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HomeMy WebLinkAbout11 PARKING EXCEPTION CONTRACT - 195 EL CAMINO REALMEETING DATE TO: FROM: SUBJECT: AGENDA REPORT JUNE 5, 2012 JEFFREY C. PARKER, CITY MANAGER COMMUNITY DEVELOPMENT DEPARTMENT Agenda Item 11 Reviewed: City Manager Finance Director OLD TOWN PARKING EXCEPTION CONTRACT — 195 EL CAMINO REAL SUMMARY: On April 3, 2012, the Tustin City Council adopted Ordinance No. 1416 establishing a new parking exception option for Old Town Tustin that would allow all or a portion of an infill development project's required on-site parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking spaces. Ordinance No. 1416 requires the property owner/developer of an approved Old Town infill project to execute a contract with the City agreeing to the payment of the annual fee. The subject draft Old Town Parking Exception Contract with Mr. Guillermo Del Rio and Ms. Lizet Orozco (the property owners of 195 EI Camino Real) has been prepared for City Council consideration. RECOMMENDATION: Authorize the City Manager to execute the Old Town Parking Exception Contract establishing the annual Old Town Parking Exception fee of $600 for 195 EI Camino Real (10 spaces x$60 per space). APPROVAL AUTHORITY: The Tustin Planning Commission has approved the development of a commercial infill project at 195 EI Camino Real and authorized the developer to participate in the Parking Exception Program recently established by Ordinance No. 1416 for 10 parking spaces. Ordinance No. 1416 requires the developer of a Tustin Planning Commission approved Old Town infill project to execute a contract with the City committing to payment of an annual Parking Exception fee. The City Attorney's office has reviewed and approved the draft Old Town Parking Exception Contract as to form. City Council authorization is requested prior to contract execution by the City Manager. FISCAL IMPACT: Approval of the proposed contract would enable the collection of an annual fee to compensate the City for the maintenance of public parking spaces in the commercial portion of Old Town proportional with the increased use of such spaces by the approved infill commercial project at 195 EI Camino Real. Through City Council adoption of Resolution No. 12-27, the Old Town Parking Exception Fee was established at $60 per space, although the fee can be reevaluated or adjusted in the future based on analysis and typically in conjunction with the periodic adoption of the City's Comprehensive Fee Schedule. Old Town Parking Exception Contract June 5, 2012 Page 2 BACKGROUND: On April 3, 2012, the Tustin City Council adopted Ordinance No. 1416 establishing a new parking exception option that would allow all or a poRion of an Old Town infill development projecYs required on-site parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking spaces in the area. On April 17, 2012, the Tustin City Council adopted Resolution No.12-27 establishing the annual fee at $60 per space. On May 8, 2012, the Tustin Planning Commission approved Design Review 2012-006 for the infill development of a 3,291 sq. ft. commercial building at 195 EI Camino Real, in Old Town Tustin. At that time, the applicant requested, and the Planning Commission approved, utilization of the Old Town Parking Exception Fee provisions established by Ordinance No. 1416 for ten parking spaces. At $60 per space, the annual fee for this project totals $600. Ordinance No. 1416 requires a property owneddeveloper of an approved infill project to execute a contract with the City agreeing to the payment of the required annual fee. The subject draft Old Town Parking Exception Contract has been prepared for City Council consideration. ���_o�� Dana L. Ogdon, AICP Assistant Director S:\Cdd\ccrepore\feewntract.doc ������� Elizabeth A. Binsack Director of Community Development Attachment A: Old Town Parking Exception Contract for 195 EI Camino Real ATTAC H M E NT A RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Director of Community Development 300 Centennial Way Tustin, CA 92780-3767 Space Above This Line For Recorder's Use Only Fee Exempt per Govt. Code Section 6103 CITY OF TUSTIN OLD TOWN PARKING EXCEPTION CONTRACT This Old Town Parking Exception Contract ("ContracY'), dated this _ day of 2012 is entered into by and between the City of Tustin ("City"), and Guillermo A. Del Rio Farias and Lizet Marie Orozco, owners of the property located at 195 EI Camino Real, Tustin ("Owner') RECITALS WHEREAS, the Owner owns certain Property as more particularly described in Exhibit "1" to this Contract, attached hereto and incorporated by reference as if fully set forth herein (the "Property"); and WHEREAS, Property is located within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C-2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council; and WHEREAS, the development planned for the Property (the development is hereinafter referred to as "Project") requires a certain number of parking spaces to satisfy the off-street parking requirements of the City of Tustin Zoning Code in effect as of the date of this Contract (hereinafter referred to as "Zoning Code"); and WHEREAS, on February 19, 2008, the Tustin City Council approved a comprehensive Parking Study for Old Town Tustin which determined that Old Town had a significant amount of available public parking and that modern parking standards were an impediment to the area's economic development; and WHEREAS, on April 3, 2012, the Tustin City Council adopted Ordinance No. 1416 establishing a new parking exception option in the Zoning Code, applicable to development in the commercial area of Old Town Tustin, that allows all or a portion of a projecYs required onsite parking spaces to be met through the payment of an annual fee intended to compensate the City for the proportional use and maintenance of public parking ("Old Town Parking Exception"); and WHEREAS, Owner submitted an application for Design Review 2011-006 proposing development of the Property which included a proposal to utilize the Old Town Parking Exception, for ten (10) parking spaces required by the Zoning Code, but which will not be provided onsite. WHEREAS, on May 8, 2012, the Tustin Planning Commission considered Design Review 2011-006, determined that the Project met certain findings established by Ordinance No. 1416, and adopted Resolution No. 4194 approving the Project and the use of the Old Town Parking Exception as satisfying the parking requirements set forth in the Zoning Code; and WHEREAS, Condition No. 7 of Resolution No. 4194 requires the Owner to execute and record an agreement requiring the payment of an annual fee in accordance with the Old Town Parking Exception for each Project parking space not provided onsite. WHEREAS, the Old Town Parking Exception program is granted as a privilege and not as a matter of right; and WHEREAS, the execution of a valid written contract as described above. and the satisfaction of certain other conditions, would allow the Project on the Owner's Property to qualify for a Certificate of Occupancy upon completion of the Project; and NOW, THEREFORE, the City and the Owner hereby agree as follows: Page 2 of 10 GENERAL PROVISIONS Section 1.00 Conferrinq Parkinq Exception to Owner Section 1.01 Location of Proiect Site The Project site is located at 195 EI Camino Real, within the Cultural Resources (CR) and Parking Overlay (P) Districts, and in both the Central Commercial (C-2) District and the Old Town Commercial General Plan land use designation as established by the Tustin City Council, and as described in the legal description set forth in "Exhibit 1" hereof; Section 1.02 Desiqnation of Parkinq Exception Spaces The City hereby designates ten 10 parking spaces generally located within the Old Town commercial area as available for Parking Exception Spaces purposes for the uses proposed and approved for Design Review 2011-006. The final number of Parking Exception Spaces confirmed by this Contract may be adjusted in accordance with Section 1.05, below. The City reserves the right to redesignate, by subsequent written notice to Owner, the location of the Parking Exception spaces. Section 1.03 Conferrinp of Parkinq Exception Sqaces The City hereby confers all rights and obligations for use of the Parking Exception Spaces on the terms and conditions provided herein. In consideration thereof, the Owner agrees to the terms and conditions set forth in this Contract. Section 1.04 Riqhts and Obliaations Pertaininq to Parkinq Exceqtion Soaces. The City hereby provides, and the Owner hereby acknowledges, that the Parking Exception Spaces are being conferred on the Property in order to satisfy the parking requirements for the specific use approved by Design Review 2011-006. Neither the Old Town Parking Exception program nor this Parking Exception Contract grants Owner any right or privilege to use the Parking Exception Spaces greater than those rights and privileges enjoyed by the public generally. No property interest in the actual spaces themselves is being Page 3 of 10 transferred, granted, or conveyed to Owner. In addition, the location of employee parking shall be determined by the City. Section 1.05 Parkinq Exception Spaces to Remain with the Propertv The convenants, terms, conditions, and restrictions of this Contract shall be binding upon, and inure to the benefit of the Parties to this contract and their respective successors, representatives, heirs and assigns, and shall continue as a servitude running in perpetuity with the property. Owner agrees to notify the City in writing prior to any conveyance of the Property. Section 1.06 Adiustments to Number of Parkinq Exceotion Spaces In the event that the actual use of the Property requires a number of Parking Exception Spaces different from the number assigned by Section 1.01, then the actual number of Parking Exception Spaces conferred shall be agreed to in writing by the City and Owner as provided in Section 3.07 (Written Amendment). Section 1.07 Time for Obtaininp Certificate of Occuqancv The Owner shall have two (2) years from the date of this Contract to obtain a Certificate of Occupancy for the Project from the City of Tustin, unless the Director of Community Development extends such period in writing based on a finding that the delay was due primarily to factors outside the control of Owner. If a Certificate of Occupancy is not issued by the Community Development Department by this date, this Contract shall terminate and all Parking Exception Spaces shall automatically revert to the City. A copy of the Certificate of Occupancy shall be appended to this Contract and shall be recorded by the City. Section 1.08 Use of the Proqertv The Owner agrees to use and otherwise operate the Property in conformance with the Design Review 2012-006 and this Contract. Page 4 of 10 Section 2.00 Pavments bv Owner Section 2.01 Parkinq Exceotion Fee The "Parking Exception Fee" shall be the amount of $60.00 for each Parking Exception Space, per year, as may be modified at any time by Resolution of the Tustin City Council. The Parking Exception Fee shall be due and payable in full by July 151 of each year and every portion of a year when the Contract is in effect and, therefore shall not be prorated. As an alternative, the City may arrange to collect the Parking Exception Fee through an annual assessment collected by the County Tax Assessor at the same time and in the same manner as County taxes are collected, and all laws providing for the collection and enforcement of County taxes shall apply to the collection and enforcement of the assessments. The Parking Exception Fee shall remain in effect until such time that the Parking Exception Spaces are no longer conferred by the City. The Owner shall not oppose any effort by the City to establish a Vehicle Parking Assessment District or Business Improvement Area intended to supplement public parking in the area. Section 2.02 Amount of Parkinq Exceqtion Fee to be oaid bv Owner Based upon the number of Parking Space Exceptions conferred by this Contract, the Owner agrees to the following annual payments ("Owner Payments"): $60.00 X 10 Parking Exception Spaces =$600.00 total initial annual payment. If the number of Parking Exception Spaces is ever adjusted pursuant to Section 1.06, then the total amount of Parking Exception Fees due shall be adjusted accordingly. Said Owner Payments are due and payable as stipulated in Section 2.01. There shall be a late fee of twenty percent (20%) for each month payment is not made in addition to any other collection fees for payments not received by the City by the due date set forth in this Contract. Failure of the Owner to make payment of the annual Owner Payments installment by Page 5 of 10 the due date shall be considered a default and shall entitle the City to exercise the remedies stated in Section 3.01. If County Assessor Owner Payment collection is not implemented as stipulated in Section 2.01, the City will send the Owner a written notice stating the amount of Owner Payments due, including any adjustment made by Resolution of the City Council, no less than thirty (30) days before the due and payable date for each annual Owner Payment. Such notice shall be provided to the Owner for the Owner's convenience only. Failure of the City to provide such notice does not relieve Owner from fulfilling its obligation to pay such Owner Payment. Section 2.03 Adiustments to Owner Pavments As stipulated in Section 2.01, and pursuant to the Mitigation Fee Act (Government Code § 66001(a) et al), the Tustin City Council may modify the Parking Exception Fee at any time by Resolution of the Tustin City Council. Further, in accordance with Section 1.06 of this Contract, the amount of Owner Payments may be increased or decreased to reflect the actual number of Parking Spaces required for the use of the Property. Section 3.00 Miscellaneous Provisions Section 3.01 Default In the event Owner materially defaults in any of its obligations hereunder, the City may declare a defauit and terminate this Contract by written notice to the Owner. The notice shall specify the basis for the default. The Contract shall terminate unless such default is cured before the effective date of the termination stated in such notice, which date shall be no sooner than twenty-one (21) days after the date of the notice. Upon termination, the City may then take any action under the procedures then in effect to revoke Design Review 2011-006, Certificate of Occupancy, building permit or other authorization applicable to the Property if the parking requirements are not othernrise met. The City shall be entitled to retain all Owner Payments due to and through the termination date (and any applicable late fees). Page 6 of 10 Section 3.02 No Assiqnment Other than any conveyance to a successor in interest to the Property, as set forth in Section 1.05, Owner shall not assign or transfer this Contract or any rights hereunder without the prior written consent and approval of the City, which may be withheld in the City's sole discretion. Any unauthorized assignment or transfer shall be null and void and shall constitute a material breach by the Owner of its obligations under this Contract. No assignment shall release the original parties or otherwise constitute a novation. Section 3.03 Proceeds of This Contract All Parking Exception Fees collected shall be deposited into the General Fund for use in performing maintenance of the public right-of-way and parking facilities in the Old Town commercial area. Section 3.04 Attornev's Fees If any action at law or in equity is brought to enforce or interpret this Contract, the prevailing party shall be entitled to reasonable costs and attorney's fees. Section 3.05 Laws Owner shall comply with all Federal, State and City laws applicable to the uses contemplated on the Property which is the subject of this Contract. Section 3.06 Apqlicable Law This Contract, and the rights and duties of the parties hereunder (both procedural and substantive), shall be governed by and construed according to the laws of the State of California. Section 3.07 Written Amendment This Contract may only be changed by written amendment signed by Owner and the authorized representative of the City, subject to any requisite authorization by the City Page 7 of 10 Council. Any oral representations or modifications concerning this Contract shall be of no force or effect. Section 3.08 Severabilitv If any provision in this Contract is held by any court of competent jurisdiction to be invalid, illegal, void, or unenforceable, such portion shall be deemed severed from this Contract, and the remaining provisions shall nevertheless continue in full force and effect as fully as though such invalid, illegal, or unenforceable portion had never been part of this Contract. Section 3.09 Choice of Forum The parties hereby agree that this Contract is to be enforced in accordance with the laws of the State of California, is entered into and/or is to be performed in the City of Tustin and that all claims or controversies arising out of or related to performance under this Contract shall be submitted to and resolved in a forum within the County or Orange at a place to be determined by the rules of the forum. Section 3.10 Duqlicate Oriqinals There shall be two (2) fully signed copies of this Contract, each of which shall be deemed an original. Section 3.11 Time Time is of the essence in this Contract Section 3.12 Notices Any notice or demand to be given by one party to the other shall be given in writing and by personal delivery or prepaid first-class, registered or certified mail, addressed as follows. Notice simply to the City of Tustin or any other City department is not adequate notice. TO CITY: DIRECTOR OF COMMUNITY DEVELOPMENT 300 Centennial Way Tustin, California 92780 Page 8 of 10 TO OWNER Guillermo Del Rio Farias and Lizet Marie Orozco 5022 Greencap Avenue Irvine, California 92604 Any such notice shall be deemed to have been given upon delivery, if personally delivered, or, if mailed, upon receipt or upon expiration of three (3) business days from the date of posting, whichever is earlier. Either party may change the address at which it desires to receive notice upon giving written notice of such request to the other party. Section 3.13 No Estate. Nothing contained in this Contract, nor the acts of the parties hereto, nor the acts of any third party shall be deemed or construed to create the relationship of principal and agent, or a partnership, or a joint venture, or of any association between the parties to this Contract. Owner agrees that it will not claim at any time any vested right, property right, interest, title, leasehold, or estate in the Parking Space Exceptions or the public parking within the Old Town commercial area by virtue of this Contract or by virtue of Owner's occupancy, use or expenditures under this Contract. Section 3.14 Destruction of Premises The Owner and City agree that, if the Project approved by Design Review 2011- 006 is ever wholly or partially destroyed, and the Project is considered conforming, the Project may be rebuilt and the provisions of this Contract shall remain in full force as described herein. In the event that the Project approved by Design Review 2011-006 is considered a legal, nonconforming structure, any reconstruction shall be governed by the City's nonconforming provisions of the Tustin City Code. If either the City or the Owner determine that the destroyed Project cannot or will not be rebuilt, then either party may terminate this Contract by 15 days written notice to the other. As of the date of termination, the Parking Exception Spaces shall no longer be used by the Owner to meet any Zoning Code requirement or to support the parking requirement underlying Design Review 2011-006, Certificate of Occupancy, or other permit. Page 9 of 10 Upon such termination, neither Owner no City shall have any liability to the other, either on account of the unavailability of the Project or the unavailability of the Parking Exception Spaces. The liability of the Owner for payments properly due prior to termination shall survive any termination of this Contract pursuant to this paragraph. IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed by their duly authorized representatives as of the date set forth below. DATED: ATTEST: Pamela Stoker City Clerk APPROVED AS TO FORM: � David E. Kendig City Attorney CITY OF TUSTIN � Jeffrey C. Parker City Manager OWNER � � Guillermo A. Del Rio Farias (For 195 EI Camino Real) Lizet Marie Orozco (For 195 EI Camino Real) Page 10 of 10