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HomeMy WebLinkAboutCT 85-24; Upland Industries Corporation; 1995-0574611; Petition & Waiver:==e g .i .$ i=q?K:,qZ- Ti;=" : d 9 , p .f,% 2Ja f [%e ka$& 8 & I 3' = c m f a-FaTi--+ E-SQE T$>zz c& Li L3fe.- 1. 7 i -2 i - @; m ; II ' .I : 'I J* \ -7-r. -. Ci-' ' < Lf?S * 926 RECORDING REQUESTED BY AND 1 WHEN RECORDED MAIL TO: ) 1 CITY OF CARLSBAD 1 1200 Carlsbad Village Drive 1 Carlsbad, CA 92008 1 City Clerk 1 ) .- SPACE.ABQVE THIS LINE EOR RECORDER'S USE Parcei No. 21 2-1 30-34 For Legal Description see Recital G on Page 2 WAIVER, AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE COST OF CANNON ROAD WEST ("AGREEMENT") A. WHEREAS, Upland Industries Corporation, a Nebraska Corporation,(Property Owner) is processing for development within the City of Carlsbad ("City") a development project known and identified as lots 92 through 109, inclusive, of Carlsbad Tract 85-24 Unit No. 5 ("Project"); and B. WHEREAS, City has determined Project to be located within the boundaries of aprojosed benefit area for a Facility Impact Fee Pq&v.am to.bekr~own as Cannon Road West Facility Fee Program ("Fee Program"); and C. WHEREAS, Fee Program is intended to be forme'd to finance those improvements generally described in Paragraph 1 below; and D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area of benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code (CMC) Section 20.08.1 40), amendment to the Traffic Impact Fee (CMC Chapter 18.421, a 1 6/13/95 /.7--%S--1Lf 'I 1 9 27 0 0 *% new Development Impact Fee enacted pursuant to Government Code Section 66000 et sec any combination thereof, or otherwise; and E. WHEREAS, Property Owner desires to proceed with processing of the Projec prior to City determination of the form or establishment of Fee Program; and F. WHEREAS, condition number 37 of Planning Commission Resolution Numb( 2508, as amended by condition number 5 of City Council Resolution Number 8587, of tt- Tentative Tract Map approval for Carlsbad Tract 85-24 Unit No. 5 requires that Farada Avenue be constructed or the construction be otherwise guaranteed westerly to an improvec publicly maintained road (Cannon Road) prior to issuance of any building permits for lots 9 through 109, inclusive; and G. WHEREAS, Property Owner desires and City agrees to relieve lots 92 throug 108 of the Project from the financial obligation of said potential fees and to place the fu financial obligation upon lot 109 of the Project which is more particularly described as lot IC of Carlsbad Tract 85-24 according to Map No. 1281 5 recorded in the office of the Couni Recorder of the County of San Diego, California on May 16, 1991 as File page No. 9 2341 62; and, H. WHEREAS, Cannon Road must be extended and improved from its currer easterly terminus at Car Country Drive or from El Camino Real westerly to the propose Faraday Avenue intersection prior to condition no, 37 being satisfied; and I. WHEREAS, City and Property Owner desire to agree to a guarantee whic insures Project's fair share of the financing for the improvements described in Paragraph herein that will allow Property Owner to obtain building permits for Project in advance of tt- formation of a Fee Program for the construction of Cannon Road West; and J. WHEREAS, City Council agrees that Property Owner, by having entered int this Agreement and upon payment of the fair share described herein, has fully met th requirements set forth in Planning Commission tentative map condition number 37, E 2 611 31 \ a $28 amended by Council condition number 5 of City Council Resolution No. 8587 for Carlsba Tract Map CT 85-24 Unit No. 5; and K. L. WHEREAS, Property Owner has provided an interim alternative secondar access to the Project which allows for the deferral of the construction of those improvemen. described in Paragraph 1 below; and WHEREAS, Property Owner voluntarily enters into this Agreement; and M. WHEREAS, the City Council has determined that due to the provision of tt- interim alternative secondary access to the Project, there will be no major impact on th circulation system at the present time if development of the Project is allowed to proceed wit sufficient financial guarantees for actual Construction to meet Property Owner's fair share c the circulation improvements; NOW, THEREFORE, in consideration of proceeding with the processing of Project an issuance of building permits far the Project, the undersigned Property Owner hereby agree: waives and consents as follows: 1. Property Owner hereby consents to the City initiation of proceedings of a Fe Program which will cause the construction and installation andlor financing of the followin! improvements which are more specifically described as follows: 0 Cannon Road to major arterial standards from Paseo Del Norte to El Camino Real (Cannon Road West) The improvements proposed for inclusion include all curbs, gutters, sidewalk, base and pavement, median landscaping and irrigation, median hardscape, streetlights, street monumentation, grading and excavation, storm drainage facilities, guardrails, two 485 foot multispan bridges and one 156 foot single span bridge together with any incidentals necessary to complete a four lane major arterial roadway. Attached hereto as Exhibit 'A' and incorporated herein is the "Engineering Report for Proposed Cannon Road West Facility Fee" ("Report"), Report formed the basis for the determination of the amount of Property Owner's deposit. 3 st1315 929 a 0 2. The costs of construction, engineering, design, construction inspection, contrac administration, construction engineering, environmental mitigation, legal and other incident expenses will be funded by the Fee Program, as more particularly described in Report. 3. Property Owner acknowledges its right to notice of and participation in E phases of the establishment of Fee Program and expressly waives any right to challengc protest or oppose the imposition or formation of Fee Program. Property Owner's waiver ( its right to protest establishment or formation of the Fee Program shall not prevent Propert Owner from protesting the amount of Property Owner's fair share payment under the Fe Program, or extent of the improvements for Cannon Road West. 4. a) Property Owner agrees to pay to City its estimated fair share for th improvements described in paragraph one (1 ) above ("Deposit"), currently estimated to be $5 per "Average Daily Trip" ("ADT") allocable to the estimated traffic generated by each buildin permit issued for the Project. Eight (8) ADT's are allocable to each 1000 square foot of nor commercial industrial building footage constructed within the Project. Thirty percent buildin coverage is assumed for each net acre of developable lot area. The total amount of Depos is $202,293 (Based upon the following calculation: 38.,7 net acres X 0.30 X 43,561 square feet per acre X 8 ADT / 1000 square feet X $50 per ADT). b) Prior to the issuance of the first building permit within the Project, Propert Owner shall pay the total Deposit for the Project to City in the amount set forth in Paragrap 4.a) above. C) The actual amount of Property Owner's; fair share payment under the Fer Program shall be determined by City Council at the time the Fee Program is establishec subject to the provisions of Paragraph 3 above. d) Payment of the Deposit by Property Owner and the contractual covenar created by this Agreement satisfies Property Owner's obligations, if any, for the constructioi of the improvements described in paragraph one (I) and satisfies condition number 37 o 4 6/13/2 930 m Planning Commission Resolution Number 2508, as amended by condition number 5 of Cit Council Resolution Number 8587, of the Tentative Tract Map approval for Carlsbad Tract 8! 24 Unit No. 5. 5. Property Owner acknowledges that this Agreement to pay its fair share an thereby participate in the financing of improvements is voluntary and that without thi Agreement Property Owner would be precluded from obtaining building permits until satisfactory financing program had been developed to fund the construction of th improvements described in Paragraph 1 above. 6. This Agreement does not affect, in any way whatsoever, the obligation c Property Owner to pay any other fees or assessments associated with Property Owner’ development, nor does this Agreement relieve Property Owner from providing other publi facilities required under conditions of the Local Facilities Management Plan for Zone 5 c placed upon Tentative Map CT 85-24 Unit No. 5 by the City. 7. a) If prior to January I, 1999, the Fee Program for Cannon Road West i established, subsequent to Deposit by Property Owner pursuant to this Agreement, Propert Owner’s financial obligation shall be recalculated at that time, using the fee formul established under the approved Fee Program subject to the provisions of Paragraph 3 abovc If the Fee Program obligation is different from the Deposit paid by Property Owner to Cit pursuant to Paragraph 4 hereof, plus any accrued interest an the Deposit, ccimpti:ed ai th average rate of earnings on the City investment portfolio for the time period in question, Cit shall refund any excess, or Property Owner will pay to City any additional amount du (Shortfall). b) Any refund shall be made from funds available through the collection of fee and shall not be an obligation of City’s General Fund or other revenue sources. Any refunl shall be paid to the undersigned Property Owner, even if such party is not the owner of th 5 61 1 31! 0 e 931 Project at time of refund, unless otherwise directed, in writing by the undersigned Proper1 Owner, to pay the refund to another party. c) In the event that insufficient funds are available from the fee revenue Property Owner shall be reimbursed in the order in which funds were deposited with City E soon as sufficient funds become available, as determined by the City Council. d) No reimbursement is required until the City Council determines that sufficiei funds are available. e) If a Shortfall exists, Property Owner shall be notified of the amount of SUC Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be du and payable to City 30 days after the mailing of such notice. f) Interest shall not be charged on the shortfall. g) If payment in full of the Shortfall is not made by Property Owner with ninety (90) days of notice of said Shortfall by the Finance Director, the amount due shz constitute a lien upon lot 109 within the Project. City may deny the issuance of buildin permits and/or take any other action allowed by law to deny further development of Lot 10: and to collect such Shortfall including, but not limited to, enforcement of the lien on Lot 10: City's recordation of a lien shall not affect its ability to recover the Shortfall by other leg; means concurrently, but no double recovery will be allowed. The cost of such collection shz be an obligation of Property Owner and shall be added to the amount of the Shortfali paymer due City. h) Any payment received including without limitation, the Deposit, by the Cit under this Agreement shall be deposited in an interest accruing special fund and may only b used to fund the construction of the facilities described herein. Upon the establishment of Fee Program to fund these same facilities, any amount remaining in the special fund may b transferred to the Facility Fee Fund, at the discretion of the Finance Director. 6 6/ 1 31 e 33x1 m > i) If Deposit has not been made to the City prior to the effective date of the Fet Program adopted by City Council, the Property Owner may elect to terminate this Agreement The Property Owner shall notify the City of their intent to terminate this Agreement in writin! in accordance with the provisions of paragraph 14 below. Upon receipt of such notification and upon incorporation of the Project properties into the Fee Program, the City shall file z notice of release and termination of Agreement with the Office of the County Recorder of thc County of San Diego, j) The City shall conform with the requirements of Section 66000 et seq. of thc Government Code in the receipt, accounting, disbursement and/or refund of any amounts paid under this agreement. 8. If the Fee Program has not been established for any reason by January 1,1999 the amount paid by Property Owner under this Agreement shall be deemed to represeni Property Owner's fair share cost for provision of those facilities described in paragraph one (1 ) above and no further payment will be due from or reimbursement due to Property Owner. 9. This Agreement does not require City to issue building permits or other development permits or grant approvals or relieve Property Owner of the obligation to comply with all applicable provisions of law, including but not limited to, Carlsbad Municipal Code Titles 18, 19, 20 and 21. IO. Compliance with the provisions of this Agreement is a condition of all future building permits for the Project. If Property Owner does not comply with the provisions of this Agreement, approval of the Project will not be consistent with the tentative map approval for the Project and all subsequent building permits for lot 109 of the Project shall be withheld by City. 11. The City may, at its discretion, elect to pursue any remedy, legal or equitable against Property Owner or Property Owner's successors, heirs, assigns, and transferees to secure compliance with this Agreement. 7 611 3195 ’. 0 933 12. City shall not, nor shall any officer or employee of City, be liable or responsibl for any loss or damage incurred by Property Owner or any successor or assign of Propert Owner, or by any occupant in Project, as a result of the lawful exercise of any remedic provided to City in this Agreement. Property Owner agrees to indemnify City for any liabilitic incurred by City as a result of City’s lawful exercise of these remedies. 13. This Agreement and the covenants contained herein shall be binding upon an inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner an City, and run with Lot ? 09 and create an equitable servitude upon Lot 109. 14. All notices provided for under this Agreement shall be in writing and shall t delivered in person or served by certified mail postage prepaid. Delivery of notice to Propert Owner shall be presumed to have been made three days after the date of mailing regardles of receipt by Property Owner. Notices required to be given to Property Owner shall be addressed as follows: R.D. UHRICH SENIOR VICE PRESIDENT UNION PACIFIC REALTY 141 6 DODGE STREET ROOM 1 100 OMAHA, NEBRASKA 681 79 With a copy sent to: STEPHEN 1. ERENYI UNION PACIFIC REALTY 2945 HARDING STREET, SUITE 21 1 CARLSBAD, CA 92008 Notices to the City shall be delivered to: FINANCE DIRECTOR CITY OF CARLSBAD 1200 CARLSBAD VILLAGE DRIVE CARLSBAD, CALIFORNIA 92008. Each party shall notify the other immediately of any changes of address that woul require any notice delivered hereunder to be directed to another address. 8 6/13/! , 934 * I) e * 16. The undersigned entity further states, under penalty of perjury, that it is thl owner of the property described herein, or an authorized agent of the owner, and has th authority to sign this document including the creation of the covenants herein. Executed this 'L2 day of December , 1995. PROPERTY OWNER: UPLAND INDUSTRIES CORPORATI0 N a Nebraska Corporation BY. m& $L/ By : Ah (sign here; (sign here) (print name here) . R+D. UHRICH .SENtOR VICE PRESJDENT (title and organization of signatory) A&&La.rfl__ /L/o/a=e (priiit name here) /k&h.~j GCREfAfl9 (title arid orGaiization of signatory) (Notarial acknowledgment of execution by PROPERTY OWNER must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporation. If only one officer signs, tl- corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that offici to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney Qd Q. k /L*f3.45* -Bqmy City Attorney BY 9 6/13/! -. 1) a A STATE OF NEBRASKA ) COUNTY OF DOUGLAS ) ) ss. 935 On September 8,1995, before me, a Notary Public in and for said County and Statc personally appeared R D. Uhrich and Barbara Holder, Senior Vice President and Assistant Secreta of UPLAND INDUSTRIES CORPORATION, a Nebraska corporation, personally known to me (0 proved to me on the basis of satisfadory evidence) to be the persons whose names are subscribed tl the within instrument, and acknowledged to me that they executed the same in their authorize, capacities, and that by their signatures on the instrument the persons, or the entity upon behalf o which the persons acted, executed the instrument. WITNESS my hand and official seal. -)tLLLh*w. &!Le& Notary Public (SEAL) Comm. Exp. August 17,1997 \