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
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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.
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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
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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.
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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.
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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
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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
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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:
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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
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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.
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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
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APPROVED AS TO FORM: ATTEST:
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...
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
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