HomeMy WebLinkAbout1995-03-28; City Council; Resolution 95-73Ii e e EXHIBIT
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RESOLUTION NO. 95-73
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
THE CITY OF CARLSBAD AND BRAMALEA CALIFORNIA
CALIFORNIA, APPROVING A PRE-PAYMENT AGREEMENT BETWEEN
WHEREAS, the Crty Council of the City of Carlsbad has required that the fundin!
Road and Poinsettia Lane (Project) must be guaranteed before any development takes
the area bounded by Local Facilities Management Zone 20.
WHEREAS, City staff is actively pursuing formation of a facility fee district to fin
Project; and
WHEREAS, although the Council anticipates the facility fee district will be form
near future, the Council is willing to consider alternative financing proposals during th
from the present to the formation date of the fee district; and
WHEREAS, such interim financing program will only be considered as long as the
finds that the formation of the fee district is proceeding in a reasonable manner; and
WHEREAS, the Council finds that the formation of the fee district is proceec
reasonable manner; and
WHEREAS, the Council finds that the guarantee provisions related to the Projecl
met through an interim financing program using an agreement between certain propert)
and the City whereby the property owner agrees to prepay hislher fair share of tt
associated with the Project; and
WHEREAS, Bramalea California intends to build 186 single-family and 176 mu
units in Local Facilities Management Zone 20; and
WHEREAS, the Council finds that Bramalea California may enter into the t
Agreement to Pay Fair Share (Exhibit A) in satisfaction of their obligation under the
financing conditions.
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4 2. That the form of the PETITION, WAIVER, AND CONSENT TO CREATIC
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of (
California, as follows:
1. That the above recitations are true and correct.
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hereto, is hereby approved. 6
FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE, Exhibit A
7 3. That the Mayor is hereby authorized to enter into the agreement shown in
8 with Bramalea California.
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4. That the City Clerk is hereby directed to transmit the executed agree
recordation with copies to the City Engineer and Dorian Johnson, Bramalea Califor
100 Bayview Circle, Suite 2000, Newport Beach, California 92660.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad Cit~
held on the 18th day of APRIL , 1995 by the following vote, to wit:
I AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
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ABSENT: None
22 ATTEST:
23 AL*wiE (SEAL)
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RECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: )
) City Clerk 1
CITY OF CARLSBAD 1
1200 Carlsbad Village Drive 1
Carlsbad, CA 92008 1 1
SPACE ABOVE THIS LINE FOR RECORDER’S U
Parcel Nos. 212-050-22, 29, 30 & 34
PETITION, WAIVER, AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM
AND AGREEMENT TO PAY FAIR SHARE COST OF
ALGA ROAD AND POINSElllA LANE
(“AGREEMENT’)
A. WHEREAS, the undersigned Property Owner is processing for development witt
the City of Carlsbad (“City”) a development project known and identified as Carlsbad Tract 91 -
(“Project”); and
B. WHEREAS, City has determined .Project to be located within the boundaries o
proposed benefit area for a Facility Impact Fee Program to be known as Alga Road a
Poinsettia Lane Facility Fee Program (“Fee Program”); and
C. WHEREAS, Fee Program is intended to be formed to finance those improvemer
generally described in Paragraph 1 below; and
D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area
benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code (CM
Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), a nt
Development Impact Fee enacted pursuant to Government Code Section 66000 et seq, a
combination thereof, or otherwise; and
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E. WHEREAS, Property Owner desires to proceed with processing of the Projc
prior to City determination of the form or establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Pl,an for Zone 20 requires
guarantee for the construction of the segments of Alga Road and Poinsettia Lane, described
Paragraph 1 below, prior to the recordation of any final maps or the issuance of building perm
within the zone; and
G. WHEREAS, condition number 2 (as that condition relates to the funding at
construction of Alga Road and Poinsettia Lane) of the Tentative Tract Map approved for Carlsbt
Tract 91-1 2 requires Property Owner to provide for the construction of certain pub
improvements including a section of Alga Road; and
H. WHEREAS, compliance with the applicable Local Facilities Management Plans fl
Zone 20 and tentative map conditions is a condition of approval for the final map for the Projec
and
I. WHEREAS, Clty and Property Owner desire to agree to a guarantee which insurc
the project’s fair share of the financing forthe improvements described in Paragraph 1 herein th
will allow Property Owner to proceed with the processing of a final map and development of tt
Project in advance of the formation of a Fee Program for the construction of Alga Road an
Poinsettia Lane; and
J. WHEREAS, City Council agrees that Property Owner, upon entering into thl
Agreement and upon payment of the fair share described herein, has met the requirement sf
forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 20 an
related tentative map condition number 2 (as that condition relates to the funding an
construction of Alga Road and Poinsettia Lane) for Carlsbad Tract Map CT 91-12, to provide I
financial guarantee for the construction of those improvements described in Paragraph 1 belo\n
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 Proje
there will be no major impact on the circulation system at the present time if development oft
Project is allowed to proceed with sufficient financial guarantees for actual construction to ml
Property Owner's fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of Project, 1
undersigned Property Owner hereby agrees and certifies to the following:
1. Property Owner hereby petitions the City for the initiation of proceedings of a F
Program which will cause the construction and installation and/or financing of the followi
improvements which are more specifically described as follows:
0 Alga Road from Poinsettia Lane to Palomar Airport Road
and Poinsettia Lane from Alga Road to El Camino Real
(Alga Road and Poinsettia Lane)
The improvements proposed for inclusion include full width
grading for an 82 foot wide major arterial roadway within a
102 foot wide road right-of-way, with related drainage
improvements, and two 18 foot wide paved travel lanes,
median curbs along both edges of a raised unimproved
median strip for Poinsettia Lane from Alga Road to El
Camino Real and Alga Road from Poinsettia Lane to
Palomar Airport Road, all built to City of Carlsbad major
arterial standards.
2. The costs of construction, engineering, design, construction inspection, contr;
administration, construction engineering, environmental mitigation, condemnation costs for 1
necessary right-of-way and slope easements, legal and other incidental expenses will be fund
by the Fee Program.
3. Property Owner acknowledges its right to notice of and participation in all phas
of the establishment of Fee Program and expressly waives any right to protest or oppose 1
imposition or formation of Fee Program. Property Owner's. waiver of its right to proti
establishment or formation of the Fee Program shall not prevent Property Owner from protesti
the amount of the fee or extent of the improvements for Alga Road and Poinsettia Lane.
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4. a) Property Owner agrees to pay to City its fair share for the improvemer
described in paragraph one (1) above ("Deposit"), currently estimated to be $500 per "Avera!
Daily Trip" ("ADT") allocable to each dwelling unit in the Project. Ten (10) ADT's are allocable
each single-family dwelling unit in the Project and six (6) ADT's are allocable to each multi-fam
dwelling unit in the Project. The total amount of Deposit contemplated under the terms of tt
Agreement is estimated to be $1,458,000 (Based upon the following calculation: 186 sing
family units x 10 ADT/unit x $500.OO/ADT + 176 multi-family units x 6 ADT/unit x $500/unit).
b) Prior to the recordation of a final map for any phase or phases within ti
Project, Property Owner shall pay the Deposit to City in an amount calculated in accordance w
Paragraph 4.a) above for the number of units proposed within that final map, minus the amour
of the credits provided for in subparagraphs 4.c) and 4.d) below, to the extent those amour
have not previously been subtracted from the Deposit. For the purpose of computing the Depo
amount required pursuant to this Agreement, recordation of all or a portion of the multi-family IC
shall require full payment of that portion of Deposit allocable to each of the multi-family un
included with the lot or lots being recorded.
c) Property Owner has, prior to the date of this Agreement, advanced $25,000
connection with the preparation of a report that will establish cost estimates for the Fee Prograr
This advance was made pursuant to that certain agreement between Property Owner and C
("Cost Agreement"). All amounts advanced by Property Owner under the Cost Agreemer
including the $25,000 previously advanced, shall be credited against the Deposit.
d) Property Owner is obligated by the conditions 101c and 101d of the tentati
map for the Project to construct portions of Alga Road, some of which are within the Fl
Program and some of which are not within the Fee Program. Those portions of Alga Ro;
constructed by the Property Owner which are described in paragraph one (1) and are includc
within the Fee Program (Reimbursable Portion) are fully reimbursable pursuant to the provisio
of this paragraph. Those portions of Alga Road constructed hy the developer which are r
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described in paragraph one (1) or are not included within the Fee Program are not consider
reimbursable. Property Owner and City agree that, for purposes of this Agreement, the dol
amount of the Reimbursable Portion of the Property Owner's Alga Road improvement obligati
is estimated at $918,000 ("Reimbursement"). The actual amount of the Reimbursement shall
determined upon completion of the engineering report for the Fee Program and upon adopt
of the Fee Program by the City Council. Upon substantial completion of any grading wc
improvement, or property acquisition of the Reimbursable Portion of the Alga Road improveme
Ctty shall within sixty (SO) days reimburse Property Owner an amount equal to the cost of t
work as determined by the engineering report used to determine the adopted fee, In the ew
that the engineering report is not completed or the Fee Program has not been adopted by t
City at the time of substantial completion of the Reimbursable Portion of the Alga Ro
improvements, City shall reimburse Property Owner an amount equal to the estimated cost oft
Reimbursable Portion of improvements constructed by the Property Owner as determined by t
City Engineer. Upon completion of the engineering report and adoption of the Fee Program I
City Council, City shall determine the actual amount of the Reimbursable Portion of tl
constructed improvements. Any difference in cost between the estimated and actual value of tl
Reimbursable Portion of constructed improvements shall be added to or subtracted from ti
Deposit due pursuant to paragraphs 8.a) through 8.i) below. If Reimbursement exceeds ti
amount of the Deposit previously paid by Property Owner to City, then the excess shall be
credit to be applied against Property Owner's future Deposit obligations. In no case shall the C
reimburse the Property Owner pursuant to this Agreement in an amount greater than the amou
of the total fee due under the adopted fee program without first entering into a subseque
reimbursement agreement between the City and Property Owner.
e) The actual amount of Property Owner's fair share payment under the Fc
Program shall be conclusively determined by City Council at the time the Fee Program
established.
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9 Deposit by Property Owner of its fair share of improvement costs as determir
herein, and the contractual covenant created by this Agreement satisfies Property OwnL
obligations for the construction of the improvements described in paragraph one (1) above,
required by the Local Facilities Management Plan for Zone 20 and Tentative Subdivision Map
91-12 condition numbers 2 (as that condition relates to the funding and construction of A
Road and Poinsettia 'Lane). *
5. Property Owner acknowledges that this Agreement to pay its fair share a
participate in the financing of improvements is voluntary and that without this Agreement Prope
Owner would be precluded from obtain'ing final map approvals or building and 0th
development permits under the provisions of the General Plan, Chapter 21.90 of the Carlsba
Municipal Code, applicable zone plan, financing plans and related documents until a satisfacta
financing program had been developed to fund the construction of the improvements describt
in Paragraph 1 above.
6. Property Owner hereby waives its right to challenge the establishment (
imposition of Fee Program. Property Owner's waiver of 'its right to challenge the establishme
or imposition of Fee Program shall not prevent Property Owner from protesting the amount (
the fee or extent of the improvements for Alga Road and Poinsettia Lane.
7. This Agreement does not affect, in any way whatsoever, the obligation of Properl
Owner to pay any other fees or assessments associated with Property Owner's developmeni
nor does this Agreement relieve Property Owner from providing other pubbfacilities require1
under conditions of the Local Facilities Management Plan for Zone 20 or placed upon Tentativl
Map CT 91-12 by the City.
8. a) If prior to January 1, 1999, the Fee Program for Alga Road and Poinsettia Lanc
is established, subsequent to Deposit by Property Owner pursuant to this Agreement, Propert1
Owner's financial obligation shall be recalculated at that time, using the fee formula establishec
under the approved Fee Program. If the initial Fee Program obligation is different from Deposit,
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plus accrued interest, amount previously paid by Property Owner to City pursuant to Paragra
4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amok
due (Shortfall).
b) Any refund shall be made from funds available through the collection of fc
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, Prope
Owner shall be reimbursed in the order in which funds were deposited with City as soon
sufficient funds become available, as determined by the City Council.
d) No reimbursement is required until the City Council determines that sufficie
funds are available.
e) If a Shortfall exists, Property Owner shall be notified of the amount of su,
Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be due a1
payable to City 30 days after the mailing of such notice.
f) The computation of the amount of any Shortfall shall not include intere
charges.
g) If payment in full of the Shortfall Is not made by Property Owner within nine
(90) days of notice of said Shortfall by the Finance Director, the amount due shall constitute
lien on any portion of the property within the Project for which a building permit has not bet
issued by the City. City may deny the issuance of building permits and/or take any other actic
allowed by law to deny further development of Project property subject to this Agreement, at
to collect such Shortfall including, but not limited to, enforcement of the lien on the propert
City's recordation of a lien shall not affect its ability to recover the Shortfall by other legal mear
concurrently, but no double recovery will be allowed. The cost of such collection shall be a
obligation of Property Owner and shall be added to the amount of the Shortfall payment due Cit
h) Any payment received by the City under this Agreement shall be deposited
a special fund and may only be used to fund the construction of the facilities described hereil
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Upon the establishment of a Fee Program to fund these same facilities, any amount remaini
in the special fund may be transferred to the Facility Fee Fund, at the discretion of the Finar
Director.
i) On or after the effective date of the Fee Program adopted by City Council, t
Property Owner may elect to terminate this Agreement. The Property Owner shall notify the C
of their intent to terminate this Agreement in writing in accordance with the provisions
paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit accol
for the Project and determine the amount of any shortfall or refund due under the provisions
this Agreement and the amount of any remaining credits pursuant to paragraph 4.d) above,
any. Upon payment of the shortfall, if any, by the Property Owner and upon the determinatic
by the City that the Project is subject to the adopted Fee Program, the City shall file a notice
release and termination of Agreement with the Office of the County Recorder of the County
San Diego. Termination of this Agreement by the Crty shall affect only those portions of tt
Project which have not recorded a final map prior to the filing of the notice of release ar
termination of Agreement. All money or credits received in satisfaction of the terms of th
Agreement for any portion of the Project for which a final map has been recorded prior '
termination of the Agreement'shall be considered to have satisfied the Fee Program requiremen'
for those lots or units included within such recorded map. Any additional credits in excess of tt
needs created by the recording of a phased final map shall be made available to the Properl
Owner for use on the remaining unrecorded portion of the project in accordance with ar
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 1,199s
the amount paid by Property Owner under this Agreement, including any credits c
relmbursements due pursuant to paragraph 4.c) and 4.d) above, shall be deemed to represer
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Property Owner's fair share cost for provision of those facilities described in paragraph one
above and no further payment will be due from or reimbursement due to Property Owner.
10. Compliance wlth this Agreement will be accepted by City as an alternate to '
method described in the current Local Facilities Management Plan for Zone 20 for financing
improvements described in paragraph one (1) above. This Agreement does not require Cit)
issue building permits or other development permits or grant approvals or relieve Property Ow
of the obligation to comply with all applicable provisions of law, including but not limited
Carlsbad Municipal Code Titles 18, 19, 20 and 21.
11. Compliance with the provisions of this Agreement is a condition of all fut
discretionary approvals for the Project. If Property Owner does not comply with the provisic
of this Agreement, approval of the Project will not be consistent with the General Plan, the Grov
Management Program, the Local Facilities Management Plan, or the applicable financing p'
for Zone 20 and all subsequent discretionary approvals and permits for the Project shall
withheld by City.
12. The City may, at its discretion, elect to pursue any remedy, legal or equital
against Property Owner or Property Owner's successors, heirs, assigns, and trar.sferees, with 1
exception of owners of individual lots for which building permits have been issued, to sect
compliance with this Agreement.
13. City shall not, nor shall any officer or employee of City, be liable or responsi
for any loss or damage incurred by Property Owner or any successor or assign of Prope
Owner, or by any occupant in Project, as a result of the exercise of any remedies provided to C
in this Agreement. Property Owner agrees to indemnify City for any liabilities incurred by C
as a result of City's exercise of these remedies.
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14. This Agreement and the covenants contained herein shall be binding upon a
inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and C
and run with the real property and create an equkable servitude upon the real property.
15. All notices provided for under this Agreement shall be in writing and shall
delivered in person or served by certified mail postage prepaid. Delivery of notice to Propc
Owner shall be presumed to have been made on the date of mailing regardless of receipt
Property Owner. Notices required to be given to Property Owner shall be addressed as follov
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Mr. Dorian Johnson
BRAMALEA CALIFORNIA, INC.
100 Bayview Circle, Suite 2000
Newport Beach, CA 92660
Notices to the City shall be delivered to the
Finance Director,
City of Carlsbad,
1200 Carlsbad Village Drive,
Carlsbad, California, 92008.
Each party shall notrfy the other immediately of any changes of address that would requ
any notice delivered hereunder to be directed to another address.
16. The obligation and benefits of this Agreement shall be transferred upon sale oft
Project. As used in this Agreement, "Property Owner" shall be the owner of the real prope
which comprises the Project, except as to any real property for which residential permits ha
been issued. Notwithstanding any provision of this Agreement to the contrary, upon writt
notice to the City pursuant to Paragraph 15 above, all obligations, benefits and responsibiliti'
of this agreement shall move to the new owner of the real property which comprises the Projel
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17. The undersigned entity further states; under penalty of perjury, that it is the owr
of the property described herein, or an authorized agent of the owner, and has the authority
sign this document including the creation of the covenants herein.
Executed this Ahday of Auril ,193.
PROPERTY OWNER:
Dorian A. Johnson
(print name here)
(print name here)
Senior Vice President
(title and organization of signatory)
(Notarial acknowledgment d execution by PROPERlY OWNER must be attached.)
(President or vicepresident and secretary or assistant secretary must sign for corporation. If only one officer slgns, the corporat must attach a resolution cetiified by the secretary or assistant secretary under corporate seal empowering that officer to bind t corporation.)
APPROVED AS TO FORM:
RONALD R. BALL cityn -, ~ f;L. Gb,~,
BY Bepatp city Attorney 4- /9.9 s.
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} STATE OF CALIFORNIA }ss.
COUNTY OF Orange
On April 4, 1995 , before me, Dee Baker, Notary Public
personally appeared Dorian A. Johnson and Emile K. Haddad----------------------
--------------------------------------------------------------, personally known
had dad------------- to be the person(s) whose name(s)
subscribed to the within instrument and acknowledged to me that heishidthey executed thc
in hm#b/their authorized capacity(ies), and that byhWhar/their signature(s) on the instruml
person(s) or the entity upon behalf of which the person(s) acted, executed the instrumer
WITNESS my hand and official seal.
Signature G-
(This area for official notarial seal)
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Title of Document Petition, Waiver, and Consent to Creation of a Facility Impa
Fee Program & Agreement to Jay F 'r Share Cost of Alga Road, Date of Document 0. o Pages I Other signatures not acknowledged
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First American Title Ins