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HomeMy WebLinkAboutNIA14005; Pacific Legacy Homes LLC; 2014-0139102; Neighborhood Improvement Agreement/ReleaseDOCtt 2014-0139 llllllllllllllllllllllllllilllll lllilliiillllll 02 RECORDING REQUESTED BY: CITY OF CARLSBAD WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 APR 08, 2014 4:58 PM OFFICIAL RECORDS SAN DIEGG COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 54.00 PAGES: 14 Space above this line for Recorder's use. CITY OF CARLSBAD NEIGHBORHOOD IMPROVEMENT AGREEMENT Permit No. Parcel No. NIA No. CB140059 207-083-12-00 NIA14005 THIS AGREEMENT (the "Agreement") is made this day of M^^r . 20\H_ by and between the City of Carlsbad, a municipal corporation (the "City"), and. Pacific Legacy Homes LLC, a California limited liability company (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 Perniit"). 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. J:\'14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHOOD IMPROVEMENT AGREEMENT_CB140059.doc 1 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 ofthe 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 ali 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 confinned 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 J:V14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHOO0 IMPROVEMENTAGREEMENT_CB140059.doc 01/25/13 2 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 othenwise provided for in this Agreement, the consents and approvals given by Owner shall be irrevocable. Section 3.02 Owner's Grant of a Proxv 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 forni 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 othenwise 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 Acf) (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; J:V14 BUILDING PLANCHECK\CB140059GRVNEIGHBORHOOD IMPROVEMENT AGREEMENT_CB140059.doc 3 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. 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 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. J:V14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHCOD IMPROVEMENT AGREEMENT_CB14a059 doc 01/25/13 4 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 ofthe 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. 5. The City would not agree to issue the Development Pemiit 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 Pennit 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 ofthis Agreement. Section 4.02 Waiver of Riqhts 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: J:V14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHOOD IMPROVEMENT AGREEMENT_CB140059.doc 01/25/13 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. 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. C. 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. 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 ofthe 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 J:V14 BUILDING PLANCHEGK\CB140059GR\NEIGHBORHOGD IMPROVEMENT AGREEMENT_CB140059.doc 6 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 Aqreement; 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: Pacific Legacy Homes 16870 W. Bernardo Dr., Suite 400 San Diego CA 92127 City: City of Carisbad Attn: City Manager 1200 Carlsbad Village Dr Carisbad 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 Assiqns. 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 ofthe 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. J:V14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHOOD IMPROVEMENT AGREEMENT_CB140059.doc 7 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 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.] J:V14 BUILDING PLANCHECK\CB140059GR\NEIGHBORHOOD IMPROVEMENT AGREEMENT_CB140059.doc 01/25/13 g [Signature Page] Signed by the Owner this e2/^^ day of Tehruo^ , 201^. OWNER: Pacific Legacy Homes LLC, a California limited^iabili^ CQmpar)// By: (Sign here) Michael D. Graham (Print name here) Owner (Title) By: (Sign here) (Print name here) Owner (Title) SEE ATTACHED FOR NOTARY CERTIFiCATE (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 empowering the officer(s) signing to bind the corporation.) CITY OF CARLSBAD, A municipal corporation of the State of California KEVIN CRAWFORD Interim CityManflger Citv Fnninnnr -CSS^ ' Xlity^gineer -^^^^^ APPROVED AS TO FORM CELIA BREWER City Attorney By:. RON KEMP Assistant City Attomey CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of Califomia County of ^gv^ ^'•'^^ O On s/m before me, Ceaek'a f€^Y\and>^Z., /O Q-U/y PuUlT^^ (Here insert name and title of the officer) personally appeared ^^3,^/1 6 (S'elc^-e^-V- , who proved to me on the basis of satisfactory evidence to be the person(s^ whose name(s) is/ape-subscribed to the within instrument and acknowledged to me that he/sbe/they executed the same in his/her/their authorized capacity(i^), 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 PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. CECELIA FERNANDEZ Commitsion # 199635S Notary PuUic-CiMOrnia San Diogo CowHy WITNESS my hand and official seal. Signature of Notary Public (Notary Seal) My Cornm. 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If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vI2.10.07 800-873-9865 www.NotaryClasses.com ACKNOWLEDGMENT ErrrcccrccccEccrEEcrEEricccccrcKc EECrEEEECEECEEECVEEEEEEKCECCOEECCEEEEEEl State of California County of San Diego \ ss. On Notary Public /-y yrc.t.o^ ZI — 2.01 V before me, ^.^k^ Atn-fh^^^ J3O/U<,. nally appeared />? /c^^t A A^.. who pr^edto me on the basis of satisfactory evidence to be the personfsfwhose n^me^(^^^ subscribed to the v^in instrument and acknowledged to me that x^l^ie/they executed the same in^^hjs/nerAheir authorized capacijy(i^ and that by ^_^p/ller/their signature5(s3^n the instrument the person(»)r^or the entity upon behalf of which the person^>facted, 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 hand and official seal. OFFICIAL SEAL { JOSHUA ANTHONY BOLLES * NOTARY PUBLIC-CAUFORNlAi COMM. NO. 2017060 ? SAN DIEGO COUNTY MY COMM. EXP. MARCH 31.2017 J (seal) EE«E«r»EEEErEICEEEECEEIKEIErEEEEEEElIEIEEr»!EEeEEE»eEEeEE«»»EEEEEE*EE«EE»EEI OPTIONAL INFORhHATION Date of Document Type or Title of Document Number of Pages in Document Document in a Foreign Language Thumbprint of Signer Type of Satisfactory Evidence: Personally Known with Paper identification Paper Identification Credible Witness(es) Capacity of Signer: Trustee Power of Attorney CEO/CFO/COO President / Vice-President / Secretary / Treasurer Other: [7\ Check here if no thumbprint or fingerprint Is available. Other Information: © 2008 Allstate Notary Preparation, lnc • (800) 689-8466 - wwir.allsfatenotaiy.com 3835 Exhibit A Legal Description Parcel 1: That portion of Lot 46 of Carlsbad Highlands No. 2 in flie City of Carlsbad, County of San Diego, State of Califomia, according to Map thereof No. 2825, filed in flie OfBce of flie County Recorder of said San Diego County, December 5, 1951, described as follows: Commencing at tiie Norfliwesterly comer of said lot 46; dience Soufli 32°4r20" East 83.50 feet to the beginning of a tangent curve concave Norttieasterly and having a radius of205.00 feet; thence Souflieasterly along fhe arc of said curve flirough a central angle of 4°20'05" a distance of 15.51 feet to the true point of beginning; tiience continuing Souflieasterly along the arc of said curve through a central angle of 15°56'20" a distance of57.03 feet to the Southerly line of said Lot 46; thence North 86°56'20" West along said Soutiierly line 100.59 feet to the Southwesterly comer of said Lot; tiience North 3°03*40" East along tiie Westerly line of said Lot a distance of 38.00 feet to an intersection with a line fliat bears Norfli 86°56'20" West from tiie True Point of Beginning; tiience South 86°56'20" East 58.31 feet oftiie Trae Point of Beginning Parcel 2; All of Lot 47 of Carlsbad Highlands No. 2 in tiie City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 2825, filed inthe Office oftiie County Recorder of San Diego County. EXCEPTING THEREFROM that portion included within tiie following described parcel: Beginning at the Norfliwesterly comer of said Lot 46 as shown on said Map No. 2825; tiience South 32°4r20" East 83.50 feet to a tangent 205 foot radius curve concave Norflieasterly; tiience Soutiieasterly along said curve 72.54 feet tiirough an angle of 20°16'25" to a point in the Southerly line of said Lot 46, said point being the True Pomt of Beginning; thence continuing Southeasterly along said curve 71.68 feet through an angle of 20°03'05" to a point of conqmund curvature concave Northeasterly having a radius of 280 feet; thence Souflieasterly along said curve 7.47 feet through an angle of 1°31 '45" to the Easterly line of said Lot 47; thence North 2°56'50" East along the Easterly line of said Lots, a distance of 87.78 feet to a point distant thereon North 2°56'S0" East 56.96 feet from the Southeasterly comer of said Lot 46; tiience South 43°32'52" West 78.39 feet to a point in tiie Southerly line of said Lot 46, distant thereon Soutii 86°56'20" East 118.98 feet from the Southwesterly comer of said Lot 46; tiience Nortii 86°56'20" West along said Southerly line 18.39 feet, more or less, to tiie Tme Point of Beginning. ForAPN/ParcelID(s): 207-083-12-00 10 EXHIBIT B DESCRIPTION OF THE IMPROVEMENTS SKYLINE ROAD ONE HALF STREET IMPROVEMENTS: PAVEMENT PREPARATION, BASE, PAVING, CLEAR AND GRUB, GRADING, CURB AND GUTTER, SIDEWALK, DRIVEWAY APPROACH, STREET LIGHT, FIRE HYDRANT, UNDERGROUND UTILITIES, DESIGN, CONTINGENCY, PLANCHECKING AND INSPECTION FEE. 11 EXHIBIT 0 THE ASSESSMENT Permit #: Date: Entered By: CB140059 February 18, 2014 LO Frontage :(LF) Drive Way Width:(LF) Sidewalk Width :(LF) 156 14 PAVING BASE SIDEWALK CURB & GUTTER PAVEMENT PREP. CLEAR & GRUB UNDERGROUND UTILITIES SEWER WATER FIRE HYDRANT STREET LIGHT DRIVEWAY APROACH SUBTOTAL DESIGN (15%) CONTINGENCY (20%) ASSESS. DISTRICT COST PLAN CHECK INSPECTION TOTAL Quantity Cost 2886 SF $5,051 3276 SF $2,293 710 SF $2,840 142 LF $2,840 2886 SF $1,443 4680 SF $1,638 156 LF $23,400 LF $0 LF $0 0.5 EA $2,080 0.5 EA $3,120 140 SF $980 $45,685 $6,853 $9,137 $2,500 $1,096 $548 $65,819 12