HomeMy WebLinkAboutNIA 12-05; PURA VIDA PROPERTIES LLC; 2012-0706269; Neighborhood Improvement Agreement/Releasefi
RECORDING REQUESTED BY:
CITY OF CARLSBAD
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOCtt 20
IIII
NOV 13, 2012
2-070G2G9
1:08 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 51.00
PAGES: 13
Space above this line for Recorder's use.
CITY OF CARLSBAD
NEIGHBORHOOD IMPROVEMENT AGREEMENT
Permit No.
Parcel No.
NIA No.
CB12-1616
205-051-14-00
12-05
THIS AGREEMENT (the "Agreement") is made this \1 day of
Ooitm<(20iZ by and between the City of Carlsbad, a municipal corporation (the "City"),
and.Pura Vida Properties LLC, a Califomia 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 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 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 Pennit 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
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
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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 othen/vise 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 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 othenvise 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 XII ID of the Constitution of the State of California ("Article
XII ID") and the Proposition 218 Omnibus Implementation Act (Govemment
Code Section 53750 and following) (the "Implementation Act") (Article
XII ID 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:V12 BUILDING PLANCHECK\CB121616CS\LDE\NEIGHBORHOOD IMPROVEMENT AGREEMENT (approved 2-3-11)_NIA12005 REV 10-12-12 GVP.doc
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 mall (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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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 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 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:
J:V12 BUILDING PLANCHECK\CB121616CS\LDE\NEIGHBORHOOD IMPROVEMENT AGREEMENT (approved 2-3-11)_NIA12005 REV 10-12-12 GVP.doc
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 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
J:V12 BUILDING PLANCHECK\CB121616CS\LDE\NEIGHBORHOOD IMPROVEMENT AGREEMENT (approved 2-3-11)_NIA12005 REV 10-12-12 GVP.doc
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 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 ofthe same in any United States Post Office In California, registered or certified,
postage prepaid, addressed as follows:
Owner: Pura Vida Properties LLC
166 South Nardo
Solana Beach CA 92075
City: City of Carisbad
Attn: City Manager
1200 Carisbad 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 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 govemed by and interpreted In accordance with the laws of the State
of Califomia.
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 \NOtk Includes the plural, and terms In the masculine gender shall include the
feminine.
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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 constmed 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 of the
Property.
[End of page. Next page is signature page.]
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Signed by the Owner this
[Signature Page]
OWNER: Pura Vida Properties. LLC
a C^ii&^ia Ihuited liability company
By:
(Print name here)
Owner
(Title)
By:
(Sign here)
(Print name here)
Owner
(Title)
(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. Othen/vise, 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
LISA HILDABRAND
City Manaaer
GLEIf K. VAN PESKI, P.E.
City Engineer
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
Assistant City Attorney
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF San Diego
}
}S.S.
}
On 10/15/12 ., before me, TL Keenan. Notary Public
personally appeared Randall C. O' Connell
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 ofthe State of Califomia that the foregoing paragraph is true and
correct
KEENAN I
WITNESS my hand aj<d official seal. o&^J-^k COM.M. #1861468 o
/ , , MT / / / //// f ^ XX^^M'J -AN DiFGO COUNTY ' ^1
Signature // A. / / f / /// / (Seal) | ^^-^^S^ f^^ly Commission Expires "
OPTIONAL
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: City of Carlsbad/neighborhood Improvement Agreement
Document Date: Number of Pages:
Signer(s) other than named above
CAPACITY(IES) CLAIMED BY SIGNER(S)
• INDIVIDUAL
• CORPORATE OFFICER(S)
TITLE(S)
• PARTNER(S)- • LIMITED
• GENERAL
• ATTORNEY-IN-FACT
• TRUSTEE(S)
• GUARDIAN OR CONSERVATOR
• OTHER
SIGNER IS REPRESENTING:
Right Thumbprint
Of Signer
Top of thumb here
• INDIVIDUAL
• CORPORATE OFFICER(S)
TITLE(S)
• PARTNER(S)- • LIMITED
• GENERAL
• ATTORNEY-IN-FACT
• TRUSTEE(S)
• GUARDIAN OR CONSERVATOR
• OTHER
EXHIBIT A
DESCRIPTION OF THE PROPERTY
Per document No. 87165, Book 7103, page 16 as recorded in the office of the County
Recorder of San Diego County on June 2,1958 as follows:
That portion of Lots 17 and 18 of Patterson's Addition to the Town of Carisbad, In the
City of Carisbad, County of San Diego, State of California, according to Map thereof No.
565, filed in the office of the County Recorder of San Diego County, September 22,
1988.
Beginning at the most Westeriy comer of Lot 16 of said Patterson's Addition; thence
North 55° 27' East along the Southeasteriy line of Pine Avenue as shown on said Map
No. 565, a distance of 244.74 feet; thence South 34° 33' East, 490.00 feet to the True
Point of Beginning; thence South 34° 33' East 70.00 feet; thence parallel with said
Southeasteriy line of Pine Avenue North 55° 27' East 109.16 feet to the Southwesteriy
corner of the land described under Parcel 2 In deed to Thomas Hughes, et ux, recorded
July 22,1948 as File No. 24651 of Official Records in the Office of the Registrar of Land
Title for said County of San Diego; thence along the Southwesterly line of said land
North 28° 03' West 70.45 feet to a line which bears North 55° 27' East from the True
Point of Beginning; thence South 55° 27' West, 116.14 feet, more or less to the True
Point of Beginning.
APN: 205-051-14-00
10
EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
One half street Improvements: pavement preparation, paving, base, sidewalk, curb &
gutter, fire hydrant, street light, driveway approach, design, contingency, planchecking
and Inspection fee.
11
EXHIBIT C
THE ASSESSMENT
Quantity Cost
PAVING 1295 SF $2,266
BASE 1470 SF $1,029
SIDEWALK 270 SF $1,080
CURB & GUTTER 54 LF $1,080
PAVEMENT PREP. 1295 SF $648
CLEAR & GRUB 2100 SF $735
UNDERGROUND UTILITIES 0 LF $0
SEWER LF $0
WATER LF $0
FIRE HYDRANT 0.2 EA $933
STREET LIGHT 0.2 EA $1,400
DRIVEWAY APROACH 160 SF $1,120
SUBTOTAL $10,291
DESIGN (15%) $1,544
CONTINGENCY (20%) $2,058
ASSESS. DISTRICT COST $2,500
PLAN CHECK $247
INSPECTION $123
TOTAL $16,763
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