HomeMy WebLinkAboutCT 91-02; DR Horton San Diego No. 15 Inc; 1995-0393199; Petition & Waiver6’3C # 1995-0393199 05-SEP-1995 02~27 PP:
OFFICIhL RECORDS
RECORDING REQUESTED BY AND 1 DIEGO COUNTY RECORDER’S OFFILE
WHEN RECORDED MAIL TO:
Ci Clerk RF: 17.00 FEES: 43.00
CITY OF CARLSBAD IIF: 25.00
I200 Carlsbad Village Drive 1
Carlsbad, CA 92008
543 GREGORY SHITH, COUNTY RECORDER
m: 1.00
)
SPACE ABOVE THIS LINE FOR RECORDERS USE
Parcel No. 212-050-40
PETITION, 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, the undersigned Property Owner Is processing for development within
the Ci of Carlsbad (“Ci) a development project known and identified as Carlsbad Tract 91-02
(“Project’) more particularly described on Exhibit “A’ attached hereto and by this reference made
a part hereof; and
/
B. WHEREAS, Ci has determined Project to be located within the boundaries of a
proposed benefit area for a Facility Impact Fee Program to be known as Cannon Road West
Facility Fee Program (‘Fee Program”); and
C. WHEREAS, Fee Program is intended to be formed 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 M484 and Carlsbad Municipal Code (CMC)
Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), a new
Development Impact Fee enacted pursuant lo Government Code Section 66000 any
combination thereof, or otherwise; and
1
_-
E. WHEREAS, Property Owner desires to proceed with processing of the Project prior
to Ci determination of the form or establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Plan for Zone 24 requires a guarantee
for the construction of the segment of Cannon Road West, described in Paragraph 1 below, prior
to the recordation of any final maps or the issuance of building permits within the zone; and
G. WHEREAS, condition number 72 (as that condition relates to the funding and
construction of Cannon Road West) of the Tentative Tract Map approved for Carlsbad Tract 91 -02
requires Property Ownerto provide forthe construction of certain public improvements including
a section of Cannon Road West; and
H. WHEREAS, compliance with the applicable Local Facilities Management Plans for
Zone 24 and tentative map conditions is a condition of approval for the final map for the Project;
and
I. WHEREAS, Ci and Property Owner desire to agree to a guarantee which insures
the project's fair share of the financing for the improvements described in Paragraph 1 herein that
will allow Property Owner to proceed with the processing of a final map and development of the
Project in advance of the formation of a Fee Program for the construction of Cannon Road West;
and
J. WHEREAS, city Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement set
forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 24 and
related tentative map condition number 72 (as that condition relates to the funding and
construction of Cannon Road West) for Carlsbad Tract Map CT 91-02, to provide a financial
guarantee for the construction of those improvements described in Paragraph 1 below; and
IC WHEREAS, Property Owner voluntarily enters into this Agreement; and
2
545
L WHEREAS, the City Council has determined that due to the size of the Project,
there will be no major impact on the circulation system at the present time if development of the
Project is allowed to proceed with sufficient financial guarantees for actual construction to meet
Property Owner's fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of Project, the
undersigned Property Owner hereby agrees and certifies to the following:
1. Property Owner hereby petitions the City for the initiation of proceedings
of a Fee Program which will cause the construction and installation and/or financing of the
following improvements which are more specifically described as follows:
e Cannon Road to major arterial road 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
muttispan bridges and one 556 foot single span bridge together
with any incidentals necessary to complete a four lane major
arterial roadway.
2. The costs of construction, engineering, design, construction inspection,
contract administration, construction engineering, environmental mitigation, condemnation costs
for the necessary right-of-way and slope easements, legal and other incidental expenses will be
funded by the Fee Program.
3. Property Owner acknowledges its right to notice of and participation in all
phases of the establishment of Fee Program and expressly waives any right to protest or oppose
the imposition or formation of Fee Program. Property Owner's waiver of its right to protest
establishment or formation of the Fee Program shall not prevent Property Owner from protesting
the amount of the fee or extent of the improvements for Cannon Road West.
3
4. a) Property Owner agrees to pay to Ci its fair share for the improvements
described in paragraph one (1) above (‘Deposit’), currently estimated to be $500 per dwelling
unit or $14,500 for Project (based on 29 dwelling units).
b) Prior to the recordation of a final map for any phase or phases within
the Project, Property Owner shall pay the Deposit to Ci in an amount calculated in accordance
with Paragraph 4.a) above for the number of units proposed within that final map. Deposit is
made in fulfillment of Condition No. 72 of the tentative map to allow City to consider approval of
the final map for Project in advance of the establishment of the Fee Program.
c) The actual amount of Property Owner’s fair share payment under the
Fee Program shall be conclusively determined by City Council at the time the Fee Program is
established.
d) Deposit by Property Owner of its fair share of improvement costs as
determined herein, and the contractual covenant created by this Agreement satisfies Property
Owner’s obligations for the construction of the improvements described in paragraph one (1)
above, as required by the Local Facilities Management Plan for Zone 24 and Tentative
Subdivision Map CT 91-02 condition number 72 (as that condition relates to the funding and
construction of Cannon Road West).
5. Property Owner acknowledges that this Agreement to pay its fair share and
participate in the financing of improvements is voluntary and that without this Agreement Property
Owner would be precluded from obtaining final map approvals or building and other
development permits under the provisions of the General Plan, Chapter 21.90 of the Carlsbad
Municipal Code, applicable zone plan, financing plans and related documents until a satisfactory
financing program had been developed to fund the construction of the improvements described
in Paragraph 1 above.
4
6. Property Owner hereby waives its right to challenge the establishment or
imposition of Fee Program. Property Owner’s waiver of its right to challenge the establishment
or imposition of Fee Program shall not prevent Property Owner from protesting the amount of
the fee or extent of the improvements for Cannon Road West.
7. This Agreement does not affect, in any way whatsoever, the obligation of
Property Owner to pay any other fees or assessments associated with Property Owner’s
development, nor does this Agreement relieve Property Owner from providing other public
facilities required under conditions of the Local Facilities Management Plan for Zone 24 or placed
upon Tentative Map CT 91-02 by the City.
8. a) If prior to January 1, 1999, the Fee Program for Cannon Road West is
established, subsequent to Deposit by Property Owner pursuant to this Agreement, Property
Owner‘s financial obligation shall be recalculated at that time, using the fee formula established
under the approved Fee Program. If the initial Fee Program obligation is different from Deposit,
plus accrued interest, amount previously paid by Property Owner to City pursuant to Paragraph
4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amount
due (Shortfall).
b) Any refund shall be made from funds available through the collection
of fees and shall not be an obligation of Cis General Fund or other revenue sources.
c) In the event that insufficient funds are available from the fee revenues,
Property Owner shall be reimbursed in the order in which funds were deposited with Ci as soon
as sufficient funds become available. as determined by the City Council.
d) No reimbunement is required until the City Council determines that
sufficient funds are available.
5
54%
e) If a Shortfall exists, Property Owner shall be notified of the amount of
such Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be due
and payable to City 30 days after the mailing of such notice.
9 The computation of the amount of any Shortfall shall not include interest
charges.
g) If payment In full of the Shortfall is not made by Property Owner within
ninety (90) days of notice of said Shortfall by the Finance Director, the amount due shall
constitute a lien on any portion of the property within the Project for which a building permit has
not been issued by the Ci. City may deny the issuance of building permits and/or take any
other action allowed by law to deny further development of Project property subject to this
Agreement, and to collect such Shortfall including, but not limited to, enforcement of the lien on
the property. City’s recordation of a lien shall not affect its ability to recoverthe Shortfall by other
legal means concurrently, but no double recovery will be allowed. The cost of such collection
shall be an obligation of Property Owner and shall be added to the amount of the Shortfall
payment due City.
h) Any payment received by the City under this Agreement shall be
deposited in a special fund and may only be used to fund the construction of the facilities
described herein. Upon the establishment of a Fee Program to fund these same facilities, any
amount remaining in the special fund may be transferred to the Facility Fee Fund, at the
discretion of the Finance Director.
i) On or after the effective date of the Fee Program adopted by Ci
Council, the Property Owner may elect to terminate this Agreement. The Property Owner shall
noti the City of their intent to terminate this Agreement in writing in accordance with the
provisions of paragraph 15 below. Upon receipt of such notification, the City shall review the
6
.. . ..
54 3
Deposit account for the Project and determine the amount of any shorlfall or refund due under
the provisions of this Agreement and the amount of any remaining credits pursuant to paragraph
4.d) above, if any. Upon payment of the shortfall, if any, by the Property Owner and upon the
determination by the City that the Project is subject to the adopted Fee Program, the City shall
file a notice of release and termination of Agreement with the Office of the County Recorder of
the County of San Diego. Termination of this Agreement by the City shall affect only those
portions of the Project which have not recorded a final map prior to the filing of the notice of
release and termination of Agreement. All money or credits received in satisfaction of the terms
of this Agreement for any portion of the Project for which a final map has been recorded prior
to termination of the Agreement shall be considered to have satisfied the Fee Program
requirements for those lots or units included within such recorded map. Any additional credits
in excess of the needs created by the recording of a phased final map shall be made available
to the Property Owner for use on the remaining unrecorded portion of the project in accordance
with any provisions for the allowance of credits under the adopted Fee Program.
9. If the Fee Program has not been established for any reason by January 1,
1999, the amount paid by Property Owner under this Agreement, including any credits or
reimbursements due pursuant to paragraph 4.c) and 4.d) above, shall be deemed to represent
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.
10. Compliance with this Agreement will be accepted by City as an alternate
to the method described in the current Local Facilities Management Plan for Zone 24 for
financing the improvements described in paragraph one (1) above. This Agreement does not
require Ci to issue building permits or other development permits or grant approvals or relieve
7
... - 55 0
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.
11. Compliance with the provisions of this Agreement is a condition of all future
discretionary approvals 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 General Plan, the Growth
Management Program, the Local Facilities Management Plan, or the applicable financing plan
for Zone 24 and all subsequent discretionary approvals and permits for the Project shall be
withheld by City.
12. 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, with the exception of owners of individual lots for which building permits have been
issued, to secure compliance with this Agreement.
13. City shall not, nor shall any officer or employee of City, be liable or
responsible for any loss or damage incurred by Property Ovrner or any successor or assign of
Property Owner, or by any occupant in Project, as a result of the exercise of any remedies
provided to City in this Agreement. Property Owner agrees to indemnify City for any liabilities
incurred by City as a result of Cis exercise of these remedies.
14. This Agreement and the covenants contained herein shall be binding upon
and inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and
Ci, and run with the real property and create an equitable servitude upon the real property.
15. All notices provided for under this Agreement shall be in writing and shall
be delivered in person or served by certiiied mail postage prepaid. Delivery of notice to Property
Owner shall be presumed to have been made on the date of mailing regardless of receipt by
Property Owner. Notices required to be given to Property Owner shall be addressed as follows:
8
551 D.R. Hotton San Diego No. 15, Inc.
10179 Huennekens Street, Suite 100
San Diego, CA 92121
Notices to the Ci shall be delivered to the
Finance Director,
City of Carlsbad,
1200 Carlsbad Village Drive
Carlsbad, California, 92008.
Each party shall notiry the other immediately of any changes of address
that would require any notice delivered hereunder to be directed to another address.
16. The obligation and benefits of this Agreement shall be transferred upon sale
of the Project. As used in this Agreement, 'Property Owner shall be the owner of the real
property which comprises the Project, except as to any real property for which residential permits
have been issued. Notwithstanding any provision of this Agreement to the contrary, upon written
notice to the Ci pursuant to Paragraph 15 above, all obligations, benefits and responsibilities
of this agreement shall move to the new owner of the real property which comprises the Project.
....
....
....
....
....
....
....
....
....
....
....
9
.. ,
- 4 552
17. The undersigned entity further states, under penalty of perjury, that it is the
owner of the property described herein, or an authorized agent of the owner, and has the
authority to sign this document including the creation of the covenants herein.
Executed this &day of h&7- I"
CITY OF CARLSBAD a Munici I
(title and organization of signatory)
By: (sign here)
(print name here)
(tale and organization of signatory)
(Ndsrlsl acknowledgment d 0xscuUon by PROPERTY OWNER mOa be -hod.)
mUa atlsch a read& certifbd by the rscretary or assiaant wcrstsry under corporabe sod wnpowerkyl that dfku to bind the (PrsCidWn or vkopresklent and rscratuy or uroistant .ecrs(ary mOa sign for corporapion. il only m dfker signs. tha corpor&x
Corpor&.)
APPROVED AS TO FORM:
Ci Attorney RONALD R. BALL
n
10
- -
-. CALIFORNIA ALL-PURPUSE ACKNOWLEDGMENT
State of California 553
Countyof
On Ausust 3. 1995 before me, m. Nnt Pnhl i c
personally appeared Thomas F. Noon, Vice President
0 personally known to me -OR - IXI proved to me on the basis of satisfactory evidence to be the person@) whose name(s) idare subscribed to the within instrument
and acknowledged to me that he/she/they executed the
hislherltheir signature(s) on the instrument the person(s),
same in his/her/their authorized capacity(ies), and that by
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Sari Diego
Dale Name and Tnle d'Wm (e.g.,%%-, NOW Public.)
Name@) of SQner(r)
J Signatvre of Nnaly Publi
OPTIONAL
Though the information below is not required by law. it may prove valuable to persons relying on the document and CouldpreVent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
litle or Type of Document:
Document Date: Number of Pages:
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signetfs)
0 Individual
0 Corporate Officer
Title(s):
0 Attornev-in-Fact
0 Partner - 0 Limited 0 General
0 Trustee-
0 Guardian or Conservator
0 Other:
I I
Signer Is Representing: I
0 Individual
0 Corporate Officer
0 Partner - 0 Limited 0 General
litle(s):
0 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
c
I
.. .. ., EXHIBIT "A"
LEGAL DESCRIPTION 554
PARCEL 1:
That portion of Lot 'F' of Rancho Agua Hedionda, in the Ci of Carlsbad, in the County of Sen
Diego, State of California, according to Map Thereof No. 823, filed in the office of the County
Recorder of San Diego County, November 16, 1896, described as follows:
Commencing at point 23 on the boundary of Lot 'F', as shown on said map being the Northerly
June 1,1937, in book 662, page 755 of deeds, in the office of the County Recorder of San Diego
comer of lands granted by Charles Kelly and wife to Elmer U. Carpenter by deed recorded
County; thence South lI"5507' West 14.42 feet along the Northwesterly boundary of said
Carpenter Lands to the Southwesterly line of El Camino Real, as shown on Road Survey 1800-1, as described in deed to the County of San Diego, recorded January 14, 1970, as Document
No. 7225 of official records of said county, being a point on a curve in said Southwesterly line
concave Southwesterly and having a radius of 3455.00 feet, a radial line from said point bears
South 35"35'22" West, said point being the TRUE POINT OF BEGINNING; thence Northwesterly along said curve through a central angle of 9"02'31', a distance of 545.24 feet to a tangent line
in said Southwesterly line of El Camino Real; thence North 63"27'09' West 472.26 feet to the
beginning of a tangent curve in said Southwesterly line concave Southwesterly and having a
radius of 14,955.00 feet; thence Northwesterly along said curve through a central angle of
thence leaving said Southwesterly line South 28O53'52'West 178.31 feet; thence South 56"13'05'
0"29'19', a distance of 127.53 feet to Station 420 plus 25 as shown on said Road Survey 1800-1 ;
East 1236.00 feet to an angle point in the Northwesterly line of said Carpenter Lands; thence
North 1 l"55'07' East 301.18 feet to the TRUE POINT OF BEGINNING.
PARCEL 2:
That portion of Lot 'F' of Rancho Agua Hedionda In the Ci of Carlsbad, County of San Diego,
of San Diego County, November 16, 1896, described as follows:
State of California, according to Map Thereof No. 823, filed in the office of the County Recorder
Commencing at point 23 on the boundary of Lot 'F', as shown on said map, being the Northerly
June 1,1937 in book 662, page 755 of deeds, in the office of the County Recorder of San Diego
corner of lands granted by Charles Kelly and wife to Elmer U. Carpenter by deed recorded
County; thence South 11'55'07' West 14.42 feet along the Northwesterly boundary of said
carpenter lands to the Southwesterly line of El Camino Real, as shown on Road Survey 1800-1,
as described in deed to the County of San Diego, recorded January 14, 1970 as Document No. 7225 of official records of said county, being a point on a curve in said Southwesterly line concave Southwesterly and having a radius of 3455.00, a radial line from said point bears South
35O35'22' West, thence Northwesterly along said curve through a central angle of 9'02'31', a
distance of 545.24 feet to a tangent line in said Southwesterly line of El Camino Real; thence
concave Southwesterly and having a radius of 14,955.00 feet; thence Northwesterly along said
North 63"27'09' West 472.26 feet to the beginning of a tangent curve in said Southwesterly line
curve through a central angle of 0"29'19', a distance of 127.53 feet to Station 420 plus 25 as shown on said Road Survey 1800-1 ; thence leaving said Southwesterly line South 28"53'52" West
178.31 feet, being the TRUE POINT OF BEGINING; thence South 17'24'23' East 278.57 feet;
thence South 29'4233" East 399.26 feet; thence South 54"36'44' East 601.95 feet more or less
to the most Westerlv comer of said land to Camenter: thence North 42"5932" East 374.50 feet ~~ ~~~~ ~~~~ ~~ to an angle point in said land to Carpenter; thence North 56"13'05' West 1236.00 feet to the
TRUE POINT OF BEGINNING.
.
Sheet 1 of 2
555
PARCEL 3
An easement and right of way for ingress and egress for mad purposes over, along and across
a strip of land 40.00 feet in width lying within Lot 'F' of Rancho Agua Hedionda, in the City of Carlsbad, County of San Diego, State of California, according to Map Thereof No. 823, filed in
the office of the County Recorder of San Diego County, November 16, 1896, the center line of
said 40.00 foot strip being described as follows:
Beginning at point 1 of said Lot 'I=' as shown on said map; thence South 25"01'05' Ea& (record
South 24"45' East) a distance of 229.00 feet to a point which point is designated on said map as point 23 of Lot 'F", this point being the TRUE POINT OF BEGINNING and which point is the
most Northerly corner of lands conveyed by Charles Kelly to Elmer Carpenter by deed recorded
June 1, 1937 in book 622, page 755 of deeds in the County of San Diego, State of California; the
said Carpenter Land being now known as Robert E. Hick's property; thence along the Westerly
and Northwesterly boundary of said Carpenter (Hicks) Land as follows:
South 1 l"51'12' West 315.60 feet to an angle point; and South 42O55'37'West 374.50 feet to the
most Westerly comer of said land.
Excepting that pottiin lying Northeasterly of the Southwesterly line of Road Sutvey No. 1800-1
as described in deed to the County of San Diego, recorded October 29, 1969 as File No. 198734
of official records of said county.
Sheet 2 of 2