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HomeMy WebLinkAboutRP 99-14; Army & Navy Academy; 2001-0970082; Neighborhood Improvement Agreement/ReleaseDEC 31s 2001 8-49 AM RECORDING REQUESTED BY: Department of Public Works CITY OF CARLSBAD 1635 Faraday Avenue Carlsbad, CA 92008 \5r WHEN RECORDED MAIL TO: I111111 11111 11111 Citv Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 Space above this line for Recorder’s use. CITY OF CARLSBAD NEIGHBORHOOD IMPROVEMENT AGREEMENT Permit No. RP 99-14 CDP 99-49 DWG 395-1A Parcel No.’s “A” and “G” Assessor’s Parcel No.’s: 203-041 -02,03 201-010-16 NIA No. 01 -31 THIS AGREEMENT (Agreement) is made this 13th day Of December , 2001 by and between the City of Carlsbad, a municipal corporation (City), and Army and Navy Academy, Carlsbad, California, a California Non-profit Corporation (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 (Property). H:\WORD\Maslers\FORMS\Neighbomwd ImprOvementAgmt 1 Rev. 9108100 2. Owner has applied to the City for issuance of the above-identified permit to authorize the development of the Property (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 (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 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 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 (Assessment District); B. the levy of an assessment against the Property (Assessment) in an amount not to exceed the estimated cost of construction of the Improvements, together with the RPY 9/08/00 008440 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 othetwise 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 XlllD of the Constitution of the State of California (Article XIIID) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (Implementation Act) (Article XlllD 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: H:\WORDWaSlerS\FORMS\Neighbrhood Improvement Agml 3 Rev. 9/08/00 008441 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. The procedures established by the Assessment Law include: a. The agency which proposes to levy an assessment (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 (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 H:\WORD\MaSters\FORMS\NeighbarhoOd ImprovementAgrnt Rev. 9/08/00 d 008412 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. 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. e. 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. 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 Rishts 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: H:\WORD\MasterO\FORMSWeiQhborhocd ImprovementAgmt 5 Rev. 9/08/00 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 3.018 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 andlor 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 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 Aqreements 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. H:\WORD\MaSlerS\FORMS\Neighborhoad ImprovemenlAgml 6 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, waived, 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: Army and Navy Academy, Carlsbad, California, a California Non-profit Corporation 2605 Carlsbad Boulevard Carlsbad. CA 92008 City: City of Carlsbad Attn: City Manager 1200 Carlsbad Village Drive 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 Assiqns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. Section 6.06 Governina 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 Sinaular 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 CounterDarts. This Agreement may be executed in counterparts, each of which shall be deemed an original. H:\WORDWaSlerS\FORMS\Neighbomwd lmprOvemenIAgm1 Rev. 9108100 7 008445 Section 6.10 Construction of Aqreement. 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 Sianatories. 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 Runninq 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. CITY OF CARLSBAD, A municipal corporation of the State of California RAYMOND R. PATCHETT City Manager By: wd . &LLOYD B. HUMS, P.@ I- Public Works Director APPROVED AS TO FORM: RONALD R. BALL City Attorney H:\WORD\Masters\FORMS\Neighborhood Improvement Aamt 8 Rev. 9108100 Signed by the Owner this /%L day of ,2Oa. 008446 OWNER: Army and Navy Academy, Carlsbad, California, a California Non-profit Corporation By: (agn hdre.) I (Print namd here) (Title and , ’. (Sign here.) d3. A lA. \4 ac)oo rJ (Print name here) A 54 5\an I- 5e~~~4twd. A (Title and organization of signatbfi) “y PQ-( fl Co.dc,q (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.) H:\WORDIMasterr\FORMS\Neighborhood ImprovementAgmt 9 008447 EXHIBIT A (Page 1 of 3) LEGAL DESCRIPTION OF THE PROPERW Parcel "A" Beginning at a point on the northern most easterly line of Lot 47 of Record Map 1782, Granville Park, filed in the Office of the County Recorder, San Diego County, State of California, February 21, 1924, having a record bearing South 41"IO' East per Record Map No. 1782 a distance of 220.72 feet to a point in the westerly line of right of way to the State of California recorded October 15, 1925 in Book 1128, Page 289 of deeds, recorded of San Diego County, California; thence along the westerly line of said right of way, South 3"16'00" West, 44.08 feet to a point in the southeasterly line of said Lot 47; thence along the southeasterly line of said Lot 47, South 54"22'00" West (Record South 55"OO' West per said Map No. 1782) a distance of 93.33 feet (93.52 feet per Record Map 2037, Granville Park No. 2) to the most southerly corner thereof, said corner being on the northeasterly line of Mountain View Drive and said corner being on a curve, concave southwesterly, having a radius of 350.00 feet, a radial line through said point bears North 31"15'00" East (Record North 3153' East per said Map No. 1782); thence northwesterly along the southwesterly line of said Lot 47 and the northeasterly line of said Mountain View Drive on the arc of last said curve, through a central angle of 13"48'22", a distance of 84.34 feet (Record 84.32 feet per said Map No. 1782) to the beginning of a reverse curve, concave northeasterly, having a radius of 268.03 feet; thence northwesterly along the southwesterly line of said lot 47 and the northeasterly line of said Mountain View Drive on the arc of last said curve, through a central angle of 38"01'51", a distance of 183.37 feet; thence North 2"51'21" West a distance of 139.99 feet; thence North 13"46'17" West a distance of 59.75 feet; thence northeasterly along the northwestern most line of said Lot 47, being also the arc of a 207.16 foot radius curve concave northeasterly 48.08 feet through a central angle of 13"17'54" to a point in a radial line of said curve that bears North 40"44'00" East(R) to said point; thence southeasterly along the northern most easterly line of said Lot 47, being also the arc of a 1532.69 foot radius curve concave northeasterly 165.15 feet (171.17 feet) through a central angle of 6"10'25" (6"23'56) per Record Map 11007 (The Beach) filed in the Office of the County Recorder of San Diego County, State of California, July 27, 1984, to a point in a radial line of said curve that bears North 34"33'35" East(R) to the true point of beginning. Together with Lot 131 of Granville Park No. 2, in the City of Carlsbad, County of San Diego, Sate of California, according to said Map thereof No. 2037, filed in the Office of the County Recorder of San Diego County, June 18, 1927. Parcel "G" Lots 58 through 73 inclusive, Lots 102 through 130 inclusive, and Lots 132 through 150 inclusive of Granville Park No. 2, in the City of Carlsbad, County of San Diego, State of H:\WORD\Masters\FORMS\Neighbomwd ImprovementAgmt 10 008448 EXHIBIT A (Page 2 of 3) LEGAL DESCRIPTION OF THE PROPERTY California, according to the Map thereof No. 2037, filed in the Office of the County Recorder of San Diego County, June 18, 1927. Together with all those portions of the unnamed alley lying northeasterly of said Lots 102,107, 108, 116 and 117 as vacated and closed to public use by order of the Board of Supervisors, filed in the Office of the County Recorder of San Diego County, January 21,1928 in Book 1433, Page 195, December 21, 1928 in Book 1568, Page 179 and December 15,1930 in Book 1844, Page 209, all of Deeds. Also together with that portion of Ocean Street lying northwesterly of the northwesterly boundary of town of Carlsbad, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 775, filed in the Office of the County Recorder of San Diego County, February 15, 1894 and southerly of a line parallel with and 10.00 feet northwesterly at right angles to the southwesterly prolongation of the northwesterly boundary of Lots 66 and 73 of said Granville Park No. 2 as vacated and closed to public use by order of the Board of Supervisors, filed in the Office of the County Recorder of San Diego County, December 15, 1930 in Book 1844, page 209 of Deeds and also the northeasterly half of said Ocean Street lying southeasterly of the southeasterly right of way of Pacific Avenue vacated and closed to public use by order of the Board of Supervisors, filed in the Office of the County Recorder of San Diego County, April 13, 1933 in Book 207, Page 217 of Official Records. Also together with those portions of Mar Vista Street lying southeasterly of the southeasterly right of way of Pacific Avenue and lying northerly of the northwesterly prolongation of Lot 104 of said Granville Park No. 2 as vacated and closed to public use by order of the Board of Supervisors described in said Book 1844, Page 209 of Deeds and said Book 207, Page 217 of Official Records. Also together with all that portion of La Cresta Avenue lying westerly of the westerly right of way of Coast Highway as vacated and closed to the public use by order of the Board of Supervisors described in said Book 207, Page 217 of Official Records. Also together with all the portion of Del Mar Avenue lying westerly of the westerly right of way of Coast Highway as vacated and closed to public use by order of the Board of Supervisors described in said Book 1844, Page 209 of Deeds. Excepting therefrom all that portion of Ocean Street lying westerly of and adjoining said Lot 74 and lying southeasterly of the center line of Del Mar Avenue and the westerly extension of said center line, all that portion of the southeasterly half of Del Mar Avenue extending from the westerly line of Ocean Street to the center line of Mar Vista also all that portion of the westerly half of Mar Vista lying easterly of and adjoining said Lot 97 H\WORD\Masters\FORMS\Neighborhood ImprovementAgmt 11 Rev. glO8lOO 008449 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY (Page 3 of 3) and extending northerly from the westerly extension of the northerly line of Cypress Avenue to the southeasterly line of said Del Mar Avenue, as described in Deed to Raymond C. Ede et ux, filed in the Office of the County Recorder of San Diego County, December 12, 1946 in Book 2304, Page 251 of Official Records H:\WORDWMasterS\FORMS\Neighborhood lmprovementngmt 12 Rev. 9108100 008450 EXHIBIT B DESCRIPTION OF IMPROVEMENTS The following frontage street improvements would be required or would potentially be required: Pavement and base, sidewalk, curb, gutter, driveway approach, under grounding or relocation of utilities, fire hydrant, street light standard, clearing and grubbing, signing and striping, and retaining walls. H:\WORD\Masters\FORMS\N~ighborhwd ImprovementAgrnt 13 Rev. 9108100 '. 008451 EXHIBIT C THE ASSESSMENT PAVING BASE SIDEWALK CURB &GUTTER PAVEMENT PREP. CLEAR & GRUB UNDERGROUND UTL. SEWER WATER FIRE HYDRANT Tj- STREET LIGHT DRIVEWAY APROACH SUBTOTAL DESIGN CONTINGENCY (20%) 1.OEA 300SF .OEA 1 $4,000 $4,000 $1,275 $446,117 LS $31,390 $89,223 $66,917 $22,434 $1,200 $657,281 ASSESS. DISTRICT COST PLAN CHECK INSPECTION TOTAL H:\WORD\MarterS\FORhS\Neighborllood ImprOYementAgmt 14 Rev. 9/08/00 *rr CALFOW ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT 008452 Ill Stateof (' 1 ' ;I county of %PIG2 On thm \",W before me, MI&' . # Date personally appeared .) %#w A ,* h bh? Name, title ~ e.g., John Ub6, Notary Public IO M. bRrirOy0 +- Name($ of Signer@) Personally known to me Q& Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ?/are subscribed to the within instrument and acknoyledged to me that ?/*/they executed the same in hp&r/their authorized capacity(ies), and +/t&eir signature(s) on the instrument the person(s), or the entity upon behalf of which acted, executed the instrument. '3 ..*.-t*4w@w /- - Signature of Not~ Witness my hand and official seal. , :o Witness my hand and official seal. ' ' :" /- - Signature of Not~ OpTIONAL The data below is not required by law, however it may prove valuable to persons relying on the document and couldpreventfraudulent reaftachment of this form. ? . SIGNATURE AUTHORKY OF SIGNER: Ll INDIVIDUAL I i I .liWs) -~ I Ll PARTNER 0 LIMITED Ll G~;NERAL 1 Q ATTORNEY-IN-$ACT Ll TRUSTEE(S) 0 GUAR~IAN/CONSERVATOR OTHER: NAME(S) OF PERSON(S) OR Em(~s) SIGNER IS REPRESWTLIM;: DESCRIPTION OF ATTACHED DOCUMENT NUMBER OF PAGES I1 IP lo I DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED how: