HomeMy WebLinkAboutSDP 94-06; Gemological Institute of America Inc; 1995-0543492; Petition & Waiver\ . -,.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO: )
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008 1
SPACE ABOVE THIS LINE FOR RECORDER'S 'USE
Parcel No. 21 1-023-03 & 04
p-3C # lPP5-05634P2 3k"OW-1??5 01:22 Prl
DFFICIllL RECORDS SFlN DIiGO COUNTY RECORDER'S OFFICE
RF : 16.00 FEES: RF : 40.00
IF :
23.00 1.00
3 GREGORY SilITHt COUNTY RECDRDER
PETITION, WAIVER, AND CONSENT TO CREATION
OF A FACILITY IMPACT FEE PROGRAM
AND AGREEMENT TO PAY FAIR SHARE COST OF
CANNON ROAD WEST
("AGREEMENT)
A. WHEREAS, the undersigned Property Owner is processing for development within
the City of Carlsbad ("City") a development project known and identified as Gemological lnstlitute
of America Site Development Plan SDP 94-06, more particularly described as Lots 5 and 6 of
Carlsbad Tract 92-07, Map No. 13078, recorded in the office of the County Recorder of San
Diego County, December 28, 1993; and
8. 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 Cannon Road VVest
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 lnew
Development Impact Fee enacted pursuant to Government Code Section 66000 m, any
combination thereof, or otherwise; and
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E. WHEREAS, Property Owner desires to proceed with processing of the Project lprior
to City determination of the form or establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Plan for Zone 13 requires a guarantee
for the construction of the segment of Cannon Road West, described in Paragraph 1 below, prior
to the issuance of building permits within the zone; and
G. WHEREAS, condition number 46 (as that condition relates to the funding and
construction of Cannon Road West) of the Site Development Plan SDP 94-06 approved for the
Gemological Institute of America requires Property Owner to provide for the construction of
certain public improvements including a section of Cannon Road West; and
H. WHEREAS, compliance with the applicable Local Facilities Management Planls for
Zone 13 and Site Development Plan conditions is a condition of approval for the Site
Development Plan for the Project; and
I. 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 building permit and development
of the Project in advance of the formation of a Fee Program for the construction of Cannon Road
West; and
J. WHEREAS, City Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement set
forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 13 and
related Site Development Plan condition number 46 (as that condition relates to the funding and
construction of Cannon Road West) for the Gemological Institute of America to provide afinancial
guarantee for the construction of those improvements described in Paragraph 1 below; and
K. WHEREAS, Property Owner voluntarily enters into this Agreement; and
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L. WHEREAS, the City Council has determined that due to the size of the Project,
there will be no major impact on the circulation system at the present time if development of the
Project is allowed to proceed with sufficient financial guarantees for actual construction to rneet
Property Owner's fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of Project, the
undersigned Property Owner hereby agrees and certifies to the following:
1. Property Owner hereby petitions the City for the initiation of proceedings
of a Fee Program which will cause the construction and installation and/or financing 01 the
following improvements which are more specifically described as follows:
0 Cannon Road to major arterial road standards from Paseo Del
Norte to El Camino Real (Cannon Road West)
The improvements proposed for inclusion include all curbs, gutters,
sidewalk, base and pavement, median landscaping and irrigation,
excavation, storm drainage facilities, guardrails, two 485 foot
median hardscape, streetlights, street monumentation, grading and
multispan bridges and one 156 foot single span bridge together
with any incidentals necessary to complete a four lane major
arterial roadway.
2. The costs of construction, engineering, design, construction inspection,
contract administration, construction engineering, environmental mitigation, condemnation costs
for the necessary right-of-way and slope easements, legal and other incidental expenses wlill be
funded by the Fee Program.
3. Property Owner acknowledges its right to notice of and participation in all
phases of the establishment of Fee Program and expressly waives any right to protest or oppose
the imposition or formation of Fee Program. Property Owner's waiver of its right to protest
establishment or formation of the Fee Program shall not prevent Property Owner from protesting
the amount of the fee or extent of the improvements for Cannon Road West.
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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 $73 per average daily
trip or $169,508 for Project (based on 2,322 average daily trips).
b) Prior to the issuance of any building permit 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 average daily trips proposed within that
Project. Deposit is made in fulfillment of Condition No. 46 of the Site Development Plan to allow
City to consider approval of the Site Development Plan for Project in advance of the
establishment of the Fee Program.
c) The actual amount of Property Owner's fair share payment under the
Fee Program shall be conclusively determined by City Council at the time the Fee Program is
established.
d) Deposit by Property Owner of its fair share of improvement costs as
determined herein, and the contractual covenant created by this Agreement satisfies Property
Owner's obligations for the construction of the improvements described in paragraph one! (1)
above, as required by the Local Facilities Management Plan for Zone 13 and Site Development
Plan SDP 94-06 condition number 46 (as that condition relates to the funding and construction
of Cannon Road West).
5. Property Owner acknowledges that this Agreement to pay its fair share and
participate in the financing of improvements is voluntaly and that without this Agreement Property
Owner would be precluded from obtaining building and other development permits under the
provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code, applicable z,one
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.
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6. Property Owner hereby waives its right to challenge the establishment or
imposition of Fee Program. Property Owner’s waiver of its right to challenge the establishment
or imposition of Fee Program shall not prevent Property Owner from protesting the amount of
the fee or extent of the improvements for Cannon Road West.
7. This Agreement does not affect, in any way whatsoever, the obligatio’n 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 13 or placed
upon Site Development Plan SDP 94-06 by the City.
8. a) If prior to January 1, 1999, the Fee Program for Cannon Road West is
established, subsequent to Deposit by Property Owner pursuant to this Agreement, Property
Owner’s financial obligation shall be recalculated at that time, using the fee formula estabkhed
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 (Shorifall).
b) Any refund shall be made from funds available through the collec:tion
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 be 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.
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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 wlithin
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
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 Shorlfall
payment due City.
h) Any payment received by the City under this Agreement shall1 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
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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 pursuantto paragraph
4.d) above, if any. Upon payment of the shortfall, if any, by the Property Owner and upon the
determination by the City that the Project is subject to the adopted Fee Program, the City shall
file a notice of release and termination of Agreement with the Office of the County Recorder of
the County of San Diego. Termination of this Agreement by the City shall affect only those
portions of the Project which have not recorded a final map prior to the filing of the notice of
release and termination of Agreement. All money or credits received in satisfaction of the terms
of this Agreement for any portion of the Project for which a final map has been recorded prior
to termination of the Agreement shall be considered to have satisfied the Fee Program
requirements for those lots or units included within such recorded map. Any additional credits
in excess of the needs created by the recording of a phased final map shall be made available
to the Property Owner for use on the remaining unrecorded portion of the project in accordance
with any provisions for the allowance of credits under the adopted Fee Program.
9. If the Fee Program has not been established for any reason by January 1,
1999, the amount paid by Property Owner under this Agreement, including any credits or
reimbursements due pursuant to paragraph 4.c) and 4.4 above, shall be deemed to represent
Property Owner’s fair share cost for provision of those facilities described in paragraph one (1)
above and no further payment will be due from or reimbursement due to Property Owner.
10. Compliance with this Agreement will be accepted by City as an alternate
to the method described in the current Local Facilities Management Plan for Zone 13 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
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‘ 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.
1 1. 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 provisiions
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 13 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 heen
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 liabillities
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.
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 folllows:
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II Gemological Institute of America, Inc.
1660 Stewart Street
Santa Monica, CA 90404
Notices to the City shall be delivered to the
Finance Director,
City of Carlsbad,
1200 Carlsbad Village Drive
Carlsbad, 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 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 Projiect.
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17. The undersigned entity further states, under penalty of perjury, that it is the
owner of the property described herein, or an authorized agent of the owner, and has the
authority to sign this document including the creation of the covenants herein.
PROPERTY OWNER: CITY OF CARLSBAD, a Municipal
GEMOLOGICAL INSTITUTE OF AMERICA, INC., an Ohio Non-profit corporation
By-k.3 ~&-fh~ (sign here)
William E. Boyajian
(print name here)
President
Gemolf!k$?dI"n%u?e of Am&lca, Inc iz tion f si natory)
Courtney A. Walker
(print name here)
Vice Presidents/CFO
(title and organization of signatory) Gemological Insitute of America, Inc
(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 corpo6ation 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
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I A -
CALIFORNIA ALL-PURPOSE ,.CKNOWLEDGMENT
Stateof California
Countyof Los Anqeles
On September 5, 1995 before me, Toni J. Smith, Notary Public
personally appeared William E. Boyajian and Courtney A. Walker
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Du NMdTUdWra(e.g..~4meJu*Dp.No(uyROliR
Nn*(*I Ol F*Pn*Sl
executed the instrument.
WITNESS my hand and official seal.
"d*MlUl-S
OP77ONAL
Thorghihelnfomvlbionbelowisno(repuiredbylaw.~meypmvevr;lluable(opersMJ~on~documentandmuld~
fraudulen(remaglandRylrmdnwntdDVpfomtto~daunent
Description of Attac %(!ff?6?~~8%ER, AND CONSENT TO CREATION OF A FACILITY INPACT
Document Date: September 5, 1995 Number of Pages: lo pages -
Signer(s)Otherman~amedAbove:
Capacity(ies) Claimed by Signer(s)
Claude A. Lewis, Mayor, Ronald R. Ball, City Attorney -
N~~~: ~ Wi 11 i am E. Boya j i an
0 Individual
I3 Corporate Officer ~m~(~): 0 Partner - 0 Limited 0 General
a -.
Pres1 dent
0 Guardian orComewator
Signer Is Representing:
Signergs Name: Courtney A. WaJker
t?l Corporate Officer 0 Individual
Tie@): vp/cFo 0 Partner - 0 Limited 0 General
0 Attomey-in-Fact
- -
-
0 Tmstee
0 Guardian or CowewaW--- ~ .. -
0 Other: I I I I
Signer Is Representing:
STATE OF CALIFORNIA ) 1 COUNTY OF SAN DIEGO )
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On November 20, 1995 , before me, Karen R. Kundtz, Assistant ,.
City Clerk, personally appeared Claude A. Lewis, Mayor ------------------
..................... , personally known to me (ep-ppeued-
~~~on~~~~s~f-s~tiSfPctory-9uidoRce) to be the personb) whose namefs4
is/aw- subscribed to the within instrument and acknowledged to me that
he/-sw+*executed the same in his/bePfkkeip-authorized capacity(ies), and1 that
by his/t&a*signature(+) on the instrument the person@), or the entity upon
behalf of which the person(+ acted, executed the instrument.
Wfitness my hand and official seal
istant City Clerk
City of Carisbad