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HomeMy WebLinkAbout1995-11-07; City Council; 13368; Gemological Institute of AmericaCl-’ OF CARLSBAD - AGEt-‘A BILL +$ AB # /‘;3,368 TITLE: APPROVAL OF A MTG, 11-07-95 PRE-PAYMENT AGREEMENT FOR THE DEPT. ENG CANNON ROAD WEST FEE PROGRAM GEMOLOGICAL INSTITUTE OF AMERICA. SDP 94-08 RECOMMENDED ACTION: Adopt Resolution No. .9%-30? approving a Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program and Agreement to Pay Fair Share Cost of Cannon Road West with Gemological Institute of America, an Ohio non-profit corporation. ITEM EXPLANATION: The Gernological Institute of America is the owner/developer of the project for a vocational school located west of Armada Drive within the Carl&ad Ranch property CT 92-07. The conditions of approval for Site Development Plan SDP 94-08 require the owner/developer to pay the estimated prorata share and to enter into an agreement to pay their fair share of the construction of Cannon Road. Staff has been working with the property owners of Zone 8, 13,24 and Carl&ad Research Center Phase V which is in Zone 5 (Carl&ad Tract 85-24, Unit No. 5) to develop a facility fee program to insure the ultimate construction of this major circulation element road. A final report and documents are currently being prepared which will be presented for final adoption by the City council within the next several months. In order not to delay their development, the developer has requested that Council approve the consent and waiver agreement with prepayment of projected fees. Under conditions of the agreement, the developer will prepay the projected fee prior to final map approval and agree to pay any additional amount in the future should the fee exceed that currently projected in the preliminary estimates. This agreement is similar to agreements previously approved by the City Council for funding programs being developed for Alga Road and Poinsettia Lane and Ranch0 Santa Fe Road. Development within LFMP Zones 13 and 24 and Carl&ad Research Center Unit V has become quite active, which has lead to the acceleration of the Cannon Road West Fee Program. Several other developments within the area may seek similar pre-payment agreements in the near future. ENVIRONMENTAL: This action does not require environmental review. Page 2 of Agenda Bill No. ) 3,368 FISCAL IMPACT: The latest draft Engineer’s Report for the Cannon Road West Improvement Project recommends a fee of $73 per Average Daily Trip. The Gemological Institute of America (GIA) project is estimated to generate 2,322 ADT. The pm-payment fee for GIA is, therefore, $169,508. The agreement requires that upon establishment of the fee program, GIA will pay any difference if the fee is higher or receive a refund if the fee is lower than the currently estimated fee. 1. 2. Location Map. Resolution No. 95-309 , approving a Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program and Agreement to Pay Fair Share Cost of Cannon Road West (agreement attached as Exhibit A). 2 LOCATION MAP NOT TO SCALE PROJECT NAME PROJECT EXHIBIT GEMOLOGICAL INSTITUTE OF AMERICA $/;:& 1 4WN By: SCOTT EVANS, CARLSBAD ENGINEERING 3f=T. 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 RESOLUTION NO. 95-309 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CAUFORNIA, APPROVING A PRE-PAYMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND THE GEMOLOGICAL INSTITUTE OF AMERICA WHEREAS, condition 46 of Planning Commission Resolution 3725 approved December 7, 1994 has required that the applicant, the Gemological Institute of America, pay a pro-rata share of the cost of construction of Cannon Road prior to the issuance of the building permit. WHEREAS, the City Council of the City of Carl&ad has required that the funding of Cannon Road West (Project) must be guaranteed before any development takes place in the area bounded by Local Facilities Management Zone 13. WHEREAS, City staff is actively pursuing formation of a facility fee district to finance the * Project; and WHEREAS, although the Council anticipates the facility fee district will be formed in the near future, the Council is willing to consider alternative financing proposals during the period 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 Council finds that the formation of the fee district ls proceeding in a reasonable manner; and WHEREAS, the Council finds that the formation of the fee district is proceeding in a reasonable manner; and WHEREAS, the Council finds that the guarantee provisions related to the Project may be met through an Interim financing program using an agreement between certain property owners and the Clty whereby the property owner agrees to prepay his/her fair share of the costs associated with the Project; and 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 WHEREAS, the Council finds that the Gemological Institute of America, an Ohio non-profit corporation, may enter into the attached Agreement to Pay Fair Share (Exhibit A) in satisfaction of their obligation under the Project financing conditions. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the form of the PETITION, WAIVER, AND CONSENT TO CREATION OF A FACIUTY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE, Exhibit A attached hereto, is hereby approved. 3. That the Mayor is hereby authorized to enter into the agreement shown in Exhibit A with the Gemological Institute of America, an Ohio non-profit corporation. 4. That the City Clerk is hereby directed to transmit the executed agreement for recordation wlth copies to the City Engineer and Mr. Gary Hill, Gemologkzal Institute of America, 1660 Stewart Street, Santa Monica, California, PASSED, APPROVED AND ADOPTED at a regular meeting of the Carl&ad Cii Council 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 - gw3-r w RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: 1 City Clerk 1 CITY OF CARLSBAD 1200 Carlsbad Village Drive ! Carlsbad, CA 92008 1 1 SPACE ABOVE THIS LINE FOR RECORDER’S USE Parcel No. 21 l-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 within the City of Carlsbad (“City”) a development project known and identified as Gemological Institute 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 B. 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 West 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 new Development Impact Fee enacted pursuant to Government Code Section 66000 et seq, any combination thereof, or otherwise; and E. WHEREAS, Property Owner desires to proceed with processing of the Project prior 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 Plans 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 a financial guarantee for the construction of those improvements described in Paragraph 1 below; and K. WHEREAS, Property Owner voluntarily enters into this Agreement; and 2 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 meet 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 of the following improvements which are more specifically described as follows: l 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, median hardscape, streetlights, street monumentation, grading and excavation, storm drainage facilities, guardrails, two 485 foot 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 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 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. - 4. a) Property Owner agrees to pay to Cii its fair share for the improvements described in paragraph one (1) abc ve (“Deposit’), currently estimated to be $73 per average daily trip or $169,506 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 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 voluntary and that without this Agreement Property Owner would be precluded from obtaining building and other development pemtits under the provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code, applicable zone plan, financing pItins and related documents until a satisfactory financing program had been developed to fund the construction of the improvements described in Paragraph 1 above. 4 4 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 obligation 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 established 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 (Shortfall). b) Any refund shall be made from funds available through the collection 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. 5 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. charges. 9 The computation of the amount of any Shortfall shall not include interest g) If payment in full of the Shortfall is not made by Property Owner within 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 Shortfall payment due City. h) Any payment received by the City under this Agreement shall 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 6 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 pursuant to 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.~) and 4.d) 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 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. 11. 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 provisions 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 been 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 liabilities 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 follows: 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 Project. . - CALlFbRNlA ALL-PURPOSt ACKNOWLEDGMENT Stateof California Countyof Los Anseles . On September 5, 1995 oa before me, Toni J. Smith, Notary Public . tknemdT%edOBicu(e.a.:JM~.NOCUy~ personally appeared William E. Boyajian and Courtney A. Walker . Nm(r) d SW-Is) evidence to be the persona &scribed to the within im executed the instrument. . WITNESS my hand and official seal. OP77ONiL Description of Attac vw? ftfmm\ ER, AND COTiSENT TO CREATION OF A FACILITY IHPACT Tti,eorTypeofDoci;menvF~~ PROGRAM AND AGREE~~ENT ~0 PAY FAIR SHARE COST 0~ cAt4tdotd ROAD . I .* ) Document Date: September 5, 1995 Number of Pages: 10 pages Signer(s)Other-NamedAbove: Claude A. Lewis, Mayor, Ronald R. Ball, City Attorney Capacity(ies) Claimed by Signer(s) Signer’s Name: William E. Boyajian Signer’s Name: Courtney A. Wa&ker+. a = 0 Individual Cl Individual QCotpofateOffiir Tie(s): President 0 Partner-OLimited OGeneral I El CorporateOfficer Tie(s): "P/CFO 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 1 0 Attorney-in-fact 0 Trustee 0 Trustee 0 Guardian orConservator 0 Guardian or v-.-- - .- 0 Other: 0 Other: Signer Is Representing: Signer Is Representing: a1ll!44Nalcmmlyayy-hm-~Flemrml Ave.. P.O. Box 71M-anoga P*cA913007184 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. Executed this - 5th day of September ,19z. PROPERTY OWNER: GEMOLOGICAL INSTITUTE OF AMERICA, INC., an Ohio Non-profit corporation CITY OF CARLSBAD, a Municipal f the State of Cali By?-% ~12 fi -3 t .&,,..,2 (sign here) William E. Boyajian (print name here) President Gemol &!???dI%%?!$%!o%o f&@%?$ Inc By: &&.& x. ~!!Z&&- (sign l@e) Courtney A. Walker (print name here) Vice Presi dents/CFO (title and organization of signatory) Gemological Insi tute of America, Inc (Notarial acknowledgment of execution by PROPER?Y OWNER must be attached.) (President or vice-president and secretary Or aSSiStant Secretary must sign for corporation. If only one offiier signs, the corpor&on must attach a resolution certified by the secretary Or asslstant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney BY IO J November 17, 1995 Gregory J. Smith San Diego County Recorder Post Office Box 1750 San Diego, CA 92112-4147 Enclosed for recordation is the following described document: Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program and Agreement to Pay Fair Share Cost of Cannon Road West Also enclosed are instructions on how the City is to be billed for the recordation fees incurred. Thank you for your assistance in this matter. KRK:ijp Enclosures 1200 Carlsbad Village Drive - Carlsbad, California 92008-l 989 - (619) 434-2808 @