HomeMy WebLinkAboutCT 99-06; Palomar Forum Associates LP; 2005-0216788; Annexation - Street Lighting and Landscape DistrictI RECORDING REQUESTED BY
City Clerk
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attention: City Clerk
l.tP DOC # 2005-021 6788 I illllill Ill IIIII 11111 Ill11 IIIII 11111 111ll lllll111111llll1111111111111
MAR 16,2005 4:04 PM
OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE GREGORYJ SMITH, COUNTY RECORDER FEES 46 00
PAGES 14
AGREEMENT
REGARDING ANNEXATION
OF CERTAIN REAL PROPERTY TO
STREET LIGHTING 4ND LANDSCAPE DISTRICT NO. 2
OF THE CITY OF CARLSBAD
AND APPROVAL OF THE LEVY OF ASSESSMENTS
ON SUCH REAL PROPERTY
THIS AGREEMENT REGARDING ANNEXATION (the "Agreement"), dated as of
, 20*, is entered into by and between the City of Carlsbad (the "City"), a -+ munici a1 corporation, and the owner or owners listed in Exhibit A hereto and incorporated
herein by this reference of certain real property (the "Property") located within the City and
described in ExhibitB regarding the annexation of the Property to Street Lighting and Landscape
District No. 2 ("SLLD No. 29 of the City and approval of the levy of assessments on the
Properiy.
SECTION 1. Declaration and Certification of Owner.
The undersigned hereby declares and certifies that:
A. The undersigned is the Owner, or the representative of the Owner(s) who is legally
authorized to make the representations and grant the consents, waivers and approvals contained
herein and to execute this Agreement for and on behalf of the Owner, of the Property.
B. The Owner is aware of and understands that:
1. The City Council of the City of Carlsbad (the "City Council") has previously
formed SLLD No. 2 pursuant to the terms of the "Landscaping and Lighting Act of 1972"
(the "Act"), which is Division 15, Part 2 of the Streets and Highways Code of the State of
California. The purpose of SLLD No. 2 is to finance the costs and expenses of the
ongoing maintenance of street lights, street trees and/or medians (the "SLLD No. 2
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, Improvements") that specially benefit properties within SLLD No. 2 and the costs and
expenses of administering SLLD No. 2. These costs and expenses are financed through
the levy of assessments on properties within SLLD No. 2 which specially benefit from the
SLLD No. 2 Improvements.
2. The provisions of the Act authorize the City Council to undertake proceedings to
order the annexation of territory to SLLD No. 2. The proceedings to annex territory to
SLLD No. 2 generally include the adoption by the City Council of resolutions initiating
the annexation proceedings, ordering the preparation of a report described below and
declaring the intention of the City Council to annex the territory to SLLD No. 2 and
setting of a public hearing on the proposed annexation, the provision of notice of the time
and place of such public hearing, the opportunity for any interested person to be heard at
such public hearing and the right of majority protest to such annexation.
The report (the "Report") referred to above would contain (i) a description of the
general nature, location and extent of the SLLD No. 2 Improvements that specially
benefit the territory to be annexed, (ii) an estimate of the costs of the maintenance of the
SLLD No. 2 Improvements that specially benefit the territory to be annexed, including all
incidental expenses, (iii) a diagram showing the territory proposed to be annexed to
SLLD No. 2 and (iv) the net amount to be assessed upon the territory proposed to be
annexed to SLLD No. 2 in proportion to the estimated special benefits to be received
from the SLLD No. 2 Improvements by each lot or parcel within the territory proposed to
be annexed to SLLD No. 2.
The Act does, however, authorize the annexation of territory to SLLD No. 2
without preparation of a Report, the opportunity for notice and hearing and the right of
majority protest as would otherwise be required by the provisions of the Act if all of the
owners of property within the territory proposed to be annexed to SLLD No. 2 have given
written consent to the proposed annexation.
3. In addition to the provisions of the Act which apply to the annexation of territory
to SLLD No. 2, Section 4 of Article XIIID of the Constitution of the State of California
("Section 4") establishes certain procedural rights for the owners of property which may
be subject to the levy of assessments. Section 4 requires that:
(a) all assessments be supported by a detailed engineer's report prepared by a
registered professional engineer certified by the State of California;
(b) the record owner of each parcel proposed to be assessed shall be given
written notice by mail (the "Notice of Public Hearing") of the total amount
of the assessment chargeable within SLLD No. 2 including the territory to
be annexed, the amount chargeable to the owner's particular parcel, the
duration of the payments, the reason for the proposed assessment and the
basis upon which the amount of the proposed assessment was calculated,
together with the date, time and location of a public hearing on the
proposed assessment;
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the Notice of Public Hearing must also contain an assessment ballot
whereby the record owner of each parcel proposed to be assessed may
indicate his or her support for or opposition to the proposed assessment;
the City Council is required to conduct a public hearing upon the proposed
assessment not less than 45 days after the mailing of the Notice of Public
Hearing at which public hearing the City Council is required to consider
all protests against the proposed assessment; and
the City is prohibited from imposing a proposed assessment if there is a
majority protest which would exist if, upon the conclusion of the public
hearing, the assessment ballots submitted in opposition to the proposed
assessment exceed the ballots submitted in favor of the proposed
assessment with each assessment ballot weighted according to the
proportional financial obligation of the affected property.
4. The provisions of the California Elections Code (the "Elections Code") provide
that an assessment ballot proceeding to authorize the levy of an assessment may be
conducted by mail if such proceeding is held on one the following established mailed
ballot election dates (the "Established Mailed Ballot Election Dates"): (a) the first
Tuesday after the first Monday in May of each year; (b) the first Tuesday after the first
Monday in June of each even-numbered year and (c) the last Tuesday after the first
Monday in August of each year.
5. The City has conditioned the approval of certain land use entitlements for the
Property with a requirement that the Property be annexed to SLLD No. 2 (the "Condition
of Approval re Annexation") in order that the Property may be annually assessed to
finance (a) that portion of the annual costs of the maintenance of the SLLD No. 2
Improvements which represents the special benefit received by the Property from the
SLLD No. 2 Improvements and (b) the costs and expenses of administering SLLD No. 2
which are allocable to the Property based upon the Property's proportionate share of the
costs of the maintenance of the SLLD No. 2 Improvements.
6. The total amount of the assessment chargeable within SLLD No. 2 including the
Property, the duration of the payments, the reason for the proposed assessment and the
basis upon which the amount of the proposed assessment was calculated is set forth in
Exhibit C attached hereto and incorporated herein by this reference.
7. The City has determined that the maximum annual assessment (the "Proposed
Maximum Annual Assessment") set forth in the assessment ballot contained in Exhibit D
hereto (the "Assessment Ballot") which is incorporated herein by this reference reflects
the amounts described in 4(a) and (b) above and that the annexation of the Property to
SLLD No. 2 together with the authorization to levy the Proposed Maximum Annual
Assessment against the Property will satisfy the Condition of Approval re Annexation
described in Section 1 .B.4. above.
SECTION 2. Representations of the Owner.
The Owner represents that:
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A. 'Owner desires that the Property be annexed to SLLD No. 2 and that the Proposed
Maximum Annual Assessment be authorized to be levied against the Property as expeditiously as
possible in order to satisfy the Condition of Approval re Annexation.
B. In order to expeditiously satisfy the Condition of Approval re Annexation, Owner is
willing to and desires to waive certain statutory and constitutional rights which the Owner has or
may have under the Act, Section 4 andor the Elections Code.
C. Owner has had a reasonable opportunity to review this consent and waiver to annexation
and to consult with Ownerk attorney and any other advisors as Owner desires regarding the
matters contained in this consent and waiver.
D.
waiver have been given by Owner knowingly, intelligently and voluntarily.
Any and all consents, waivers and agreements by Owner contained in this consent and
SECTION 3. Acknowledgment of Owner.
The Owner acknowledges that:
A. Pursuant to the provisions of the Act, unless waived by the Owner, the annexation of the
Property to SLLD No. 2 would require the preparation of a Report as described in Section 1.B.2.
above and would also require that the City undertake the proceedings described in Section 1 .B.2.
above.
B. Pursuant to the provisions of Section 4, unless waived by the Owner, the levy of the
Proposed Annual Assessment against the Property would require that the City comply with the
procedural requirements set forth in Section 1 .B.3. above.
C. Pursuant to the provisions of the Elections Code, unless waived by the Owner, the
assessment ballot proceeding must be held on one of the Established Mailed Ballot Election
Date.
SECTION 4. Waiver and Agreement of Owner.
The Owner, for the Owner and the heirs, successors and assigns of the Owner, hereby
knowingly, intelligently, voluntarily and irrevocably waives:
A. Any and all of the procedural requirements as prescribed in the Act to the annexation of
the Property to SLLD No. 2 and hereby expressly consents to the annexation of the Property to
SLLD No. 2.
B. Any and all of the procedural requirements as prescribed in the Act, Section 1 .B.3. andor
the Elections Code applicable to the authorization to levy the Proposed Maximum Annual
Assessment against the Property and, by the execution of this consent and waiver and the
completion of the assessment ballot contained in Exhibit C hereto, hereby declares the Ownerk
support for, consent to and approval of the authorization to levy the Proposed Maximum Annual
Assessment against the Property. Owner also declares the Owner's support for, consent to and
4
-.
’ approval of the adjustment in the Proposed Annual Assessment for inflation pursuant to the
formula set forth in Exhibit C hereto.
D. Any protest, complaint or legal action of any nature whatsoever pertaining to the
annexation of the Property to SLLD No. 2 and/or to the levy of the Proposed Annual Assessment
against the Property.
SECTION 5. Acknowledgment of CiW.
City acknowledges that by execution of this Agreement, Owner shall have satisfied the
Condition of Approval re Annexation and City agrees not to prevent, delay or withhold any
approval necessary for the development of the Property by reason of the Condition of Approval
re Annexation.
SECTION 6. Conflict with Other Agreements.
Except as specifically provided herein, nothing contained herein shall be construed as
releasing Owner from any condition of development or requirement imposed by any other
agreement with City.
SECTION 7. 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 8. Entire Apreement; Amendment.
This Agreement and the agreements expressly referred to herein 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 9. 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: City of Carlsbad
5
1635 Faraday Avenue
Carlsbad, CA 92008
Attn: Finance Director
With a copy to: City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92009
Attn: City Attorney
Each party may change its address for delivery of notice by delivering written notice of such
change of address to the other party.
SECTION 10. Severability.
If any provision of this Agreement is held to be illegal or unenforceable by a court of
competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent
reasonably possible.
SECTION 11. Successors and Assims.
This Agreement shall be binding upon and inure to the benefit of the successors and
assigns of the parties hereto. Owner may not assign its rights or obligations hereunder except by
written assignment thereof and upon written notice to City within ten (10) days of the date of
such assignment indicating the name and address of the assignee. Upon such notice and the
assumption by the assignee of the rights, duties and obligations of the Owner arising under or
from this Agreement, Owner shall be released by City from all future duties or obligations rising
under or from this Agreement.
SECTION 12. 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 13. 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.
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' SEC,TION 14. Recitals: Exhibits.
Any recitals set forth above and any attached exhibits are incorporated by reference into
this Agreement.
SECTION 15. 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 16. Recordation.
This Agreement or a notice describing the existence of this Agreement may be recorded
by the City. The parties hereto agree to execute such documents as may be needed to give such
notice.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this
T'ype or print name of Owner or J
representative
8
STATE OF CALIFORNIA )
COUNTY OF 1
) ss.
onx&\\! 1:
in and for said state, p
personally known to me (
whose name is subscribed to the within instrument and acknowledged to me that he/she executed
the same in hisher authorized capacity, and that by hisher signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
K. TYSDAL
mmm. #lS1Q3fl B
ORANGECOUNTY My Comm. Explrcs Auiust 30.2005
0) NOTARY ?UBUC - CALIFORNIA p 3 a ' Notary'Public in and for said State
(SEAL)
9
Exhibit A
To
Agreement Regarding Annexation
Of Certain Real Property To
City of Carlsbad
Street Lighting and Landscape District No. 2
And Approval Of The Levy Of Assessments
On Such Real Property
Identification of the Owner and Description of the Property
The Owner of the Property is:
(Print or type the name of the Owner of the Property in the space provided above.)
The legal description of the Property is:
(Type or print the legal description of the Property in the space provided above.
Alternatively, a copy of the legal description may be attached to this Exhibit A.)
A- 1
LEGAL DESCRIPTION
LOTS 1,2,3,4,5,6,7,8,9 & 10 OF CARLSBAD TRACT NO. 99-06 IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO THE MAP THEREOF, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON JUNE 29,2004 AS DOCUMENT NO.
2004-0606953.
e
Exhibit B
To
Agreement Regarding Annexation
Of Certain Real Property To
City of Carlsbad
Street Lighting and Landscape District No. 2
And Approval Of The Levy Of Assessments
On Such Real Property
Description of the SLLD No. 2 Improvements that Specially Benefit the Property
TO BE COMPLETED BY THE CITY -
INSERTA DESCRIPTION OF THE SLLD NO. 2 IMPROVEMENTS
B-1
Exhibit C
To
Agreement Regarding Annexation
Of Certain Real Property To
City of Carlsbad
Street Lighting and Landscape District No. 2
And Approval Of The Levy Of Assessments
On Such Real Property
Assessment Calculation Information Sheet
1. Name of District: Street Lighting and Landscaping District No. 2.
2. The total maximum annual Assessment for the SLLD No. 2 for FY 20 - : $
3.
Assessment on your properties for FY 20 - is shown on the assessment ballot contained in
Exhibit D.
Proposed Maximum Annual Assessment for the Property: The proposed maximum
4. Duration of the Proposed Assessment: The proposed assessment for the maintenance of
the street lighting, median and street tree improvements will be levied annually. The maximum
annual maintenance assessment will be increased for cost of living each year according to the
change in Consumer Price Index (CPI) for the San Diego County area. (Any other increases or
changes to the methodology of the Assessment must be submitted for property owner approval.)
5.
Improvements described in Attachment B that specially benefit the Property.
Reason for the Assessment: To pay for the costs of maintenance of the SLLD No. 2
6. Calculation of the Assessment: All parcels within SLLD No. 2 that receive special benefit
from the SLLD No. 2 Improvements will be assessed in proportion to the special benefit they
receive. [Insert description of assessment calculation]
c-1
. .'
f.. Exhibit D
To
Agreement Regarding Annexation
Of Certain Real Property To
A Landscape Maintenance District
And Approval Of The Levy Of Assessments
On Such Real Property
Assessment Ballot
D-1