HomeMy WebLinkAboutCT 05-03; LINCOLN AND OAK LLC; 2011-0635764; Local Improvement District AgreementRECORDING REQUESTED BY:
City of Carlsbad
Development Services Department
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOCtt 2011;gG357G4
NOV 29, 2011 2:30 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
EmesU. Dronenburg, Jr., COUNTY RECORDER
FEES: 51.00
PAGES: 13
Space above this line for Recorder's use.
CITY OF CARLSBAD
LOCAL IMPROVEMENT DISTRICT AGREEMENT
CT 05-03/RP 04-11/CDP 04-30
203-260-14 and 15 '~~
Permit No.
Parcel No.
. THIS AGREEMENT (the "Agreement") is made this 1^^*^ day of
Onjc^20l\ by and between tfie City of Carlsbad, a municipal corporation (the "City"),
and Lincoln and Oak, LLC (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 ofthe 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.
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 as a condition of
approval of the Development Permit for certain building projects such as that
proposed by owner.
5. The Owner has requested that the City approve the Development Permit prior
the construction ofthe Improvements.
1 of 12 rev 9-9-2008
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 ofthe Improvements.
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 Lew
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.
2 of 12 rev 9-9-2008
Section 3.02
Owner's Grant of a Proxy to the Citv 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 of 12 rev 9-9-2008
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 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 ofthe 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 assessment, 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 of 12 rev 9-9-2008
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.
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.
B. 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 Riohts
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:
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.
B. 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.
5 of 12 rev 9-9-2008
Section 5. 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
Section 6. General Provisions.
Section 6.01
Conflict with Other Agreements or Requirements of the Citv. 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 Aareement: 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: Russell Bennett
Lincoln and Oak, LLC
P.O. Box 356
Solana Beach, CA 92075
6 of 12 rev 9-9-2008
City: 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 Assions. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto.
Section 6.06
Governino 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.
Section 6.09
Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original.
Section 6.10
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
7 of 12 rev 9-9-2008
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
Authoritv 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 ofthe Property.
[End of page. Next page is signature page.]
8 of 12 rev 9-9-2008
[Signature Page]
Signed by the Owner this day of ^(kc><k' 20 ti .
OWNERJ^oln and OalvtpC
By: ih/>IA44'W
'(Sign here.) ^
(Print name here)
(Title and organization of signatory)
By:
(Sign here.)
(Print name here)
(Title and organization of signatory)
(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. Othenwise, a corporation must attach a resolution certified
by the secretary or assistant secretary under corporate seal empowehng the officer(s) signing to
bind the corporation.)
CITY OF CARLSBAD,
A municipal corporation ofthe
State of California
LISA HILDABRAND
City Manager
By_,^
GLEhJN PRUIM, P.E. (^\^ |6. v^^^ ftskl, Pt.
Public Works Director
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:.
Deputy City Attorney j
REV 9-9-2008
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of
diirornia
Date
personally appeared
1
before me, Arthur P. Arquilla, Notary Public
Insert Name and Title of the Officer
Name{s) of Signer(3)
OFFICIAL SEAL
COMM. NO. 1872932 ^
Mv^A'i'DIEGO COUNTY
MY COMM. EXP. JAN 7.^14
Place Nota.-y Seai Accve
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(^;1^re subscribed to the
within instrument and acknowl^ged to me that
(^fie^e/they executed the same irt^ii^er/their authorized
capacity(ies), and that by'liis^er/their signature(s) on the
instrument the person(s7ror 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 my h
Signature
OPTIONAL
Though the information below is not required by law. it may prove valuable to persons ret^iog^ the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached 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:
nGHmajMBcnNT
Top of ttiumb here
Signer's Name:
• Individual
• Corporate Officer — Title(s):.
n Partner —• Limited • General
• Attorney in Fact
• Trustee
• Guardian or Conservator
• Other:
Signer Is Representing:
HGHTIHUMBPRlNr
!- : OFSIGNBl
Top of tt-.umb here
e2C07Naticral Notary Assccialicn- 9350 De Soto Ave . PO Box 2402 •Ctiatsworth, CA 91313-2'!02 •NationalNctar/org Item »590r Reorder Cal! Toil-Free 1-8C0-876-e327
LEGAL DESCRIPTION
EXHIBIT A
PARCEL A: APN 203-260-14
PARCEL 1 OF PARCEL MAP NO. 11077. IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY, MARCH 10, 1981.
PARCEL Al:
THE SOUTHERLY 10.00 FEET OF OAK AVENUE ADJOINING PARCEL 1 OF PARCEL MAP NO.
11077. IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNL\, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 10, 1981 AS
INSTRUMENT NO. 81-072875 OF OFFICIAL RECORDS, TOGETHER WITH THE EASTERLY
10.00 FEET OF LINCOLN FEET OF LINCOLN STREET ADJOINING SAID PARCEL 1 AND
PROLONGATING TO THE SOUTHERLY 10.00 FEET OF OAK AVENUE ADJOINING PARCEL 1
OF SAID MAP.
EXCEPTTNG THEREFROM THAT PORTION LYING WESTERLY OF A TANGENT 20.00 FOOT
RADIUS CURVE BETWEEN THE EASTERLY 10.00 FEET OF LINCOLN STREET AND THE
SOUTHERLY 10.00 FEET OF OAK AVENUE, AS VACATED. BY THE CITY OF CARLSBAD BY
DOCUMENT RECORDED FEBRUARY 25, 2003 AS INSTRUMENT NO. 2003-0210328 OF
OFFICIAL RECORDS.
PARCEL B: APN 203-260-15
PARCEL 2 OF PARCEL MAP NO. 11077. IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF FILED EST THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 10, 1981.
PARCEL Bl:
THE SOUTHERLY 10.00 FEET OF OAK AVENUE ADJOINING PARCEL 2 OF PARCEL MAP
NO. 11077. IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 10,
1981 AS INSTRUMENT NO. 81-072875. AS VACATED BY THE CITY OF CARLSBAD BY
DOCUMENT RECORDED FEBRUARY 25,2003 AS INSTRUMENT NO. 2003-0210328.
END OF LEGAL DESCRIPTION
EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
Relocate 160 linear feet of overhead utility lines and poles underground along the
project's Oak Avenue frontage.
REV 9-9-2008
EXHIBIT C
THE ASSESSMENT
IMPROVEMENT CALCULATION
SHEET
Permit #:
Date:
Entered By:
CT 05-13/RP 04-11/CDP 04-301 Frontage:(LF) 160
7/20/111 Drive Way Width:(LF)
David Rick Sidewalk Width:(LF)
PAVING
BASE
SIDEWALK
CURB & GUTTER
PAVEMENT PREP.
CLEAR & GRUB
UNDERGROUND UTL
SEWER
WATER
FIRE HYDRANT T
STREET LIGHT
DRIVEWAY APROACH
SUBTOTAL
DESIGN
CONTINGENCY (20%)
ASSESS. DISTRICT COST
PLAN CHECK
INSPECTION
TOTAL
Quantity Cost
0 SF $0
0 SF $0
0 SF $0
0 LF $0
0 SF $0
0 SF $0
160 LF $48,000
0 LF $0
0 LF $0
EA $0
EA $0
0 SF $0
$0
LS $0
$0
$31,390
$1,020
$1,200
$81,610
REV 9-9-2008