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HomeMy WebLinkAboutMS 711; Hughes North County Associates; 88-480003; OtherRecqrdlng .Requested By and Return To: City Clerk 12OG ET; Avenue Csrlsbad, CA' 92008 0536 83 SE? 22 f!: 03 AGREEMENT FOR WAIVER OF PROHIBITION AGAINST THE IMPOSITION OF CONDITIONS UPON THE APPROVAL OF AN EXTENSION OF A TENTATIVE SUBDIVISION MAP 1 "--3'r . - LA. -: ,I* .-E c-:Tdft ;'i I : ,% ' ;~d This Agreement 1988, between the CITY is made this 3/4- day of August, OF CARLSBAD, a municipal corporation (hereinafter called llCityll), and HUGHES NORTH COUNTY ASSOCIATES, a California general partnership (hereinafter MG called llSubdividertg) . RECITALS 1. Government Code Section 66452.6(e) and Carlsbad Municipal Sections 20.12.110 and 20.24.180 permit Subdividers to 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 I1Tentative Subdivision Maps"). 2. El Patio v. Permanent Rent Control Board, 110 Cal.App.3d 915, modified 111 Cal.App.3d 788 (1980), indicates that the Government Code (Subdivision Map Act) may not authorize City to impose new conditions; i.e., those which were not imposed on the tentative subdivision map, but also held that the City does have discretion to approve or deny such extensions. -1- I . -' 0537 3. Government Code Section 66452.6(d) and Carlsbad Municipal Code Section 20.12.100(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 any property covered by the tentative subdivision map shall be filed without first processing a new tentative subdivision map. 4. Subdivider has requested City to approve the extension of time for Tentative Minor Subdivision Map No. 711 which was initially approved on July 2, 1986. 5. Since the initial approval of Tentative Minor Subdivision Map No. 711, Subdivider has satisfied all of the conditions attached to said approval except condition No. 22 relating to maintenance of the Buena Vista Creek Channel. with City since the initial approval to reach agreement on satisfaction of said condition, including performance of a one-time cleaning of the Creek Channel during such period as a gesture of good faith and cooperation. 6. Since the approval of said Tentative Minor Subdivision Subdivider has worked diligently Map, Subdivider has obtained building permits for the construction of numerous structures within said Subdivision. issued to complete the construction of all structures within the Subdivision. Only one building permit remains to be -2- .. 0538 ---. 7. Since the approval of said Tentative Minor Subdivision Map, Subdivider has executed agreements to pay Public Facilities Fees and to Pay Fees for Facilities and Improvements as Required by the Growth Management System City and has paid such fees as a condition of the issuance of each building permit. Subdivider agrees to execute further agreements for the payment of such fees in connection with and related to the issuance by City hereafter of any building permits within the Subdivision to provide for public facilities and for facilities and improvements as required by the Growth Management System. 8. Since the approval of said Tentative Minor Subdivision Map, City has adopted a Master Drainage Plan, incorporating the recommendations of the Buena Vista Lagoon and Watershed Sediment Control Plan prepared by June Applegate and Associates, and a Local Facilities Management Zone Plan for Zone 1, and has entered into a consultant agreement to prepare and update the Master Drainage Plan prior to July 1, 1989. Implementation of the Master Drainage Plan and Local Facilities Management Zone Plan for Zone 1 may require adoption of a Drainage Fee for construction of facilities within Zone 1 which are required by the remaining development of the Property or which will benefit the Property. -3- 0539 9. Because the original approval of said Tentative Minor Subdivision Map occurred prior to adoption of the Master Drainage Plan and the Local Facilities Management Zone Plan for Zone 1, City did not condition the approval of the Tentative Minor Subdivision Map with the payment of said Drainage Fees, if any, when it was adopted. Subdivider agrees to pay an equitable share of said Drainage Fee for implementation of the Master Drainge Plan and the Local Facilities Management Zone Plan for Zone 1 adopted by the City Council on September 1, 1987 by Resolution No. 9221. Subdivider further agrees and intends to grant an easement to the City of Carlsbad for any lands within the Buena Vista Creek Channel required for the construction and maintenance of said facilities. Implementation of the Master Drainage Plan and the Local Facilities Management Zone Plan for Zone 1 may require formation of an assessment district for the maintenance of the facilities described in paragraph 8 and the regular cleaning and dredging of the Buena Vista Creek Channel for the purposes of protecting the public health, safety and welfare. Subdivider has agreed to fund an equitable share of the regular cleaning and dredging of the lower reach of Buena Vista Creek within its property in the interim until an assessment district is formed for the purpose of cleaning and dredging said 10. -4- b , 0540 lower reach of Buena Vista Creek in satisfaction of the aforementioned Condition No. 22 to the initial approval. Subdivider further agrees to cooperate in the formation of an assessment district to fund the costs of maintenance of the lower reach or all reaches of Buena Vista Creek within the City and to consent to the levying of an assessment upon the property for an equitable share of said costs. 11. City arguably may not, without the voluntary consent of Subdivider, impose upon the extension of said Tentative Minor Subdivision Map the conditions requiring payment of the fees mentioned above or the conditions which may be necessary to protect the public health, safety or welfare, or the environment or ensure consistency with the General Plan or Municipal Code related to the construction of facilities and the formation of an 12. assessment district to implement the Master Drainage Plan and Local Facilities Management Zone Plan for Zone 1 described above or any conditions which may be necessary. Without such voluntary consent of Subdivider to the imposition of said additional necessary 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 protected from the -5- 0541 13. impacts of the remaining development, or that the General Plan or Municipal Code requirements are satisfied. Approval of the extension of said Tentative Minor Subdivision Map without assurances that the fees mentioned above would be paid for said Subdivision or the assessment district mentioned above could be established 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 and to ensure consistency with the General Plan or Municipal Code by the imposition of certain conditions on the extension of tentative subdivision maps. Subdivider realizes that denial of the requested extension could result in the expiration of the Tentative Minor Subdivision Map. 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 Subdivider would then -6- 0542 Municipal Code, the City's General Plan and to protect the public health, safety and welfare. 14. City has reviewed the Subdivider's request for an extension of time for said Tentative Minor Subdivision Map and finds that granting the request subject to certain conditions will not be contrary to the public health, safety and welfare. NOW, THEREFORE, in consideration of the recitals and of the mutual covenants set forth herein, City and Subdivider agree as follows: 1. City agrees to extend Subdivider's Tentative Minor Subdivision Map for one (1) year subject to the new or revised conditions described below which the City in its sole discretion has deemed appropriate. 2. and all right to the unconditioned extension of Tentative Minor Subdivision Map No. 711. Subdivider further waives any and all rights to protest new or revised conditions under Government Code Section 66475.4. Subdivider knowingly and voluntarily waives any 3. Subdivider knowingly and voluntarily consents to the imposition of a condition of approval of the extension of Tentative Minor Subdivision Map No. 711 which requires payment of the fees which may be in effect at the time of approval of the final subdivision map for said subdivision or any portion thereof as follows: -7- A. This approval is expressly conditioned on the payment by Subdivider of a public facilities fee as required by City Council Policy No. 17, issued and effective on July 28, 1987, on file with the City Clerk and incorporated herein by reference for the remaining development within the Subdivision, and according to the agreement executed by the Subdivider for payment of said fee. If said fee is not paid as promised, this application will not be consistent with the General Plan and the Project cannot proceed and its approval shall be void. B. This approval is expressly conditioned upon Subdivider's agreement to comply with the Growth Management System in effect at the time the final map is filed. Subdivider shall also pay or agree to pay fees pursuant to the Agreement to Pay Fees for Facilities and Improvements as required by the Growth Management System, executed by Subdivider with respect to the remaining development within the Subdivision. C. This approval is expressly conditioned upon Subdivider's agreement to pay a Drainage Fee for an equitable share of the estimated cost of construction of facilities within the -8- . .. 0544 appropriate fee area of Zone 1 required by the City Council to implement the Master Drainage Plan and the Local Facilities Management Zone Plan for Zone 1 adopted by the City Council on September 1, 1987 by Resolution No. 9221 and the granting to City of an easement within the Buena Vista Creek Channel as required for the construction of said facilities and the maintenance thereof. Payment of said Drainage Fee shall be due 30 days from the date that notice of said Drainage Fee is received by Subdivider. D. This approval is expressly conditioned upon Subdivider's agreement to fund an equitable share of the regular cleaning and dredging of the lower reach of Buena Vista Creek within its property until an assessment district is formed for maintenance purposes in satisfaction of Condition No. 22 to the initial conditional approval and to cooperate in the formation of an assessment district which includes provision for such purposes. 4. The provisions of Carlsbad Municipal Code Section 20.12.110 and 20.24.180, as appropriate, shall govern extension of the map which is the subject of this Agreement. -9- , 0545 5. If this Agreement is for an extension of a tentative subdivision map for a minor subdivision, the appeal of the City Engineer's approval, or conditional approval, of the extension by any party shall void this Agreement unless 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 become final and the development shall not proceed until a new tentative subdivision map has been approved. 7. This Agreement shall be recorded, but shall not create a lien or security interest in the Property. When the obligations of this Agreement have been satisfied, City shall record a release. HUGHES NORTH COUNTY ASSOCIATES, a California General Partnership CITY OF CARLSBAD, a municipal corporation By: HI-NC, A California General Partnership, By: A General Partner Acri~ CITY EflGINkER (Minor By: HUGHES INVESTMENTS, Subdivisions) A California General Partnership, A General Partner By: Thomas H. Purcell, A General Partner -10- . 054t- APPROVED AS TO FORM: ATTEST: -11- .. . . 0547 ... STATE OF CALIFORNIA) COUNTY OF ORANGE ) ) ss. 42 On this /B day of August, 1988, before me, the undersigned, a Notary Public in and for said State, personally appeared THOMAS H. PURCELL, known to me to be a General Partner of HUGHES INVESTMENTS, and acknowledged that said partnership executed the within instrument on behalf of HI-NC, the said partnership being known to me to be the General Partner of HI-NC, and acknowledged that said partnership executed the within instrument on behalf of HUGHES NORTH COUNTY ASSOCIATES, the said partnership being known to me to be a General Partner of HUGHES NORTH COUNTY ASSOCIATES, the partnership that executed the within instrument and acknowledged to me that such partnership executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. State HUGHESNC.AGR 08/ 18/8 8 -12-