HomeMy WebLinkAboutCT 95-03; UDC Homes Inc; 1997-0097873; Petition & WaiverRECORDING REQUESTED
BY AND WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
Carlsbad, CA 92008
1200 Carlsbad Village Drive
“.
,I.’< .*r ( ~.,
D~JL #i 1997-0097873
,.
05-NAR-1997 03-17 PN i !( SllN DIEGD CWNTY REEWER’S OFFICE OFFICIAL RECORDS
GREGORY SHITHI CWNTY RECORDER 1301 RF: 16.00 FEES: AF: 23.00 40.00
HF: 1.00 ”. . .
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Parcel No.: 212-04032
PETITION, WAIVER, AND CONSENT TO CREATION
OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT
TO PAY FAIR SHARE COST OF AWARA PARKWAY AND POINSETTIA 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 Emerald
Ridge West, Carlsbad Tract 9503 (“Projecf) 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 locatad within the boundaries of a
proposed benefit area for a Facility Impact Fee Program to be known as Aviara Parkway 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 MOO0 a, any
combination thereof, or otherwise; and
1 c7 9s-3
- “.3 0 2
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 segment of Aviara Parkway 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 Plan
for Zone 20 and tentative map conditions is a condition of approval for the final map for the
Project; and
H. WHEREAS, City 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
Aviara Pahy and Poinsettia Lane; and
I. 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 impmvements described in
Paragraph 1 below; and
J. WHEREAS, Property Owner voluntarily enters into this Agreement; and
K. 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:
2
," "1303
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: . Aviara Parkway from Poinsettia Lane to Palomar Airport Road
and Poinsettia Lane from Aviara Pahnray to El Camino Real
(Aviara Parkway and Poinsettia Lane).
Full width grading of the roadway, paved road surface for two lane (18 foot paved section on each side of median for a total of
street drainage facilities (with the exception that drainage facilities
36 feet paved section), median curbs, outside asphalt berms,
in Aviara Parkway which are included in the City's Drainage Fee
Program have been deleted), culverts, temporary drainage in parkway, design, contract administration, construction inspection,
construction engineering, mitigation measures and land
acquisition.
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 Aviara Parkway 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 $665
per "Average Daily Trip" ("ADT") allocable to each dwelling unit in the Project. Ten (10) ADT's
are allocable to each single-family dwelling unit in the Project and six (6) ADT's are allocable to
each multi-family or second dwelling unit in the Project. The total amount of Deposit
contemplated under the terms of this Agreement is estimated to be $441,560 (based upon the
following calculation: 61 singlefamily units x 10 ADT/unit x $665/ADT + 9 second dwelling
units x 6 ADT/unit x $665/unit).
3
b) Prior to the recordation of the 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,
to the extent those amounts have not previously been subtracted from the Deposit. For the
purpose of computing the Deposit amount required pursuant to this Agreement, recordation of
all or a portion of the second dwelling unit lots shall require full payment of that portion of
Deposit allocable to each of the second dwelling units included with the lot or lots being
recorded.
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
Ownel'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 and the conditions for
approval for the Project.
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 Carisbad
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.
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 Aviara Parkway and Poinsettia Lane.
4
- 1305
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 the Project by the City.
8. a) If prior to January 1, 1999, the Fee Program for Aviara Parkway 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
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 City's General Fund or other revenue sources.
c) In the event that insufficient funds are available from the fee
revenues, Property Owner shall ba reimbursed in the order in which funds were deposited with
City as soon as sufficient funds become available, as determined by the City Council.
d) No reimbursement is required until the 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 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 City. City may deny the issuance of building permits and/or take any
5
- - 1306
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 recover the 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 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. 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 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.
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, shall be deemed to
represent Property Owner's fair share cost for provision of those facilities described in
6
c - 1307
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 20 for
financing the improvements described in paragraph one (1) above. 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.
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 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 Owner 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 City's 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.
7
- x 1308
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:
438 Camino Del Rio South, Suite 112B
UDC Homes, Inc.
San Diego, CA 92108
Notices to the City shall be delivered to the:
Finance Director
City of Catisbad 1200 Carlsbad Village Drive
Catisbad, California 92008
Each party shall notify 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 Ownet" 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 contraty,
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.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
8
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 own$ J@i9as the
authority to sign this document including the creation of the covenants herein,
Executed this 27 - day of
ALI
om y ,I9 42.
PROPERTY OWNER:
UDC HOMES, INC., a Delaware
Corporation
(print name here)
I/. P.
(title and organization of signatory)
!r/ (title and organization 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, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney -
BY Citv Attomev
9
LEGAL DESCRIPTION
1310
Exhibit 'A'
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
"PARCEL 1:
- . A PORTION OF PARCEL "C" OF PARCEL MAP NO. 2949 FILED IN THE OFFICE OF THE COUNTY RECOWR OF SAN DIEGO COUNTY, AUGUST 9, 1974 AND A PORTION OF THAT CERTAIN PARCEL OF LAND DELINEATED AND DESIGNATED AS "DESCRIPTION NO. 1, 103.91 ACRES" ON RECORD OF SURVEY MAP NO. 5717,
DECEMBER 19, 1960, BEING A PORTION OF LOT "G" OF RANCHO AGUA HEDIONDA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
ACCORDING TO MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, A PORTION OF WHICH LIES WITHIN THE CITY OF CARLSBAD, ALL BEING IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF PARCEL "A" OF PARCEL MAP NO.
NORTHEAST CORNER OF PARCEL "C" OF PARCEL MAP NO. 2949 ; THENCE ALONG
2993, SAID POINT BEING NORTH 00°01'57" EAST 0.21 FEET FROM THE
SAID SOUTHERLY LINE OF PARCEL "A" AND PARCEL "B" OF PARCEL MAP NO.
2993, NORTH 87"13'10" EAST (RECORD NORTH 86O51'47" EAST PER P.M. NO.
2993) 650.64 FEET; THENCE LEAVING SAID SOUTHERLY LINE OF SAID PARCEL
O?? A TANGENT 466.00 FOOT RADIUS CURVE CONCAVE EASTERLY; THENCE
"A" AND PARCEL "B", SOUTH Ol"41'08" EAST 423.49 FEET TO THE BEGINNING
SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
FEET TO THE BEGINNING OF A TANGENT 266.00 FOOT RAD1US"CURVE CONCAVE
ll"53'00" A DISTANCE OF 96.65 FEET; THENCE SOUTH 13"34'08" EAST 564.02
NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS, SOUTH 76O25'52" WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14"44'00" A DISTANCE OF 68.40 FEET; THENCE SOUTH
28O18'08" EAST 145.20 FEET TO THE BEGINNING OF A TANGENT 334.00 FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO SAID POINT BEARS, NORTH 61"41 ' 52" EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29O00'28" A DISTANCE OF 169.10 FEET; THENCE
SOUTH OO"42'20" WEST 178.87 FEET TO A POINT ON THE SOUTHERLY LINE OF RANCHO AGUA HEDIONDA; THENCE ALONG SAID SOUTHERLY LINE, NORTH
89"26'44" WEST (NORTH 89O27'10" WEST PER P.M. MAP NO. 2949 AND R.O.S.
RADIUS CURVE CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS, 9812) 870.90 FEET TO A POINT ON THE ARC OF A NON-TANGENT 230.00 FOOT
SOUTH OO"33'16" WEST; THENCE LEAVING SAID SOUTHERLY LINE OF SAID
RANCHO, NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A .CENTRAL ANGLE OF 46O35'37" A DISTANCE OF 187.04 FEET; THENCE NORTH 47O08'53" EAST 183.01 FEET; THENCE NORTH 42O7.0 ' 22 'I WEST 65.62 FEET; THENCE NORTH
Page lof 2
1311 Exhibit 'A'
24O47'42" WEST 78.24 FEET; THENCE NORTH 18"00'37" EAST 150.05 FEET TO A POINT ON THE ARC OF A NON-TANGENT 3 55.00 FEET CONCAVE NORTHEASTERLY, A RADIAL LINE TO SAID POINT BEARS, SOUTH 18"00'37" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
FEET; THENCE NORTH 28"54'09" EAST 197.78 FEET; THENCE NORTH 63"23'53"
lO"53'32" A DISTANCE OF 67.49 FEET; THENCE NORTH 61°05'51" WEST 13.61
WEST 26.14 FEET; THENCE NORTH OO"43'35" WEST 277.23 FEET; THENCE NORTH
THENCE NORTH 07O41'58" EAST 91.17 FEET; THENCE NORTH OO"O1'57" EAST 09"42'06" WEST 71.93 FEET; THENCE NORTH OO"O1'57" EAST 273.68 FEET;
-169.45 FEET TO THE POINT OF BEGINNING.
- . PARCEL 1A:
AN EASEMENT AND RXGHT OF WAY FOR INGRESS AND EGRESS, ROAD AND UTILITY
WATER, SEWER AND CABLE TELEVISION LINES AND APPURTENANCES THERETO, PURPOSES, INCLUDING BUT NOT LIMITED TO ELECTRIC POWER, TELEPHONE, GAS,
OVER, UNDER, ALONG AND ACROSS THAT PORTION OF PARCEL A, B AND C OF
PARCEL MAP NO. 2993, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
. STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, AUGUST 23, 1974 AS FILE NO. 74-230326 OF OFFICIAL RECORDS, DELINEATED AND DESIGNATED AS "E4' FUTURE STREET OPEN (MARCARIO ROAD)" ON SAID PARCEL MAP.
Page 2 of 2
($.personally known to me - OR - 0 proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) dare subscribed to the within instrument
and acknowledged to me that.tr&(ekdthey executed the
4aMer/their signature(s) on the instrument the person(s),
same in Wtheir 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. 8
$$
Though the information below is not required by law if e valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
ll 0 CorDorate Officer
J Individual
Signer's Name:
0 Individual
0 Corporate Officer
Partner - 0 Limited 0 General
Title(s):
0 Attornev-in-Fact
0 Trustee-
0 Guardian or Conservator n Other:
J Attorney-in-Fact
0 Guardian or Conservator
Signer Is Representing:
0 1995 Naflanal Nota" Association 8236 Remmet Ave.. P.O. Box 7184. Canoga Park. CA 91309-7164 Prod. No. 5907 Reorder. Cail Tali-Free G600~876-I
Signer Is Representing: