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HomeMy WebLinkAboutCT 81-16; Polygon Corp; 84-027684; Other*, ..a , +f ., City Clerk l>cmLuLlLy LLy-4 LbU -1 _zu&'"lLIl ". 134 1 0 " "rl"" I 1200 Elm Avenue . .... " ' ' . mr1sbad.L CA 92008 ' c,f+ oFP.=-iS&a R€CORD1NG REQUESTED bk' , 4 P?.P.. I . , c;.-,-,. ?FCZR?:p. i: ' i,!l' 1; j..,'i:..- I I(. ..,,.. :: : p":. ,- 1 : > .. L 2 ,;.. .: ,J :::.:> i -.,, ,:,+; ]$$) JyJ 2 4. ?!! AGREEMENT FOR WAIVER OF PROHIBITION AGAINST THE IMPOSITION OF' CONDITIONS 1 (;&?? i.;,!x!: 1'4 I UPON THE APP.ROVAL OF AN EXTENSION OF E .i il., d: f. i A TENTATIVE SUBDIVISION MAP This Agreement is made this 5th day of December 19 83 between the City of Carlsbad, a municipal corporation, (hereinafter called "City"} an6 Polyqon Corporation a - Corporation (hereinafter called "Subdivider") . RECITALS .* .C 1.' Government Code Section 66452,6(e) and Carlsbad Municipal 5 Code Sections 20.12.110 and 10.24.180 permit Subdividers t' request and City to approve, conditionally approve 'or deny extensions of time for the expiration of tentative maps or tentative parcel maps (hereinafter collectively called "Tentative Subdivision Maps") . . 2. El Patio v. Permanent Rent Control Board, 110 Cal. App.3d 915, modified 111 Cal. App 3d 788 (1980) indicates that th Government Code (Subdivision Map Actj may not authorize Ci to impose new conditions; i.e., those which were not imposed on the tentative' subdivision map, upon the extension of the time for expiration of a tentative subdivision map, but also held that the City does have discretion to 'approve or deny such extensions. I . ' ..+ I- ,. ..' i, . ,c. 13142 e 3. Government Code Section 66452.6(d) and Carlsbad Municipal Code Sections 20.72.100(d) and 20.24,160 provide that expiration of a tentative subdivision map shall terminate all proceedings and that no final map or parcel map for an1 . property covere'd by the tentative subdivision map shall be filed without first processing a new tentative subdivision map . 4, , S.ubdivider has requested City.to approve the extensioin of time for Tentative Subdivision Map No. CT81-16 which was initially approved on July 7, 1983 . 5. . Since the approval of said Tentative Subdivision Map, City b has conducted studies which show that the-construction of certain drainage facilities or thoroughfares are essential to protect and provide for the health, welfare, and'safety of all of the present and future residents of City, including those who will reside in said subdivision. :. 6. Since the approval of said Tentative Subdivision Map, City has adopted a major drainage fee or major thoroughfare fee c or both to provide the funds to construct the necessary drainage facilities and thoroughfares. .7. Since the approval of the Tentative Subdivision Map, City has conducted studies which show the need to establish a public'facilities fee in order to provide for public facilities to protect the public health, safety and welfar of the present and future residents of City and to ensure 2.. .. _. ..' .. *I -, , . a L 1 3 4 3 .. that public facilities to serve the development will be available concurrent with need as required by city's . general plan. Developer agrees to pay said fees and has executed a contract which is on file with the City Clerk tc . that effect. 8. Because the original approval of said Tentative Subdivisior Map occurred prior to the adoption of the aforementioned fees, City did not condition the approval of said Tentativt Subdivision Map with the payment of said fees. 9. Since the initial approval of the Tentative Subdivision Ma] . there may have been changed circumstances which require i additional conditions of approval on the extension of the Tentative Subdivision Map to protect the public health, safety, and welfare, to mitigate affects on the environmen, or to ensure consistency of the extended map with the City general plan and Municipal Code. .- .. 10. City arguably may not, without the voluntary consent of Subdivider, impose upon the extension of said Tentative Subdivi2ion Map conditions requiring payment of the fees mentioned above or conditions necessary to protect the public health, safety or welfare, or the environment or ensure consistency with the general plan or Municipal Code 11. Without such voluntary consent of Subdivider to the imposition of conditions City may be reqaired to deny Subdivider's request for extension to ensure that the . pub1i.c health, safety and welfare or the environment are . 3, e '. .L -.- e . c ._ 134s 'I.. ~ e protected or that the general plan or Municipal Code requirements are satisfied. . Approval of the extension of . said Tentative Subdivision Map without assurances that the fees mentioned above would be paid for said subdivision '. would be contrary to the best interests of the City and would threaten the City's ability to. protect and provide for the public health, safety, and welfare. Subdivider agrees that it is in the best interest of City and Subdivider that City be able to protect the public health, safety and welfare, or the environment or ensure consistenc i . with the aeneral plan or Municipal Code by the imposition of conditions on the extension of -tentative subdivision maps - 12. Subdivider realizes that denial of the requested extension could result in the expiration of the tentative subdivisio map. Subdivider would then be required to incur *. substantial costs and time delays in processing a new tentative subdivision map approval of which would be subject ,to new conditions necessary to ensure consistency of the tentative subdivision map with the Subdivision Map Act, the California Environmental Quality Act, Titles 19, 20 and '21 of the Carlsbad Municipal Code, the City's General Plan and to protect the public health, safety and welfare. 13. City has reviewed the Subdivider's request for an extensic *. of time for said tentative subdivision map and finds that granting the request subject to certain conditions will nc 4. -. . $ .r e. , .. .I *.;. , .. * e ij 1345 e be contrary to the public health, safety, and welfare. NOW, THEREFORE, in consideration of the recitals and of the mutual convenants set forth herein, City and Subdivider agree as follows: 1. City agrees to extend Subdivider's Tentative Subdivision May for one year subject to whatever new or revised conditions 1 City in its sole discretion deems appropriate. 2. Subdivider knowingly and voluntarily waives any and all rig1 the unconditioned extension of Tentative Subdivision Map No. 3. Subdivider knowingly and.voluntarily consents to the imposil .of a condition of approval of the extension of Tentative Subdivision Map No. CT81-16which requires payment of any fet which may be in effect at the time of approval of the final subdivision map for said subdivision or any portion thereof to the following additional conditions: This approval' is expressly conditioned on the payment b: the applicant of a public facilities fee as required by City Council Policy No. 17, issued 2/24/82 and effectivl 4/2/82, on file wi-th the City Clerk and incorporated he by reference, and according to the agreement executed b paid as promised, this application will not be consiste with the General Plan and the.project cannot proceed an this approval shall be void. ./ . the applicant for payment of said fee. If said fee is s 4. The provisions of Carlsbad Municipal Code Sections 20.12.11 and 20.24.180, as appropriate, shall govern extezsion of th map which is the subject of this agreement. 5, If this agreement is for an extension of a tentative subdiv . map .for a minor subdivision, the appeal of the City Enginee approva1,for conditional approval, of the extension by any Shall void this agreement unless 5. '. 'I . , .. . ._ .. 0 -i b .. I346 .e the agreement is subsequently appro.ved by the -City Council 6. Any action by Subdivider to challenge the legality of this - agreement or any failure by Subdivider to pay the fees and comply with any other conditions applicable to the . .. ' extension shall void the approval of such extension, The . map shall not final and the development shall not proceed until a new tentative subdivision map has begn approved. .. .. CITY OF CARLSBAD, a municipa: K~TEST : corporation .. ,. a g Q& 'BY * -. ..$- l ..Jr & ALETHA L. RAUTENKRANZ 1 or Subdivisions) City Clerk EER (Minor Sub- divisions) .. ." SUBDIVIDER Polygon Coaorati .. - ornia Operation: 7- VINCENT F. BIONDO, .JR., City Attorney . -t BY DANIEL S, HENTSCHKE, Assistant City Attorney .. a. .. . (Notar2al acknowzedgement of execu subdivider must be attached) .. (Affix corporate seal if appropria a. \ 6. r STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss On december 7, 1983, before me, the undersigned, a Notary Public in for said State, personally appeared Russell F. Padia, personally known to or proved to me on the basis of satisfactory evidence, to be the person wh executed the within instrument as the Director of California Operations of Corporation that executed the within instrument and acknowledged to me tha corporation executed the within instrument pursuant to its Bylaws, or a re tion of its Board of Directors. WITNESS m.y hand and official seal. C.FF!C!,>.L ::AL GRACE 8. LIGO-FOXFROT fW!NC!PAL OFFICE IN ORANGE COUNTY NOTAR'f PUBLIC f CP.LtFXiNIA Notary Public in and for the County of Orange, State of Cali fornia ., I , . .. -. 9;. . ' ' '0 i 1347 -'@ EXHIBIT A - AGREEMENT FOR WAIVER OF PROHIBITION AGAINST THE IMPOSITION OF' CONDITIONS UPON THE APP.ROVAL OF AN EXTENSION OF A TENTATIVE SUBDIVISION MAP This Agreement is made this 5th day of December 19 83 between the City of Carlsbad, a municipal corporation, (hereinafter called "City") anC Daon Corporation a - (hereinafter called "Subdivider"). Corporation RECITALS .. .b 1.' Government Code Section 66452.6(e) and Carlsbad Municipal . -Code Sections 20.12.110 and 10.24,180 permit Subdividers t request and City to approve, conditionally approve or deny extensions of time for the expiration of tentative maps or tentative parcel maps (hereinafter collectively called "Tentative Subdivision Maps"). . 2. ~l Patio v, Permanent Rent Control Board, 110 Cal. App,3d 915, modified 111 Cal. App 3d 788 (1980) indicates that tk. .Government Code (Subdivision Map Actj may not authorize Cj s to 'impose new conditions; i.e., those which were not imposed on the tentative' subdivision map, upon the extension of the time for expiration of a tentative subdivision mapr but also held that the City does have discretion to approve or deny such extensions. . 7, i ., . I, ' I- ..' .* .. 1348 i 0 3. Government Code Section 66452,6(d) and Carlsbad Municipal Code Sections 20,12,10O(d) and 20,24,160 provide that expiration of a tentative subdivision map shall terminate all proceedings and that no final map or parcel map for an] . property c0vere.d by the tentative subdivision map shall be filed without first processing .a new tentative subdivision map 4. , Subdivider has requested City.to approve the extensioin of time for Tentative Subdivision Map No. which was initially approved on July 7, 1981 0 5, . Since the approval of said Tentative Subdivision Map, City CT 81-16 i has conducted studies which show that the-construction of certain drainage facilities or thoroughfares are essential to protect and provide for the health, welfare, and'safety of all of the present and future residents of City, including those who will reside in said subdivision. i. 6, Since the approval of said Tentative Subdivision Map, City has adopted a major drainage fee or major thoroughfare fee c or both to provide the funds to construct the necessary drainage facilities and thoroughfares, -7. Since the approval of the Tentative Subdivision Map, City has conducted studies which show the need to establish a public'facilities fee in order to provide for public facilities to protect the public health, safety and welfar of the present and future residents of City and to ensure .. 2.. _. , . I>. 1 - .. e L 6349 .. '. that public facilities to serve the development will be available concurrent with need as required by City's ' . general plan. Developer agrees to pay said fees and has executed a contract which is on file with the City Clerk tc . that effect. 8. Because the original approval of said Tentative Subdivisior Map occurred prior to the adoption of the aforementioned fees, City did not condition the approval of said Tentative 9. .. - IO. Subdivision Map with the payment of said fees. Since the initial approval of the Tentative Subdivision Mal there may have been changed circumstances which require i additional conditions of approval on the extension of the Tentative Subdivision Map to protect the public health, safety, and welfare, to mitigate affects on the environmeni or to ensure consistency of the extended map with the City general plan and Municipal Code. City arguably may not, without the voluntary consent of Subdivider, impose upon the extension of said Tentative Subdivi2ion Map conditions requiring payment of the fees mentioned above or conditions necessary to protect the public health, safety or welfare, or the environment or I ensure consistency with the general plan or Municipal Code 11. Without such voluntary consent of Subdivider to the imposition of conditions City may be required to deny Subdivider's request for extension to ensure that the public health, safety and welfare or the environment are ' 3, .. ,. ,. I . ,( .?. ... e L 193w '@ prdtected or that the general plan or Municipal Code requirements- are satisfied. Approval of the extension of . said Tentative Subdivision Map without assurances that the fees mentioned above would be paid for said subdivision '. would be contrary to the best interests of the City and would threaten the City's ability to. protect and provide for the public health, safety, and welfare. Subdivider agrees that it is in the best interest of City and 12. Subdivider that City be able to protect the public health, safety and welfare, or the environment or ensure consisten with the general plan or Municipal Code by the imposition of condition,s on the extension of tentative subdivision maps. Subdivider realizes that denial of the requested extensior could result in the expiration of the tentative subdivisic map. Subdivider would then be required to incur i substantial costs and time delays in processing a new tentative subdivision map approval of which would be subject.to new conditions necessary to ensure consistency Of the tentative subdivision map with the Subdivision Map Act, the California Environmental Quality Act, Titles 19, 20 and .21 of the Carlsbad Municipal Code, the City's General Plan and to protect the public health, safety and welfare. 13. City has reviewed the Subdivider's request for an extensi *' of time for said tentative subdivision map and finds that granting the request subject to certain conditions will n 4. - I. I- *, . 4 " * .. e i' I351 -e be contrary to the public health, safety, and welfare. NOW, THEREFORE, in consideration of the recitals and of the mutual convenants set forth herein, City and Subdivider agree as follows : 1.- City agrees to extend Subdivider's Tentative Subdivision May for one year subject to whatever new or revised conditions I City in its sole discretion deems appropriate. 2. Subdivider knowingly and voluntarily waives any and all rig1 the unconditioned extension of Tentative Subdivision Map No, 3. Subdivider knowingly and.voluntarily consents to the imposi .~ .of a condition of approval of the extension of Tentative Subdivision Map ~0.CT81-16 which requires payment of any fei which may be in effect at the time of approval of the final subdivision map for said subdivision or any portion thereof to the following additional conditions: This approval. is expressly conditioned on the payment b the applicant of a public facilities fee as required by City Counci.1 Policy No. 17, issued 2/24/82 and effectiv 4/2/82, on file with the City Clerk and incorporated he by reference, and according to the agreement executed b paid as promised, this application will not be consiste this approval shall be void. -, . the applicant for payment of said fee. If said fee is with the General Plan and the.project cannot proceed an 4. The provisions of Carlsbad Municipal Code Sections 20.12.11 and 20.24 -180, as appropriate, shall govern exter,sion of ti map which is the subject of this agreement. 4. c; If 'this agreement is for an extension of a tentative subdi.c . map for a minor subdivision, the appeal of the City Engine€ approval, or conditional approval, of the extension by any . shall void this agreement unless .. 5, .. . . 1353 'I STATE OF CALIF0 IA COUNTY OF Vrange ._ December 13, 1983 }ss. I , before me, the undersigned, a Notary Public in and fo a, +- - +. On 5 said State, personally appeared Michael K. Ryan anc a '2 basis of satisfactory evidence) to be the persons who executed the within instrument as Vice Preside 3 ELand, S .D. Coug& V.P. Land iiE EXanLL@GLXER on behalf of" ~ 0 ._ L W.A. Colton, 111- E" , personally known to me (or proved to me on ihc -0 'G 0 s c) P? O2 e3 Om 0,' I - N ? DAON CORPORATION - the corporation therein named, and acknowledged to me that suchcorporationexecutecithewithin instrurnentpursuanttoils by-laws or a resolution of its board of directors. WITNESS my hand and official seal. No!a!y Public - Califorma OP"?i%@ C3UkV My bnmissjon Expires Oct 1, 1985 z N 0 ,,'.- &;y c i. vi -0 k- . ':?> f2-.LU7)q m Sigrkiik --arc i a-~~~~~~~~ (This area for official notarial sea i .c -*. ,” ’ ” , .. . - (. . .. .’ 0 \r I352 .e ! - the agreement is subsequently approved by the City Council 6. Any action by Subdivider to challenge the legality of this . agreement or any failure by Subdivider to pay the fees and comply with any other conditions applicable to the .- ., extension shall void the approval of such extension. The ’ map shall not final and the development shall not proceed Ul’ltil a new tentative subdivision map has begn approved. .. .. ATTEST : CITY OF CARLSBAD, a municipa corporation .. .. f&&.i&. R& BY q” ;i t - p &dLx/ ALETHA L. RAUTENKRANZ, MAYOR (Zjok Subdivisions) City Clerk CITY ENGINEER (Minor Sub- .- divisions) c- I \* -* SUBD1V1DER. DAON .COXPOF&TI.01 .. ity Attorney .. -_ . .’ IC (Notari’al.acknowledgement of execc subdivider must be attached) .. . I 4 (Affix corporate seal if appropria 6.