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HomeMy WebLinkAboutCT 92-02; Sambi Seaside Heights LLC; 1995-0392214; Petition & WaiverRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO 1 GREGORY SliITY, CDUHTY EECORDE!! City Clerk ) 9F: 13.00 FEES: 46.00 CITY OF CARLSBAD ) 9F: 27.00 1200 Carlsbad Village Drive 1 BF: I. 00 Carlsbad, CA 92008 1 OFFICIAL RECORD5 1 SRN DIEGD CUUHTY RECOWER'S OFFICE 1 SATEXOVE THIS LINE FOR RECORDERS USE Parcel No. 21 4-1 40-07 PETITION, WAIVER, AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT TO PAY FAIR SHARE COST OF ALGA ROAD AND POlNSElllA LANE ("AGREEMENT) A. WHEREAS, the undersigned Property Owner is processing for development within the City of Carlsbad CCi) a development project known and identified as Carlsbad Tract 92-02 ('Project") more particularly described on Exhibit 'A' attached hereto and by this reference made a part hereof; and B. 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 any combination thereof, or otherwise; and 1 E. WHEREAS, Property 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 construction of the segments of Alga Road and Poinsettia Lane, described in Paragraph 1 below, prior to the recordation of any final maps or thr issuance of building permits within the zone; and G. WHEREAS, condition number 4 (as that condition relates to the funding and construction of Alga Road and Poinsettia Lane) of the Tentative Tract Map approved for Carisbad Tract 92-02 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’s fair share of the financing for the 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, Ci 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 4 (as that condition relates to the funding and 2 .- 717 - construction of Alga Road and poinsettia Lane) for Carlsbad Tract Map CT 92-02, 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 L WHEREAS, the Ci 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 Ci 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 Camino Real (Alga Road and Poinsettii 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 71 8 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 formatiin of the Fee Program shall not prevent Property Owner from protesting the amount of the fee or extent of the improvements for Algs Road and Poinsetti Lane. 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 (IO) ADT's are allocable to each single-family dwelling unit in the Project and six (6) ADT's are allocable to each muitl-family dwelling unit in the Project. The total amount of Deposit contemplated under the terms of this Agreement is estimated to be $1,305,000 (based upon the following calculation: 129 single family units x 10 ADT/unit x $500/ADT + 220 multi-family units x 6 ADT/unit x =/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 forthe 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. 4 719 h This advance was made pursuant to that certain agreement between Property Owner and Ci ("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 103a and 103b 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 described in paragraph one (1) or are not included with the Fee Program are not considered reimbursable. Property Owner and City 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 $1,280,000 ('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, City shall within sixty (60) 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, Ci shall reimburse Property Owner an amount equal to the estimated cost of the Reimbursable Portion 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 City Council, City shall determine the actual amount of the Reimbursable Portion of the 5 constructed improvements. Any difference in cost between the estimated and actual value of the Reimbumble 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 City, 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 Ci and Property Owner. e) The actual amount of Property Owner’s fair share payment under the Fee Program shall be conclusively determined by City Council at the time the Fee Program is established. 9 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 92-02 condition numbers 4 (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 72 1 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 92-02 by the Ci. 8. a) If prior to January 1,1999, the Fee Program for Alga Road and Poinsettii Lene 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 accrued Interest, amount previously paid by Property Owner to Ci pursuant to Paragraph 4 hereof, City shall refund any excess, or Property Owner will pay to Ci 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 Cis 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 Ci as soon as sufficient funds become available, as determined by the Ci Council. d) No reimbursement is required until the Ci Council determines that sufficient funds are available. 7 e) If a Shortfall exists, Property Owner shall be notiiied 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. 9 The computatiin of the amount of any Shortfall shall not include interest charges. a) 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. CWs 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. Upon the establishment of a Fee Program to fund these same facilities, any amount remaining in the special fund may be transfed to the Facility Fee Fund, at the discretion of the Finance Director. 9 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 notify 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 723 - any. Upon payment of the shorlfall, 1 any, by the Property Owner and upon the determination by the Ci that the Project is subject to the adopted Fee Program, the Ci shall 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 Ci 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 .&r&nient. 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 shaii 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 Property Owner's fair share cost for provision of those facilities described in paragraph one (1) above and no further paymeni will be due from or reimbursement due to Property Owner. 10. Compliance with this Agreement will be accepted by Ci 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 ail applicable provisions of law, including but not limited to, Carlsbad Municipal Code Titles 18, 19, 20 and 21. 11. Compiieme wth tba provisions of this Agreement is a condition of all future discretionary approvals for the Project. if Property Owner does not comply with the provisions 9 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 Ci may, at its discretion, elect to pursue any remedy, legal or equitable against Property Owner or Property Owner’s successors, heirs, assigns, and transferees, 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 succassor or assign of Property Owner, or by any occupant in Project, as a result of the exercise of any remedies provided to Cty in this Agreement. Property Owner agrees to indemnify Ci for any liabilities incurred by Ci as a result of City’s exercise of these remedies. 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. Kazuyuki Kawakkita Sambi Seaside HeigMs, LLC 8649 Firestone Boulevard Downey, CA 90241 Notices to the City shall be delivered to the Finance Director, Ci of Carlsbad, 1200 Carlsbad Village Drive Carlsbad, California, 92008. 10 725" 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, "Properly 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 Ci 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. .... ,... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... .... 11 .. 77 17. The undersigned entii further states, under penaity of perjury, that it is the owner of the property described herein, or an authorized agent of the owner, and has the authority to sign this document including the creation of the covenants herein. PROPERTY OWNER: CITY OF CARLSBAD, a Municipal SAMBI SEASIDE HEIGHTS, LLC SEI20 H. TOYOHARA (print name here) MANAGER (tiiie and organization of signatory) By: (sign here) (print name here) (title and organization of signatory) 12 - "27 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No. 5907 personally appeared 0 personally known the same in @her/their authorized , and that by @er/their y hand and official seal. Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 CORPORATE OFFICER /??iC;-! UaiuPr't &sdb TITLEIS) TITLE OR TYPE OF DOCUMEN 0 ATORNEY-IN-FACT 0 GUARDIAN/CONSERVATOR DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE 81993 NATIONAL NOTARY ASSOCIATION * 8236 Rernrnet Ave., P.O. Box 71 84 - Canoga Park. CA 91309-7184 EXHIBIT "A" 728 LEGAL DESCRIPTION That certain real property located in the County of San Diego, State of California, described as follows: The North half of a parcel of land described as follows: The South half of the Southeast quarter and the South sixty acres of the North half of the Southeast quarter of section twenty-one, township twelve south, range four West, San Bemardino Meridian, in the County of San Diego, State of California, according to the official plat thereof, approved October 25, 1875, excepting that portion described as follows: Beginning at a point 40 rods West of the Southeast comer of said section twenty-one, township twelve South, range four West, running thence East 40 rods to the Southeast corner thereof; thence North 20 rods to a point; thence West parallel with the South line of said section, 18 rods to a point; thence in a direct Southwest line 29 rods to POINT OF BEGINNING. Also excepting therefrom that portion thereof, if any, lying within the boundaries of the Rancho Agua Hedionda as shown on miscellaneous Map No. 29 filed in the office of the County Recorder of said San Diego County on June 21, 1920.