of the parcel, and his or her support or opposition to the proposed assessment. The Assessment Notice must also include, in a conspicuous place, a summary of the procedures for the completion, return and tabulation of assessment ballots. 4 6.5.00 - Clean e. At the time, date and place stated in the Assessment Notice, the Agency shall conduct a public hearing upon the proposed assessment. At such public hearing, the Agency shall consider all objections or protests, if any, to the proposed assessment. At such public hearing, any interested person shall be permitted to present written or oral testimony. f. At the conclusion of the public hearing, the Agency shall tabulate the assessment ballots submitted, and not withdrawn, in support or opposition to the proposed assessment. If there is a majority protest against the imp’osition of a new assessments, the Agency may not impose the assessment. A majority protest exists if the assessment ballots submitted, and not withdrawn, in opposition to the proposed assessment exceed the assessment ballots submitted, and not withdrawn, in favor of the proposed assessment. In tabulating the assessment ballots, the assessment ballots shall be weighted by the amount of the proposed assessment to be imposed upon each parcel for which an assessment ballot was submitted. 4. The description of the requirements and procedures established by and contained in the Assessment Law set forth above are intended only to summarize certain of such requirements and procedures. 5. The City would not agree to issue the Development Permit prior to the construction of the Improvements unless the City is assured that it will be legally able to impose the Assessment on the Property. The assurance of the City’s legal ability to impose the Assessment on the Property is both a material inducement to and a material consideration for the City to enter into this Agreement and agree to issue the Development Permit prior to the construction of the Improvements. B. Owner has had a reasonable opportunity to thoroughly read and review the Assessment Law in its entirety and has further had a reasonable opportunity to consult with Owner’s attorney regarding the Assessment Law and the terms and conditions of this Agreement. Section 4.02 Waiver of Rights A. In consideration of the approval by the City of the Development Permit prior to the construction of the Improvements, Owner hereby waives Owner’s rights under the Assessment Law to: 1. object or protest the ordering by the City of the construction of the Improvements and the imposition of the Assessment at such public hearing so long as the amount of the Assessment does not exceed the 5 6.500 - Clean amount set forth in Exhibit C hereto adjusted for inflation pursuant to Section 3.01 B above; 2. submit an assessment ballot in support of or in opposition to the imposition of the Assessment so long as the amount of the Assessment does not exceed the amount set forth in Exhibit C hereto adjusted for inflation pursuant to Section 3.01B above; and 3. file or bring any protest, complaint or legal action of any nature whatsoever challenging the validity of the proceedings to form the Assessment District and/or the validity of the imposition of the Assessment on the Property. B. In order that the City may be assured of its ability to legally impose the Assessment on the Property and, therefore, be willing to enter into this Agreement and agree to approve the Development Permit prior to the construction of the Improvements, Owner represents and warrants that Owner has knowingly, intelligently and voluntarily waived for and on behalf of Owner, Owner’s successors, heirs, assigns and/or transferees, each and every one of the rights specified in Section 4.02A above. Section 5. Alternative Satisfaction of Owner’s Obligations Owner’s obligations under Section 3 above may be terminated by installing and constructing, or causing the construction, of the Improvements pursuant to the provisions of this Section 5 without cost or expense to the City in accordance with plans and specifications approved by the City Engineer. The construction of the Improvements shall be subject to inspection by the City and such construction must be completed to the satisfaction of the City Engineer. The Owner shall pay for any such inspection of the Improvementsas may be required by the City Engineer. The construction of the Improvements must be completed prior to the initiation by the City of proceedings to form the Assessment District and impose the Assessment on the Property. If the construction of the Improvements is completed in accordance with the provisions of this Section 5, Owner’s obligations under Section 3 above shall be deemed to have been terminated and, at Owner’s request, a release of this Agreement shall be recorded in the office of the County Recorder of the County of San Diego. In the event that the Owner elects to construct, or cause the construction of the Improvement pursuant to this Section 5, Owner will at all times up to the completion and acceptance of the Improvement by the City, give good and adequate warning to the traveling public of any dangerous or defective conditions of public property. 6 6.5.00 - Clean Section 6. General Provisions. Section 6.01 Conflict with Other Aoreements or Requirements of the City. Except as specifically provided in this Agreement, nothing contained herein shall be construed as releasing Owner from any condition of development of the Property or requirement imposed by any other agreement with or requirement of the City. Section 6.02 General Standard of Reasonableness. Any provision of this Agreement which requires the consent, approval, discretion or acceptance of any party hereto or any of their respective employees, officers or agents shall be deemed to require that such consent, approval or acceptance not be unreasonably withheld or delayed, unless such provision expressly incorporates a different standard. Section 6.03 Entire Agreement; Amendment. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein and no prior or contemporaneous agreement or understandings, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be modified, waiver, amended or added to except by a writing signed by the party against which the enforcement of such modification, waiver, amendment or addition is or may be sought. Section 6.04 Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or seventy-two (72) hours following deposit of the same in any United States Post Office in California, registered or certified, postage prepaid, addressed as follows: Owner: City: City of Carlsbad Attn: City Manager Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party. Section 6.05 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 6.06 Governino Law. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. Section 6.07 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by any other party, or the failure by a party to exercise its rights under the default of any other party, shall not constitute 7 6.5.00 - Clean a waiver of such party’s right to insist and demand strict compliance by any other party with the terms of this Agreement thereafter. Section 6.08 Sinnular and Plural: Gender. As used herein, the singular of any work includes the plural, and terms in the masculine gender shall include the feminine. Section 6.09 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. Section 6.10 Construction of Agreement. This Agreement has been reviewed by legal counsel for both the City and the Owner and shall be deemed for all purposes to have been jointly drafted by the City and the Owner. No presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. The language in all parts of this Agreement, in all cases, shall be construed as a whole and in accordance with its fair meaning and not strictly for or against any party and consistent with the provisions hereof, in order to achieve the objectives of the parties hereunder. The captions of the sections and subsections of this Agreement are for convenience only and shall not be considered or referred to in resolving questions of construction. Section 6.11 Recitals; Exhibits. Any recitals ,set forth above and any attached exhibits are incorporated by reference into this Agreement. Section 6.12 Authoritv of Signatories. Each signatory and party hereto hereby represents and warrants to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable such party to enter into this Agreement. Section 6.13 Hold Harmless. Until such time as the City accepts the Improvements if Owner elects to construct, or cause the construction of the Improvements pursuant to Section 5 above, the City shall not, nor shall any officer or employee thereof, be liable or responsible for any accident, loss or damage happening or occurring to the Improvements prior to the completion of the construction thereof and the acceptance of such Improvements by the City; nor shall the City, nor any officer or employee thereof, be liable for any persons or property injured by reason of construction of the Improvements, but all of said liabilities shall be assumed by the Owner and the Owner’s successors, heirs, assigns or transferees, and they shall save the City harmless from, and indemnify the City against, any and all claims, suits and liabilities of or to any person or property injured or claiming to be injured as a result of the construction of the Improvements. Section 7. Covenant Running with the Land. The parties hereto intend that the burdens and obligations of the Owner under Section 3 above constitute a covenant 33 6.5.00 - Clean running with the land and that such covenant shall be binding upon all transferees of the Property. [End of page. Next page is signature page.] 7 .’ “Y 6.5.00 -Clean [Signature page] CITY OF CARLSBAD, A municipal corporation of the State of California RAYMOND R. PATCHETT City Manager By: LLOYD B. HUBBS, P.E. Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney By: Deputy City Attorney S-l 6.5.00 - Clean [Signature Page Continued] Signed by the Owner this day of I 20 OWNER: By: (Sign here.) (Print name here) (Title and organization of signatory) By: (Sign here.) (Print name here) (Title and organization of signatory) (Proper notary acknowledgement of execution by Owner must be attached.) (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, a corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) s-2 ,- 6.5.00 - Clean EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY A -1 ‘2 .-’ 7 . 6.5.00 - Clean -. EXHIBIT B DESCRIPTION OF THE IMPROVEMENTS B -1 6.5.00 - Clean EXHIBIT C THE ASSESSMENT c -1 City of Carlsbad July 14, 2000 Mr Kip McBane 2691 Crest Drive Carlsbad, CA 92008 ~~*A@lndatt4m#~ : For the Information of the: crrYcouNcIL AsstCM-CAdC4-/ D&e 7- I 1 City Mwv$& STAFF RECOMMENDATIONS ON THE JMPLEMENTATION OF THE STREET AND SIDEWALKS COMMITTEE FINAL REPORT Dear Mr McBane: Well the day is almost here. As you know, staff will be making recommendations to the City Council regarding implementation of the Street & Sidewalk Policy Committee Final Report at 6:OOp.m. Tuesday, July 18, 2000. Attached for your review is a copy of the agenda bill and exhibits staff will present to Council. This is truly a landmark time in the history of Carlsbad, and you have been a part of it! We thank you again for your participation in the committee process and strongly urge you to read through the material and attend the Council meeting as a representative of the Street & Sidewalk Policy Committee. It is only with input from community members that the City Council can make the most informed decisions. If you have any questions about the agenda bill or exhibits, please feel free to call Steve Didier or me at 760-602-2730. Public#Vorks Director LBH:sd c: City Manager City Attorney Public Works Manager - Doug Duncanson . 1635 Faraday Avenue - Carlsbad. CA 92008-7314 - (760) 602-2730 - FAX (760) 602-8562 @ ~ MR KIP MCBANE 2891 CREST DRIVE CARLSBAD CA 92008 MR PAUL GAMACHE 1436 PINE AVENUE CARLSBAD CA 92008 MR BOB LEGER 4087 SUNNYHILL DRIVE. CARLSBAD CA 92008 MR BAILEY NOBLE 5470 LOS ROBLES DRIVE CARLSBAD CA 92008 MR JACK KUBOTA 536 MERIDIAN WAY CARLSBAD CA 92009 MS PAM WISCHKAEMPER 4039 SUNNYHILL DRIVE CARLSBAD CA 92008 MS RUTH LEWIS 2001 AVENUE OF THE TREES CARLSBAD CA 92008 MR GARY PIRO 2641 VALEWOOD AVENUE CARLSBAD CA 92008 MS ZELL. DWELLEY 2771 WILSON STREET CARLSBAD CA 92008 MR CLARENCE SCHLEHUBER 4085 SUNNYHILL DRIVE CARLSBAD CA 92008 MR DOUG CHARTIER 2697 WILSON STREET CARLSBAD CA 92008 MS LORI WICKHAM 4055 PARK DRIVE CARLSBAD CA 92008 MR JOE SPAN0 2390 SPRUCE STREET CARLSBAD CA 92008 MR JOE GALLAGHER 1165 HOOVER STREET CARLSBAD CA 92008 MR JOHN MAMAUX 1393 BASSWOOD DRIVE CARLSBAD CA 92008 JACK C. DEBES, PH.D. AGENDA ITEM # City Council Members and Mayor 1200 Carlsbad Village Drive Carlsbad, CA 92008 c: Mayor city council July 12,200O City Manager City Attorney city c&w& Dear Council Members and Mayor: This council did not meet last week as we were celebrating our Declaration of Independence from an oppressive empire. Fifteen years after our forefathers declared our independence from the British Crown the first 10 amendments to the Constitution were ratified. This document, known as the Bill of Rights forms the basis of what Americans have spent the last two centuries living and dying for. The Fourth Amendment states: The r&ht of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warants shall issue, but upon probable cause, supported by Oath or aBikmaubn, and particularly descn’bing the place to be searched, and the persons or things to be seized. This brings me to a proposed piece of legislation for the City of Carlsbad called the NIA (Neighborhood Improvement Agreement), which calls for the so called “dedication” of land (real property) by the owner to the City without compensation. This agreement would hold home-owners hostage in that they cannot remodel or otherwise substantially improve their residential property unless they deed over significant amounts of land to the City without compensation. This is an unreasonably form of seizure! No other city in San Diego County has this type of policy on residential property. This practice is un-American. Not in Carlsbad! N-I-A, Not In America! We the Citizens of Carlsbad strongly urge this Council not to adopt this policy of seizure of property. Sincerely, /J &A L Al&&+- / ’ : ,’ Jack C. Debes, Ph.D. . 4055 PARK DRIVE 9 CARLSBAD CALIFORNIA l 92008 AGENDA ~-I-EM g C: MWOF city QNlncil city bmlger City Attorney Ch %Hi DRAE'T WAIVER OF RIGHTS AS A CONDITION TO RECEIVING A GOVERNMENT BENEFIT July 17,200O Waiver of rights "The term 'waiver' means the intentional relinquishment or abandonment of a known right." (Bickel v. City of Piedmont (1997) 16 Cal.Qth 1040, 1048 [68 Cal.Rptr.2d 758, 946 P.2d 4271.) "To constitute a waiver, there must be an existing right, knowledge of the right, and an actual intention to relinquish the right. [Citation.] 'The waiver may be either express, based on the words of the waiving party, or implied, based on conduct indicating an intent to relinquish the right.' [Citation.]" (Id., at p. 1053.) " ' "Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts." [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and "doubtful cases will be decided against a waiver." ' [Citation.]" (Grubb & Ellis Co. v. Belle (1993) 19 Cal.App.4th 231, 236 [23 Cal.Rptr.2d 2811.) "Whether there has been a waiver is a question of fact." (Bickel v. City of Piedmont, supra, 16Ca1.4th at p. 1052.)" (People v. $241,600 United States Currency (1998) [67 Cal.App.4th 1100, 11091) "In the first place, an individual may not waive the provisions of a law "established for a public reason" (Civ. Code, 3513) if the waiver would " ' "contravene any . . . public policy reasons motivating the enactment of the statute [I" ' " (Cowan v. Superior Court (1996) 14 Cal.4th 367, 372 [58 Cal.Rptr.2d 458, 926 P.2d 438])." (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040; 1058, 168 Cal.Rptr.2d 758, 946 P.2d 4271, dissenting opinion). "Civil Code section 3513 provides: 'Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." . . . . Section 3513,0ne of the maxims of jurisprudence in our Civil Code, is an aid to the application of statutory law, not an inflexible legal principle. (Civ. Code, 3509;Irwin v. City of Manhattan Beach (1966) 65 Cal.2d 13, 21 [51 Cal.Rptr. 881,415 P.2d 7691.) Because it is difficult to conceive of a statutory right enacted solely for the benefit of private individuals that does not also have an incidental public benefit, a literal reading of Civil Code section 3513 would eliminate the established rule that rights conferred by statute may be waived unless specific statutory provisions prohibit waiver. For this reason, a literal construction of section 3513 would be unreasonable. (See Civ.Code, 3542 [interpretations must be reasonable].)" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, FN 4, [68 Cal.Rptr.2d 758, 946 P.2d 4271). The procedures and provisions provided in the statute must serve a primary public purpose and public benefit. In Bickel, the California Supreme Court provides two alternative tests to ascertain whether a statute forbids waiver: "Accordingly, to determine whether in this case the Act bars application of the waiver doctrine, we must ascertain (1) whether the Act's time limits are for the benefit of applicants or are instead for a public purpose, and (2) whether there is any language in the Act prohibiting a waiver." (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1048, 168 Cal.Rptr.2d 758, 946 P.2d 4271). First, we'address the issue of primary and incidental public benefit to resolve the question of whether plaintiff may waive their rights to receive a government benefit: "Some public benefit is, however, inherent in most legislation. The pertinent inquiry, therefore, is not whether the law has any public benefit, but whether that benefit is merely incidental to the legislation's primary purpose. In this case, the Court of Appeal's concurring and dissenting justice viewed the Act's public benefit as incidental: "The primary beneficiary of the time limits is the applicant, the Act being designed to prevent the agency from foot-dragging and coercing time waivers at the applicant's expense. The gen.eral public may incidental.ly benefit from expedited land use decisions, aided progress of important large-scale developments, reduced delay for other applicants and perhaps an enhanced business environment generally.' (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040,1049, [68 Cal.Rptr.2d 758, 946 P.2d 4271). Fifth 'Amendment rights The primary purpose of the takings clause of the Fifth Amendment is to protect the public from the government taking their property without compensation. Therefore, its public purpose is to protect the public. A single individual cannot, nor does he have the authority, to waive a right designed to protect the public by contract. First Amendment rights Plaintiff's right to protest illegal conditions imposed under the guise of excessive building plan check and building permit fees and the right to seek legal remedy are protected rights under the freedom of speech clause and the right to redress grievances contained within the First Amendment. "[IIt is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests- 'especially [one's] interest in freedom of speech." (Perry v. Sindermann, (1972) 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570). Pursuing the remedies at law, including petition and litigation are protected expressions of speech. "Certainly the right to petition extends to all departments of the Government. The right of access to the courts is but one aspect of the right of petition." (CaliforniaTransport v. Trucking Unlimited (1972) 404 U.S. 508, 510 [30 L.Ed.2d 642, 646, 92 S.Ct. 6091 . ) Unconstitutional conditions The Condition requires a future waiver of rights associated with obtaining prospective building permits by requiring forced dedications and improvement fees as an unconstitutional condition imposed upon Plaintiff's receipt of governmental benefits. "Grant of public privilege, such as building permit, may not be conditioned upon deprivation of constitutional protections." (Rohn v. Visalia, (1989) 263 Cal.Rptr. 319 (214 Ca.App.3d 1463)). "Under the well- settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. 'See Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Ed.of Township High School Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L. Ed.2d 811 (1968)." (Dolan v City of Tigard (1994) 512 U.S.-; 114 S.Ct.2309; 129 L.Ed.2d 304). Equal Protection The Condition applies prospectively if Plaintiff elects to improve their property. Obviously, Plaintiff has no authority to waive other property owner's rights to protest unconstitutional conditions when imposed as improvement fees and forced dedications for the receipt of a government benefit like a building permit. Plaintiff views this Condition as a means to deprive them of any opportunity to have equal standing with the other property owners situated in a similar position of owning properties within the city and seeking a building permit. Due Process and violations of law Due process requires notice and a hearing before depriving someone of a right or privilege. The Condition to waive Plaintiff's rights serves to deprive Plaintiff of their right to due process by depriving them of their rights to protest unconstitutional conditions such as forced dedications and improvement fees imposed on building department permits. By depriving Plaintiff of their due process, the condition protects and acts to exempt the City from allegations by Plaintiff that the unconstitutional conditions violate the law. Conclusion California courts have held that "[algreements whose object, directly or indirectly, is to exempt its parties from violation of the law are against public policy and may not be enforced. (See Civ. Code,1668.)" (In re Marriage of Fell 55 Cal.App.4th 1058). Civil Code 1668 provides that "[a]11 contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law." The conditions proposed by the City, therefore, are void even if Plaintiff were to consent to their imposition. 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