HomeMy WebLinkAboutCT 84-32A; Greystone Homes Inc; 1997-0182059; Petition & Waiver==
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463 11 RECORDING REQUESTED ji BY AND WHEN RECORDED
MAIL TO:
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/I !I il il 11 ("AGREEMENT" ) II WHEREAS, the undersigned Property Owner is processing for dev
/I the City of Carlsbad ("City") a development project known and identified as C
(1 Village, Carlsbad Tract 84-32A ("Project"); and, 'I
'1 City Clerk
CITY OF CARLSBAD 11 1200 Carlsbad Village Drive
11 Carlsbad, CA. 92008
SPACE ABOVE THIS LINE FOR RECC
Parcel No. 212-040-30 1 j
For Legal Description see attac
PETITION, WAIVER, AND CONSENT TO CREATION
OF A FACILITY IMPACT FEE PROGRAM
AND AGREEMENT TO PAY FAIR SHARE COST OF
AVIARA PARKWAY AND POINSETTIA LANE
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B. WHEREAS, City has determined Project to be located within the
11 proposed benefit area for a Facility Impact Fee Program to be known as Aviai
1 Poinsettia Lane Facility Fee Program ("Fee Program"); and,
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C. WHEREAS, Fee Program is intended to be formed to finance thos
generally described in Paragraph 1 below; and
D. WHEREAS, Fee Program may take the form of a bridge and thorc
1; benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municir
I1 ii Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter
jl development Impact Fee enacted pursuant to Government Code Section 66C
;I combination thereof, or otherwise; and,
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E. WHEREAS, Property Owner desires to proceed with processing of
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F. WHEREAS, the Local Facilities Management Plan for Zone 20
/I guarantee for the construction of the segments of Aviara Parkway and Poinz
I1 I! [ described in Paragraph 1 below, prior to the recordation of any final maps or the
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// building permits within the zone; and
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i construction of Aviara Parkway (formerly Alga Road)) of the tentative tract map appt li !!
11 Project, pursuant to Planning Commission Resolution No. 2849, requires Proper /I ,I /i provide for the construction of certain public improvements including a portion of Avii I1 ii
G. WHEREAS, condition number 43 (as that condition relates to the
H. WHEREAS, compliance with the applicable Local Facilities Manager
h Zone 20 and tentative map conditions for the Project is a condition of approval for
I for the Project; and
/i I. WHEREAS, City and Property Owner desire to agree to a gua I/ 1 insures the project's fair share of the financing for the improvements described in
(1 herein that will allow Property Owner to proceed with the processing of a f
11 development of the Project in advance of the formation of a Fee Program for the (
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j Aviara Parkway and Poinsettia Lane; and
I! i/ WHEREAS, City Council agrees that Property Owner, upon entc 1'
)I Agreement and upon payment of the fair share described herein, has met the r(
Ij forth in the Local Facilities Management Plan for Local Facilities Management Pla
)j related tentative map condition number 43 (as that condition relates to thc
" construction of Aviara Parkway and Poinsettia Lane) for Project to provide a finar
i for the construction of those improvements described in Paragraph 1 below; and
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K. WHEREAS, Property Owner voluntarily enters into this Agreement; an<
L. WHEREAS, the City Council has determined that due to the size of 11 there will be no major impact on the circulation system at the present time if develop
Project is allowed to proceed with sufficient financial guarantees for actual construc'
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I1 /i Property Owner's fair share of the circulation improvements.
/j i/ I\ the undersigned Property Owner hereby agrees, waives and consents as follows: /i 'I il /I )I
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NOW, THEREFORE, in consideration of proceeding with the processing of
1. Property Owner hereby petitions the City for the initiation of proceedi
Program which will cause the construction and installation andlor flflanCltlQ Of 1
ji improvements which are more specifically described as follows:
I1 /I Real (Aviara Parkway)
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1; Aviara Parkway from Poinsettia Lane to Palomar Air
Road and Poinsettia Lane from Aviara Parkway to El Car
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The improvements proposed for inclusion include full \1
im grading for an 82-foot wide major arterial roadway with
102-foot wide road right-of-way, with related drai
I improvements, and two 18-foot wide paved travel lanes, m(
curbs along both edges of a raised unimproved median stri li j; Poinsettia Lane from Aviara Parkway to El Camino Real
Aviara Parkway from Poinsettia Lane to Palomar Airport Roa
built to City of Carlsbad major arterial standards. i;
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I 2. The costs of construction, engineering, design, construction inspe I' il Ii administration, construction engineering, environmental mitigation, condemnatior
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necessary right-of-way and slope easements, legal and other incidental expenses
by the Fee Program.
4 Property Owner acknowledges its right to notice of and participatic
ji !I of the establishment of Fee Program and expressly waives any right to protest
I! imposition or formation of Fee Program. Property Owner's waiver of its r
'1 establishment or formation of the Fee Program shall not prevent Property Owner
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11 the amount of the fee or extent of the improvements for Aviara Parkway and Poinsettia ij
4. a) Property Owner agrees to pay to City its estimated fair sh:
11 improvements described in paragraph one (I) above ("Deposit"), currently estimated
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'I per "Average Daily Trip" (''ADTI') allocable to each dwelling unit in the Project. Ten
I are allocable to each single-family dwelling unit in the Project. The total amount
'I contemplated under the terms of this Agreement is estimated to be $1,409,800 (bas
~ j following calculation: 21 2 single-family units x 10 ADThnit x $665/ADT).
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b) Prior to the recordation of a final map for any phase or phase
11 Project, Property Owner shall pay the Deposit to City in an amount calculated in accc 1 Paragraph 4.a) above for the number of units proposed within that final map, minus
I, I' of the credits provided for in subparagraphs 4.c) below, to the extent those amou 11 ii previously been subtracted from the Deposit. II
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c) Property Owner is obligated by the condition 43 of the tentative I/
I Project to construct portions of Aviara Parkway, some of which are within the Fee
1 some of which are not within the Fee Program. Those portions of Aviara Parkway c li
ii the Property Owner which are described in paragraph one (I) and are included \F
11 Program (Reimbursable Portion) are fully reimbursable pursuant to the prov
paragraph. Those portions of Aviara Parkway constructed by the developer \
described in paragraph one (1) or are not included within the Fee Program are r
reimbursable. Property Owner and City agree that, for purposes of this Agreem
~f amount of the Reimbursable Portion of the Property Owner's Aviara Parkway
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,I obligation is estimated at $1,775,891 ("Reimbursement") attached as Exhibit "E I!
reference made a part hereof. The actual amount of the Reimbursement shall
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upon completion of the engineering report for the Fee Program and upon adop'
!i Program by the City Council. Upon substantial completion of any grading work, ir //
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11 property acquisition of the Reimbursable Portion of the Alga Road improvement, City
li I/ 1 sixty (60) days reimburse Property Owner an amount equal to the cost of the work as /i 11 I, by the engineering report used to determine the adopted fee. In the event that the c Ii i' report is not completed or the Fee Program has not been adopted by the City at
/j substantial completion of the Reimbursable Portion of the Alga Road improvement: Ij
reimburse Property Owner an amount equal to the estimated cost of the Reimbursab
1' improvements constructed by the Property Owner as determined by the City Engii /I completion of the engineering report and adoption of the Fee Program by City Counc 1i determine the actual amount of the Reimbursable Portion of the constructed improve
11 difference in cost between the estimated and actual value of the Reimbursabll
11 constructed improvements shall be added to or subtracted from the Deposit due
'I 11 paragraphs 8.a) through 8.i) below. If Reimbursement exceeds the amount of
I previously paid by Property Owner to City, then the excess shall be a credit to be ay
11 Property Owner's future Deposit obligations. In no case shall the City reimburse
\\ Owner pursuant to this Agreement in an amount greater than the amount of the
under the adopted fee program without first entering into a subsequent rr
1 agreement between the City and Property Owner.
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e) The actual amount of Property Owner's fair share payment
Program shall be conclusively determined by City Council at the time the F
established.
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9 Deposit by Property Owner of its fair share of improve
determined herein, and the contractual covenant created by this Agret
Property Owner's obligations for the construction of the improvement'
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paragraph one (1) above, as required by the Local Facilities Management Pla
20 and Tentative Subdivision Map CT 84-32A condition number 43 (as tha
relates to the funding and construction of Aviara Parkway and Poinsettia Lane).
Property Owner acknowledges that this Agreement to pay its
and thereby participate in the financing of improvements is voluntary and that
Agreement Property Owner would be precluded from obtaining final map a
building and other development permits under the provisions of the Ge
Chapter 21.90 of the Carlsbad Municipal Code, applicable zone plan, financir
related documents until a satisfactory financing program had been developec
construction of the improvements described in Paragraph 1 above.
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I j i' 1 6. Property Owner hereby waives its right to challenge the esta
imposition of Fee Program.
establishment or imposition of Fee Program shall not prevent Property
protesting the amount of the fee or extent of the improvements for Aviara
Property Owner's waiver of its right to cl
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1; /I Poinsettia Lane.
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7. This Agreement does not affect, in any way whatsoever, the
Property Owner to pay any other fees or assessments associated with Pro
development, nor does this Agreement relieve Property Owner from providir
facilities required under conditions of the Local Facilities Management Plan '
placed upon Tentative Map CT 84-32A by the City.
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8. a) If prior to January 1, 1999, the Fee Program for A
Poinsettia Lane is established, subsequent to Deposit by Property Owner p
Agreement, Property Owner's financial obligation shall be recalculated at t
the fee formula established under the approved Fee Program. If
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Program obligation is different from Deposit, plus accrued interest, amount
paid by Property Owner to City pursuant to Paragraph 4 hereof, City shall
excess, or Property Owner will pay to City any additional amount due (Shortfall:
b) Any refund shall be made from funds available through the collect
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11 /I !i and shall not be an obligation of City's General Fund or other revenue sources.
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In the event that insufficient funds are available from the fee Jj 1' Property Owner shall be reimbursed in the order in which funds were deposited with C 1 as sufficient funds become available, as determined by the City Council.
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i d) No reimbursement is required until the City Council determines tt jl
11 $1 funds are available. I\
I; i' e) If a Shortfall exists, Property Owner shall be notified of the amc /I ii Shortfall by the Finance Director via certified mail. The amount of said Shortfall shal
payable to City 30 days after the mailing of such notice.
9 The computation of the amount of any Shortfall shall not inc
charges.
g) If payment in full of the Shortfall is not made by Property Owner
, (90) days of notice of said Shortfall by the Finance Director, the amount due shal
I lien on any portion of the property within the Project for which a building permit ~
issued by the City. City may deny the issuance of building permits and/or take an
1' i! allowed by law to deny further development of Project property subject to this Agre
\' collect such Shortfall including, but not limited to, enforcement of the lien on the pr
recordation of a lien shall not affect its ability to recover the Shortfall by othe
concurrently, but no double recovery will be allowed. The cost of such collectic
/I obligation of Property Owner and shall be added to the amount of the Shortfall pay!
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1; h) Any payment received by the City under this Agreement shall be dep
II special fund and may only be used to fund the construction of the facilities descrit:
1~ Upon the establishment of a Fee Program to fund these same facilities, any amount rf
// 11 the special fund may be transferred to the Facility Fee Fund, at the discretion of tl
11 Director.
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i) On or after the effective date of the Fee Program adopted by City (
/! Property Owner may elect to terminate this Agreement. The Property Owner shall nc 1 of their intent to terminate this Agreement in writing in accordance with the p
i' aragraph 15 below. Upon receipt of such notification, the City shall review the Dep
!i for the Project and determine the amount of any shortfall or refund due under the F
11 this Agreement and the amount of any remaining credits pursuant to paragraph 4 11 any. Upon payment of the shortfall, if any, by the Property Owner and upon the dete
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1, 'I the City that the Project is subject to the adopted Fee Program, the City shall flk I1
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release and termination of Agreement with the Office of the County Recorder of tl
" San Diego. Termination of this Agreement by the City shall affect only those PC
I Project which have not recorded a final map prior to the filing of the notice of
I! termination of Agreement.
11 Agreement for any portion of the Project for which a final map has been recc /j !/ termination of the Agreement shall be considered to have satisfied the 1
i! 11 requirements for those lots or units included within such recorded map. Any additi li 'j excess of the needs created by the recording of a phased final map shall be ma(
the Property Owner for use on the remaining unrecorded portion of the project
with any provisions for the allowance of credits under the adopted Fee Program.
All money or credits received in satisfaction of the
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9. If the Fee Program has not been established for any reason by Ja
I: the amount paid by Property Owner under this Agreement, including 2 !! '1
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I' jj 11 reimbursements due pursuant to paragraph 4.c) above, shall be deemed to represer
1, Owner's fair share cost for provision of those facilities described in paragraph one (1) /I /I no further payment will be due from or reimbursement due to Property Owner.
/ ! Compliance with this Agreement will be accepted by City as an alter
jj method described in the current Local Facilities Management Plan for Zone 20 for fi
il I/ improvements described in paragraph one (1) above. This Agreement does not rer
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1 issue building permits or other development permits or grant approvals or relieve Pro
'I of the obligation to comply with all applicable provisions of law, including but nc
/j Carlsbad Municipal Code Titles 18, 19, 20 and 21.
I1 Compliance with the provisions of this Agreement is a condition
'I discretionary approvals for the Project. If Property Owner does not comply with the
this Agreement, approval of the Project will not be consistent with the General Plar
I/ Management Program, the Local Facilities Management Plan, or the applicable finat
11 Zone 20 and all subsequent discretionary approvals and permits for the Project shz
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j! The City may, at its discretion, elect to pursue any remedy, legs
11 against Property Owner or Property Owner's successors, heirs, assigns, and tra
the exception of owners of individual lots for which building permits have been iss
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;i compliance with this Agreement.
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I' City shall not, nor shall any officer or employee of City, be liable or
I any loss or damage incurred by Property Owner or any successor or assign of P
or by any occupant in Project, as a result of the exercise of any remedies provide li (!
I! Agreement. Property Owner agrees to indemnify City for any liabilities incurre
~l result of City's exercise of these remedies.
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1 // 14. This Agreement and the covenants contained herein shall be bil
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1' inure to the benefit of the successors, heirs, assigns, and transferees of Property ( 11
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1' City, and run with the real property and create an equitable servitude upon the real prc
11 All notices provided for under this Agreement shall be in writing ar I! delivered in person or served by certified mail postage prepaid. Delivery of notice 11 Owner shall be presumed to have been made on the date of mailing regardless o
)) Property Owner. Notices required to be given to Property Owner shall be addressed i
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Todd Palmaer
GREYSTONE HOMES, INC.
795 East Rincon, Suite 11 5
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il Corona, CA 91719
jj /I Finance Director
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I Notices to the City shall be delivered to the following:
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
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li I! require any notice delivered hereunder to be directed to another address. I The obligation and benefits of this Agreement shall be transferred Up1
;! 11 Project. As used in this Agreement, "Property Owner" shall be the owner of the
j! which comprises the Project, except as to any real property for which residential
il '1 !I been issued. Notwithstanding any provision of this Agreement to the contrary,
/I I! /I notice to the City pursuant to Paragraph 15 above, all obligations, benefits and res il // this Agreement shall move to the new owner of the real property which comprises t 1;
Each party shall notify the other immediately of any changes of addresi
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I1 The undersigned entity further states, under penalty of perjury, that it is
1 of the property described herein, or an authorized agent of the owner, and has the i
)) sign this document including the creation of the covenants herein.
!I Executed this & day of l----~~pJ~s7
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PROPERTY OWNER:
1 Greystone Homes, Inc 1 a Delaware Corporation
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11 By:
CITY OF CARLSBAD, a Municrpa I
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11 7-zoe RL~Al3r-L
(print name here)
Qas, D &3"-
(title and organization of signatory) I; BY.
(sign here) II
11 (tide and organization of signatory)
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11 (Notarial acknowledgment of execution by PROPERTY OWNER must be attached.)
11 (President or vice-president and secretary or assistant secretary must sign for c
only one officer signs, the corporation must attach a resolution certified by the '1 assistant secretary under corporate seal empowering that officer to bind the corpor; '/ APPROVED AS TO FORM. 1 RONALDR BALL
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I! City Attorney
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~ +Fara Parkway - PAR to Cobblestone Preliminary Cost Estimate for 1130197 Exhibit "
.4 Sa:l t-03 to 2OtOO @ B&TD #2 Reimbursables * DAH
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Item Description Quantity Unit Unit Price Total
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STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On February 14, 1997, before me, Linda Wasty, Notary Public for County of San Diego, personally
appeared TODD PALMAER , personally known to me to be the person whose name is subscribed to tl
within instrument and acknowledged to me that he executed the same in his authorized capacity and thr
by his signature on the instrument, the person or entity upon behalf of which the person acted, executed
the within instrument.
WITNESS my hand and official seal. AS5 1% /
Linda Wasty, Notary Pub c
CAPACITY CLAIMED BY SIGNER SIGNER IS REPRESENTING:
Individual
- XX- Corporate Officer
President
Partners
Greystone Homes, Inc., A Delaware
Corporation
- Assistant Secretary
Corporation as a Partner
Other
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW TITLE OR TYPE OF DOCUMENT: -Petition, Waiver, & Consent to Creation of a Facility Impact Fee Program
and Agreement to Pay share of Aviara Parkway & Poinsettia Lane.
NUMBER OF PAGES NUMBER OF SIGNERS 3
11 + exhibits and attachments