HomeMy WebLinkAboutCDP 2020-0017; Sarem Family Trust; 2021-0694200; Neighborhood Improvement Agreement/ReleaseDOC# 2021 -0694200
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RECORDING REQUESTED BY: Oct 04, 2021 04:38 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
Land Development Engineering
CITY OF CARLSBAD
SAN DIEGO COUNTY RECORDER
FEES: $53.00 (S82 Atkins: $0.00)
1635 Faraday Avenue
Carlsbad, CA 92008 PAGES: 14
WHEN RECORDED MAIL TO:
City 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
Pennit No.
Parcel No.
NIA No.
CBRA2020-0173
207-472-17
EAGREE2021-0015
THIS AGREEMENT (the "Agreement') is made this 2-'2. day of 5'2:p\f r1k>~ , 20 :1:: \ by and between the City of Carlsbad, a municipal
corporation (the "City"), and, Scott Alexander Sarem and Kyra Bush Sarem, trustees or their
successor trustee under the Sarem Family Trust dated July 17, 2008 (the •owner").
1.
2.
3.
4.
RECITALS
Owner is the owner of real property located in the City of Carlsbad, California and
desaibed in Exhibit 'A' attached hereto and incorporated herein by this reference (the
•property").
Owner has applied to the City for issuance of the above identified permit to authorize the
development of the Property (the "Development Permit").
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 desaibed in Exhibit B attached hereto and incorporated herein by this
reference (the "Improvements'") are constructed.
The Municipal Code of the City of Carlsbad requires the dedleatlon of the necessary
rights-of-way for and the construction by Owner of the Improvements or an agreement
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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 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. For properties subject to the Alternative Streets Design process adopted by City Council
Resolution, no assessment district shaJI be formed until completlon 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
ord.i.n~.nq_e$ ~,n.q_ Qtl;ler. ~eq_~l(~m~nm.
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 Pennit
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 wl_lich may be formed by the City
Council of the City for the purpose of financing the construction of the Improvements (the
a 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 herelnabove 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 pubtished, 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 otherwise provided for in this Agreement, the consents and approvals given
by Owner shall be irrevocable.
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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.
Sedion 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 )CHIO of the Constitution of the State of Catifomia ("Article XIIID")
and the Proposition 218 Omnibus Implementation Act (Government Code
Section 53750 and following) (the "Implementation Act") (Article )<111D and the
Implementation Ad 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 detennined 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 Califomia or the United States of America shaJI
not be exempt from assessment unless the agency proposing to levy the
assessment can demonstrate by clear and convincing evidence that
those pub&cly owned parcels in fact receive no special benefit from the
Improvement for which the assessment ls 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
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them from the improvement for which the assessment is proposed to be
levied and upon which an assessment is proposed to be imposed.
b. All assessments must be supported by a detailed engineer's
report prepared by a registered professional engineer certified by the
·State of California.
c. Prior to levying. a new assessment , the Agency must give written
notice by mail (the •Assessment Notice") to the record owner, i.e., the
owner of a parcel whose name and address appears on the last
equalized secured property tax roll, of each parcel proposed to be
assessed. The Assessment Notice must include: (i) the total amount of
the proposed assessment chargeable to the entire assessment district, (ii)
the amount chargeable to the record owner's parcel, (iii) 1he 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 pennitted to present written or oraJ 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 baHots, the assessment ballots shal be weighted by the
amount of the proposed assessment to be Imposed upon each parcel for
which an assessment ballot was submitted.
4. The desaiption 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 Pennit 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 materiaJ
inducement to and a material consideration for the City to enter into this
Agreement and agree to issue the Development Pennlt 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 Waiyer of Rights
A. In consideration of the approval by the City of the Development Pennlt prior to
the construction of the Improvements, Owner hereby waives Owner's rights
under the Assessment Law to:
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B.
C.
Sections.
1. object or protest the ordering by the City of the construction of the
Improvements and the imposition of the Assessment at $Uch 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.
In order that the City may be assured of its ability to legally impose the
Assessment on the Property and, therefore, be wifflng 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, intelligenUy 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.
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.
Alternative Satisfaction of Owner's Obllg.ilons
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 formati9n of the assessment In
which case a release of this Agreement shall be recorded In the office of the San Diego County
Recorder.
Sedion 6. General Provisions.
Section 6.01 Conflict with Other Agreements or Requirements of the City.
Except as specifically provided In this Agreement, nothing contained herein shall be construed
as releasing Owner from any condition of development of the Property or requirement imposed
by any other agreement with or requirement of the City.
Section 6.02 General Standard of Reasonableness. Any provision of this
Agreement which requires the consent, approval, discretion or acceptance of any party hereto
or any of their respective employees, officers or agents shall be deemed to require that such
consent, approval or acceptance not be unreasonably withheld or delayed, unless such
provision expressly Incorporates a different standard.
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,
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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 pennitted
by this Agreement to. be given or delivered to either party shaA 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 Calfomta, registered or certlfted, postage prepaid, addressed
as follows:
Owner:
City:
Scott Sarem
6684 Lemon Leaf Drive
Carfsbad, CA 92011
City of Carfsbad
Attn: City Manager
1200 Carlsbad Village Dr
Carf$bad 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 succ~sors and assign$ of the parties hereto.
Section 6.06 Govemlng 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 Wajyet Failure by a party to Insist upon the strict perfonnance 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 complance by any other party with the tenns of this Agreement
thereafter.
Section 6.08 Singular and Plural; Gender. As used herein, the singular of any
work includes the plural, and tenns in the masculine gender shall include the feminine.
Section 6.09 Counterparts. This Agreement may be executed In counterparts,
each of which shall be deemed an original.
Section 6.1 Q Construction of Agreement, This Agreement has been reviewed
by legal counsel for both the City_ and the Owner and shall be deemed for all purposes to have
been jointly drafted by the City and the Owner. No presumption or rule that ambiguities shall be
construed against the drafting party shall apply to the· Interpretation or enforcement of this
Agreement. The language in all parts of this Agreement, in all cases, shall be construed as a
whole and in accordance with Its fair meaning and not strictly for or against any party and
consistent with the· provisions hereof, ii'! 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.
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Section 6.11 Recitals: Exhlbtts. Arty recitais set forth above and any attached
exhibits are Incorporated by reference into this Agreement.
Section 6.12 Authority of Signatories. Each signatory and party hereto hereby
represents and warrants to the other party that It has legal authority and capacity and direction
from Its principal to enter into this Agreement, and that all resolutions and/or other actions have
been taken so as to enable such party to enter into this Agreement.
Section 7. Covenant Running with the Land. The parties hereto intend that the
burdens and obligations of the Owner under Section 3 above constitute a covenant running with
the land and that such covenant shall be binding upon all transferees of the Property.
[End of page. Next page Is signature page.]
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EXHIBIT A
LEGAL DESCRIPTION
Order Number. DIV-6064191
Pa?e Number: 6
~eal property In the City of Carlsbad, Cdu.lity of San Diego, State of California, described as follows:
ALL OF LOT 24 AND TI-IE SOUTI-lERL Y 7.74 FEET OF LOT 25 OF CARLSaAD HIGHLANDS, IN l'HE .CITY OF
CARLS6AD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP TI-lEREOf NO. 2647,
ALEO IN TI-IE OFACE OF TI-IE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 18,.1950, THE SAID
7.74 FEET BEING MEASURE ALONG THE EASTERLY llNE OF SAID LOT AND TI-IE NORTHERLY LINE OF
SAID 7.74 FEET BEING PARALLEL WITH THE SOUn,iERLY LINE OF SAID. LOT.
EXCEPTING FROM SAID LOT24, THE SOUTHERLY 100.66 FEET THEREOF, THE NORTHERLY LINE OF
SAID SOUTHERLY 100.66 FEET BEING. PARALLEL WITH AND DISTANT 100.66 NORTHERLY MEASURED
AT RIGHT ANGLES FROM THE SOUTHERLY LINE OF SAID LOT 24.
APN: 207-072-17-00
Rrst American Tltle
Pa~6of14
EXHIBITS
DESCRIPTION OF THE IMPROVEMENTS
One half street Improvements including but · not limited to pavement preparation,
sidewalks, curb and gutter, clear & grub, grading, fire hydrants, street light, driveway
approach, relocation of utilities.
0112S/ll
Permit ii:
Date:
Entered By:
PAVING
BASE
SIDEWALK
CURB & GUTTER
PAVEMENT PREP.
CLEAR&GRUB
UNDERGROUND UTL. 0
SEWER 0
WATER 0
FIRE HYDRANT r
STREET LIGHT r
DRIVEWAY APROACH
SUBTOTAL
DESIGN (15%)
CONTINGENCY (20%)
ASSESS. DISTRICT COST
PLAN CHECK
INSPECTION
TOTAL
i
i
i
EXHIBITC
NIA CALCULATION SHEET
4005 SKYLINE ROAD
·"' '
CBRA2020-01731 Frontage:(LF) I 100
Auiust 13, 20211 Drive Way Wldth:(LF) I 25 ..
DAVID RICKI Sidewalk Wldth:(LF) I 75
Quantitv Cost
1850 SF $3,238
2100 SF $1,470
5625 SF $22500
75 LF $1500
1850 SF $925
3000 SF $1050
LF $0
LF $0
LF $0
0.5 EA $2,000
0.5 EA $3,000
250 SF $1 ,750
$37,433
$5615
$7487
$2,500
$898
$449
$54..381