HomeMy WebLinkAbout; Foote Development Company; 87-491839; Public Facilities Fee Agreement/ReleaseRecording Requested By and Return To:
City .Clerk - 3 -* 69 9
1200 &im Avenue . 'Carlsbad, CA 92008
CHICAGO TITLE CO!IIFANY - k 760 74 P 0. BOX 1.590 1301 THIRD AVENUE ' SAN DIEGO. CALIFORNIA 92112 AGREEMENT FOR PROVISION OF PUBLIC FACILITIES AFFECTING ISSUANCE AND
87 491839
OF BUILDING PERMITS. I 'v'!X!% 1. . 1:;': 1: C'r' < ,, #,I.< ;:I ;,:;,;.:,,: !,;
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THIS AGREEMENT is made this J%L day of I
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1987, between the CITY OF CARLSBAD, a municipal corporation of
the State of California, hereinafter referred to as CITY, and the
FOOTE DEVELOPMENT COMPANY hereinafter referred to as DEVELOPER.
RECITALS
WHEREAS, the City's Growth Management Plan provides that
building permits nay not issue until all necessary public
facilities are constructed or otherwise guaranteed as required by
the Local Facilities Management Plan: and
WHEREAS, a Local Facilities Management Plan has been
approved by the City Council for Zone 2 which identifies certain
public facilities deficiencies which must be remedied prior to
the issuance of any building permits: and
WHEREAS, developer has secured a final map for CT 84-35,
a 151 unit residential subdivision located in Zone 2: and
WHEREAS, developer wishes to assume responsibility for
the correction of all the existing deficiencies and wishes to
obtain building permits for his project so that the houses can be
constructed at the same time the necessary public facilities are
being constructed recognizing that the houses will not be
occupied until all the necessary public facilities are available
thereby avoiding a further burdening of the City's public
facilities capacities and ensuring compliance with the Growth
Management Ordinance.
NOW, THEREFORE, in consideration of the recitals and
mutual obligations of the parties as herein expressed, City and
Developer agree as follows:
1. Developer will pay the City $42,500.00 for
improvements to the intersection of Elm Avenue at
El Camino Real as required by the Local Facilities
Management Plan for Zone 2. The City will use this
money to supplement the existing construction
contract for work in the area and will assume the
responsibility for completing the improvements.
2. Developer will deposit $270,000.00 with the City,
which is the estimated cost of making the
improvements to the intersection of Tamarack Avenue
at El Camino Real as required by the Local
Facilities Management Plan for Zone 2. City will
assume responsibility for constructing these
improvements. When the Citywide Traffic Study is
completed a judgement will be made by the City
Council as to the exact nature and extent of these
improvements. The existing estimate will be
refined at that time. Any deposit in excess of the
refined estimate will be returned to developer. If
the deposit is not sufficient to cover the refined
estimate then Developer shall promptly deposit any
additional funds required. Any payments by
developer pursuant to this section shall satisfy
his obligation for the improvements.
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3. Developer shall immediately commence construction
of any necessary upgrades to the El Camino Real
Kelly Sewer Interceptor to accommodate flows from
Zone 2 and Zone I to the satisfaction of the City
Engineer. This work shall be diligently pursued to
completion by developer. Developer shall guarantee
the construction of the sewer improvements by
furnishing a Letter of Credit in a form acceptable
to the City Attorney in the amount of $75,000.00.
In connection with the construction developer shall
maintain a liability insurance policy naming the
City as an additional insured as required by the
Risk Manager covering all aspects of the work to be
performed by developer or a sub-contractor,
developer may obtain the release of the posted
security on completion of the project in accordance
with the City Standard Subdivision Practice. Upon
completion and acceptance of the work, the City
will pay developer $29,421.00 which the parties
agree is the City's share of the project.
4. After this agreement is executed and after
developer has deposited the funds required by
Sections 1 and 2 and furnish the security required
by Section 3 then subject to compliance with all
applicable laws, the .City shall issue building
permits for developer's project.
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5. Developer shall not occupy or allow occupancy of
any of the houses constructed pursuant to building
permits issued in accordance with this agreement
and shall neither request, secure or permit:
(a) A final building inspection of the structure:
(b) Installation of a water meter: or
(c) Installation of any gas or electric meter for
any of the houses, until completion of both the
sewer improvements required by paragraph 3 and the
Elm and El Camino Real street improvements required
by paragraph 1 has been certified in writing by the
City Engineer as complete and operational.
Temporary electric power for construction will be
permitted only from temporary construction poles or
pedestals. Developer agrees to comply with all of
the provisions of the Local Facilities Management
Plan for Zone 2 and the Citywide Facilities and
Improvements Plan.
6. Further, developer understands the City Building
Department will not schedule the foundation
inspection or framing inspection on any of the
houses to be constructed by developer unless the
City Engineer certifies in writing that adequate
progress is being made by developer toward
completing the sewer improvements. Prior to the
utilities inspection and release of utilities the
City Engineer must certify that all of the public
improvements reauired by this agreement have been
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completed. No units will receive final inspection
prior to this certification.
7. Developer understands that this agreement
notwithstanding should any of the public facilities
necessary to serve this project fall below the
adopted Citywide Performance Standard in the future
all previously available but unissued building
permits will not be issued until those deficiencies
can be corrected.
8. If developer wishes to sell any of the houses prior
to final inspection he must comply with the
disclosure provisions of this section. Any
prospective purchasers must be made aware of the
fact that they may not be able to occupy the house
on it's completion because of the provisions of
this agreement at the time a specific buildiing
permit is issued. A copy of this agreement shall
be available to each prospective buyer and
developer shall obtain a signed acknowledgment and
receipt that the buyer has read and understands the
agreement. The receipts must be filed with the
Community Development Director. After completion
of the sewer improvements and the Elm Avenue
improvements and provided no other public
facilities deficiencies have been identified prior
to building permit issuance, then the Community
Development Director shall have authority during
the time that situation prevails of waiving the
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3-1 704
disclosure requirement for any particular house.
9. This agreement is intended to resolve any possible
dispute between developer and City in regards to
his development. Developer waives the right to
litigate anything that's happened in the past in
regards to this development and agrees to hold the
City harmless and waive any rights to litigate in
the future any matters arising out of this
agreement.
10. Developer shall be entitled to a credit against the
traffic impact fees required to be paid as a
condition of the issuance of his building permits.
The amount of the credit shall be equal to the
monies required to be paid by developer pursuant to
this agreement. As each building permit for the
development is pulled the traffic impact fees due
shall be deducted from this amount. When the
project is complete and the credit has otherwise
been adjusted as necessary for the Tamarack and El
Camino Real improvements, then the City Engineer
shall determine the amount remaining to be
reimbursed to developer. City agrees to use it's
best efforts to collect traffic impact fees from
other developers building in Zone 2 and agrees to
pay any amounts received on a monthly basis to
developer until the remaining reimbursement amount
has been satisfied. This reimbursement would
include any additional funds collected from other
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developers in Zone 2 should the permanent traffic
impact fee be established at a higher rate than the
interim fee. No interest will be due on the
reimbursement amount.
11. Developer expressly warrants that he is the owner
of record or duly authorized agent of the owner of
record of the land subject to this agreement and
described on Exhibit A attached hereto and made a
part hereof ( "The Property" 1.
12. Applicant shall record this agreement as affecting
title to the property in the office of the County
Recorder, County of San Diego, California and
provide the City with a copy of the recorded
agreement prior to the issuance of any building
permits .
13. Provided all requirements of the Growth Management
Plan have been satisfied the City shall provide the
Developer with a written release of this agreement
for each house upon completion of the improvements
required by this agreement. The form of (the
release) agreement shall be prepared by Foote
Development Company's Title Company and be approved
by the City within 45 days of this agreement.
14. No amendment, modification, supplement, termination
or waiver of any provision of this Agreement shall
be effective unless executed in writing by both
parties and then only in the specific instance and
for the specific purposes given.
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15. Any demand upon or notice required or permitted to
be given by one party to the other party shall be
in writing. Except as otherwise provided by law,
any demand upon or notice required or permitted to
be given by one party to the other party shall be
effective (a) on personal delivery, (b) on the
second business day after mailing by certified or
registered United States mail, return receipt
requested, or (c) on the succeeding business day
after mailing by Express mail or after deposit with
a private delivery service of general use (e.g.,
Federal Express) postage or fee paid as
appropriate, addressed to the party at the address
shown below.
Developer: Michael J. Foote Foote Development Company
5205 Kearny Villa Way, Suite 211
San Diego, California 92123
City: City of Carlsbad
Community Development Office
Carlsbad, California 92009
2075 Las Palmas Drive
Attention: Community Development Director
Notice of change of address shall be given by written
notice the manner set forth in this paragraph.
16. This Agreement and all rights and obligations
contained herein shall be in effect whether or not
any or all parties to this Agreement have been
succeeded by another entity, and all rights and
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CORPORATE ACKNOWLEDQMENT NO. 202
Karen R. Kundtz
the undersigned Notary Public, personally appeared
Claude A. Lewis
'B
LC personally known to me
0.8 *8*~**88.~8.**8*~.**8****** 0 proved to me on the basis of satisfactory evidence
KAREN R. KUNDTZ : to be the person(@ who executed the within instrument as
YN DlEW COUNTY 0
**.~**8****8**....*.**1...1*11
8 * * 8
MFKIAL SEAL *
NOTAW PUBLIC-CILIFOANIA : 8
Mayor or on behalf of the corporation therein
YY CO". cxa. L.l. 27.1989 : named, and acknowledged to me that the corporation executed it. WITNESS my hand and official seal.
Notary'jSignature 3
Stateof California Onthisthe3rddayof August - 19x, before me,
Countyof Sari Diego
} ss. Karen R. Kundtz
the undersigned Notary Public, personally appeared ;I
Aletha L. Rautenkranz
rn personally known to me
0 proved to me on the basis of satisfactory evidence *.****8*~**88***.**~**********
*
* * *
2 OFFICIAL SEAL : to De the person(s) who executed the within instrument as * KAREN R. KUNDTZ : 8 NOTW PWUIC-CMIF&NU *
**.***.*.*.*8*.***..********~* WITNESS my hand and official seal.
City Clerk or on behalf of the corporation therein
YN DlEW COUNTV : named, and acknowledged to me that the corporation executed it.
My Cmm. Lrp M. 27. 1969 :
. STATE 01' CALIFORNIA )
COUNTY OF SAN DIECO ) )
I On -July 17, 1987
51alr. personally apprarrd MICHAEL J. FOOTE, pprsonally knovctl to mr or proved to nlc on the beforc rrw, fhv undrrsigned, a Notary Public in and for said
basis of satisfactor) evidence 10 be thp person who expcuted the u,ithtn instrurrient as the President of MIKE FOOTE DEVELOPMENT CO., INC., th? corporation that exrcutrd thc withln instrument,
and acknowledged 10 me that such corporation executrd the within instrument pursuant to its
bylaw or a resoiution of its board of directors.
WITNESS my hand and official seal.
Patricia G. C. Abernathy
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obligations of the parties signatory to this
Agreement shall be vested and binding on their
successor of interest.
IN WITNESS WHEREOF, the parties hereto have executed
this agreement on the day and year first written above.
APPROVED AS TO FORM:
n
CITY OF CARLSBAD
A MuniCiDal CorDoration of the
City of Carlsbad -
DEVELOPER:
FOOTE DEVELOPMENT COMPANY
By : "
6LL-42 (2. L .&. pp7 VINCENT F. BIONDO, JR., Clty Atto ne
ATTEST:
RAUTENKRANZ, City lerk
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- EXHIBIT "A"
.
Map 11672
Lots 98 to 189 inclusive of Carlsbad Tract No. 84-35 Unit 2, in the City of
No. 11672, filed in the Office of the County Recorder, December 11, 1986.
Carlsbad, County of San Diego, State of California, according to Map thereof
Map 11673
Lots 190 to 248 inclusive of Carlsbad Tract No. 84-35 Unit 3, in the City of
No. 11673, filed in the Office of the County Recorder, December 11, 1986.
Carlsbad, County of San Diego, State of California, according to Map thereof