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HomeMy WebLinkAboutSDP 05-14; Wave Crest Oceanfront LLC; 2012-0791291; Agreement to Pay Fees for Growth Mgmt/ReleaseDOC Hill 2012-079 iiiiiiiiniiiiiiiii 291 lllllllllllll RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 DEC17,2012 9:49 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 2.00 PAGES: SPACE ABOVE THIS LINE FOR RECORDER'S USE ASSESSOR'S PARCEL NO.: 214-160-37; 214-590-04 PROJECT NO. & NAlVIE: SDP 05-15, RP 05-11 Hilton Carlsbad Beach Resort AGREEMENT TO PAY FAIR SHARE COST OF IIVIPROVEMENTS TO THE LA COSTA AVENUEA^ULCAN AVENUE INTERSECTION, THE LA COSTA AVENUE/RAILROAD BRIDGE CROSSING, THE LA COSTA AVENUE/COAST HIGHWAY 101 INTERSECTION AND ASSOCIATED STREET WIDENING LOCATED WITHIN THE CITY OF ENCINITAS ("AGREEMENT") RECITALS A. WHEREAS, Wave Crest Oceanfront LLC ("Property Owner/Developer") is processing a development within the City of Carlsbad ("City"), which development project is known and identified as the Hilton Carlsbad Beach Resort, SDP 05-15, RP 05- 11 ("Project"), located within real property owned by Property Owner; the legal description of said real property is attached hereto as Exhibit "A" ("Property") and is incorporated herein by reference; and, B. WHEREAS, the City has determined Project to be located within the boundaries of a proposed land use plan known as the Ponto Beachfront Village Vision Plan ("Ponto Plan"); and, C. WHEREAS, the Carlsbad City Council, on December 4, 2007, adopted its Resolution No. 2007-303, certifying Final EIR 05-05 ("FEIR 05-5"), for the Ponto Plan; and, D. WHEREAS, the FEIR 05-05 concluded the Ponto Plan impacts two intersections within the boundaries of the City of Encinitas ("Encinitas") and the 10 1 mitigation for said impacts is the payment of a fair share contribution ("Fair Share") by developers within the Ponto Plan area to fund improvements to the La Costa AvenueA/ulcan Avenue intersection, the La Costa Avenue/Railroad bridge crossing, the La Costa Avenue/Coast Highway 101 intersection and associated street widening ("Improvements"), as more specifically described in the FEIR 05=-5 Appendix G-2; and, E. WHEREAS, Encinitas subsequently litigated the adequacy of FEIR 05-05 and on December 1, 2008 the City and Encinitas reached a Settlement Agreement ("Settlement Agreement") regarding the appropriate Fair Share by the property owners who develop within the Ponto Plan area ("Property Owner/Developers") to mitigate traffic impacts within Encinitas; and, F. WHEREAS, Condition Number 33 of redevelopment permit RP 05-11 approved for the Project, pursuant to Planning Commission Resolution No. 6555 and Housing and Redevelopment Commission Resolution No 474, and Condition Number 33 of site development plan SDP 05-14 approved for the Project, pursuant to Planning Commission Resolution No. 6555, requires the Property Owner/Developer to pay a Fair Share, or submit an irrevocable instrument of credit, for the cost of the Improvements; and, G. WHEREAS, City and the Property Owner/Developer desire to agree to a guarantee which ensures the Property Owner/Developer's Fair Share to fund the Improvements that will allow the Property Owner/Developer to obtain a building permit for the Project; and. H. WHEREAS, Upon entering into this Agreement, Property Owner/Developer has met the requirement set forth in RP 05-11 Condition Number 33 and SDP 05-14 Condition Number 33 for the Project; and, NOW, THEREFORE, the undersigned Property Owner/Developer hereby agrees as follows: 1. Improvements. The Property Owner/Developer's Fair Share shall be used to fund the improvements, per Settlement Agreement ("Improvements"), which are generally described as follows: a) La Costa Avenue with Vulcan Avenue intersection and intersection approaches b) La Costa Avenue with Coast Hiqhwav 101 intersection and intersection approaches c) Widening and/or replacement of the La Costa Avenue bridge over the North Countv Transit District railroad tracks 2. Total Cost. Per Settlement Agreement, the estimated total cost of the Improvements including engineering design, right-of-way acquisitions, environmental mitigation, construction, and contract administration is $7,352,505 (in 2008 dollars). As of the January 2011 ENR Construction Cost Index, the adjusted total cost of the Improvements is $8,006,522.16. 3. Fair Share Contribution. a) The Property Owner/Developer agrees to pay City the estimated Fair Share costs for the Improvements listed in Section 1. The Property Owner/Developer's Fair Share, as defined in this Agreement, shall be a figure based on the amount of traffic generated by the development projects within the Ponto Plan area and the actual cost of those Improvements. The amount of Property Owner/Developer's Fair Share will be conclusively determined by the City Engineer in the manner described herein. b) The aggregate Fair Share contribution from all the Ponto Plan area Property Owner/Developers is fifty percent (50%) of the cost to design and construct the Improvements. c) The Fair Share contribution for each separate Property Owner/Developer in the Ponto Plan area shall be determined based upon the ratio of the respective traffic generation resulting from a particular development to the overall traffic generation resulting from the aggregate development of all the properties which are within the scope of FEIR 05-05 and located within the Ponto Plan area times the fifty percent (50%) share of the cost of the Improvements. d) The City's current estimate of the Property Owner/Developer's Fair Share cost is $567,707.36 based upon the following calculation: Project's 2,150 Average Daily Traffic ("ADT") generation divided by the total traffic generated by the Ponto Plan, per FEIR 05-05 traffic projections, 15,161 ADT, times 50%. e) The Property Owner/Developer shall pay the estimated fair share contribution, or submit an irrevocable instrument of credit in a form acceptable to the Finance Director and City Attorney from one or more financial institutions regulated by the state and/or federal government and approved by the Finance Director and City Attorney, prior to building permit issuance. f) City will retain the Property Owner/Developer's Fair Share payment, or irrevocable instrument of credit, until Encinitas is required to collect said contributions. Pursuant to the Settlement Agreement, Encinitas will collect such Property Owner/Developers" Fair Share when Encinitas also has raised all or a portion of its 50% share of the Improvements cost, such that some or all of the funds are available to commence one or more components of the "soft" (e.g., engineering, design, permitting, environmental, preconstruction, etc.) and "hard" (e.g., construction, right-of-way acquisition, etc.) cost work in connection with the Improvements. g) . If Property Owner/Developer submitted an irrevocable instrument of credit in lieu of payment prior to building permit, when Encinitas requests the funds from the Project's Fair Share, the Property Owner/Developer shall pay the estimated Fair Share contribution. The requested amount may be for the full Fair Share contribution or a portion thereof. h) When another development within the Ponto Plan area is processed for construction, however long that period of time might be, prior to the issuance of building permits for such new Ponto Plan area development, an adjustment shall be made to the Fair Share contribution amounts as follows: the cumulative traffic generated by the Ponto Plan shall be revised to reflect the actual ADT the new development generates, and the estimated cost of the Improvements shall be adjusted per the current ENR Construction Cost Index. i) Property Owner/Developer's's Fair Share contribution shall be adjusted, up or down, based upon a revision to the costs to construct Improvements or a revision to the amount of traffic generated by the overall traffic generation resulting from the aggregate development of all the properties located within the Ponto Plan area. j) Based on the adjustment per i) above, if the Property Owner/Developer's Fair Share contribution increases by $100,000 or more, the Property Owner/Developer shall, within ninety (90) days of notice, pay the difference of the original Fair Share payment and the revised estimated Fair Share contribution, or submit, an adjustment to any irrevocable instrument of credit posted. If the Property Owner/Developer's Fair Share contribution decreases by $100,000 or more, the City shall refund any excess contribution of the Property Owner/Developer's Fair Share. No interest accrued shall be refunded until completion of construction of the Improvements. k) Upon completion of the Improvements, and recording of the Notice of Completion, the City Engineer shall coordinate with Encinitas to determine the total cost of the Improvements (Costs). The City shall determine the total amount of Property Owner/Developers' contributions including interest earned on the funds. The City shall make a final adjustment to the Fair Share contribution amounts from the Ponto Area Property Owner/Developers. The City shall then compare the amount of Costs and Property Owner/Developers' contributions. If excess contributions, including accrued interest, exist, the City shall refund the excess contribution to Property Owner/Developer. If there is a shortfall in the Property Owner's Fair Share contribution, the Property Owner/Developer shall pay the balance of the required contribution. 4. Voluntarv Participation. a) Property Owner/Developer acknowledges that this Agreement to pay its Fair Share and thereby participate in the financing of traffic Improvements is required by Condition Number 33 of redevelopment permit RP 05-11 and Condition Number 33 of site development plan SDP 05-14, and that without this Agreement, which satisfies the mitigation requirements of EIR 05-05, the Property Owner/Developer would be precluded from obtaining final map approvals and other development and building permits. b) Property Owner/Developer hereby waives its right to challenge the amount, establishment or imposition of said Fair Share and further waive any rights to pay said Fair Share under protest. c) Property Owner/Developer agrees that payment of its Fair Share is not a fee and waives any and all rights to notice of or challenges to the establishment or Imposition of said fair share as a fee under provisions of Government Code section 66000 et seg.. or any successor or related statutes. d) Any payment received by the City under this Agreement shall be deposited in a special interest bearing fund and may only be used to fund the construction of the Improvements. Interest accrued on the Property Owner/Developer's contribution shall be credited towards the Owner/Developer's Fair Share or refunded to the Owner/Developer only upon final accounting when all of the traffic mitigation Improvements are completed. 5. Other Fees and Assessments. This Agreement does not waive, in any way whatsoever, the obligation of the Property Owner/Developer to pay any fees or assessments associated with the Property Owner/Developer's development, nor does this Agreement relieve the Property Owner/Developer from providing other public facilities required under conditions placed upon the Project by the City. 6. Scheduling of Improvements. Pursuant to the Settlement Agreement, Encinitas has prepared, in concurrence with the City, a preliminary schedule for the Improvements, which may be revised periodically Design and construction work on the Improvements shall be triggered when either of the subject intersections reaches Level of Service E, subject to the availability of funding. 7. Compliance with Applicable Law. This Agreement does not require the City to issue development permits or other grant approvals or building permits, or relieve the Property Owner/Developer 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. 8. Disputes. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not othenA/ise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement, shall be reduced to writing by the Property Owner/Developer. A copy of such documented dispute shall be fonA/arded to the City's Community & Economic Development Director who shall recommend a resolution in writing. If the recommended resolution is unsatisfactory to the Property Owner/Developer, the Property Owner/Developer may appeal, within ten (10) days of its receipt, the Community & Economic Development Director's decision to the City Council. In such cases, the action of the City Council shall be final. 9. Covenants. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of the Property Owner/Developer and the City, and run with the land and create an equitable servitude upon the Property. The City may, at its discretion, elect to pursue any remedy, legal or equitable against the Property Owner/Developer or its successors, heirs, assigns, and transferees, to secure compliance with this Agreement. 10. Liabilitv. The City shall not, nor shall any officer or employee of the City, be liable or responsible for any loss or damage incurred by the Property Owner/Developer or any successor or assign of Property Owner/Developer, or by any occupant in Project, as a result of the exercise of any remedies provided to the City in this Agreement. The Property Owner/Developer agrees to indemnify the City for any liabilities incurred by the City, including attorneys' fees, as a result of the City's exercise of these remedies. 11. Notifications. 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 shall be presumed to have been made on the date of delivery or three (3) days after the date of mailing regardless of receipt. Notices required to be given to the Property Owner shall be addressed as follows: Wave Crest Oceanfront LLC 829 Second Street, Suite A Encinitas, CA 92024 Telephone No.: (760) 753-2440 E-mail Address: wcresort@pacbell.net Notices to City shall be delivered to the following: City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Telephone No.: (760) 602-2740 Facsimile No.: (760)602-1052 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. 12. Other Provisions. a) This agreement will be recorded on title to the Property and will act as a lien in the priority in which it was recorded. The lien shall be reconveyed when the Improvements are completed and the Fair Share as provided for in Section 3 of this Agreement has been paid. b) Performance by the Property Owner/Developer of this Agreement shall not be construed to vest Property Owner/Developer's right with respect to any change in zoning or building law or ordinance. c) The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. d) All headings are for convenience of reference only and shall be disregarded in interpreting this Agreement. e) This Agreement shall be interpreted and enforced under the laws of the State of California and the parties agree and hereby stipulate that the proper venue and jurisdiction for resolution of any disputes arising out of this agreement is San Diego County, California. f) The undersigned entity further states, under penalty of perjury, that it is the Property Owner/Developer of the property described herein, or an authorized agent of the Property Owner, and has the authority to sign this document and bind the Property Owner/Developer to the covenants herein. It Executed this // day of /)^c^-^ i^^ 20iV PROPERTY OWNER/DEVELOPER: WAVE CREST OCEANFRONT LLC, A California limited liability company By: WAVE CREST RESORTS II LLC, a California limited liability company By: THREE SEAS ENTERPRISES, INC., a California corporation Sign here William L. Canepa. President Name and Title of Signatory (Attach Notarial Acknowledgements) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of uounty or ^isuu~^ A^X^^^ On 12^/})/)'^ before me, / / // personally appeared (^Jl_J ) /J) } Arthur P. Arquilla, Notary Public Here Insert Name and Title of the Officer Name(s) of Sigiler(s) 1 OFFICIAL SEAL ARTHUR P. ARQUILLA^ .NOTARY PUBUC-CALlFORNlAg ' COMM. NO. 1872932 ^ SAN DIEGO COUNTY,^ | MY COMM. EXP. JAN. 7,2014 | who proved to me on the basis of s^sfactory evidence to be the person(s) whose name(^jri^)e subscribed to the wilhin instrument and acknowledged to me that ^jieAhey executed the same/n hls^r/their authorized )acity(ies), and that l:^^^^i^eW[§ifsignature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Place Notary Seal Above Signature OPTIONAL Though the information below is not required by law, it may prove valuable to persohsjslyipg^n the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attaclied Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer —Title{s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thunnb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Bex 2402 'Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder. Call Toll-Free 1-800-876-6827 Q:\CED\LandDev\MASTERS\Deeds, Grants, Easements\Grant Deed of Easement City, revised 4-15-10.doc REV 4/15/10 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Parcel 1 of Parcel Map No. 20899, recorded in the City of Carlsbad, County of San Diego, State of California, as document no. 2011-351449 on July 12, 2011