Loading...
HomeMy WebLinkAbout1995-08-15; City Council; Resolution 95-231e 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I ~ RESOLUTION NO. 95-231 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, THE CITY OF CARLSBAD AND SAMBI SEASIDE HEIGHTS, LLC CALIFORNIA, APPROVING A PRE-PAYMENT AGREEMENT BETWEEN WHEREAS, the City Council of the City of Carlsbad has required that the fundi Road and Poinsettia Lane (Project) must be guaranteed before any development takc the area bounded by Local Facilities Management Zone 20. WHEREAS, City staff is actively pursuing formation of a facility fee district to 1 Project; and WHEREAS, although the Council anticipates the facility fee district will be foh near future, the Council is willing to consider alternative financing proposals during from the present to the formation date of the fee district; and WHEREAS, such interim financing program will only be considered as long as t finds that the formation of the fee district is proceeding in a reasonable manner; anc WHEREAS, the Council finds that the formation of the fee district is proce reasonable manner; and WHEREAS, the Council finds that the guarantee provisions related to the Projc met through an interim financing program using an agreement between certain prop€ and the City whereby the property owner agrees to prepay hislher fair share 01 associated with the Project; and WHEREAS, Sambi Seaside Heights, LLC intends to build 120 single-famil multi-family units in Local Facilities Management Zone 20; and WHEREAS, the Council finds that Sambi Seaside Heights, LLC may ent attached Agreement to Pay Fair Share (Exhibit A) in satisfaction of their obligatior Project financing conditions. Ill Ill I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e 0 I I I 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. 2. That the form of the PETITION, WAIVER, AND CONSENT TO CREATI, FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE, Exhibit E hereto, is hereby approved. 3. That the Mayor is hereby authorized to enter into the agreement shown it with Sambi Seaside Heights, LLC. 4. That the City Clerk is hereby directed to transmit the executed agre recordation with copies to the City Engineer and Mr. Kazuyuki Kawakta, Sambi Seasid LLC, 8649 Firestone Boulevard, Downey, California 90241. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad Ci held on the 15th day of AUGUST , 1995 by the following vote, to wit: AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall NOES: None ABSENT: None ATTEST: ALewii (SEAL) 0 0 RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: 1 Ctty Clerk 1 GIN OF CARLSBAD 1 1200 Carlsbad Village Drive ) Carlsbad, CA 92008 ) 1 SPACE ABOVE THIS UNE FOR RECORDER' Parcel No. 21 4-1 40-07 PETITION, WAIVER, AND CONSENT To CREATION OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE CQST OF ALGA ROAD AND POINSElllA LANE CAGREEMENT') A. WHEREAS, the undersigned Property Owner is processing for developmeni the Crty of Carlsbad ('Crty') a development project known and identified as Carlsbad Trad ("Project') more particularly described on Exhibit 'A' attached hereto and by this reference a part hereof; and B. WHEREAS, City has determined Project to be located within the boundaric proposed benefit area for a Facilrty Impact Fee Program to be known as Alga Roe Poinsettia Lane Facilrty Fee Program ('Fee Program'); and C. WHEREAS, Fee Program is intended to be fonned to finance those improve generally described in Paragraph 1 below; and D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare I benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), Development Impact Fee enacted pursuant to Government Code Section 66OOO gt z combination thereof, or otherwise; and 1 0 0 E. WHEREAS, Property Owner desires to proceed with processing of the Project to Crty determination of the form or establishment of Fee Program; and F. WHEREAS, the Local Facilities Management Plan for Zone 20 requires a guare for the construction of the segments of Alga Road and Poinsettia Lane, described in Paragra below, prior to the recordation of any final maps or the issuance of building permits withil zone; and G. WHEREAS, condition number 4 (as that condition relates to the funding construction of Alga Road and Poinsettia Lane) of the Tentative Tract Map approved for Carl Tract 92-02 requires Property Owner to provide for the construction of certain p improvements including a section of Alga Road; and H. WHEREAS, compliance with the applicable Local Facilities Management Plar Zone 20 and tentative map conditions is a condition of approval for the final map for the Prc and I. WHEREAS, Crty and Propem Owner desire to agree to a guarantee which ins the project's fair share of the financing for the improvements described in Paragraph 1 hereir will allow Property Owner to proceed with the processing of a final map and development c Project in advance of the formation of a Fee Program for the construction of Alga Road Poinsettia Lane; and J. WHEREAS, Crty Council agrees that Property Owner, upon entering into Agreement and upon payment of the fair share described herein, has met the requiremer forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone X related tentative map condition number 4 (as that condition relates to the funding and 2 0 0 construction of Alga Road and Poinsettia Lane) for Carlsbad Tract Map CT 92-02, to provid financial guarantee for the canstmctian of those improvements described in Paragraph 1 bel, and K. WHEREAS, Property Owner voluntarily enters into this Agreement; and L WHEREAS, the Crty Council has determined that due to the size of the Proj' there will be no major impact on the circulation system at the present time if development of Project is allowedto proceed with sufficient financial guarantees for actual construction to m Property Owner's fair share of the circulation improvements; , NOW, THEREFORE, in consideration of proceeding with the processing of Project, undersigned Property Owner hereby agrees and certifies to the following: 1. Property Owner hereby petitions the City for the initiation of proceedi of a Fee Program which will cause the construction and installation and/or financing of following improvements which are more specifically described as follows: 0 Alga Road from Poinsettia Lane to Palomar Airport Road I Poinsettia Lane from Alga Road to El Camino Real (Alga Road 1 Poinsettia Lane) The improvements proposed for inclusion include full width grac for an 82 foot wide major arterial roadway within a 102 foot H road right-of-way, with related drainage improvements, and twc foot wide paved travel lanes, median curbs along both edges ( raised unimproved median strip for Poinsettia Lane from Alga Rc to El Camino Real and Alga Road from Poinsettia Lane to Palol Airport Road, all built to Crty of Carlsbad major arterial standar 2. The costs of construction, engineering, design, construction inspection, conti administration, construction engineering, environmental mitigation, condemnation costs for necessary right-of-way and slope easements, legal and other incidental expenses will be fun( by the Fee Program. 3 e e 3. Property Owner acknowledges its right to notice of and participation in all pha: of the establishment of Fee Program and expressly waives any right to protest or oppose imposition or formation of Fee Program. Property Owner's waiver of its right to proi establishment or formation of the Fee Program shall not prevent Property Owner from protesl the amount of the fee or extent of the improvements for Alga Road and Poinsettia Lane. 4. a) Property Owner agrees to pay to City its fair share for the improvem described in paragraph one (1) above ('Deposit'), currently estimated to be $500 per 'Aver1 Daily Trip' ('ADT) allocable to each dwelling unit in the Project. Ten (10) ADT's are allocablc each single-family dwelling unit in the Project and six (6) ADT's are allocable to each multi-fat dwelling unit in the Project. The total amount of Deposit contemplated under the terms of Agreement is estimated to be $l,305,OOo (based upon the following calculation: 129 sin! family units x 10 ADT/unit x $SOO/ADT + 220 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 Project, Property Owner shall pay the Deposit to Crty in an amount calculated in accordance i Paragraph 4.a) above for the number of units proposed within that final map, minus the amou of the credits provided for in subparagraphs 4.c) and 4.d) below, to the extent those amou have not previously been subtracted from the Deposit. For the purpose of computing the Dep amount required pursuant to this Agreement, recordation of all or a portion of the mutti-family ~ shall require full payment of that portion of Deposit allocable to each of the multi-family u included with the lot or lots being recorded. c) Property Owner has, prior to the date of this Agreement, advanced $25,001 connection with the preparation of a report that will establish cost estimates for the Fee Progri 4 0 e 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 Agreemc including the $25,000 previously advanced, shall be credited against the Deposit. d) Property Owner is obligated by the conditions 103a and 103b of the tental map for the Project. to construct portions of Alga Road, some of which are within the F Program and some of which are not within the Fee Program. Those portions of Alga Rc constructed by the Property Owner which are described in paragraph one (1) and are incluc within the Fee Program (Reimbursable Portion) are fully reimbursable pursuant to the provisic of this paragraph. Those portions of Alga Road constructed by the developer which are described in paragraph one (1) or are not included with the Fee Program are not conside reimbursable. Property Owner and City agree that, for purposes of this Agreement, the do amount of the Reimbursable Portion of the Property Owner's Alga Road improvement obligat is estimated at $1,280,000 ('Reimbursement"). The actual amount of the Reimbursement shall determined upon completion of the engineering report for the Fee Program and upon adopl 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 improvemc City shall within sixty (60) days reimburse Property Owner an amount equal to the cost of work as determined by the engineering report used to determine the adopted fee. In the et that the engineering report is not completed or the Fee Program has not been adopted by City at the time of substantial completion of the Reimbursable Portion of the Alga Rc improvements, City shall reimburse Property Owner an amount equal to the estimated cost of Reimbursable Portion of improvements constructed by the Property Owner as determined by City Engineer. Upon completion of the engineering report and adoption of the Fee Program City Council, City shall determine the actual amount of the Reimbursable Portion of 5 0 0 constructed improvements. Any difference in cost between the estimated and actual value ( Reimbursable Portion of consttucted improvements shall be added to or subtracted fror Deposit due pursuant to paragraphs 8.a) through 8.i) below. If Reimbursement exceed amount of the Deposit previously paid by Property Owner to City, then the excess shall credit to be applied against Property Owner‘s future Deposit obligations. In no case shall thc reimburse the Property Owner pursuant to this Agreement in an amount greater than the an of the total fee due under the adopted fee program without first entering into a subsec reimbursement agreement between the City and Property Owner. e) The actual amount of Property Owner’s fair share payment under the Program shall be conclusively determined by City Council at the time the Fee Progre established. .. f) Deposit by Property Owner of its fair share of improvement costs as detem herein, and the contractual covenant created by this Agreement satisfies Property Ow obligations for the construction of the improvements described in paragraph one (1) abovi required by the Local Facilities Management Plan for Zone 20 and Tentative Subdivision Ma 92-02 condition numbers 4 (as that condition relates to the funding and consttuction of Road and Poinsettia Lane). 5. Property Owner acknowledges that this Agreement to pay its fdr share participate in the financing of improvements is voluntary and that without this Agreement Pro1 Owner would be precluded from obtaining final map approvals or building and < development permits under the provisions of the General Plan, Chapter 21.90 of the Carl: Municipal Code, applicable zone plan, financing plans and related documents until a satisfac financing program had been developed to fund the construction of the improvements descr in Paragraph 1 above. 6 0 0 6. Property Owner hereby waives its right to challenge the establishmen imposition of Fee Program. Property Owner’s waiver of its right to challenge the establishr or imposition of Fee Program shall not prevent Property Owner from protesting the amoul 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 Pro[ Owner to pay any other fees or assessments associated with Property Owner‘s developn nor does this Agreement relieve Property Owner from providing other public facilities requ under conditions of the Local Facilities Management Plan for Zone 20 or placed upon Tentc Map CT 92-02 by the City. 8. a) If prior to January 1, 1999, the Fee Program for Alga Road and Poinsettia L is established, subsequent to Deposit by Property Owner pursuant to this Agreement, Prop Owner’s financial obligation shall be recalculated at that time, using the fee formula establis under the approved Fee Program. If the initial Fee Program obligation is different from Dep plus accrued interest, amount previously paid by Property Owner to City pursuant to Paragrl 4 hereof, City shall refund any excess, or Property Owner will pay to City any additional am due (Shortfall). b) Any refund shall be made from funds available through the collection of 1 and shall not be an obligation of Crty’s General Fund or other revenue sources. c) In the event that insufficient funds are available from the fee revenues, Prop Owner shall be reimbursed in the order in which funds were deposited with City as soor sufficient funds become available, as determined by the City Council. d) No reimbursement is required until the Cw Council determines that suffici funds are available. 7 0 0' e) If a Shortfall exists, Property Owner shall be notified of the amount of 5 Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be due payable to City 30 days after the mailing of such notice, 9 The computation of the amount of any Shortfall shall not include int< charges. g) If payment in full of the Shortfall is not made by Property Owner within n~ (90) days of notice of said Shortfall by the Finance Director, the amount due shall constitr lien on any portion of the property within the Project for which a building permit has not I issued by the Crty. City may deny the issuance of building permits and/or take any other at allowed by law to deny further development of Project property subject to this Agreement, to collect such Shortfall including, but not limited to, enforcement of the lien on the proF City's recordation of a lien shall not affect its ability to recover the Shortfall by other legal rn concurrently, but no double recovery will be allowed. The cost of such collection shall b obligation of Property Owner and shall be added to the amount of the Shortfall payment due h) Any payment received by the City under this Agreement shall be deposit( a special fund and may only be used to fund the construction of the facilities described he Upon the establishment of a Fee Program to fund these same facilities, any amount remai in the special fund may be transferred to the Facility Fee Fund, at the discretion of the Fin; Director. i) On or after the effective date of the Fee Program adopted by City Council Property Ow-ner may elect to terminate this Agreement. The Property Owner shall notrfy the of their intent to terminate this Agreement in writing in accordance with the provisior paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit acc for the Project and determine the amount of any shortfall or refund due under the provisiol this Agreement and the amount of any remaining credits pursuant to paragraph 4.d) abo 8 0 e' any. Upon payment of the shortfall, if'any, by the Property Owner and upon the determiw by the Crty that the Project is subject to the adopted Fee Program, the City shall file a notic release and termination of Agreement with the Office of the County Recorder of the Counl San Diego. Termination of this Agreement by the Crty shall affect only those portions 01 Project which have not recorded a final map prior to the filing of the notice of release termination of Agreement. All money or credits received in satisfaction of the terms of Agreement for any portion of the Project for which a final map has been recorded pric termination of the Agreement shall be considered to have satisfied the Fee Program requirem for those lots or units included within such recorded map. Any additional credits in excess o needs created by the recording of a phased final map shall be made available to the Prop Owner for use on the remaining unrecorded portion of the project in accordance with 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, 1 ~ the amount paid by Property Owner under this Agreement, including any credits reimbursements due pursuant to paragraph 4.c) and 4.d) above, shall be deemed to repre Property Owner's fair share cost for provision of those facilities described in paragraph onc above and no further payment'will be due from or reimbursement due to Property Owner. 10. Compliance with this Agreement wiil be accepted by City as an atternate 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 OH 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 fu discretionary approvals for the Project. If Property Owner does not comply with the provisi 9 0 0. of this Agreement, approval of the Project will not be consistent with the General Plan, the Gr Management Program, the Local Facilities Management Plan, or the applicable financing for Zone 20 and all subsequent discretionary approvals and permits for the Projedt shz withheld by Crty. 12. The Crty may,.at its discretion, elect to pursue any remedy, legal or qui against Property Owner or Property Owner’s successors, heirs, assigns, and transferees, wii exception of owners of individual lots for which building permits have been issued, to SI compliance with this Agreement. 13. City shall not, nor shall any officer or employee of City, be liable or respor for any loss or damage incurred by Property Owner or any succes$or or assign of Pro Owner, or by any occupant in Project, as a result of the exercise of any remedies provided tc in this Agreement. Property Owner agrees to indemnify City for any liabilities incurred bl as a result of Cityk exercise of these remedies. 14. This Agreement and the covenants contained herein shall be binding upor inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and 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 shc delivered in person or served by certified mail postage prepaid. Delivery of notice to Pro Owner shall be presumed to have been made on the date of mailing regardless of recei Property Owner. Notices required to be given to Property Owner shall be addressed as fol Mr. Kazuyuki Kawakita Sambi Seaside Heights, LLC 8648 Firestone Boulevard Downey, CA 90241 Notices to the City shall be delivered to the Finance Director, City of Carlsbad, 1200 Carisbad Village Drive Carisbad, California, 92008. 10 0 0. Each party shall notrfy the other immediately of any changes of address that would re( any notice delivered hereunder to be directed to another address. 16. The obligation and benefits of this Agreement shall be transferred upon sale c Project. As used in this Agreement, "Property Owner' shall be the owner of the real pro1 which comprises the Projk, except as to any real property for which residential permits been issued. Notwithstanding any provision of this Agreement to the contrary, upon w notice to the City pursuant to Paragraph 15 above, all obligations, benefits and responsibi of this agreement shall move to the new owner of the real property which comprises the Prc .... .... .... .... .... e... .... .... .... .... .... .... .... .... .... .... .... .... 11 0 e' 17. The undersigned entrty further states, under penatty of perjury, that it is the olu of the property described herein, or an authorized agent of the owner, and has the authori sign this document including the creation of the covenants herein. I Executed this - day of ,19-. PROPERN OWNER: SAMBI SEASIDE HEIGHTS, LLC CITY OF CARLSBAD, a Municipal Corporation of the State of California By: By: (sign here) CLAUDE A. MIS, Mayor (print name here) -. (title and organization of signatory) By: (sign here) (print name here) (title and organization of signatory) (Natarbl acknowledgment d uucubn by PROPERM OWNER muot k atrhd.) (President 01 vk.-prosid.nt and secr.tsry 01 assistant seerotary must sbn fa oorparcltkn tf only om dflcw signa, th. corpor mwtattacharosdlRbncoctiH.dbyth.~r.tsryarass~~r~wdwcorpord.s+d~wlngtM~icwtoMn corpocath.) APPROVED AS TO FORM: RONALD R. BALL Crty Attorney BY Deputy City Attorney 12 e 0, 17. The undersigned entity further states, under penalty of perjury, that it is the o\ of the property described herein, or an authorized agent of the owner, and has the authori sign this document including the creation of the covenants herein. Executed this &day of .Ad& , 19g6- PROPERTY OWNER: CITY OF CARLSBAD, a Municipal SAMBI SEASIDE HEIGHTS, LLC BY &"& (sign her " SI; 1 ZO 11. TOYOHARA (print name here) - PI A N A G I: I< (title and organization of signatory) By: (sign here) (print name here) (title and organization of signatory) (Notarial acknowledgment d 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 corpc must ettuch c1 resolution certified by the secretary of assistant secretary under corporate seal empowering that officer to bir corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney BY.- LJ..J."-Q.. I%" City Attorney J,/(, 9 c. 12 CALIFORNIA ALL-PURPO i) ACKNOWLEDGMENT 0. personally appeared to be the person&$ whose nam .. Though the data below is not required by law, it may prove valuable to persons relying on the document and could fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUM CORPORATE OFFICER /%Ah! La;uw* [&+&J TITLE@) TITLE OR TYPE OF DOCUMEN Prt /n ,&x 6xh AlTORNEY-IN-FACT NUMBER'OF PAGES DATE OF DOCUMENT SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOL 01 993 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave., P.O. Box 71 84 Canoga Park, a e. EXHIBIT "A" LEGAL DESCRIPTION That certain real property located in the County of San Diego, State of Califc described as follows: . The North half of a parcel of land described as follows: The South half of the Southeast quarter and the South sixty acres of the North half c Southeast quarter of section twenty-one, township twelve south, range four West, Bernardino Meridian, in the County of San Diego, State of California, according tc official plat thereof, approved October 25, 1875, excepting that portion describe follows: Beginning at a point 40 rods West of the Southeast corner of said section twenty- township twelve South, range four West, running thence East 40 rods to the Soutt corner thereof; thence North 20 rods to a point; thence West parallel with the South of said section, 18 rods to a point; thence in a direct Southwest line 29 rods to PC OF BEGINNING. Also excepting therefrom that portion thereof, if any, lying within the boundaries 01 Rancho Agua Hedionda as shown on miscellaneous Map No. 29 filed in the office o County Recorder of said San Diego County on June 21, 1920.