HomeMy WebLinkAboutCT 05-01; Lagoon Breeze Development Corporation; 2008-0184718; Neighborhood Improvement Agreement/Release,14?
5765
RECORDING REQUESTED BY:
I f
Department of Public Works
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# 2008-0184718
APR 08, 2008 1:10PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 48.00
PAGES:14
Space above this line for Recorder's use.
CITY OF CARLSBAD
NEIGHBORHOOD IMPROVEMENT AGREEMENT
Permit No.
Parcel No.
NIA No.
CT 05-01
206-080-25
NIA 07011
THIS AGREEMENT (the "Agreement") is made this day of
, 200? by and between the City of Carlsbad, a municipal corporation (the "City"),
and Lagoon Breeze Development corporation, a California corporation (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 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 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. No assessment district shall be formed until completion of the Alternative Streets
Design process adopted by resolution of the City Council.
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
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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.
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;
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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 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.
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5769
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.
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 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:
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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 3.01B 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 3.01B 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. Nothing in this waiver of rights section is intended to waive the owner's
ability to participate in 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 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.
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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: Lagoon Breeze Development Corporation
7237 Sanderling Ct
Carlsbad CA 92011
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 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.
Section 6.09 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original.
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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 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.
[End of page. Next page is signature page.]
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5773
[Signature Page]
Signed by the Owner this /0 day of U?<*&rttC4 2C#X
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(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. 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.)
CITY OF CARLSBAD,
A municipal corporation of the
State of California
RAYMOND R. PATCHETT
City Manager
By:_
GLENN PRUIM, P.E.
Public Works Director P^/vry
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:_
Deputy City Attorn
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
5774
State of California A
County of V^L/O jLJ/\-.o . 1-<3 & 1 /I ^n
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Date / /
personally appeared cA^\(/^7
— IDti BEMIAMM BEARD
J^Tfik Commission #1591 960
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to be the person(s) whose name(s) is/are
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acknowledged to me that he/she/they executed
the same in his/her/their authorized
( signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, execut^a the instrument. >•
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WITNESSMny hand and official se^T /^J
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Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
! 1 /tDescription of Attached Document / / / j/ _s ,,// ^f
Title or Type of Document: A/C /<T'A /dX/W// JyJ-\ /l/tyt/t <r><*s\# /^/V*/!^#n <£vx/^/ r i
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Signer s Name.— ^ . ....LJ Individual
D Corporate Officer — Title(s):
D Partner — D Limited D General
D Attorney in Fact
D Trustee
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a Other:
Signer Is Representina:
Number of Paqes:
i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^i^H PlrnH 1 TMI IMKPPIMT i^i^i^H!
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) 1999 National Notary Association • 9350 De Solo Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 5775
State of California
County of
On
/Date
personally appeared _
before me,
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Here Insert Name an<f Title ol the Office'
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Name(s) of Signer(s)
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 PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS
Notary Seal Above Signature.
OPTIONAL
Sronaiure^TNotary Public
Though the information below is not required by law, it may prove valuable to persons relying on 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
1: Corporate Officer — Title(s):
Partner — Limited General
Attorney in Fact
Trustee
Guardian or Conservator
Other:.
RIGHTTHUMBPRINT
OF SIGNER
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Signer's Name:
Individual
Corporate Officer — Title(s):
Partner — Limited ... General
Attorney in Fact
.. Trustee
._ Guardian or Conservator
Other:.
RIGHTTHUMBPRINT
OF SIGNER
Signer Is Representing:
<5>2007 National Notary Association • 9350 De Solo Ave PO. Box 2402 -Chatsworth. CA 91313-2402-vvvvwNationalNolary.org Item 25907 Reorder Call Toll-Free 1-800-876-S82"
5776
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Lot 1 in Block "T" of Palisades No. 2, in the City of Carlsbad, County of San Diego,
State of California, according to map thereof No. 1803, filed in the Office of The County
Recorder of San Diego county, August 25, 1924.
10
EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
5777
Paving, base, sidewalk, curb & gutter, pavement preparation & driveway approach.
EXHIBIT C
THE ASSESSMENT
5778
PAVING
BASE
SIDEWALK
CURB & GUTTER
PAVEMENT PREP.
CLEAR & GRUB
UNDERGROUND UTL.
SEWER
WATER
FIRE HYDRANT F
STREET LIGHT
DRIVEWAYAPROACH
SUBTOTAL
DESIGN
CONTINGENCY (20%)
ASSESS. DISTRICT COST
PLAN CHECK
INSPECTION
TOTAL
Quantity
2628
2628
590
146
2628
280
SF
SF
SF
LF
SF
SF
LF
LF
LF
EA
EA
SF
LS
Cost
$4,599
$1,840
$2,360
$2,920
$1,314
$0
$0
$0
$0
$0
$0
$1,960
$14,993
$2,249
$2,999
$31,390
$1,740
$1,200
$54,570
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