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HomeMy WebLinkAboutFreiburger & Punsly; 1987-06-02;e 0 AGREEMENT FOR WAIVER OF PROHIBITION AGAINST THE IMPOSITION OF CONDITIONS UPON THE APPROVAL OF AN EXTENSION OF A TENTATIVE SUBDIVISION MAP. This Agreement is made this .2N,) day of Tu L t..- between the City of Carlsbad, a municipal corporation, (here called "City") and B TFEFM&GR - z\;l\ ,rJ{ 5% i ~if,;Iy , (hereinafter called "Subdivider"). RECITALS 1. Government Code Section 66452.6(e) and Carlsbad Municipz Sections 20.12.110 and 10.24.180 permit Subdividers to I and City to approve, conditionally approve or deny extensj time for the expiration of tentative maps or tentative maps (hereinafter collectively called "Tentative Subdi Maps" ) . 2. El Patio v. Permanent Rent Control Board, 110 Cal. App. 3 modified 111 Cal. App. 3d 788 (1980) indicates th Goverment Code (Subdivision Map Act) may not authorize C impose new conditions; i.e., those which were not imposed tentative subdivision map, upon the extension of tirr expiration of a tentative subdivision map, but also held th City does have discretion to approve or deny such extension 3. Government Code Section 66452.6(d) and Carlsbad Municipa e 0 Sections 20.12.100(d) and 20.24.160 provide that expiratil tentative subdivision map shall terminate all proceedil that no final map or parcel map for any property covered tentative subdivision map shall be filed without first proc a new tentative subdivision map. 4. Subdivider has requested City to approve the extension ( for Tentative Subdivision Map No. b;L/d3q which was ini approved on SGM C4fi Y \/L 3,/7 B x. 5. Since the approval of said Tentative Subdivision Map, C: conducted studies which show that the construction of t drainage facilities or thoroughfares are essential to prote provide for the health, welfare, and safety of all of the F and future residents of City, including those who will res said subdivision. 6. Since the approval of said Tentative Subdivision Map, Ci adopted a major drainage fee or major thoroughfare fee or t provide the funds to construct the necessary drainage faci and thoroughfares. 7. Since the approval of the Tentative Subdivision Map, Ci conducted studies which show the need to establish a facilities fee in order to provide for public facilit protect the public health, safety and welfare of the prese future residents of City and to ensure that public facilit serve the development will be available concurrent with n required by City's General Plan. Developer agrees to pa fees and has executed a contract which is on file with th ., 0 e Clerk to that effect. 8. Because the original approval of said Tentative Subdivis occurred prior to the adoption of the aforementioned fee: did not condition the approval of said Tentative Subdivis with the payment of said fees. 9. Since the initial approval of said Tentative Subdivisj there may have been changed circumstances which I additional conditions of approval on the extension ( Tentative Subdivision Map to protect the public health, and welfare, to mitigate affects on the environment or to consistency of the extended map with the City's General PI Municipal Code. 10. City arguably may not, without the voluntary conse Subdivider, impose upon the extension of said Ten Subdivision Map conditions requiring payment of the mentioned above or conditions necessary to protect the health, safety or welfare, or the environment or consistency with the General Plan or Municipal Code. 11. Without such voluntary consent of Subdivider to the imposit conditions City may be required to deny Subdivider's reque extension to ensure that the public health, safety and we or the environment are protected or that the General P Municipal Code requirements are satisfied. Approval extension of said Tentative Subdivision Map without assu that the fees mentioned above would be paid for said subdi would be contrary to the best interests of the City and 0 threaten the City's ability to protect and provide for the health, safety and welfare. Subdivider agrees that it is best interest of City and Subdivider that City be able to the public health, safety and welfare, or the environ ensure consistency with the General Plan or Municipal Code imposition of conditions on the extension of ter subdivision maps. 12. Subdivider realizes that denial of the requested extensior result in the expiration of the tentative subdivisic Subdivider would then be required to incur substantial co: time delays in processing a new tentative subdivisic approval of which would be subject to new conditions necesz ensure consistency of the tentative subidivison map wi Subdivision Map Act, the Ca1ifor.ni.a Environmental Qualit Titles 19, 20 and 21 of the Carlsbad Municipal Code, the General Plan and to protect the public health, safe we1 fare. 13. City has reviewed the Subdivider's request for an extens time for said tentative subdivision map and finds that gr the request subject to certain conditions will not be contr the public health, safety and welfare. NOW, THEREFORE, in consideration of the recitals and mutual covenants set forth herein, City and Subdivider as follows: 1. City agrees to extend Subdivider's Tentative Subdivisi for one year subject to whatever new or revised conditions the C e e its sole discretion deems appropriate. 2. Subdivider knowingly and voluntarily waives any rights to the unconditioned extension of Tentative Subdivision $y-3q . 3. Subdivider knowingly and voluntarily consents imposition of a condition of approval of the extension of Te Subdivision Map No. BCk3'\ which requires payment of any fee may be in effect at the time of approval of the final subdivis for said subdivision or any portion thereof and to the fo additional conditions: a. This approval is expressly conditioned on the payment applicant of a public facilities fee as required Council Policy No. 17, issued and effective on Ap 1986, on file with the City Clerk and incorporated he reference, and according to the agreement executed applicant for payment of said fee. If said fee is n as promised, this application will not be consiste the General Plan and the project cannot proceed a c approval shall be void. 1 b. This approval is expressly conditioned upon the subdi compliance with any growth management system in ef the time the final map is filed. Subdivider shall a or agree to pay (as decided by the City Council) a identified by the City Council as necessary to pay I '1 cost of providing facilities and improvements wh imposed pursuant to the growth management system I GENERAL ACKNOWLEDGMENT State of CALIFOXiIA Onthisthe 17 dayof --19_8h 1 ss. REGINA A. NEWLAX Countyof 4pda DIEC) the undersigned Notary Public, personally appeared pLIfaz C PLjq-y xx personally known to me xx proved to me on the basis of satisfactory evidence - to be the person(s) whose name(s) 1.3 ,. subsc ~ 71 NATIONAL N unmm me-, ,- -.. ._____ STATE OF CALIFORNIA COUNTY OF San Diego I ss On-- w 1~ >' u _, before me, the undersigned, a Notary Public in and for said State, pet n i ~~~;h,,~-~ n. U. I ItlUUl Ll ______ -_if___- personally known to me or proved to me on the basis of satisfactory evidence to be the person(s1 whose name(s) - executed the same subscribed to the within Instrument and acknowledged tha: WITNESS my hand and official seal (Seal) vy >- ,, $-p\ . \ ( ->y-/ ,* f -& .,c1-- (Notary Public's Signa>M___ 023200 9-82* 25 PS Individual Notzrial Aiknowledgrient a e I other applicable laws. 4. The provisions of Carlsbad Municipal Code Section 20. and 20.24.180, as appropriate, shall govern extension of the maF is the subject of this agreement. 5. If this agreement is for an extension of a ter subdivision map for a minor subdivision, the appeal of tt Engineer's approval, or conditional approval, of the extension party shall void this agreement unless the agreement is subsec approved by the City Council. 6. Any action by Subdivider to challenge the legality c agreement or any failure by Subdivider to pay the fees and compl any other conditions applicable to the extension shall vc approval of such extension. The map shall not final i development shall not proceed until a new tentative subdivisj has been approved. SUBDIVIDER CITY OF CARLSBAD, a munic BY: ACTING CITY ENGINEER ( Subdivisions) ATTEST: L2&?56B@*& ALETHA L. RAUTENKRANZ City Clerk . Notarial acknowledgement of execution by subdivider must be atti Affix corporate seal if appropriate. 06/86 1