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HomeMy WebLinkAboutCT 98-19; Roesch Property Residential Subdivision; Tentative Map (CT) (56)HECHT SOLBERG ROBINSON i GOLDBERG LLP SUSAN LEE DALY ATTORNEY AT LAW sld@hsrg.com September 19, 2001 Via Messenger Ms. Anne Hysong Mr. Don Rideout City of Carlsbad Planning Department 1635 Faraday Avenue Carlsbad, California 92008 Re: Shorepointe: Carlsbad Tract No. 97-14 Unit 1 and Carlsbad Tract No. 97-14 Unit 2 (Mariano) & Carlsbad Tract No. 98-19 (Roesch) Dear Ms. Hsyong and Mr. Rideout: As requested by Mr. Tom Farrar, of Standard Pacific of San Diego ("Standard Pacific"), I am sending the Open Space Ownership and Maintenance Funding Agreement ("Agreement"), which addresses Condition 27 for Carlsbad Tract No. 98-19, specifically the ownership and maintenance of lot 22 of Tract No. 98-19 ("Lot"). The Agreement requires Standard Pacific to grant an irrevocable offer of dedication of Lot 22 ("IOD") to the City of Carlsbad ("City"), which may be accepted by the City at a later date, even after such lot has been conveyed to Carlsbad Shorepointe Homeowners Association. The Agreement includes as an exhibit, a form IOD for Lot 22. In addition, the Agreement requires Standard Pacific to deposit funds for the maintenance of Lot 22 in perpetuity, at a rate of $75.00 per acre. If you have any questions, please do not hesitate to call me. Very truly yours, Si/san Lee Daly HECHT, SOLBERG, ROBINSON & GOLDBERG LLP SLD:sm Enclosure cc: Mr. Tom Farrar (w/enc; via facsimile) Mr. Jack Henthorn (w/enc; via facsimile) ATTORNEYS AT LAW 600 WEST BROADWAY, EIGHTH FLOOR SAN DIEGO, CALIFORNIA 92101 TELEPHONE 619.239.3444 FACSIMILE 619.232.6828 Open Space Ownership and Maintenance Funding Agreement This Open Space Ownership and Maintenance Funding Agreement ("Agreement") is made and entered into as of the day of , 2001, by and between Standard Pacific Corporation, a Delaware Corporation (hereinafter "Standard") and the City of Carlsbad, a municipal corporation of the State of California (hereinafter, the "City"), with reference to the following: RECITALS A. Standard is the owner of that certain real property located in the City of Carlsbad, County of San Diego, State of California, and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Roesch Property"). B. The property subject to this Agreement is known as lot 22 of the Roesch Property and is more particularly described on Exhibit "B" attached hereto and incorporated herein by this reference ("Lot 22"). An open space easement is planned to be dedicated to the City on the final map for the Roesch Property. C. City has required this Agreement between the parties as a condition of granting approval of the final map for the Roesch Property, otherwise known as "Carlsbad Tract No. 98-19." D. This Agreement intends to fulfill the obligations associated with condition 27 of the Planning Commission Resolution 4626 of the City ("Condition 27"). In part, Condition 27 requires the owner of Lot 22 to convey fee title to such lot, in the event the City requests fee ownership, along with a deposit of funds for the maintenance of Lot 22 in perpetuity at a rate of $75.00 per acre ("Endowment Fund"). However, it is understood that the City may not ever request fee ownership. E. Standard is in the process of developing a common interest development referred to as "Shorepointe," planned to consist of properties within Carlsbad Tract 97-14, Carlsbad Tract No.97-14, and Roesch Property. F. Standard made the Declaration of Restrictions for Shorepointe ("CC&Rs"), which is planned to cover the properties located within Carlsbad Tract 97-14, Carlsbad Tract No.97-14, and Roesch Property. Standard also formed the Carlsbad Shorepointe Homeowners Association ("Association") to govern and manage Shorepointe. G. As the City may not ever request fee ownership, Standard's plans are to annex Lot 22 to the CC&Rs, designated as "Annexable Property" in the CC&Rs, as part of its last phase for Shorepointe, and convey such lot to the Association as "Common Area" to be maintained by the Association subject to the open space easement. In addition, in order to comply with Condition 27, Standard is willing to grant an irrevocable offer of dedication of fee title to Lot 22 to the City ("IOD"); Standard's conveyance of Lot 22 to the Association will be subject to the IOD. The form of the IOD is shown on Exhibit "C" attached hereto and incorporated herein by this reference. Standard will execute the IOD upon the recordation of the final map for the Roesch Property. H. As further required under Condition 27, Standard plans to deposit, or caused to be deposited, the Endowment Fund in accordance with the terms of this Agreement. NOW THEREFORE, in consideration of the terms and agreements hereinafter set forth, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto, agree as follows: 1. MAINTENANCE AND OWNERSHIP OF LOT 22 AND FUNDING OF ENDOWMENT FOR MAINTENANCE OF LOT 22 A. Standard and it successors and assigns of Lot 22, including the Association, agree to retain ownership of Lot 22, subject to the open space easement and the IOD, until such time as the IOD is accepted by the City for perpetual maintenance. B. Standard and its successors and assigns agree to maintain Lot 22 subject to the open space easement, IOD, and any other restrictions of record. C. Standard agrees to establish the Endowment Fund in the amount of $27,266.66, which is estimated to generate $1,636.00 per year, at a rate of 6%, when: (i) Lot 22 is conveyed to the Association, or (ii) the IOD is accepted by the City, whichever is earlier. Such Endowment Fund shall be transferred along with the fee ownership interest to all successors and assigns of Lot 22. For example, should Standard convey Lot 22 to the City, Standard shall establish and transfer the Endowment Fund to the City. However, should Standard first convey Lot 22 to the Association, then it shall establish the Endowment Fund to be held by the Association until the IOD is accepted by the City. D. Standard, and its successors and assigns of Lot 22, agree that, within 30 days of notification by the City that the City desires to accept the IOD, Standard, or its successors and assigns, shall arrange to transfer the Endowment Fund to the City. E. Standard, and its successors and assigns of Lot 22, agree to execute and record the IOD, with the Office of the County Recorder of San Diego County, upon the recordation of the final map for the Roesch Property. 2. NOTICE. Payment or notice required or permitted to be given by one party to the other shall be in writing and shall be deemed effective (a) on personal delivery on the second business day after mailing by Certified or Registered United States Mail, postage prepaid, return receipt or (b) on the succeeding business day after mailing by Express Mail or after deposit with a commercial delivery service of general use, all postage or fees prepaid, and addressed to the parties at the addresses below: If to Standard: Standard Pacific Corp. 5750 Fleet Street, Ste 200 Carlsbad, CA 92008 Attn: ToddPalmaer If to City: City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Attn: Ronald Ball, City Attorney Notice of change of address shall be given by written notice in the manner set forth in this paragraph. 3. MISCELLANEOUS. A. Entire Agreement. This Agreement contains the entire Agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. B. Amendment. This Agreement may be modified only in a writing signed by both parties. C. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit to the parties and their respective heirs, personal representatives, successors and assigns. D. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity, which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. E. Attorney's Fees. Should any party hereto employ an attorney for the purpose of enforcing or construing this Agreement, or any judgment based on this Agreement, in any legal proceeding whatsoever, the prevailing party shall be entitled to have and recover of and from the other party or parties thereto all costs and expenses of the action or suit, including but not limited to actual attorneys' fees, accounting and engineering fees, any other professional fees resulting therefrom, service of process, filing fees, court and court reporter costs, investigative costs, expert witness fees, and the cost of any bonds, whether taxable or not, and that such reimbursement shall be included in any judgment or final order issued in that proceeding. In addition to the foregoing award of attorney's fees to the prevailing party, attorney's fees incurred in any post- judgment proceedings to collect or enforce the judgment will be awarded. The "prevailing party" means the party determined by the court to most nearly prevail and not necessarily the one in whose favor a judgment is rendered. F. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof, unless a party's material consideration thereby fails. G. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. H. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. "Standard" "CITY" STANDARD PACIFIC CORP. CITY OF CARLSBAD, a municipal corporation of the State of California. By: By Sign here Claude A. Lewis, Mayor TODD PALMAER, President ATTEST: By: (Sign here) LORAINE WOOD, city clerk (SEAL) (Proper notarial acknowledgement of execution by Standard must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: Ronald R. Ball, City Attorney By: City Attorney Exhibit A Attach Legal Description of Roesch Property Exhibit "B" Legal Description of Lot 22 Exhibit "C" FormoflOD Recording Requested By, and When Recorded Mail To: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 Mail Tax Statement To: (same) (Exempt from filing fee pursuant to Government Code §6103) SPACE ABOVE FOR RECORDER'S USE ONLY IRREVOCABLE OFFER TO DEDICATE FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, STANDARD PACIFIC CORP., a Delaware corporation ("Owner"), hereby irrevocably offers to dedicate to CITY OF CARLSBAD, a California municipal corporation ("City"), fee title to the real property in the City of Carlsbad, County of San Diego, State of California, legally described as: Lot 22 of Map No. __, recorded , 2001 as Document No. 2001- in the Official Records of San Diego County. The acceptance, rejection, and vacation of this irrevocable offer shall be subject to all laws governing irrevocable offers to dedicate. This irrevocable offer to dedicate shall bind Owner and Owner's successors in interest as owners of the above property, and shall encumber the above- referenced property, until the offer has been accepted, vacated, or otherwise terminated. The purpose of this irrevocable offer is to preserve the subject property as open space. In furtherance of this purpose, upon acceptance of this offer. Owner (or its successor in interest, if Owner no longer owns the property) shall pay City an endowment of twenty-seven thousand two hundred sixty-six dollars and sixty-six cents ($27,266.66). IN WITNESS WHEREOF, this instrument has been executed this day of ,2001. STANDARD PACIFIC CORP., a Delaware corporation By: Its By: Its T:\AJH\STAN-PAC\Shorepointe\IOD.wpd _j _ September 19, 2001 i STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On this day of , 2001, before me,_ a Notary Public in and for said State, personally appeared_ , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On this day of , 2001, before me,. a Notary Public in and for said State, personally appeared_ , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature T:\AJH\STAN-PAC\Shorepointe\IOD.wpd September 19, 2001