HomeMy WebLinkAbout2017-03-14; City Council; Resolution 2017-044RESOLUTION NO. 2017-044
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A SETTLEMENT AND COMMUNITY BENEFIT
AGREEMENT BY AND AMONG NORTH COUNTY ADVOCATES, THE CITY OF
CARLSBAD, LENNAR HOMES OF CALIFORNIA, INC., PRESERVE CALAVERA,
FRIENDS OF AVIARA, AND FRIENDS OF BUENA VISTA RESERVOIR
EXHIBIT 3
WHEREAS, the City Council of the City of Carlsbad, California has determined that a Settlement
and Community Benefit Agreement ("Agreement") is being entered into on March 14, 2017, by and
among NORTH COUNTY ADVOCATES, a non-profit corporation, on behalf of itself and its members
(collectively "NCA"), the CITY OF CARLSBAD ("City"), a municipal corporation, LENNAR HOMES OF
CALIFORNIA, INC. (11Lennar"), a California corporation, PRESERVE CALAVERA, a non-profit corporation,
FRIENDS OF AVIARA, a non-profit association, and FRIENDS OF THE BUENA VISTA RESERVOIR, a non-
profit association, on behalf of themselves and their members (collectively "Associations"), in light of
the following facts and circumstances:
WHEREAS, on September 22, 2015, the City Council of the City adopted Resolution 2015-242,
certifying the Final Environmental Impact Report (/{General Plan EIR") and adopting Findings of Fact, a
Statement of Overriding Considerations and a Mitigation Monitoring and Reporting Program for the
Carlsbad General Plan Update and Climate Action Plan (11CAP") with the City Council of the City finding
that these actions were in compliance with the requirements of the California Environmental Quality
Act (11CEQA"), Public Resources Code section 21000, et seq., and its implementing guidelines (11CEQA
Guidelines"), California Code of Regulations, title 14, section 15000, et seq.; and
WHEREAS, on September 22, 2015, the City Council of the City adopted Resolution 2015-243,
Resolution 2015-244 and Ordinance No. CS-287, approving the Carlsbad General Plan Update and CAP
and adopting General Plan Amendment 07-02, Local Coastal Plan Amendment 07-02, Citywide Facilities
and Improvements Plan Amendment SS 15-06, Zoning Ordinance Amendment 07-01, Zone Change 15-
02, and CAP SS 15-05 (collectively /{General Plan Update and CAP Approvals"); and
WHEREAS, on October 21, 2015, NCA filed a lawsuit challenging the City's certification of the
General Plan EIR and approval ofthe General Plan Update and CAP, entitled North County Advocates
v. City of Carlsbad, San Diego Superior Court Case No. 37-2015-00035458-CU-WM-NC (11Lawsuit"); and
WHEREAS, Lennar proposes to develop a 123-unit, single-family, detached unit condominium
project on approximately 51 acres of land located south of Cassia Road, between the existing western
and eastern segments of Poinsettia Lane, in the southwest quadrant of the City, referred to as the
Poinsettia 61 Residential Development and Extension of Poinsettia Lane Project ("Poinsettia 61
Project"), consistent with the project description in the Draft Environmental Impact Report prepared
by the City, as lead agency, and circulated for public review and comment as required by CEQA
("Poinsettia 61 Draft EIR"); and
WHEREAS, the City has prepared a Final EIR for the Poinsettia 61 Project which includes, among
other materials, the responses to public comments and an Errata prepared by the City ("Poinsettia 61
Final EIR"); and
WHEREAS, the Poinsettia 61 Project proposes to implement an integral portion of the Mobility
Element of the City's General Plan by constructing Reach E, the last remaining section of Poinsettia
Lane, between Cassia Road and Oriole Court, to extend and connect Poinsettia Lane to El Camino Real;
and
WHEREAS, the Poinsettia 61 Project also proposes to construct a bridge required to span a
canyon on the eastern portion of Poinsettia Lane that will preserve the maximum corridor width
practicable for a wildlife habitat corridor; and
WHEREAS, all or parts of the Poinsettia 61 Project will require the approval of other public
agencies, including without limitation the California Coastal Commission and other federal and state
regulatory agencies with jurisdiction over natural resources which may be affected by the Poinsettia
61 Project (collectively "Resource Agencies"); and
WHEREAS, the Poinsettia 61 Draft EIR determined the Poinsettia 61 Project will have certain
significant adverse impacts on vegetation communities, including southern maritime chaparral, and
recommends as Mitigation Measure BR-6 that said impacts be mitigated by the creation, restoration
and preservation of habitat at a 3:1 ratio; and
WHEREAS, the Poinsettia 61 Draft EIR identified various options for the location of mitigation
for said impacts, including the creation of 3.1 acres of coastal sage scrub ("CSS") in a portion of the area
of the City presently designated as developable park land in Veterans Park, which 3.1 acres would be
incorporated into the City's Habitat Management Plan ("HMP") preserve, and may include the option
of performing substantial enhancement of an additional up to 3.1 acres of CSS in the portion of Maca rio
Canyon/Veterans Preserve presently designated as HMP preserve, and including the enhancement of
up to 5.7 acres of southern maritime chaparral ("SMC") in the natural areas within the boundary of
Aviara Park, which up to 5.7 acres would be incorporated into the City's HMP preserve; and
WHEREAS, the City owns a 3.1 acre site in a residential area of northwest Carlsbad known as
the "Buena Vista Reservoir"; and
WHEREAS, as part of a strategy for city-owned properties, the City determined the Buena Vista
Reservoir site is not needed for municipal purposes and may be sold for development in accordance
with the applicable land use laws and regulations in the area; and
WHEREAS, community members opposed to the City's proposed disposition ofthe Buena Vista
Reservoir site have asked the City to consider retaining the site for development as a public park; and
WHEREAS, the City maintains that the northwest quadrant of the city in which the Buena Vista
Reservoir site is located already meets the requirements for park acreage pursuant to the Growth
Management Plan standards and therefore a source of funds to pay for the cost of building a park at
this location does not exist; and
WHEREAS, NCA and the Associations are interested in ensuring that the General Plan Update
and CAP and the Poinsettia 61 Project are implemented in a manner which preserves and protects the
natural resources and the environment of the City, including the protection and enhancement of open-
space and park land in the City; and
WHEREAS, Lennar wishes to obtain NCA's and the Associations' support for approval of the
Poinsettia 61 Project and NCA and the Associations wish to obtain an increase in existing park land for
City residents above and beyond that required by CEQA and any other federal, state and local laws and
regulations applicable to the Poinsettia 61 Project; and
WHEREAS, NCA and the City wish to settle the Lawsuit and all claims and disputes between
them arising out of or relating to the General Plan EIR and the General Plan Update and CAP without
admitting or establishing liability, fault, blame or the truth or veracity of any of the claims made by and
between them, and in a manner which benefits the residents of Carlsbad; and
WHEREAS, simultaneously with entering into this Agreement, the City and NCA intend to enter
into a related Settlement Agreement to address dismissal of the Lawsuit, the release of claims and
certain other matters arising out of or relating to the Lawsuit, and the City, NCA and Lennar intend to
enter into a related Agreement to toll the statute of limitations; and
WHEREAS, NCA, the City, the Associations and Lennar, subject to the provisions of the
Agreement, desire to undertake all reasonable actions and public proceedings necessary to achieve
their individual and collective objectives, including settlement and dismissal ofthe claims alleged in the
Lawsuit, retention and development of the Buena Vista Reservoir site as a new public park, and support
for the Poinsettia 61 Project, including the construction of Reach E of Poinsettia Lane and a bridge along
the eastern portion of Poinsettia Lane that will preserve the maximum corridor width practicable for a
wildlife habitat corridor; and
WHEREAS, on March 14, 2017, the City Council of the City of Carlsbad adopted a Resolution,
certifying the Poinsettia 61 Final EIR, adopting the Findings of Fact and a Mitigation Monitoring and
Reporting Program (MMRP) for the Poinsettia 61 Project and approving certain land use entitlements
for the Poinsettia 61 Project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. The City Council finds and determines that the applicable provisions of CEQA and the
CEQA Guidelines have been duly observed in conjunction with said hearing and the considerations of
this matter and all of the previous proceedings related thereto.
3. Pursuant to CEQA Guidelines Section 15096(a) and (f), the City Council finds and
determines that (a) the Poinsettia 61 Final EIR has been presented to the City Council, (b) the City
Council has fully reviewed and considered the Poinsettia 61 Final EIR, and the environmental effects of
the proposed Agreement prior to making a decision whether to approve the proposed Agreement, and
(c) the City Council has certified the Poinsettia 61 Final EIR and has reached its own conclusions on
whether and how to approve the proposed Agreement.
4. Pursuant to CEQA Guidelines Section 15096(h), the City Council has adopted as its own
and approved the Findings of Fact and the MMRP in the Resolution certifying the Poinsettia 61 Final
EIR, and are made a part hereof by this reference, with respect to the significant environmental effects
identified in the Poinsettia 61 Final EIR, and hereby makes and adopts the provisions of the MMRP as
conditions of approval for the proposed Agreement.
5. Pursuant to CEQA Guidelines Section 15168, the City Council finds that none of the
conditions requiring the preparation of a subsequent environmental document pursuant to CEQA
Guidelines Section 15162 has occurred and no additional environmental review is required because
the proposed Agreement is within the scope of the Poinsettia 61 Final EIR and will not result in any new
or more severe significant impacts or require mitigation measures not previously identified in the
Poinsettia 61 Final EIR certified by the City.
6. That the City Council hereby approves the Settlement and Community Benefit
Agreement (Agreement), attached hereto as Attachment A.
7. That the City Council approval of this Agreement shall only become effective if the
Settlement Agreement by and between North County Advocates and the City of Carlsbad is approved
and the Agreement by and between North County Advocates, the City of Carlsbad, and Lennar to toll
the statute of limitations is approved.
8. That the Mayor is hereby authorized to execute this Agreement, but not until all other
parties to this Agreement have executed said Agreement.
9. The City Manager is hereby authorized to act on behalf of the City of Carlsbad in all
future actions and decisions necessary to implement this Agreement, and to do so consistent with and
in full compliance with the terms and conditions expressed in this Agreement and to the satisfaction of
the City Attorney.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 14th day of March, 2017, by the following vote, to wit:
AYES: M. Halt M. Schumacher, C. Schumacher, M. Packard.
NOES: None.
ABSENT: K. Blackburn. ~ M~LL,Mayor
(SEAL)
SETTLEMENT AGREEMENT
This Settlement Agreement ("Agreement") is entered into on March 14, 2017, by and between
NORTH COUNTY ADVOCATES, a non-profit corporation, on behalf of itself and its members
(collectively "NCA" ), and the CITY OF CARLSBAD ("City"), a municipal corporation, in light of the
following facts and circumstances:
WHEREAS, on September 22, 2015, the City Council of the City adopted Resolution 2015-242,
certifying the Final Environmental Impact Report ("General Plan EIR") and adopting Findings of Fact,
a Statement of Overriding Considerations and a Mitigation Monitoring and Reporting Program for the
Carlsbad General Plan Update and Climate Action Plan ("CAP") with the City Council of the City finding
that these actions were in compliance with the requirements of the California Environmental Quality Act
("CEQA"), Public Resources Code section 21000, et seq., and its implementing guidelines ("CEQA
Guidelines"), California Code of Regulations, title 14, section 15000, et seq.; and
WHEREAS, on September 22,2015, the City Council ofthe City adopted Resolution 2015-243,
Resolution 2015-244 and Ordinance No. CS-287, approving the Carlsbad General Plan Update and
CAP and adopting General Plan Amendment 07-02, Local Coastal Plan Amendment 07-02, Citywide
Facilities and Improvements Plan Amendment SS 15-06, Zoning Ordinance Amendment 07-01, Zone
Change 15-02, and CAP SS 15-05 (collectively "General Plan Update and CAP Approvals"); and
WHEREAS, on October 21, 2015, NCA filed a lawsuit challenging the City's certification of the
General Plan EIR and approval of the General Plan Update and CAP, entitled North County Advocates
v. City of Carlsbad, San Diego Superior Court Case No. 37-2015-00035458-CU-WM-NC ("Lawsuit");
and
WHEREAS, pursuant to CEQA, NCA and the City met to discuss settlement of the Lawsuit and
engaged in good faith negotiations over a period of months which addressed, among other things, issues
arising out of or relating to the Lawsuit; and
WHEREAS, as part of their resolution of the Lawsuit, and simultaneously with entering into this
Agreement, NCA and the City intend to enter into a related settlement and community benefit agreement
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with Lennar Homes of California, Inc., Preserve Calavera, Friends of Aviara, and Friends of Buena Vista
Reservoir which provides for the preservation and enhancement of open-space and park land in the
City ("Community Benefit Agreement"); and
WHEREAS, NCA and the City wish to settle the Lawsuit and all claims and disputes between
them arising out of or relating to the General Plan EIR and the General Plan Update and CAP without
admitting or establishing liability, fault, blame or the truth or veracity of any of the claims made by and
between them, in a manner which benefits the residents of Carlsbad; and
WHEREAS, NCA and the City shall be referred to below collectively as the "Parties";
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS SET FORTH
BELOW, THE PARTIES AGREE AS FOLLOWS:
1. Incorporation of Recitals. The recitals set forth above are incorporated herein as
though set forth in full.
2. No Admission of Liability. NCA and the City understand, acknowledge and agree that
by reason of entering into this Agreement, they do not admit, expressly or impliedly, any fact or liability
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of any type or nature, whether or not referred to herein, or the sufficiency of any claims made or that
could have been raised by any party, or the allegations, assertions or positions of any party in the
Lawsuit. Further, NCA and the City have not made any such admission and this Agreement is entered
into solely by way of compromise and settlement of the claims and defenses alleged in the Lawsuit.
3. NCA's Undertakings. In consideration of the obligations undertaken and the promises
made herein by the City, NCA hereby covenants and agrees to undertake the following actions:
3.1 In the event the City approves the Poinsettia 61 Project and upon City approval
of the Community Benefit Agreement and execution of the Community Benefit Agreement by all parties
thereto, counsel for NCA shall execute and deliver to counsel for the City a request for dismissal, with
prejudice, of the Lawsuit in its entirety, in a form suitable for filing with the San Diego Superior Court,
which shall be filed by counsel for the City, thereby terminating the Lawsuit. Except as provided in a
separate letter agreement, the parties shall bear their own costs and attorneys' fees incurred in the
Lawsuit.
3.2 NCA, on behalf of its officers, directors, members and all other persons acting by
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or on its behalf, does hereby fully and forever release, acquit, and discharge the City, together with its
elected and appointed officials, employees, representatives and other agents (collectively "City") from
any and all claims, demands, costs, attorneys' fees, rights or causes of action, whether known or
unknown, which NCA has or may have against the City that arise out of or are related to the facts or
circumstances alleged in the Lawsuit.
4. The City's Undertakings. In consideration of the obligations undertaken and the
promises made herein by NCA, the City hereby covenants and agrees to undertake the following actions:
4.1 Within five (5) court days after counsel for NCA delivers to counsel for the City
the request for dismissal required pursuant to Section 3.1 of this Agreement, counsel for the City shall
file the request for dismissal in the San Diego Superior Court, thereby terminating the Lawsuit. Except
as provided in a separate letter agreement, the parties shall bear their own costs and attorneys' fees
incurred in the Lawsuit.
4.2 The City, on behalf of its elected and appointed officials, employees,
representatives and other agents, does hereby fully and forever release, acquit, and discharge NCA,
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together with its officers, directors, members and all other persons acting by or on its behalf (collectively
"NCA"), from any and all claims, demands, costs, attorneys' fees, rights or causes of action, whether
known or unknown, which the City has or may have against NCA that arise out of or are related to the
facts or circumstances alleged in the Lawsuit.
4.3. The City shall undertake the following actions within the time specified below.
Except as otherwise stated, the time periods below shall commence upon the date of this Agreement,
which shall be the date this Agreement is executed by both Parties:
4.3.1. Within six ( 6) months, the City shall present to the City Council for
consideration and, if approved by the City Council, amend the Growth Management Program ("GMP")
parks performance standard adopted by the City Council in Resolution No. 97-434 on April 22, 1997,
to remove the 1,562 dwelling unit limit and to provide that the five-year timing requirement for park
construction shall commence on the date the City Council approves the GMP parks performance
standard amendment.
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4.3.2. Within one (1) month, the City shall support a citizen scientist program by
designating an employee of the City as the contact person to coordinate and respond to requests for
citizen scientist activities in the City within a reasonable time.
4.3.3. The City shall continue to evaluate significant development projects in the
Village and Barrio Master Plan area in accordance with the smart growth-related policies referenced
in the City's General Plan and CAP. The revised public review draft of the Village and Barrio Master
Plan will propose goals, objectives and/or policies consistent with the Community Vision, General Plan
and CAP that encourage and support increased alternative modes of transportation use through public ·
infrastructure investments, private development conditions of approval and/or incentives, and
partnerships with public transportation agencies, private transportation providers, and non-profit
organizations.
4.3.4. The City will participate in SANDAG's Series 14 Regional Growth Forecast
and Smart Growth Concept Map technical update, which are expected to be completed by Fall 2017,
by (a) reviewing and commenting on SANDAG model land use density and intensity assumptions and
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land capacities in Carlsbad, (b) reviewing and providing comments on draft model run results, (c)
requesting that SANDAG remove the Quarry Creek Smart Growth Opportunity Area (CB-3) from the
Smart Growth Concept Map, and (d) reviewing and commenting on proposed status changes (if any)
of Smart Growth Opportunity Areas in Carlsbad based on SANDAG Smart Growth place type criteria.
4.3.5. Within nine (9) months, City staff shall present to the City Council for
consideration a policy to require project applicants to conduct early stakeholder outreach f~:>r significant
new development proposals. Prior to finalizing the proposed policy and scheduling it for City Council
consideration, City staff will release the draft policy document for a public review and comment period,
and will meet with NCA to discuss and consider' their comments on the draft policy document.
4.3.6. As part of the development review process, the City shall evaluate all
discretionary projects for consistency with applicable General Plan policies and CAP measures and
actions that aim to reduce roadway congestion and vehicle miles traveled (VMT), through Transportation
)
Demand Management (TOM) techniques and multi-modal improvements. Within twenty-four (24)
months, City staff shall present to City Council for consideration and approval a TOM plan and ordinance
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that addresses alternative transportation modes for new and existing uses as described in CAP Measures
K-1 and K-2. Within twelve (12) months, the City shall update its Traffic Impact Analysis (TIA)
Guidelines, incorporating multi-modal level of service (MMLOS) analysis to address vehicle, bicycle,
pedestrian, and transit modes of travel, and including transportation demand management (TOM) trip
reduction methodologies and best practices to reduce automobile trips and improve travel mode shift.
The updated TIA Guidelines will also be used to determine requirements for offsetting project impacts
and evaluating opportunities for improving project-level connections for all travel modes (vehicle, bicycle,
pedestrian, and transit). Within twelve (12) months of the state Office of Planning and Research (OPR)
issuing final amendments to the CEQA Guidelines regarding the use of VMT as the primary metric to
analyze transportation impacts rather than vehicle level of service (LOS), the City, in collaboration with
SANDAG and applicable working groups, will revise the updated TIA Guidelines to be consistent with
OPR's final amendments to the CEQA Guidelines.
4.3.7. Pages 4-16 and 4-17 of the City's CAP estimates the citywide baseline
alternative transportation mode use by workers as 22 percent, and establishes a target 10 percent
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increase in the mode share by 2035. Page 5-9 of the City's CAP identifies projected GHG reductions
associated with increased mode share for 2020 and 203 5 target years. Within twelve (12) months,
the City shall establish a baseline performance metric and monitoring protocols to measure progress
toward achieving the mode split assumed in the CAP and corresponding greenhouse gas emission
reduction targets.
4.3.8. The City's Fire Department shall collect actual emergency response time
data and provide an annual public report, based on a fiscal year and starting in FY 16/17, documenting
and summarizing such data.
4.3.9. Within twelve (12) months, the City shall present to the City Council for
consideration and, if approved by the City Council, implement a one-year pilot program to employ two
provisional park rangers to patrol open space areas. At the end of the pilot program, the City shall
evaluate the effectiveness of the program and shall make recommendations to the City Council based
on the standards and objectives of the Open Space Management Plan.
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4.3.10. Within eighteen (18) months, the City shall present to the City Council for
consideration an update to the Community Forest Management Plan which includes a program to identify
and protect heritage trees, where practicable, and will include provisions for protection and enhancement
of the urban tree canopy.
4.3.11. The City shall address water supply and demand considerations,
including a discussion of groundwater and recycled water supplies (to include greywater), in its 2020
Urban Water Management Plan, shall continue its involvement in the North San Diego Water Reuse
Coalition, and shall continue to monitor the development of the San Diego Integrated Regional Water
Management (IRWM) Program Storm Water Capture Feasibility Study (SWCFS) and evaluate for
methods and best practices by which to pursue storm water reuse projects in the future.
4.3.12. Within twelve (12) months, as part of the CAP implementation plan, the
City shall establish baseline performance metrics and monitoring protocols to measure progress toward
achieving the greenhouse gas emission reduction targets for the measures and actions summarized in
the CAP Implementation Matrix Table 5.1, and as more fully described in Chapters 4 and 5 of the CAP.
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4.3.13. Within twenty-four (24) months, City staff shall present to City Council for
consideration and approval a residential and commercial energy conservation ordinance that addresses
the CAP renewable energy and energy conservation measures and actions summarized in CAP Tables
4-1 and 4-2, and as more fully described in Chapter 4 of the CAP.
4.3.14. On an annual basis, based on a fiscal year and starting in FY 16/17, the
City shall produce and make publically available a map and corresponding table, summarized by General
Plan open space category and Local Facilities Management Zone, that reports the amount of designated
open space in the city. The reporting will also provide a brief narrative description of the non-technical
changes to open space acreages that may have occurred since that previous reporting year.
4.3.15 The City will meet and collaborate with NCA at least twice annually to
discuss the status of acquiring, for the purpose of open space preservation in perpetuity, the properties
listed in the City Council approved Proposition C Open Space and Trails Ad Hoc Committee Property
Analysis ranking chart. As a part of these meetings, the City will also consider and evaluate for
acquisition any other property that is not listed on the Proposition C Open Space and Trails Committee
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Property Analysis ranking chart. In doing so, the City will utilize the Property Acquisition Ranking
Criteria developed by the Proposition C Open Space and Trails Ad Hoc Committee to consider the value
of the acquisition regardless of rank, for open space preservation in perpetuity, any property not included
on the Proposition C list. If, through these meetings, a property is evaluated and identified as being
appropriate for acquisition for open space preservation in perpetuity, which shall also include
identification as having a willing seller, the City shall use good faith efforts to acquire the property. The
City shall also use good faith efforts to utilize the open space acquisition funding authority available to
the City from the passage of Proposition C toward leveraging funds from other sources such as federal,
state, and local grants. NCA agrees in principle to participate in these efforts by assisting in leveraging
City funds with funds acquired from other sources, for the sole purpose of pursuing any and all properties
identified as potential candidates for acquisition for open space preservation in perpetuity. City and
other funds may only be used for costs that are necessary to acquire the real property including but
not limited to deposits required by purchase agreements, necessary option payments, appraisals,
technical reports, environmental studies of the property, and purchase price payments. For the
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purpose of this section, there is no time frame identified, no maximum funding limit on the amount of
City funds made available to acquire property for open space preservation in perpetuity, and the minimum
funding amount the City shall make available to acquire property for open space preservation in
perpetuity is $4,000,000.
4.3.16. If there is a material failure to implement the related Community Benefit
Agreement, the City shall continue to pursue acquisition and development of at least 3.1 acres of new
park land in the northwest quadrant of the City, which is in addition to existing and future parks in the
northwest quadrant as identified in the General Plan Open Space, Conservation and Recreation Element
Tables 4-4 and 4-5.
4.4. The City Manager is authorized to represent and act on behalf of the City in all
future actions and decisions necessary to implement this Agreement, and to do so consistent with and
in full compliance with the terms and conditions expressed in this Agreement and to the satisfaction of
the City Attorney.
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5. Reservation of Discretion.
5.1. The Parties acknowledge and agree that nothing in this Agreement shall be
construed as circumscribing or limiting the City's discretion with respect to its compliance with CEQA
and other applicable laws and regulations in connection with this Agreement and that the City, in its
sole and absolute discretion, may adopt mitigation measures or conditions of approval which the City
determines are necessary and appropriate to reduce or avoid any potential environmental impact or to
comply with any applicable law or regulation relating to this Agreement.
5.2. The Parties further acknowledge and agree that the City reserves its discretion to
approve or disapprove all actions which require by law the exercise of discretion and which the City
cannot lawfully be committed by contract to exercise in a particular way. Such reservation of discretion
will apply to all contemplated legislative and quasi-judicial actions of the City, including without limitation
the City's compliance with CEQA, approval of land use entitlements and related agreements, code
enforcement and the making of findings and determinations required by law.
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6. Termination of Agreement. In the event that the City exercises its discretion not to
approve the Poinsettia 61 Project and the Community Benefit Agreement is terminated pursuant to
Section 8.0 thereof, this Agreement also shall terminate and the provisions of this Agreement shall be
of no further force and effect.
7. Notice. Formal notices, demands and communications among the Parties shall be
given, and shall not be deemed sufficiently given until given in writing by certified mail, return receipt
requested, or by overnight delivery to the following persons and addresses, or to such other persons
and addresses as the Parties from time to time may designate:
To NCA:
With a copy to:
North County Advocates
7668 El Camino Real, Suite 104-258
Carlsbad, CA 92009
Info@ northcountyadvocates.com
Everett Delano
Delano & Delano
220 W. Grand Avenue
Escondido, CA 92025
760-510-1562
Everett@delanoanddelano.com
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To City:
With a copy to:
Kevin Crawford
City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
760-434-2821
kevin.crawford@carlsbadca.gov
Celia Brewer
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008-1949
760-434-2891
celia.brewer@carlsbadca.gov
Such written notices, demands and communications shall be effective on the date shown on the
delivery receipt as the date delivered or the date on which delivery was refused.
8. Miscellaneous.
8.1. The Parties understand and agree that additional documents and agreements may
be necessary to effectuate this Agreement and the Parties hereby agree to execute and to deliver all
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other documents and agreements as may be reasonably necessary to carry out the purposes of this
Agreement.
8.2. Each party signing this Agreement jointly and severally represents and warrants
that it has full authority to obligate the party or parties or members on whose behalf it is signing and
that no further action or authorization is necessary to execute this Agreement on behalf of such party
or its members.
8.3. The Parties have read all of this Agreement, fully understand the same and have
consulted with their attorneys regarding this Agreement. The Parties hereto are represented by
independent counsel with whom each party has fully discussed the terms and consequences of this
Agreement, or have had the opportunity to retain independent counsel but have elected not to do so.
NCA and its members are represented by the law firm Delano & Delano, 220 W. Grand Avenue,
Escondido, CA 92025; and the City is represented by the law firm Hogan Law APC, 225 Broadway,
Suite 1900, San Diego, CA 92101. The Parties hereto acknowledge that they execute this Agreement
of their own free will and under no threat, menace, coercion or duress of any kind from any party. The
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Parties further acknowledge that they execute this Agreement acting on their independent judgment and
upon the advice of their respective counsel, without any representation, express or implied, of any kind
from any other party, except as specifically set forth herein.
8.4. Except as provided in a separate letter agreement concerning attorney's fees and
costs, this Agreement constitutes the entire fully integrated written agreement among the Parties with
respect to the subject matter of this Agreement and may not be modified or waived except by a writing
duly executed on behalf of the party to be bound by the waiver or modification.
8.5. If any part of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, such decision shall not affect the validity of any remaining portion of this
Agreement and the remainder shall stand in full force and effect.
8.6. In the event it becomes necessary for any party to obtain the services of an
attorney to enforce the provisions of this Agreement against any party who has breached any obligation
set forth herein, the prevailing party in any proceeding shall be entitled to recover all its attorneys' fees
and costs incurred.
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8.7. This Agreement may be pleaded by any party hereto as a full and complete
defense to and may be used as the basis for an injunction against any action, suit, claim or other
proceeding of any type which may be prosecuted, initiated or attempted in violation of the terms hereof.
8.8. This Agreement is made, executed and delivered within the County of San Diego,
State of California and shall be construed and covered by the laws of the State of California.
8.9. This Agreement shall be binding upon and shall inure to the benefit of the Parties
hereto and to all members, beneficiaries, elected and appointed officials, officers, directors, employees,
attorneys, agents, successors, affiliates, heirs and assigns of each party.
8.10. This Agreement may be executed in one or more counterparts and, when executed
by each of the Parties signatory hereto, said counterparts shall constitute a single valid Agreement even
though each of the signatory parties may have executed separate counterparts hereof.
20
IN WITNESS WHEREOF, this Settlement Agreement is executed on the date(s) set forth below.
Dated: March 14, 2017
Dated: March 14, 2017
NORTH COUNTY ADVOCATES
By:
~?/f ~~c:_ fr~?~~~/
~~,_.rd .,K'raus-z...__
Patricia Bleha, PresideAt-of the
Board of Directors
CITY OF CARLSBAD
By:
Matt Hall, Mayor
21
March 14, 2017
California Coastal Commission
Attn.: Ms. Erin Prahler & Mr. Gabriel Buhr
7575 Metropolitan Drive, Suite 103
San Diego, CA 92108
Attachment 1
RE: Local Coastal Plan Amendment 14-06, Coastal Development Permit 14-34, and Habitat Management Plan Permit
14-04 for the proposed Poinsettia 61 project in Carlsbad, CA
Dear California Coastal Commissioners:
We are writing you this letter to express our support for the above referenced actions before the Coastal Commission,
regarding the Poinsettia 61 project proposed by the Applicant, Lennar Homes of California, Inc., as approved by the
Carlsbad City Council on February 28, 2017, along with the certification of the associated Environmental Impact Report.
The Applicant, Lennar, has worked extensively with the City and the community at large, in addition to all of our
respective organizations to ensure that all of our concerns regarding the proposed project are addressed and in
particular, to help improve the larger issue of preserving and enhancing habitat and natural open space and providing
public park land and trails within the City. We firmly believe that the approval and implementation of this project, in a
form substantially similar to that approved by the City, will actually enhance and improve the existing environment and
quality of life for the surrounding area.
Among other matters, the Applicant will be adding an additional six acres to the Habitat Management Plan Preserve in
the City, constructing a new, unplanned three acre public park that is desired by the community, and completing the
critical final link of a circulation element roadway with the construction of a bridge to preserve a wildlife corridor and
riparian area, in addition to mitigating the project impacts. For these reasons, among others, we all urge you to approve
the Poinsettia 61 proposal before you. Thank you for your consideration.
Sincerely,
North County Advocates
Friends of Aviara
XC: California Dept. of Fish & Wildlife
Attn: Christine Beck
3883 Ruffin Road
San Diego, CA 92123
City of Carlsbad
Attn: Teri Delcamp & Don Neu
1635 Faraday Avenue
Carlsbad, CA 92008
Preserve Calavera
Friends of Buena Vista Reservoir
United States Fish & Wildlife Service
Attn: Janet Stuckrath
2177 Salk Avenue, Suite 250
Carlsbad, CA 92008
Lennar Homes of California, Inc.
Attn: David Stearn & Andrew Han
25 Enterprise, Suite 400
Aliso Viejo, CA 92656
43
Veterans Park
Aviara Park
Buena Vista
Reservoir
Kevane Parcel
Total
Footnotes
Attachment 2
Poinsettia 61 Project
Off-site Park & HMP Preserve Acreage
Developable park: Developable park:
51.1 ac 48 ac (-3.1 ac)
Undevelopable Undevelopable park: park: 40.4 ac 43.5 ac (+3.1 ac)
No change No change
0 ac +3.1 ac N/A
N/A N/A 7.5
91.5 ac 94.6 ac (+3.1 ac) 47.9 ac
ac)
+up to 5.7
N/A
10 (+2.5 ac)
up to 59.2 ac
(+ up to 11.3 ac)
1. The total calculated park acreage for Growth Management compliance purposes equals the gross
park acreage total, or 91.5 acres, which includes both developable and undevelopable (HMP
preserve area) acreage, and, therefore, does not change as a result ofthe Agreement.
2. At Veterans Park, 3.1 acres of developable park acreage will be added into the HMP preserve,
bringing the total acreage of the Maca rio Canyon/Veterans Preserve up to 43.5 acres. Per the
Agreement, Lennar is required to prepare all necessary studies, plans and specifications, obtain all
required permits, install, monitor and maintain for a minimum period of 5 years, and create and
successfully establish 3.1 acres of additional CSS within the otherwise developable park area of
Veterans Park, for incorporation into the HMP preserve, to the satisfaction of the City and the
Resource Agencies, and Lennar shall bear the full cost thereof. Lennar is required to coordinate
with the City to ensure that the area and location selected for the creation and establishment of
3.1 acres of CSS to be incorporated into the HMP preserve within the otherwise developable park
land of Veterans Park will be based on biological value, which includes the requirement that the
3.1 acres selected shall be contiguous to an existing HMP preserve area. Lennar is also required
to fund a non-wasting endowment for the on-going maintenance of the additional 3.1 acres of CSS
habitat created within the otherwise developable park land of Veterans Park, in a dollar amount
determined by a PAR analysis approved by and to the satisfaction of the City and the Resource
Agencies.
44
Footnotes
Attachment 2
Poinsettia 61 Project
Off-site Park & HMP Preserve Acreage
3. In addition, per the Agreement and depending on the final habitat mitigation requirements of the
Poinsettia 61 Project after final approval by the California Coastal Commission, Lennar may also
prepare studies, plans and specifications, obtain all required permits, install, monitor and maintain
for a minimum period of 5 years, and enhance and successfully establish up to 3.1 acres of
additional CSS within the existing Maca rio Canyon/Veterans Preserve, to the satisfaction of the
Resource Agencies, and Lennar shall bear the full cost thereof. If this option is exercised, Lennar
is also required to fund a non-wasting endowment for the on-going maintenance of the enhanced
up to 3.1 acres of CSS habitat within Veterans/Maca rio Canyon Preserve, in a dollar amount
determined by a PAR analysis approved by and to the satisfaction ofthe City and the Resource
Agencies.
4. At Aviara Park, up to 5.7 acres of SMC will be established and incorporated into the HMP preserve.
Per the Agreement, Lennar is required to prepare studies, plans and specifications, obtain all
required permits, install, monitor and maintain for a minimum period of 5 years, and enhance and
successfully establish up to 5.7 acres of SMC within the natural area of Aviara Park, for
incorporation into the HMP, to the satisfaction of the resource agencies, and Lennar shall bear the
full cost thereof. Lennar is also required to fund a non-wasting endowment for the on-going
maintenance of the up to 5.7 acres of SMC within the natural area of Aviara Park, in a dollar
amount determined by a PAR analysis approved by and to the satisfaction of the City and the
Resource Agencies.
5. Under the adopted Carlsbad HMP, development on the Kevane Parcels shall be limited to a
maximum of 25% of the property and shall be clustered on the western portion of the property.
The total acreage oft~e Kevane Parcels is 10 acres, and implementation ofthe existing HMP
standard would yield 7.5 acres of HMP preserve.
6. As a part ofthe Poinsettia 61 Project, Lennar will be incorporating the entire 10 acres ofthe
Kevane Parcels into the HMP preserve, for a net gain in HMP preserve acreage of 2.5 acres.
Lennar is also required to prepare studies, plans and specifications, obtain all required permits,
install, monitor and maintain for a minimum period of 5 years, and restore and enhance the
disturbed habitat areas within the 10 acres of the Kevane Parcels and incorporate the entire 10
acres of the Kevane Parcels into the HMP preserve, to the satisfaction of the resource agencies,
and Lennar shall bear the full cost thereof. Lennar is also required to fund a non-wasting
endowment for the on-going maintenance of the entire 10 acres of the Kevane Parcels, in a dollar
amount determined by a PAR analysis approved by and to the satisfaction of the City and the
Resource Agencies.
45
Attachment 3
On-site and Off-site Multi-Modal Circulation Improvements and Connections
46