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HomeMy WebLinkAboutCT 92-01; Greystone Homes Inc; 1995-0576698; Petition & Waiver2171 C-L“ # 1995-0576678 19-DEC-1995 09341 AN OFFICIAL RECORDS RECORDING REQUESTED BY AND 1 SAH OIEGO COUNTY RECORDER’S OFFICE WHEN RECORDED MAIL TO: 1 Cty Clerk ) CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 GREGORY WTHI COUNTY RECORDER RF: 17.00 FEES: 43.00 RF: 25.00 ilF : 1.00 SPACE ABOVE THIS LINE FOR RECORDERS USE Parcel No. 214-140-40 PETITION, WAIVER, AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE COST OF ALGA ROAD AND POlNSElllA LANE (“AGREEMENT“) A. WHEREAS, the undersigned Property Owner is processing for development within the City of Carlsbad (“City’) a development project known and identified as Carlsbad Tract 92-01 (“Project’) more particularly described on Exhibit ‘A” attached hereto and by this reference made a part hereof; and B. WHEREAS, City has determined Project to be located within the boundaries of a proposed benefit area for a Facility Impact Fee Program to be known as Alga Road and Poinsettia Lane 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 66484 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 to Government Code Section 66000 a, any combination thereof, or otherwise; and 1 E. WHEREAS, Property Owner desires to proceed with processing of the Project prior to City determination of the form or establishment of Fee Program; and F. WHEREAS, the Local Facilities Management Plan for Zone 20 requires a guarantee for the construction of the segments of Alga Road and Poinsettia Lane, 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, compliance with the applicable Local Facilities Management Plans for Zone 20 and tentative map conditions is a condition of approval for the final map for the Project; and H. 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 Alga Road and Poinsettia Lane; and 1. 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 20 to provide a financial guarantee for the construction of those improvements described in Paragraph 1 below; and J. WHEREAS, Property Owner voluntarily enters into this Agreement; and K. WHEREAS, the Ci 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; 2 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: 0 Alga Road from Poinsettia Lane to Palomar Airport Road and Poinsettia Lane from Alga Road to El Camino Real (Alga Road and Poinsettia Lane) The improvements proposed for inclusion include full width grading for an 82 foot wide major arterial roadway within a 102 foot wide road right-of-way, with related drainage improvements, and two 18 foot wide paved travel lanes, median curbs along both edges of a to El Camino Real and Alga Road from Poinsettia Lane to Palomar raised unimproved median strip for Poinsettia Lane from Alga Road Airport Road, all built to City of Carlsbad major arterial standards. 2. The costs of construction, engineering, design, construction inspection, contract administration, construction engineering, environmental mitigation, condemnation costs for the necessaly right-of-way and slope easements, legal and other incidental expenses will be funded by the Fee Program. 3. Property Owner acknowledges its rigM to notice of and participation in all phases of the establishment of Fee Program and expressly waives any rigM 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 Alga Road and Poinsettia Lane. 4. a) Property Owner agrees to pay to City its fair share for the improvements described in paragraph one (1) above ("Deposit"), currently estimated to be $500 per "Average Daily Trip' ('ADT") allocable to each dwelling unit in the Project. Ten (IO) ADT's are allocable to each single-family dwelling unit in the Project and six (6) ADT's are allocable to each multi-family 3 dwelling unit in the Project. The total amount of Deposit contemplated under the terms of this Agreement is estimated to be $680,000 (based upon the following calculation: 112 single-family units x 10 ADT/unit x $500/ADT + 40 multi-family units x 6 ADT/unit x $500/unit). b) Prior to the recordation of a final map for any phase or phases within the Project, Property Owner shall pay the Deposit to City in an amount calculated in accordance with Paragraph 4.a) above for the number of units proposed within that final map, minus the amounts of the credits provided for in subparagraph 4.c) below, to the extent those amounts have not previously been subtracted from the Deposit. Forthe purpose of computing the Deposit amount required pursuant to this Agreement, recordation of all or a portion of the multi-family lots shall require full payment of that portion of Deposit allocable to each of the multi-family units included with the lot or lots being recorded. c) Property Owner is obligated by the Local Facilities Management Plan for Zone 20 to construct poltins of Alga Road, some of which are within the Fee Program and some of which are not within the Fee Program. Those portions of Alga Road constructed by the Property Owner which are described in paragraph one (1) and are included within the Fee Program (Reimbursable Portion) are fully reimbursable pursuant to the provisions of this paragraph. Those portions of Alga Road constructed by the developer which are not described in paragraph one (1) or are not included with the Fee Program are not considered reimbursatJe. Property Owner and City agree that, for purposes of this Agreement, the dollar amount of the Reimbursable Portion of the Property Owner's Alga Road improvement obligation is estimated at $0.00 ("Reimbursement"). The actual amount of the Reimbursement shall be determined upon completion of the engineering report forthe Fee Program and upon adoption of the Fee Program by the City Council. Upon substantial completion of any grading work, improvement, or property acquisition of the Reimbursable Portion of the Alga Road improvement, City shall within sixty (60) 4 - 2175 days reimburse Property Owner an amount equal to the cost of the work as determined by the engineering report used to determine the adopted fee. In the event that the engineering report is not completed or the Fee Program has not been adopted by the City at the time of substantial completion of the Reimbursable Portion of the Alga Road improvements, City shall reimburse Property Owner an amount equal to the estimated cost of the Reimbursable Portion of improvements constructed by the Property Owner as determined by the Ciy Engineer. Upon completion of the engineering report and adoption of the Fee Program by City Council, City shall determine the actual amount of the Reimbursable Portion of the constructed improvements. Any difference in cost between the estimated and actual value of the Reimbursable Portion of constructed improvements shall be added to or subtracted from the Deposit due pursuant to paragraphs 8.a) through 8.i) below. If Reimbursement exceeds the amount of the Deposit previously paid by Property Owner to City, then the excess shall be a credit to be applied against Property Owner‘s future Deposit obligations. In no case shall the Ciy reimburse the Property Owner pursuant to this Agreement in an amount greater than the amount of the total fee due under the adopted fee program without first entering into a subsequent reimbursement agreement between the City and Property Owner. , d) 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. e) 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 20. 5 5. Property Owner acknowledges that this Agreement to pay its fair share and participate in thefinancing of improvements isvoluntary and that withoutthis 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 satisfactary financing program had been developed to fund the construction of the improvements described in Paragraph 1 above. 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 Alga Road and Poinsettia Lane. 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 20 or placed upon Tentative Map CT 92-01 by the City. 8. a) If prior to January 1, 1999, the Fee Program for Alga Road and Poinsettia Lane 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 Ci pursuant to Paragraph 4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amount due (Shortfall). 6 b) Any refund shall be made from funds available through the collection of fees and shall not be an obligation of Ci’s General Fund or other revenue sources. c) In the event that insufficient funds are available from the fee revenues, Property Owner shall be reimbuned in the order in which funds were deposited with City as soon as sufficient funds become available, as determined by the Ci Council. d) No reimbursement is required until tha City Council determines that Sufficient funds are available. 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 Ci 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. CIS recordation of a lien shall not affect its ability to recover the Shortfall by other legal means concurrently, but no double recovely 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 Cty 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 7 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 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 writing in accordance with the provisions of paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit account for the Project and determine the amount of any shortfall or refund due under the provisions of this Agreement and the amount of any remaining credits pursuant to paragraph 4.c) 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) above, shall be deemed to represent Property Owner’s fair share cost for provision of those faciliies described in paragraph one (1) above and no further payment will be due from or reimbursement due to Property Owner. - - 2179 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 20 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 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 20 and all subsequent discretionary approvals and permits for the Project shall be withheld by Ci. 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. Ci shall not, nor shall any officer or employee of City, be liable or responsible for any loss or damage incurred by Property Owner or any successor or assign of Property Owner, or by any occupant in Project, as a resuk of the exercise of any remedies provided to Ci 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 City, and run with the real property and create an equitable servitude upon the real property. 9 15. All notices provided for under this Agreement shall be in writing and shall be delivered in person or served by certified 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: Greystone Homes, Inc. 495 East Rincon, Suite 115 Corona, CA 91719 Notices to the Ci shall be delivered to the Ci of Carlsbad, Finance Director, 1200 Carlsbad Village Drive Carlsbad, California, 92008. d require Each party shall notii the other immediately of any changes of address that woulc 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 City 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. .... .... .... .... .... .... .... .... .... 10 - 2181 - 17. The undersigned entii 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 3pday of LlSt ,195. Robert W. Garcin (print name here) Vice President (title and organization of signatory) A By: eign here) Todd Palmaer (print name here) DtV f5IDN PRdLrnT (title and organization of signatory) 11 - - 21 82 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 @ personally known to me - OR - 0 proved to me on the basis of satisfactorv evidence to be the person(s) whose name(s) is@ subscribed to the within instrument and ac- knowledged to me that he/she/m executed the same in his/her/W authorized capacity(ies), and that by hidher/- signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. SIGNATURE O~OTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 PARTNER(S) 0 LIMITED 0 AlTORNEY-IN-FACT NUMBER OF PAGES 0 TRUSTEE(S) 0 GUARDIAN/CONSERVATOR 0 OTHER: 5/30/% 0 GENERAL 11 DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITYOES) SIGNER@) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave., P.O. Box 7184 - Canoga Park, CA 91309-7184 DESCRIPTION 4 2283 Order No. 972248 50 / ,/rTY OF CARLSBAD TRACT NO. 92-01 COSTA DO SOL, BEING A SUBDIVISION OF: / PARCEL 2' IN THE CITY OF CARLSB?+D, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN AT PAGE 6136 OF PARCEL MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 6, 1977, TOGETHER WITH THAT PORTION OF THE SOUTH WF OF FRACTIONAL SECTION 21, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTH QUARTER CORNER OF SAID FRACTIONAL SECTION 21; THENCE ALONG THE SOUTHERLY LINE OF SAID FRACTIONAL SECTION 21, NORTH 88O 59' 52" WEST, 1017.71 FEET; THENCE NORTH 000 32' 50" EAST, 34.00 FEET To THE NORTHERLY LINE OF THE SOUTHERLY 34.00 FEET OF SAID FRACTIONAL SECTION 21; THENCE ALONG SAID NORTHERLY LINE SOUTH 88O 59' 52" EAST, 1017.00 FEET, MORE OR LESS, TO THE NORTH-SOUTH CENTER LINE OF SAID FRACTIONAL SECTION 21; THENCE ALONG SAID NORTH-SOUTH CENTER LINE SOUTH OOo 00' 24" WEST, 34.00 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. LAND, WITHOUT RIGHT OF INGRESS AND EGRESS AS RESERVED TO JACK W. HARRIS, AS EXCEPTING THEREFROM ALL OIL, GAS AND OTHER MINERAL RIGHTS IN, ON AND UNDER SAID GUARDIAN OF THE ESTATE OF ALBERT METCALF, AN INCOMPETENT PERSON, IN DEED DATED JUNE 8, 1955 AND RECORDED JULY 1, 1955 IN BOOK 5701, PAGE 315 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM ALL MINERAL RIGHTS IN, ON AND UNDER SAID LAND WITHOUT RIGHT OF INGRESS AND EGRESS AS EXCEPTED AND RESERVED BY JACK FJLRRIS, TRUSTEE, AND WIFE, IN DEED DATED APRIL 21, 1955 AND RECORDED JULY 1, 1955 IN BOOK 5701, KAY K. METCALF, A WIDOW, AND FRANK MILES FLINT AND CLAIRE SHARP FLINT, HUSBAND PAGE 317 OF OFFICIAL RECORDS. _. .. ,,. . .. . .