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HomeMy WebLinkAboutCT 91-12; Bramalea California Inc; 1995-0208767; Petition & WaiverDOC I# 1995-0208767 1085 ~~"AY-Iw~ 10-08 AH City Clerk 1 CITY OF CARLSBAD 1 1200 Carlsbad Village Drive ) Carlsbad, CA 92008 ) ) SPACE ABOVE THIS LINE FOR RECORDER'S USE Parcel Nos. 212-050-22, 29, 30 & 34 PETITION, WAIVER, AND CONSENT TO CREATION OF A FAClLlN IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE COST OF ALGA ROAD AND POlNSElTA LANE ("AGREEMENT') A. WHEREAS, the undersigned Property Owner is processing for development within the City of Carlsbad ("City") a development project known and identified as Carlsbad Tract 91 -1 2 ("Project") more particularly described on Exhibit "A attached hereto and by this reference made a part hereof; and 6. WHEREAS, City has determined Project to be located within the boundaries of a proposed benefit area for a Facility Impact Fee Program to be known as Alga Road and Poinsettia Lane Facility Fee Program ("Fee Program"); and C. WHEREAS, Fee Program is intended to be formed to finance those improvements generally described in Paragraph 1 below; and D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area of benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code (CMC) Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), a new Development Impact Fee enacted pursuant to Government Code Section 66000 @ w, any combination thereof, or otherwise; and 1 1086 E. WHEREAS, Proprty Owner desires to proceed with processing of the Project prior to City determination of the form or establishment of Fee Program; and F. WHEREAS, the Local Facilities Management Plan for Zone 20 requires a guarantee for the constmction of the segments of Alga Road and Poinsettia Lane, described in Paragraph 1 below, prior to the recordation of any final maps or the issuance of building permits within the zone; and G. WHEREAS, condition number 2 (as that condition relates to the funding and construction of Alga Road and Poinsettia Lane) of the Tentative Tract Map approved for Carlsbad Tract 91-12 requires Property Owner to provide for the construction of certain public improvements including a section of Alga Road; and H. WHEREAS, compliance with the applicable Local Facilities Management Plans for Zone 20 and tentative map conditions is a condition of approval for the final map for the Project; and I. WHEREAS, Ci and Property Owner desire to agree to a guarantee which insures the project’sfair share of the financing forthe improvements described in Paragraph 1 herein that will allow Property Owner to proceed with the processing of a final map and development of the Project in advance of the formation of a Fee Program for the construction of Alga Road and Poinsettia Lane; and J. WHEREAS, City Council agrees that Property Owner, upon entering into this Agreement and upon payment of the fair share described herein, has met the requirement set forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 20 and related tentative map condition number 2 (as that condition relates to the funding and construction of Alga Road and Poinsettia Lane) for Carlsbad Tract Map CT 91-12, to provide a financial guarantee for the construction of those improvements described in Paragraph 1 below; and K. WHEREAS, Property Owner voluntarily enters into this Agreement; and 2 - 1087 L WHEREAS, the City Council has determined that due to the size of the Project, there will be no major impact on the circulation system at the present time if development of the Project is allowed to proceed with sufficient financial guarantees for actual construction to meet Property Owner's fair share of the circulation improvements; NOW, THEREFORE, in consideration of proceeding with the processing of Project, the undersigned Property Owner hereby agrees and certifies to the following: 1. Property Owner hereby petitions the City for the initiation of proceedings of a Fee Program which will cause the construction and installation and/or financing of the following improvements which are more specifically described as follows: 0 Alga Road from Poinsettia Lane to Palomar Airport Road and Poinsettia Lane from Alga Road to El Camlno Real (Alga Road and Poinsettia Lane) The improvements proposed for inclusion include full width grading for an 82 foot wide major arterial roadway within a 102 foot wide road right-of-way, with related drainage improvements, and two 18 foot wide paved travel lanes, median curbs along both edges of a raised unimproved median strip for Poinsettia Lane from Alga Road to El Camino Real and Alga Road from Poinsettia Lane to Palomar Airport Road, all built to City of Carlsbad major arterial standards. 2. The costs of construction, engineering, design, construction inspection, contract administration, construction engineering, environmental mitigation, condemnation costs for the necessary right-of-way and slope easements, legal and other incidental expenses will be funded by the Fee Program. 3. Property Owner acknowledges its right to notice of and participation in all phases of the establishment of Fee Program and expressly waives any right to protest or oppose the imposition or formation of Fee Program. Property Owner's waiver of its right to protest establishment or formation of the Fee Program shall not prevent Property Owner from protesting the amount of the fee or extent of the improvements for Alga Road and Poinsettia Lane. 3 SO88 4. a) Property Owner agrees to pay to City its fair share for the improvements described in paragraph one (1) above (‘Deposit’), currently estimated to be $500 per ‘Average Daily Trip’ (“ADT) allocable to each dwelling unit in the Project. Ten (10) ADT’s are allocable to each single-family dwelling unit in the Project and six (6) ADT’s are allocable to each multi-family dwelling unit in the Project. The total amount of Deposit contemplated under the terms of this Agreement is estimated to be $1,458,000 (Based upon the following calculation: 186 single- family units x 10 ADT/unit x W.OO/ADT + 176 multi-family units x 6 ADT/unit x $500/unit). b) Prior to the recordation of a final map for any phase or phases within the Project, Property Owner shall pay the Deposit to City in an amount calculated in accordance with Paragraph 4.a) above for the number of units proposed within that final map, minus the amounts of the credits provided for in subparagraphs 4.c) and 4.d) below, to the extent those amounts have not previously been subtracted from the Deposit. Forthe purpose of computing the Deposit amount required pursuant to this Agreement, recordation of all or a portion of the multi-family lots shall require full payment of that portion of Deposit allocable to each of the multi-family units included with the lot or lots being recorded. c) Property Owner has, prior to the date of this Agreement, advanced $25,000 in connection with the preparation of a report that will establish cost estimates for the Fee Program. This advance was made pursuant to that certain agreement between Property Owner and City (“Cost Agreement”). All amounts advanced by Property Owner under the Cost Agreement, including the $25,000 previously advanced, shall be credited against the Deposit. d) Property Owner is obligated by the conditions 101c and 101d of the tentative map for the Project to construct portions of Alga Road, some of which are within the Fee Program and some of which are not within the Fee Program. Those portions of Alga Road constructed by the Property Owner which are described in paragraph one (1) and are included within the Fee Program (Reimbursable Portion) are fully reimbursable pursuant to the provisions of this paragraph. Those portions of Alga Road constructed by the developer which are not 4 1089 described in paragraph one (1) or are not included within the Fee Program are not considered reimbursable. Property Owner and Ci agree that, for purposes of this Agreement, the dollar amount of the Reimbursable Portion of the Property Owner's Alga Road improvement obligation is estimated at $918,000 ('Reimbursement'). The actual amount of the Reimbursement shall be determined upon completion of the engineering report for the Fee Program and upon adoption of the Fee Program by the City Council. Upon substantial completion of any grading work, improvement, or property acquisition of the Reimbursable Portion of the Alga Road improvement, Ci shall within sixty (SO) days reimburse Property Owner an amount equal to the cost of the work as determined by the engineering report used to determine the adopted fee. In the event that the engineering report is not completed or the Fee Program has not been adopted by the City at the time of substantial completion of the Reimbursable Portion of the Alga Road improvements, City shall reimburse Property Owner an amount equal to the estimated cost of the Reimbursable Portiion of improvements constructed by the Property Owner as determined by the City Engineer. Upon completion of the engineering report and adoption of the Fee Program by Ci Council, Ci shall determine the actual amount of the Reimbursable Portion of the constructed improvements. Any difference in cost between the estimated and actual value of the Reimbursable Portion of constructed improvements shall be added to or subtracted from the Deposit due pursuant to paragraphs 8.3 through 8.i) below. If Reimbursement exceeds the amount of the Deposit previously paid by Property Owner to Ci, then the excess shall be a credit to be applied against Property Owner's future Deposit obligations. In no case shall the Ci reimburse the Property Owner pursuant to this Agreement in an amount greater than the amount of the total fee due under the adopted fee program without first entering into a subsequent reimbursement agreement between the City and Property Owner. e) The actual amount of Property Owner's fair share payment under the Fee Program shall be conclusively determined by Ci Council at the time the Fee Program is established. 5 1090 r) Deposit by Property Owner of Its fair share of Improvement costs as determined herein, and the contractual covenant created by this Agreement satisfies Property Owner's obligations for the construction of the improvements described in paragraph one (1) above, as required by the Local Facilities Management Plan for Zone 20 and Tentative Subdivision Map CT 91-12 condition numbers 2 (as that condition relates to the funding and construction of Alga Road and Poinsettia Lane). 5. Property Owner acknowledges that this Agreement to pay its fair share and participate in the financing of improvements is voluntary and that without this Agreement Property Owner would be precluded from obtaining final map approvals or building and other development permits under the provisions of the General Plan, Chapter 21.90 of the Carisbad Municipal Code, applicable zone plan, financing plans and related documents until a satisfactory financing program had been developed to fund the construction of the improvements described in Paragraph 1 above. 6. Property Owner hereby waives its right to challenge the establishment or imposition of Fee Program. Property Owner's waiver of its right to challenge the establishment or imposition of Fee Program shall not prevent Property Owner from protesting the amount of the fee or extent of the improvements for Alga Road and Poinsettia Lane. 7. This Agreement does not affect, in any way whatsoever, the obligation of Property Owner to pay any other fees or assessments associated with Property Owner's development, nor does this Agreement relieve Property Owner from providing other public facilities required under conditions of the Local Facilities Management Plan for Zone 20 or placed upon Tentative Map CT 91-12 by the Ci. 8. a) If prior to January 1,1999, the Fee Program for Alga Road and Poinsettia Lane is established, subsequent to Deposit by Property Owner pursuant to this Agreement, Property Owner's financial obligation shall be recalculated at that time, using the fee formula established under the approved Fee Program. If the initial Fee Program obligation is different from Deposit, plus acctued interest, amount previously paid by Property Owner to City pursuant to Paragraph 4 hereof, City shall refund any excess, or Property Owner will pay to City any additional amount due (Shortfall). b) Any refund shall be made from funds available through the collection of fees and shall not be an obligation of City's General Fund or other revenue sources. c) In the event that insufficient funds are available from the fee revenues, Property Owner shall be reimbursed In the order in which funds were deposited with City as soon as sufficient funds become available, as determined by the City Council. d) No reimbursement is required until the City Council determines that sufficient funds are available. e) If a Shortfall exists, Property Owner shall be notified of the amount of such Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be due and payable to City 30 days after the mailing of such notice. f) The computation of the amount of any Shortfall shall not include interest charges. g) If payment in full of the Shortfall Is not made by Property Owner within ninety (90) days of notice of said Shortfall by the Finance Director, the amount due shall constitute a lien on any portion of the property within the Project for which a building permit has not been issued by the City. City may deny the issuance of building permits and/or take any other action allowed by law to deny further development of Project property subject to this Agreement, and to collect such Shortfall including, but not limited to, enforcement of the lien on the property. City's recordation of a lien shall not affect its ability to recover the Shortfall by other legal means concurrently, but no double recovery will be allowed. The cost of such collection shall be an obligation of Property Owner and shall be added to the amount of the Shortfall payment due City. h) Any payment received by the City under this Agreement shall be deposited in a special fund and may only be used to fund the construction of the facilities described herein. 7 Upon the establishment of a Fee Program to fund these same facilities, any amount remaining In the specia1,fund may be transferred to the Facility Fee Fund, at the discretion of the Finance Director. i) On or after the effective date of the Fee Program adopted by City Council, the Property Owner may elect to terminate this Agreement. The Property Owner shall noti the City of their intent to terminate this Agreement in writing in accordance with the provisions of paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit account for the Project and determine the amount of any shortfall or refund due under the provisions of this Agreement and the amount of any remaining credits pursuant to paragraph 4.d) above, if any. Upon payment of the shottfali, if any, by the Property Owner and upon the determination by the City that the Project is subject to the adopted Fee Program, the City shaii file a notice of release and termination of Agreement with the Office of the County Recorder of the County of San Diego. Termination of this Agreement by the City shall affect only those portions of the Project which have not recorded a final map prior to the filing of the notice of release and termination of Agreement. Ail money or credits received in satisfaction of the terms of this Agreement for any portion of the Project for which a final map has been recorded prior to termination of the Agreement shall be considered to have satisfied the Fee Program requirements forthose lots or units included within such recorded map. Any additional credits in excess of the needs created by the recording of a phased final map shall be made available to the Property Owner for use on the remaining unrecorded portion of the project in accordance with any provisions for the allowance of credits under the adopted Fee Program. 9. If the Fee Program has not been established for any reason by January 1, 1999, the amount paid by Property Owner under this Agreement, including any credits or reimbursements due pursuant to paragraph 4.c) and 4.d) above, shall be deemed to represent 8 Property Owner's fair share cost for provision of those facilities described in paragraph one ,1493 (1 above and no further payment will be due from or reimbursement due to Property Owner. IO. Compliance with this Agreement will be accepted by City as an alternate to the method described in the current Local Facilities Management Plan for Zone 20 for financing the improvements described in paragraph one (1) above. This Agreement does not require City to issue building permits or other development permits or grant approvals or relieve Property Owner of the obligation to comply with all applicable provisions of law, including but not limited to, Carlsbad Municipal Code Titles 18, 19, 20 and 21. 11. Compliance with the provisions of this Agraement is e condition of all future discretionary approvals for the Project. If Property Owner does not comply with the provisions of this Agreement, approval of the Project will not be consistent with the General Plan, the Growth Management Program, the Local Facilities Management Plan, or the applicable financing plan for Zone 20 and all subsequent discretionary approvals and permits for the Project shall be withheld by Ci. 12. The City may, at its discretion, elect to pursue any remedy, legal or equitable against Property Owner or Property Owner's successors, heirs, assigns, and trarsferees, with the exception of owners of individual lots for which building permits have been issued, to secure compliance with this Agreement. 13. Ci shall not, nor shall any officer or employee of City, be liable or responsible for any loss or damage incurred by Property Owner or any successor or assign of Property Owner, or by any occupant in Project, as a result of the exercise of any remedies provided to Ci in this Agreement. Property Owner agrees to indemnify City for any liabilities incurred by Ci as a result of Cis exercise of these remedies. 9 .. 14. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and City, and run with the real property and create an equitable servitude upon the real property. 15. All notices provided for under this Agreement shall be in writing and shall be delivered in person or served by certified mail postage prepaid. Delivery of notice to Property Owner shall be presumed to have been made on the date of mailing regardless of receipt by Property Owner. Notices required to be given to Property Owner shall be addressed as follows: Mr. Dorian Johnson BRAMALEA CALIFORNIA, INC. 100 Bayview Circle, Suite 2ooO Newport Beach, CA 92660 Notices to the City shall be delivered to the Finance Director, City of Carlsbad, 1xx) Carlsbad Village Drive, Carlsbad, Caliiomia, 92008. Each party shall notify the other immediately of any changes of address that would require . any notice delivered hereunder to be directed to another address. 16. The obligation and benefits of this Agreement shall be transferred upon sale of the Project. As used in this Agreement, 'Property Owner' shall be the owner of the real property which comprises the Project, except as to any real property for which residential permits have been issued. Notwithstanding any provision of this Agreement to the contrary, upon written notice to the City pursuant to Paragraph 15 above, all obligations, benefits and responsibilities of this agreement shall move to the new owner of the real property which comprises the Project. .... .... 10 - - Ihcrs- - 17. The undersigned entity further states, under penalty of perjury, that it is the of the property des9ribad herein, or an authorized agent of the owner, and has the authority to sign this document including the creation of the covenants herein. Executed this &day of Ami1 , 193. PROPERTY OWNER: Dorian A. Johnson (print name here) Vice President (print name here) Senior Vice President (tile and organization of signatory) APPROVED AS TO FORM: RONALD R. BALL a. i%puq Ci Attorney 9. r9.9 5. 11 EXHIBIT "A" Legal Description for Property identified as Carlsbad Tract 91 -1 2 That portion of the Southeast Quarter of Section 21, Township 12 Diego, State of California, according to the Official Plat South, Range 4 West San Bernardino Meridian, in the County of San thereof, described as follows: BEGINNING at the Southeast corner of said Section 21; thence along the South line thereof North 89O 00' 11" West 659.80 feet to the most Wescerly corner of the land described in deed to Noboru Official Records, being the TRUE POINT OF BEGINNING; thence Tabata et al, recorded March 8, 1989, as Document No. 119007 of continuing along said South line North 89O 00' 11" West 2064.60 feet to the South Quarter corner of said Section 21; 'thence along 1149.29 feet to the Northwest corner of the land described in the West line of said Southeast Quarter North Oo 42' 1lU East quitclaim deed to George A. Rillbrecht Inc. recorded October 1.7, North line of said land South 89O 13' 28" East 2721.32 feet to the 1986, as Document No. 47005 of Official Records; thence along the 33' 09" West 731.24 feet to the Northeasterly corner of said East line of said Section 21; thence along said East line South Oo Tabata Land: thence along the Northerly and Northwesterly boundary 42" West 632.57 feet to the TRUE POINT OF BEGINNING. of said land North 09O 26' 51" West 189.87 feet; and South.48" 31' , 1 }ss. STATE OF CALIFORNIA COUNTY OF Orange 1 On April 4, 1995 , before me, Dee Baker, Notary Public personally appeared Dorian A. Johnson and Emile K. Haddad-------------------------- ________________________________________----------------------, personally known to me (~pm~e~8ka&mf~~ek&aee~to be the person@) whose name(s)Mare subscribed to the within instrument and acknowledged to me that hewthey executed the same in h&km/their authorized capacity(ies), and that byhsb?xr/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(!$ acted, executed the instrument. WITNESS my hand and official seal. Signature Gh Fhis area lor official notarial seal) Title of Document Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program & Agreement to r Share Cost of Alga Road, etc. Date of Document tGYoFPages Other signatures not acknowledged First American TlUe Insurance Company 3008 (1194) (General)