HomeMy WebLinkAbout; James Wallace Martin, Co-Trustee of The Martin Trust; 2024-0229204; Neighborhood Improvement Agreement/ReleaseRECORDING REQUESTED BY:
Land Development Engineering
CITY OF CARLSBAD
1635 Faraday Avenue
Carlsbad, CA 92008
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOC# 2024-0229204
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Aug 27, 2024 11 :24 AM
OFFICIAL RECORDS
JORDAN Z MARKS
SAN DIEGO COUNTY RECORDER
FEES $53 00 (S82 Atkins $0.00)
PAGES 14
Space above this line for Recorder's use.
CITY OF CARLSBAD
NEIGHBORHOOD IMPROVEMENT AGREEMENT
Permit No.
Parcel No.
NIA No.
CBR2023-3121
207 -07 4-03-00
EAGREE2024-0014
THIS AGREEMENT (the "Agreement") is made this 21st day of August 2024, by and
between the City of Carlsbad, a municipal corporation (the "City"), and, James Wallace
Martin and Ann Blanche Martin, as Co-Trustees of the Martin Trust, U/A dated September
15, 2021, as to their 32% interest, and Joshua D. Fernandes and Meghan K. Fernandes,
as Co-Trustees of The Fernandes Trust, U/A dated 12/29/2016, as to their 68% interest,
all as tenants in common. (the "Owner'').
RECITALS
1. Owner is the owner of real property located in the City of Carlsbad, California and
described in Exhibit 'A' attached hereto and incorporated herein by this reference (the
"Property").
2. Owner has applied to the City for issuance of the above identified permit to authorize the
development of the Property (the "Development Permit").
3. The City has determined that additional public improvements may be necessary in the
future in order to allow Owner to proceed with development and, therefore, the Property
would be suitable for development as requested by Owner if certain public improvements
as described in Exhibit B attached hereto and incorporated herein by this reference (the
"Improvements") are constructed.
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4. The Municipal Code of the City of Carlsbad requires the dedication of the necessary rights-
of-way for and the construction by Owner of the Improvements or an agreement for the
same for certain developments or building projects such as that proposed by owner.
5. The Owner has requested that the City approve the Development Permit prior to the
construction of the Improvements.
6. The City is willing to approve the Development Permit prior to the construction of the
Improvements as requested by the Owner if Owner approves of and consents to the
formation of an assessment district to include the Property for the purpose of financing the
construction of the Improvements.
7. For properties subject to the Alternative Streets Design process adopted by City Council
Resolution, no assessment district shall be formed until completion of the Alternative
Streets Design process.
NOW, THEREFORE, IT IS AGREED between the parties as follows:
Section 1. Recitals. The foregoing recitals are true and correct.
Section 2. City's Obligations. The City shall approve the Development Permit promptly
following the execution of this Agreement by the Owner and compliance with all applicable City
ordinances and other requirements.
Section 3. Owner's Obligations.
Section 3.01. Owner's Consent to and Approval of Formation of an Assessment District
and Levy of Assessments. In consideration for the approval of the Development Permit prior to
the completion of the construction of the Improvements, Owner hereby consents to and approves
of:
A. the inclusion of the Property in an assessment district which may be formed by the City Council
of the City for the purpose of financing the construction of the Improvements (the "Assessment
District");
B. the levy of an assessment against the Property (the "Assessment") in an amount not to exceed
the estimated cost of construction of the Improvements, together with the estimated incidental
costs of such construction and the estimated costs of formation of the Assessment District and
issuance of any bonds to be issued to represent the Assessment. The foregoing costs constituting
the Assessment are set forth in Exhibit C attached hereto and incorporated herein by this
reference. The Assessment shall be subject to adjustment for inflation from the date first written
hereinabove until the date the Assessment is confirmed and levied by the increase in the
Construction Cost Index for Los Angeles as contained in the Engineering News Record or, if the
Construction Cost Index for Los Angeles is no longer published, an equivalent index reasonably
selected by the City Engineer. In granting the consents and approvals set forth in this Section 3.,
Owner is acting for and on behalf of Owner, the Owner's successors, heirs, assigns, and/or
transferees and intends that such consents and approvals shall be binding upon each and every
such person.
Except as otherwise provided for in this Agreement, the consents and approvals given by
Owner shall be irrevocable.
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Section 3.02 Owner's Grant of a Proxy to the City for Assessment Ballot Procedure. Owner
hereby grants to the City a proxy to act for and on behalf of Owner, the Owner's successors, heirs,
assigns, and/or transferees for the limited purpose of completing and submitting an assessment
ballot in support of the levy of the Assessment in the proceedings to form the Assessment District.
In granting such proxy, Owner is acting for and on behalf of Owner, the Owner's
successors, heirs, assigns, and/or transferees and intends that such proxy shall be binding upon
each and every such person.
Except as otherwise provided for in this Agreement, the proxy granted by Owner shall be
irrevocable.
Section 4. Owner's Representations and Waiver of Rights.
Section 4.01 Owner's Representations. Owner hereby represents as follows:
A. Owner understands and acknowledges that:
1. Article XIIID of the Constitution of the State of California ("Article XIIID")
and the Proposition 218 Omnibus Implementation Act (Government Code Section
53750 and following) (the "Implementation Act") (Article XIIID and the
Implementation Act may be referred to collectively as the "Assessment Law")
establish certain procedures and requirements which apply when any agency such
as the City considers the levy of assessments upon real property.
2. The requirements established by the Assessment Law include the
following:
a. The proportionate special benefit derived by each parcel to be
assessed must be determined in relationship to the entirety of the capital
cost of the improvement for which the assessment is to be levied;
b. No assessment may be imposed on any parcel which exceeds the
reasonable cost of the proportional special benefit conferred on that parcel
from the improvement for which the assessment is to be levied;
c. Only special benefits are assessable; and
d. Parcels within an assessment district that are owned or used by any
agency, the State of California or the United States of America shall not be
exempt from assessment unless the agency proposing to levy the
assessment can demonstrate by clear and convincing evidence that those
publicly owned parcels in fact receive no special benefit from the
improvement for which the assessment is being levied.
3. The procedures established by the Assessment Law include:
a. The agency which proposes to levy an assessment (the "Agency")
shall identify all parcels which will have a special benefit conferred upon
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them from the improvement for which the assessment is proposed to be
levied and upon which an assessment is proposed to be imposed.
b. All assessments must be supported by a detailed engineer's report
prepared by a registered professional engineer certified by the State of
California.
c. Prior to levying a new assessment , the Agency must give written
notice by mail (the "Assessment Notice") to the record owner, i.e., the
owner of a parcel whose name and address appears on the last equalized
secured property tax roll, of each parcel proposed to be assessed. The
Assessment Notice must include: (i) the total amount of the proposed
assessment chargeable to the entire assessment district, (ii) the amount
chargeable to the record owner's parcel, (iii) the duration of the assessment
payments, (iv) the reason for the assessment, (v) the basis on which the
amount of the proposed assessment was calculated, and (vi) the date, time
and location of a public hearing on the proposed assessment.
d. The Assessment Notice must contain an assessment ballot that
includes a place where the person returning the assessment ballot may
indicate his or her name, a reasonable identification of the parcel, and his
or her support or opposition to the proposed assessment. The Assessment
Notice must also include, in a conspicuous place, a summary of the
procedures for the completion, return and tabulation of assessment ballots.
e. At the time, date and place stated in the Assessment Notice, the
Agency shall conduct a public hearing upon the proposed assessment. At
such public hearing, the Agency shall consider all objections or protests, if
any, to the proposed assessment. At such public hearing, any interested
person shall be permitted to present written or oral testimony.
f. At the conclusion of the public hearing, the Agency shall tabulate
the assessment ballots submitted, and not withdrawn, in support or
opposition to the proposed assessment. If there is a majority protest
against the imposition of a new assessments, the Agency may not impose
the assessment. A majority protest exists if the assessment ballots
submitted, and not withdrawn, in opposition to the proposed assessment
exceed the assessment ballots submitted, and not withdrawn, in favor of
the proposed assessment. In tabulating the assessment ballots, the
assessment ballots shall be weighted by the amount of the proposed
assessment to be imposed upon each parcel for which an assessment
ballot was submitted.
4. The description of the requirements and procedures established by and
contained in the Assessment Law set forth above are intended only to summarize
certain of such requirements and procedures.
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5. The City would not agree to issue the Development Permit prior to the
construction of the Improvements unless the City is assured that it will be legally
able to impose the Assessment on the Property. The assurance of the City's legal
ability to impose the Assessment on the Property is both a material inducement to
and a material consideration for the City to enter into this Agreement and agree to
issue the Development Permit prior to the construction of the Improvements.
8. Owner has had a reasonable opportunity to thoroughly read and review the
Assessment Law in its entirety and has further had a reasonable opportunity to
consult with Owner's attorney regarding the Assessment Law and the terms and
conditions of this Agreement.
Section 4.02 Waiver of Rights
A. In consideration of the approval by the City of the Development Permit prior to the
construction of the Improvements, Owner hereby waives Owner's rights under the
Assessment Law to:
B.
C.
Section 5.
1. object or protest the ordering by the City of the construction of the
Improvements and the imposition of the Assessment at such public hearing so long
as the amount of the Assessment does not exceed the amount set forth in Exhibit
C hereto adjusted for inflation pursuant to Section 3.01 B above;
2. submit an assessment ballot in support of or in opposition to the imposition
of the Assessment so long as the amount of the Assessment does not exceed the
amount set forth in Exhibit C hereto adjusted for inflation pursuant to Section 3.01 B
above; and
3. file or bring any protest, complaint or legal action of any nature whatsoever
challenging the validity of the proceedings to form the Assessment District and/or
the validity of the imposition of the Assessment on the Property.
In order that the City may be assured of its ability to legally impose the Assessment
on the Property and, therefore, be willing to enter into this Agreement and agree
to approve the Development Permit prior to the construction of the Improvements,
Owner represents and warrants that Owner has knowingly, intelligently and
voluntarily waived for and on behalf of Owner, Owner's successors, heirs, assigns
and/or transferees, each and every one of the rights specified in Section 4.02A
above.
For properties subject to the Alternative Streets Design process adopted by City
Council Resolution, nothing in this waiver of rights section is intended to waive the
owner's ability to participate in the Alternative Streets Design process.
Alternative Satisfaction of Owner's Obligations
Owner's obligations under Section 3 above may be satisfied by paying the amount set
forth in Exhibit "C" adjusted for inflation at any time prior to the formation of the assessment in
which case a release of this Agreement shall be recorded in the office of the San Diego County
Recorder.
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Section 6. General Provisions.
Section 6.01 Conflict with Other Agreements or Requirements of the City. Except as
specifically provided in this Agreement, nothing contained herein shall be construed as releasing
Owner from any condition of development of the Property or requirement imposed by any other
agreement with or requirement of the City.
Section 6.02 General Standard of Reasonableness. Any provision of this Agreement
which requires the consent, approval, discretion or acceptance of any party hereto or any of their
respective employees, officers or agents shall be deemed to require that such consent, approval
or acceptance not be unreasonably withheld or delayed, unless such provision expressly
incorporates a different standard.
Section 6.03 Entire Agreement: Amendment. This Agreement contains all of the
agreements of the parties hereto with respect to the matters contained herein and no prior or
contemporaneous agreement or understandings, oral or written, pertaining to any such matters
shall be effective for any purpose. No provision of this Agreement may be modified, waiver,
amended or added to except by a writing signed by the party against which the enforcement
of such modification, waiver, amendment or addition is or may be sought.
Section 6.04 Notices. Any notice, payment or instrument required or permitted by this
Agreement to be given or delivered to either party shall be deemed to have been received when
personally delivered or seventy-two (72) hours following deposit of the same in any United States
Post Office in California, registered or certified, postage prepaid, addressed as follows:
Owner:
City:
Joshua Fernandes
4065 Sunnyhill Dr
Carlsbad CA 92008
City of Carlsbad
Attn: City Manager
1200 Carlsbad Village Dr
Carlsbad CA 92008
Each party may change its address for delivery of notice by delivering written notice of such
change of address to the other party.
Section 6.05 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
Section 6.06 Governing Law. This Agreement and any dispute arising hereunder shall be
governed by and interpreted in accordance with the laws of the State of California.
Section 6.07 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by any other party, or the failure by a party to exercise its rights
under the default of any other party, shall not constitute a waiver of such party's right to insist and
demand strict compliance by any other party with the terms of this Agreement thereafter.
Section 6.08 Singular and Plural: Gender. As used herein, the singular of any work
includes the plural, and terms in the masculine gender shall include the feminine.
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Section 6.09 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
Section 6.1 O Construction of Agreement. This Agreement has been reviewed by legal
counsel for both the City and the Owner and shall be deemed for all purposes to have been jointly
drafted by the City and the Owner. No presumption or rule that ambiguities shall be construed
against the drafting party shall apply to the interpretation or enforcement of this Agreement. The
language in all parts of this Agreement, in all cases, shall be construed as a whole and in
accordance with its fair meaning and not strictly for or against any party and consistent with the
provisions hereof, in order to achieve the objectives of the parties hereunder. The captions of the
sections and subsections of this Agreement are for convenience only and shall not be considered
or referred to in resolving questions of construction.
Section 6.11 Recitals: Exhibits. Any recitals set forth above and any attached exhibits are
incorporated by reference into this Agreement.
Section 6.12 Authority of Signatories. Each signatory and party hereto hereby represents
and warrants to the other party that it has legal authority and capacity and direction from its
principal to enter into this Agreement, and that all resolutions and/or other actions have been
taken so as to enable such party to enter into this Agreement.
Section 7. Covenant Running with the Land. The parties hereto intend that the burdens and
obligations of the Owner under Section 3 above constitute a covenant running with the land and
that such covenant shall be binding upon all transferees of the Property.
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[Signature Page]
Signed by the Owner this--~...;..__ day of Jv\ Y) I 20 2L{ •
OWNER: James Wallace Martin and Ann Blanche Martin, as Co-Trustees of the Martin Trust, U/A
dated September 15, 2021, as to their 32% interest, and Joshua D. Fernandes and Meghan K.
Fernandes, as Co-Trustees of The Fernandes Trust, U/A dated 12/29/2016, as to their 68%
interest, all as tenants in common.
By~/~~~
~ignhere)
By:
Sta
James Wallace Martin
(Print name here)
~~gnhere)
Ann Blanche Martin
(Print name here)
BAD,
ration of the
S. GELDERT, P.E.
Engineering Manager
APPROVED AS TO FORM:
CINDIE MCMAHON
City Attor.ney
(Proper notary acknowledgement of execution by Owner must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must
sign for corporations. Otherwise, a corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.)
01/25/13
[Signature Page)
Signed by the Owner this_'? __ day of _ _,,;f.,__v.-....:.l ..... '1-----'' 20 2 ':f
OWNER: James Wallace Martin and Ann Blanche Martin, as Co-Trustees of the Martin Trust, U/A
dated September 15, 2021, as to their 32% interest, and Joshua D. Fernandes and Meghan K.
Fernandes, as Co-Trustees of The Fernandes Trust, U/A dated 12/29/2016, as to their 68%
interest, all as tenants in common.
By i:J.~-/7 ~~here)
Joshua D. Fernandes
(Print name here)
By:
Meghan K. Fernandes
(Print name here)
(Title)
CITY OF c;ARLSBAD,
A rl'lunicipc:ll cprporation of the
State ofl ~f(i~. o!t~-t ! ~ I I•
By: _____ .:;__ ___ _
JAS S. GELDERT, P.E.
Engineering Manager
APPROVED AS TO FORM:
(Proper notary acknowledgement of execution by Owner must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must
sign for corporations. Otherwise, a corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.)
01125/13
CALIFORNIA ACKNOWLEDGMENT
••-••10110:t:•Mll•urMllnnn•n•nn...,.unnnnnxRRMK
CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document
to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
who proved to me on the bc1sls of satisfactory evidence e the person(s) whose name(s) ls/are subscribed
to the within Instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s). or the entity
upon behalf of which the person(s) acted, executed the instrument.
Place Notary Seal and/or Stamp Above
I certify under PENAL TY OF PERJURY under the
laws of the State of California that the foregoing
pamgraph is true and correct.
WITNESS my hand and official seal.
Signature
OPTIONAL
Completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: ___________________________ _
Document Date: _______ .,
Slgner(s) Other Than Named Above: __
Capacity(ies) Claimed by Signer(s)
Signer's Name: _______________ _
, □ Corporate Officer -Title(s): __ _
1 □ Partner -□ Limited □ General
□ Individual □ Attorney in Fact
□ Trustee □ Guardian or Conservator
□ Other:
Signer is Representing: _________ _
,t,2019 National Notary Association
_________ Numberof Pages: __ _
Signer's Name: _______________ _
□ Corpornte Officer -Title(s): _ _
□ Partner -□ Limited □ General
□ Individual □ Attorney in Fact
□ Trustee □ Guardian or Conservator
□ Other:
Signer is Representing: _________ _
----------·---"" -------·-· ·-----"
01125/13
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of SAN DIEGO
On August 21, 2024 before me, AMBER DAN, NOTARY PUBLIC
(insert name and title of the officer)
personally appeared _J_a_s_o_n_S_._G_e_l_d_ert ____________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature.~~ (Seal)
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN CARLSBAD, IN THE COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
That Portion of Lot "I" of Rancho Agua Hedionda, in the City of Carlsbad, County of San Diego, State
of California, according to Map thereof No. 823, filed in the Office of the County recorder of San
Diego County.
Beginning at a point on the Westerly line of Sunnyhill Drive, as said Sunnyhill Drive is delineated and
designated on Map of Carlsbad Highlands Map No. 2647, filed in the office of the County recorder
of San Diego County, April 18, 1950, distant thereon South 08°49'00" East, 178.33 feet from the
Southeasterly comer of Lot 35 of said Carlsbad Highlands; thence along said Westerly line of
Sunnyhill Drive, South 08°49'00" East, 39.65 feet to the beginning of a tangent 2030.00 foot radius
curve, concave Northeasterly and Southeasterly along the arc of said curve, through a central angle
of 01°05'31" a distance of 38.69 feet; thence South 80°05'29" West,191.90 feet; thence North
08°49'00" West, 81.99 feel; thence North 81 ° 11 '00" East, 191.50 feet to the point of beginning.
For APN/Parcel ID(s): 207-074-03-00 and more commonly known as 4065 Sunnyhill Drive, Carlsbad,
CA 92008.
01125/13
EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
One half street improvements including but not limited to pavement preparation,
sidewalks, curb and gutter, clear & grub, grading, fire hydrants, street light, driveway
approach, relocation of utilities.
01/25/13
Permit#:
Date:
Entered By:
PAVING
BASE
SIDEWALK
CURB & GUTTER
PAVEMENT PREP.
CLEAR & GRUB ~
UNDERGROUND U1.
SEWER r
WATER r;;
FIRE HYDRANT r;;
STREET LIGHT
DRIVEWAY APROACH
SUBTOTAL
DESIGN (15%)
CONTINGENCY (20%)
ASSESS. DISTRICT COST
PLAN CHECK
INSPECTION
TOTAL
I
I
I
EXHIBIT C
THE ASSESSMENT
EAGREE2024-0014 I Frontage:(LF) I 78.34
June 13, 2024 I Drive Way Width:(LF) I 16
CG I Sidewalk Width:(LF) I 5
Quantity Cost
1449.29 SF $2,536
1645.14 SF $1,152
311.7 SF $1,247
62.34 LF $1,247
1449.29 SF $725
2350.2 SF $823
78.34 LF $11,751
LF $0
LF $0
EA $0
EA $0
160 SF $1,120
$20,600
$3,090
$4,120
$2,500
$494
$247
$31,051
01/25/13