HomeMy WebLinkAbout1995-11-07; City Council; Resolution 95-3090 0
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RESOLUTION NO. 95-309
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE
GEMOLOGICAL INSTITUTE OF AMERICA
CARLSBAD, CALIFORNIA, APPROVING A PRE-PAYMENT
WHEREAS, condition 46 of Planning Commission Resolution 3725 a
December 7, 1994 has required that the applicant, the Gemological Institute of Americ
pro-rata share of the cost of construction of Cannon Road prior to the issuance of the
permit.
WHEREAS, the City Council of the City of Carlsbad has required that the ful
Cannon Road West (Project) must be guaranteed before any development takes plac
area bounded by Local Facilities Management Zone 13.
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 formc
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 proceed
reasonable manner; and
WHEREAS, the Council finds that the guarantee provisions related to the Projeci
met through an interim financing program using an agreement between certain propertg
and the City whereby the property owner agrees to prepay hislher fair share of tt
associated with the Project; and
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WHEREAS, the Council finds that the Gemological Institute of America, an Ohio n'
corporation, may enter into the attached Agreement to Pay Fair Share (Exhibit A) in sat
of their obligation under the Project financing conditions. 4
5 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of C
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California, as follows:
1. That the above recitations are true and correct.
2. That the form of the PETITION, WAIVER, AND CONSENT TO CREATIC
FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE, Exhibit A :
hereto, is hereby approved.
3. That the Mayor is hereby authorized to enter into the agreement shown in E
with the Gemological Institute of America, an Ohio non-profit corporation.
4. That the City Clerk is hereby directed to transmit the executed agree1
recordation with copies to the Crty Engineer and Mr. Gary Hill, Gemological Institute of I
1660 Stewart Street, Santa Monica, California,
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
held on the 7th day of NOVEMBER , 1995 by the following vote, to wit:
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila, Hall
NOES: None
ABSENT: None
ATTEST: A
I
(SEAL)
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RECORDING REQUESTED BY AND 1
WHEN RECORDED MAIL TO: )
Cjty Clerk )
CITY OF CARLSBAD )
1200 Carlsbad Village Drive )
Carlsbad, CA 92008 )
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SPACE ABOVE THIS LINE FOR RECORDER’S US
Parcel No. 21 1-023-03 & 04
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 withi
the City of Carlsbad (“City”) a development project known and identified as Gemological lnstitul
of America Site Development Plan SDP 94-06, more particularly described as Lots 5 and 6 (
Carlsbad Tract 92-07, Map No. 13078, recorded in the office of the County Recorder of Sa
Diego County, December 28, 1993; and
B. WHEREAS, City has determined Project to be located within the boundaries of
proposed benefit area for a Facility Impact Fee Program to be known as Cannon Road We:
Facility Fee Program (“Fee Program”); and
C. WHEREAS, Fee Program is intended to be formed to finance those improvemen
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 ne
Development Impact Fee enacted pursuant to Government Code Section 66000 et seq, ar
combination thereof, or otherwise; and
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E. WHEREAS, Property Owner desires to proceed with processing of the Project pric
to City determination of the form or establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Plan for Zone 13 requires a guarante
for the construction of the segment of Cannon Road West, described in Paragraph 1 below, pric
to the issuance of building permits within the zone; and
G. WHEREAS, condition number 46 (as that condition relates to the funding an
construction of Cannon Road West) of the Site Development Plan SDP 94-06 approved for th
Gemological Institute of America requires Property Owner to provide for the construction (
certain public improvements including a section of Cannon Road West; and
H. WHEREAS, compliance with the applicable Local Facilities Management Plans fo
Zone 13 and Site Development Plan conditions is a condition of approval for the Sitc
Development Pian for the Project; and
I. WHEREAS, City and Property Owner desire to agree to a guarantee which insure:
the project’s fair share of the financing for the improvements described in Paragraph 1 herein tha
will allow Property Owner to proceed with the processing of a building permit and developmen,
of the Project in advance of the formation of a Fee Program for the construction of Cannon Roac
West; and
J. WHEREAS, City Council agrees that Property Owner, upon entering into thi:
Agreement and upon payment of the fair share described herein, has met the requirement sel
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 a financia
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 Projec
there will be no major impact on the circulation system at the present time if development of th
Project is allowed to proceed with sufficient financial guarantees for actual construction to me€
Property Owner's fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of Project, thc
undersigned Property Owner hereby agrees and certifies to the following:
1. Property Owner hereby petitions the City for the initiation of proceeding:
of a Fee Program which will cause the construction and installation and/or financing of thc
following improvements which are more specifically described as follows:
0 Cannon Road to major arterial road standards from Paseo DE
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
median hardscape, streetlights, street monumentation, grading anc
excavation, storm drainage facilities, guardrails, two 485 foo
multispan bridges and one I56 foot single span bridge togethel
with any incidentals necessary to complete a four lane majoi
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 will 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 protesi
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 $1 69,506 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 thai
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 voluntary 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 zone
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 c
imposition of Fee Program. Property Owner’s waiver of its right to challenge the establishmer
or imposition of Fee Program shall not prevent Property Owner from protesting the amount c
the fee or extent of the improvements for Cannon Road West.
7. This Agreement does not affect, in any way whatsoever, the obligation c
Property Owner to pay any other fees or assessments associated with Property Owner’:
development, nor does this Agreement relieve Property Owner from providing other publil
facilities required under conditions of the Local Facilities Management Plan for Zone 13 or placet
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 i
established, subsequent to Deposit by Property Owner pursuant to this Agreement, PropeQ
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
plus accrued interest, amount previously paid by Property Owner to City pursuant to Paragrapk
4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amoun
due (Shortfall).
b) Any refund shall be made from funds available through the collectior
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 soot-
as sufficient funds become available, as determined by the City Council.
d) No reimbursement is required until the City Council determines thai
sufficient funds are available.
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e) If a Shortfall exists, Property Owner shall be notified of the amount o
such Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be duc
and payable to City 30 days after the mailing of such notice.
f-) The computation of the amount of any Shortfall shall not include interes
charges.
g) If payment in full of the Shortfall is not made by Property Owner withir
ninety (90) days of notice of said Shortfall by the Finance Director, the amount due shal
constitute a lien on any portion of the property within the Project for which a building permit ha:
not been issued by the City. City may deny the issuance of building permits and/or take an
other action allowed by law to deny further development of Project property subject to thi
Agreement, and to collect'such Shortfall including, but not limited to, enforcement of the lien o
the property. City's recordation of a lien shall not affect its ability to recover the Shortfall by othc
legal means concurrently, but no double recovery will be allowed. The cost of such collectio
shall be an obligation of Property Owner and shall be added to the amount of the Shortfa
payment due City.
h) Any payment received by the City under this Agreement shall b
deposited in a special fund and may only be used to fund the construction of the facilitie
described herein. Upon the establishment of a Fee Program to fund these same facilities, an
amount remaining in the special fund may be transferred to the Facility Fee Fund, at tt
discretion of the Finance Director.
i) On or after the effective date of the Fee Program adopted by Ci
Council, the Property Owner may elect to terminate this Agreement. The Property Owner sh:
notify the City of their intent to terminate this Agreement in writing in accordance with tt
provisions of paragraph 15 below. Upon receipt of such notification, the City shall review tt
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Deposit account for the Project and determine the amount of any shortfall or refund due undc
the provisions of this Agreement and the amount of any remaining credits pursuant to paragrap
4.d) above, if any. Upon payment of the shortfall, if any, by the Property Owner and upon th
determination by the City that the Project is subject to the adopted Fee Program, the City sh2
file a notice of release and termination of Agreement with the Office of the County Recorder (
the County of San Diego. Termination of this Agreement by the City shall affect only thos,
portions of the Project which have not recorded a final map prior to the filing of the notice c
release and termination of Agreement. All money or credits received in satisfaction of the term
of this Agreement for any portion of the Project for which a final map has been recorded pric
to termination of the Agreement shall be considered to have satisfied the Fee Prograr
requirements for those lots or units included within such recorded map. Any additional credit
in excess of the needs created by the recording of a phased final map shall be made availabl
to the Property Owner for use on the remaining unrecorded portion of the project in accordanc
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 o
reimbursements due pursuant to paragraph 4.c) and 4.d) above, shall be deemed to represen
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 alternatc
to the method described in the current Local Facilities Management Plan for Zone 13 fo~
financing the improvements described in paragraph one (1) above. This Agreement does no
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 n
limited to, Carlsbad Municipal Code Titles 18, 19, 20 and 21.
11. Compliance with the provisions of this Agreement is a condition of all futu
discretionary approvals for the Project. If Property Owner does not comply with the provisior
of this Agreement, approval of the Project will not be consistent with the General Plan, the Grow
Management Program, the Local Facilities Management Plan, or the applicable financing pls
for Zone 13 and all subsequent discretionary approvals and permits for the Project shall t:
withheld by City.
12. The City may, at its discretion, elect to pursue any remedy, legal c
equitable against Property Owner or Property Owner’s successors, heirs, assigns, an
transferees, with the exception of owners of individual lots for which building permits have bee
issued, to secure compliance with this Agreement.
13. City shall not, nor shall any officer or employee of City, be liable o
responsible for any loss or damage incurred by Property Owner or any successor or assign o
Property Owner, or by any occupant in Project, as a result of the exercise of any remedie!
provided to City in this Agreement. Property Owner agrees to indemnify City for any liabilitie!
incurred by City as a result of City’s exercise of these remedies.
14. This Agreement and the covenants contained herein shall be binding upor
and inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner anc
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 follows:
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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 addres
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 sal
of the Project. As used in this Agreement, "Property Owner" shall be the owner of the re;
property which comprises the Project, except as to any real property for which residential permit
have been issued. Notwithstanding any provision of this Agreement to the contrary, upon writter
notice to the City pursuant to Paragraph 15 above, all obligations, benefits and responsibilitie:
of this agreement shall move to the new owner of the real property which comprises the Projeci
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CALIFORNIA ALL-PURPO @ ACKNOWLEDGMENT 0
State of Cal i forni a
I
County of LOS Anqeles
On September 5, 1995 before me, Toni 3. Smith, Notary Public ,
personally appeared Nilliam E. Boyajian and Courtney A. Walker
a ~~~~~~~~wTw- OR-Xproved to me on the basis of sat_isfactory evidence to be the person@
whose narne@@ubscribed to the within instrument
and acknowledged to me that
same in h&mer@uthori
eignatureQon
or the entity upon behalf o
executed the instrument.
WITNESS my hand and official seal.
OaIe Name and Ttte d 0fl1 (eg.. =lane Doe. Notary MiZ)
*.
Name(s) d SvWs)
c v OPTIONAL mh the information below is not required by law. it may prove valuable to pemns relying on the document and cxxdd prevent
fraudulent removal and reattachment of this form to another dowment.
Description of ARac$?V?P&~V~t~~, AND CONSENT TO CREATION OF A FACILITY IN-pA(
Title or Type of DoCLment:
Document Date:
Signer(s) Otherman Named Above: Claude A. Lewis , Mayor 9 Ronald R. Ball, City Attorn€
Capacity(ies) Claimed by Signer(s)
FEE PROGRAM AND AGREEflENT TO PAY FAIR SHARE COST OF CANNON RC
lEE- I -* j September 5, 1995 Number of Pages: lo pages
Signer's Name:
Cl Individual 0 individual
I3 Corporate Officer El Corporate Offcer
Ttle(s): VP/CFO
0 Partner - U Limited 0 General 0 Partner - 0 Limited 0 General
0 Attorney-in-Fact 0 Attorney-in-Fact
0 Guardian or-Conservator 0 Guardian or Consewator--"- - -~ .- -
Idilliam E. Boyajian Signer's Name: Courtney A. Maskevi.
L 7 -. -
~,l~(~): Pres1 dent
Signer Is Representing: Signer Is Representing:
0 1% Naliot%al Notary Assodatm - 8236 Remne4 Are.. P.O. Box 7184 -Camp Park CA91309-7184
~ ~"~"-"""""~-"~"""""""""~ ~ ~~
Pd. No. 5907 ReordecCalTdl-Fee1~
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* 17. The undersigned entity further states, under penalty of perjury, that it is thc
owner of the property described herein, or an authorized agent of the owner, and has thc
authority to sign this document including the creation of the covenants herein.
Executed this 5th day of September ,1995.
PROPERTY OWNER:
GEMOLOGICAL INSTITUTE OF AMERICA, INC., an Ohio Non-profit corporation
- BY"h!l 3 ci <L3t-,K%/J
(sign here) A++,>.
William E. Boyajian
(print name here)
Pres i dent
Gemol6gl car InBJZute OP Amgrlca, Inc tltla a d or a iz tion f si natory)
By: &&-X-J&G (sign e)
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 corporati0 must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind th corporation.)
APPROVED AS TO FORM:
RONALD R. BALL City Attorney
BY
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