HomeMy WebLinkAbout09 ARMSTRONG CTR AG 12-01-03AGENDA REPORT
Agenda Item q
Reviewed:
City Manager
Finance Director tJ I~
MEETING DATE:
TO:
FROM:
SUBJECT:
DECEMBER 1, 2003
WILLIAM HUSTON, CITY MANAGER
COMMUNITY DEVELOPMENT DEPARTMENT
ARMSTRONG GARDEN CENTER AGREEMENT
BACKGROUND
Applicant: Armstrong Garden Centers
Owner: John A. and Mary M. Prescott, LP
In July 2003, the Planning Commission and City Council approved an Armstrong
Garden Center to be located at 505 El Camino Real, at the northeast corner of El
Camino Real and Sixth Street. The approvals included the following:
· Tentative Parcel Map 2003-131 to create four (4) parcels, including the 1.47-acre
building site for the project;
· Design Review 03-008 for the design of the building and site amenities; and,
· Conditional Use Permit 03-007 to authorize the use and parking demand
analysis.
Armstrong Garden Center has completed most of the plan check process for grading
and building construction and would like to obtain grading and building permits, begin
construction, and open in Spring 2004. However, prior to issuance of permits, a Final
Parcel Map is required to be recorded to create a legal building site and establish
covenants for vehicular access, emergency access, and utilities across all four (4)
parcels, which has not occurred. As currently configured, an existing property line
would lie beneath the building, which is not allowed by the California Building Code, and
the project would rely on access and utilities that are partially across other parcels. It is
imperative for the project that these conditions be rectified by recordation of the final
map.
DISCUSSION
Final Parcel Map 2003-131 was submitted to the City and County on October 23, 2003.
The City reviews the map for compliance with the Subdivision Map Act and the County
reviews the map to ensure the monumentation is correct. In addition, the performance
Agreement for Armstrong Garden Centers
City Council Report
December 1, 2003
Page 2
and monumentation bonds and the CC&Rs for the reciprocal improvements have been
submitted for review and approval of the City Attorney and would be executed with the
map approval. Often the County review takes six (6) to eight (8) weeks. Since the City
Council cannot approve the Final Parcel Map until the County has approved the map, it
is likely that the map would not be in recordable form until early 2004, at best.
RECOMMENDATION
In accordance with Tustin City Code Section 9332, no final map shall be presented to
the City Council until the applicant has either completed the required improvements, or
entered into an improvement agreement with the City to do the work.
If the City Council is desirous of assisting Armstrong Garden Centers in obtaining
building permits prior to recordation of the final map so that they could meet their
timeline for development, staff is recommending that a covenant agreement be
executed by the Mayor, the property owner, and the applicant (Attachment A) in
conjunction with requirement of a cash bond in the amount of $100,000 to ensure
recordation of Final Parcel Map 2003-131 prior to issuance of a Certificate of Use and
Occupancy; or to allow the City to demolish the new improvements in the event that
Final Parcel Map 2003-131 is not recorded by the applicant and/or property owner and
to ensure that the building is not constructed over a lot line.
Following execution of the agreement and submittal of the bond, the applicant would be
able to obtain grading and building permits, construct improvements, pass final
inspections, and record the final map prior to receiving a Certificate of Occupancy.
El~abeth A. Binsac-I~ '
Community Development Director
Attachments: A - Covenant Agreement
S:\Cdd\MINOO~,rmstmng garden agreement (Dec 1, 2003).doc
ATTACHMENT A
Covenant Agreement
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
COVENANT AGREEMENT
(Early Issuance of a Building Permit)
Date:
December 1, 2003
Parties:
John A. & Mary M. Prescott, LP, a California Limited Partnership, the
"Covenantor."
Mailing address:
18752 E. 17th Street
Santa Ana, CA 92705-2815
Armstrong Garden Center, a California Corporation, the "Developer."
Mailing address:
2200 E. Route 66, Suite 200
Glendora, CA 91740
Attn: Michael D. Kunce, President
City of Tustin, a municipal corporation, the "City."
Mailing Address: Director of Community Development
300 Centennial Way
Tustin, CA 92780-3767
Subject Property: A 4.09 acre site located at the northeast corner of Sixth Street and
El Camino Real, generally described as 505 E. El Camino Real, and also referred to as
APN 401-623-08, 401-623-09, 401-623-10, and 401-623-11, consisting of four parcels
of land more specifically described in Exhibit "A" to this Covenant Agreement.
Approved Entitlements:
Tentative Parcel Map:
Conditional Use Permit
Design Review
2003-131
03-007
03-008
Recitals:
A. Covenantor is the owner of the Subject Property. Covenantor desires to
record a final parcel map subdividing the property into four new lots of record and lease
one of the four lots to Developer. The Approved Entitlements for the Subject Property
have been approved by the City of Tustin and Covenantor and Developer are in the
process of preparing the final parcel map and will cause the final parcel map to be
recorded in the Office of the County Recorder's Office. Covenator intends to comply
with all conditions of approval of the Approved Entitlements as required by the City.
B. Developer is proposing to lease a portion of the Subject Property and
develop such portion of the property (the "Project") in a manner consistent with the
Approved Entitlements and all of the conditions of approval of the Approved
Entitlements as required by the City. Developer has applied for building permits to
construct the Project and has requested the City to issue such permits while Developer
and Covenantor complete the final parcel map and cause the same to be recorded in
the manner required under law in full compliance with the Approved Entitlements and
the conditions of approval.
C. The City is willing to issue such permits upon the condition that the
Covenantor and Developer agree that (1) the Project or any portion of the Project will
not be occupied and no certificate of use and occupancy shall be issued and (2) the
Subject Property will be held as one parcel until the final parcel map has been recorded
and all conditions of approval related to the Approved Entitlements have been complied
with to the satisfaction of the Community Development Director of the City. In addition,
the City is further willing to issue the requested permits on the condition that the
Covenantor and the Developer post appropriate security in an amount and form
approved by the Community Development Director or her designee and the City
Attorney or her designee.
Agreement:
In consideration of the recitals and processing and issuance of building permits in
accordance with usual and customary City policies and procedures, Covenantor and
Developer hereby covenants and agrees that the Subject Property shall be held,
conveyed, encumbered, used, occupied, developed, and maintained subject to the
following obligations, all of which are for the purpose of enhancing attractiveness,
usefulness, value, and desirability of the Subject Property, the surrounding property,
and the public at large, and to minimize possible adverse effects on the pubic health,
safety, and welfare. Each of the obligations contained in this Covenant Agreement shall
run with the Subject Property and shall be binding on each successive owner of the
Subject Property.
The Covenantor and Developer shall:
(a) Comply with all laws, ordinances, and conditions of approval of the
issuance of a building permit;
(b) Conform all plans, specifications, and work done, to the
requirements of the Tustin City Code and all other pertinent laws
and ordinances of the City of Tustin, prior to occupying, leasing,
renting, or otherwise using any portion of the Project.
(c) Pay all applicable charges and deposits; and
(d) Complete all other necessary procedures required by the City of
Tustin.
2. Covenantor and Developer shall promptly complete, submit to the City for
review and approval, and upon such approval, record a final parcel map consistent with
the Approved Entitlements and all conditions of approval of the Approved Entitlements.
3. Covenantor and Developer, by proceeding with this Covenant Agreement
and the commencement of the Project, assume all risk and responsibility for the
completion of the Project, the recordation of the final parcel map, and the completion of
all conditions of approval of the Approved Entitlements. Covenantor and Developer will
hold the City harmless from any damage they may suffer as a result of their inability or
failure to record the final parcel map or otherwise comply with the provisions of this
Covenant Agreement or the conditions of approval of the Approved Entitlements.
4. Covenantor and Developer will not occupy, nor shall the Covenantor or
the Developer request and the City shall not issue a certificate of occupancy or
authorize or authorization for utility services to the Project or any portion of the Project
until such time as the Covenantor and Developer have fully complied with the Tustin
City Code, the conditions of approval for the Approved Entitlements, and recorded a
final parcel map as provided for in this Covenant Agreement.
5. The Subject Property shall be held as one parcel pending recordation of
the final parcel map and no lot or parcel of land existing on the date of this Covenant
Agreement within the boundaries of the Subject Property or any portion of any such lot
or parcel shall be sold, conveyed, or leased prior to the recordation of the final parcel
map and all the conditions of approval for the Approved Entitlements have been fully
complied with.
6. To secure the Covenantor's and Devleoper's obligations under this
Covenant Agreement, Covenantor and/or Developer shall provide security payable to
the City in its name or on its demand in the amount of One Hundred Thousand Dollars
($100,000.00) in the form of cash, certificate of deposit, or letter of credit, or such other
security as may be acceptable to and approved by the Community Development
Director of the City or her designee and the City Attorney of the City or her designee, in
a form acceptable to and approved by the City Attorney or her designee. Such security
may, at the option of the Community Development Director, be used to bring the
Subject Property into compliance with the City's ordinances, laws, and regulations,
including demolition and removal of any structures or improvements on the Subject
Property which the Community Development Director determines are illegal or
otherwise in non-compliance with the City's ordinances, laws, and regulations.
7. The remedies described in Section 6 above or specifically described or
provided for elsewhere in this Covenant Agreement shall not be deemed or considered
in any way to be the exclusive remedies available to the City to enforce the provisions of
this Covenant Agreement. The City may resort to any remedy available under law to
enforce the provisions of this Covenant agreement including the initiation and
prosecution of an action for specific performance, including the recovery of any costs,
fees, or charges of any kind including attorney's fees, that the City may incur in the
enforcement of this Covenant Agreement.
8. This Covenant Agreement shall not be amended in any manner or terminated
without the prior written approval of the City nor without the recordation of any such
approval by the City.
9. The terms and conditions of this Covenant Agreement shall constitute a
covenant running with and binding the land in accordance with the provisions of
California Civil Code Section 1468. Accordingly, the Subject Property shall hereafter be
held, sold, conveyed, mortgaged, encumbered, leased, rented, used, occupied and
improved subject to the aforementioned conditions, all of which shall run with the
Subject Property and shall be binding on all parties having any right, title or interest in
the Subject Property any part thereof, their heirs, successors and assigns.
10. Upon recordation of the final parcel map and the Community Development
Director's finding that ail of the conditions of approval of the Approved Entitlements and
this Covenant Agreement have been satisfied, the Community Developer shall provide
a Release of Covenant Agreement to the Covenantor and Developer releasing the
Covenantor and the Developer from all of the obligations under this Covenant
Agreement. Covenantor and Developer may record such Release and upon
recordation thereof, this Covenant agreement shall no longer be in effect or otherwise
enforceable against Covenantor, Developer, or their respective heirs, assigns, or
successors in interest.
11. The conditions of this Covenant are intended to benefit the public and
public properties. Accordingly, it is agreed the City of Tustin shall have the right to
enforce this Covenant by any legal or equitable means against the Covenantor or any
person or persons in actual possession of the Subject Property who directly or through
any agent violate the terms hereof. All obligations of the Covenantor under this
Covenant shall inure solely to the benefit of the City of Tustin and there are no third
party beneficiaries of said obligations.
12. The provisions of this Covenant shall be deemed independent and
severable and the invalidity or partial invalidity or unenforceability of any one provision
or portion thereof shall not effect the validity or enforceability of any other provision.
This Covenant Agreement is dated as noted above.
COVENANTOR:
By:
Title: Property Owner
DEVELOPER:
By:
Title: President, Armstron.cI Garden Centers
[Signatures of Covenantor and Developer
must be properly acknowledged and notarized.]
ACCEPTED BY:
CITY OF TUSTIN, a municipal corporation
By:
Title: Mayor~ City of Tustin
APPROVED AS TO FORM:
By:
Title: City Attorney
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