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HomeMy WebLinkAboutCT 08-03; Property Development Centers; 2013-0033111; Petition & WaiverDOCtt 2013-0033111 Ili III RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 '4 JAN 16,2013 2:11 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernesl J. Dronenburg, Jr., COUNTY RECORDER FEES: 72.00 WAYS: 2 PAGES: 15 Space Above This Line for Recorder's Use Assessor Parcel No. 223-050-74-00 PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF LA COSTA TOWN SQUARE - RESIDENTIAL (CT 08-03) ("AGREEMENT") WHEREAS, the undersigned Property Owner at this time is processing for development with the City of Carlsbad (hereinafter referred to as "City") a development project known and identified as La Costa Town Square - Residential (CT 08-03), which consists of sixty-four (64) residential lots, (hereinafter referred to as the "Project"); and, WHEREAS, the legal description for the Project is shown on Exhibit "A" attached hereto and incorporated herein by reference; and, WHEREAS, City has determined this Project is located within the boundaries of a proposed Community Facilities District known as Community Facilities District No. 2 - Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "District"); and. WHEREAS, the District is intended to be formed to finance those improvements generally described in Section 1 herein; and, WHEREAS, Property Owner desires to proceed with processing prior to the formation of District; and, WHEREAS, Condition No. 30 of Planning Commission Resolution No. 6582 dated July 15, 2009, recommending approval of Carlsbad Residential Tract Map No. 08-03 (CT 08-03), requires the developer to comply with all conditions and mitigation measures required as part of Zone 11 Local Facilities Management Plan; and, WHEREAS, pursuant to section 21.90.130 of the Municipal Code and pursuant to Local Facilities Management Plan, Zone 11, development permits can not be issued until the developer provides a financial guarantee towards its fair-share cost of improvements, which for Zone 11, includes segments of Rancho Santa Fe Road; and, WHEREAS, the City and Property Owner desire to agree to an alternative method of financing the improvements described in Section 1 herein that will allow Property Owner to discharge its fair share obligation for said improvements in lieu of, or in anticipation of, participation in District; and, WHEREAS, the 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 Condition No. 30 of Planning Commission Resolution No. 6582 dated July 15, 2009, and as referenced in City Council Resolution No. 2009-232, and further delineated in the Local Facilities Management Plan, Zone 11, to provide a financial guarantee for the construction of those improvements described in Section 1 below; and, WHEREAS, Property Owner voluntarily enters into this Agreement with respect to the Project; and, WHEREAS, the City Council has determined that due to the size of the proposed development, 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 the construction of Property Owner's fair share of the circulation improvements; NOW, THEREFORE, in consideration of proceeding with the processing of the Project, the undersigned Property Owner and City hereby agree and certify to the following: 1. Property Owner hereby petitions the City for the initiation of the proceedings for the formation of District which will cause the construction and installation and/or financing of the following improvements (hereinafter "Improvements") which are generally described as follows: a) Rancho Santa Fe Road North Phase 1 (RSF No.1) La Costa Avenue to east of Mahr Reservoir b) Olivenhain Road Widening, and intersection improvements at Olivenhain and El Camino Real c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to Melrose Drive. d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary Arterial Standard - Encinitas Citv Boundary to Olivenhain Road Full Improvements). 2. The cost of construction, engineering, environmental mitigations, legal and other incidental expenses as set forth in the Improvements Budget will be funded by the District, if formed, or by monies collected by the City for this purpose. 3. Property Owner acknowledges its right to notice of and participation in all phases of formation under the "Mello-Roos Community Facilities Act of 1982," expressly waives the proceedings required and all limitations contained in Title 5, Division 2, Chapter 2.5 ofthe California Government Code and nonetheless with full knowledge of such rights, completely and forever waives such rights. Specifically, Property Owner hereby consents 3 to the proceedings and waives any right to protest the formation of the District and the ordering of the improvements under applicable California statutes and consent to and support formation of said District with respect to the Project. The City shall exclude the Project from the District boundary map if, prior to the adoption of a Resolution of Intention by the City Council to form said District, Property Owner has entered into this Agreement and has paid to the City all amounts due as described herein. 4. a) Property Owner agrees to pay to City, or provide, its fair share for the Improvements described in Section 1. b) Said payment, or provision, shall be made in the manner described in Exhibit "B", Rate and Method for Determining Fair Share Obligation Rancho Santa Fe and Olivenhain Road, which is incorporated herein by reference. c) The amount of Property Owner's fair share will be conclusively determined by the City Council in the manner described in Exhibit "B" attached hereto and incorporated herein by reference. d) Payment by Property Owner of its fair share of improvement costs as determined by City Council and set forth herein will satisfy their obligations for the construction of the Improvements described in Section 1, as required by Condition No. 30 of Planning Commission Resolution No. 6582 dated July 15, 2009, and as referenced in City Council Resolution No. 2009-232, and further delineated in the Local Facilities Management Plan, Zone 11, subject to adjustment as described in Section 9 herein. e) Alternatively, if the District is formed and the Project is included within it. Property Owner's obligation to pay its fair share pursuant to the Agreement shall be satisfied upon payment of all taxes imposed, established and payable to said District. 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 Carlsbad Municipal Code, applicable zone plan, financing plans and related documents until a satisfactory financing program has been developed to fund the construction of the Improvements described in Section 1. 6. Property Owner hereby waives its right to challenge the amount, establishment or imposition of said fair share and further waive any rights to pay said fair share under protest. 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 and/or to post improvement bonds as required by the City Engineer. Nor does this Agreement relieve Property Owner from providing other public facilities required under conditions placed upon the Project by the City. 8. Property Owner agrees that payment of its fair share is not a fee and waives any and all rights to notice of or challenges to the establishment or imposition of said fair share as a fee under provisions of Government Code section 66000 et seq.. or any successor or related statutes. 9. a) If the District is formed subsequent to the payment by Property Owner of the fair share pursuant to this Agreement, Property Owner's financial obligation shall be recalculated using the taxing formula established for the District for the Improvements described in Paragraph 1. If that obligation is lower than the amount previously paid or provided by Property Owner to City, City shall refund any excess, in the manner described below. b) Any refund shall be made from funds available within District upon District formation and shall not be an obligation of City's General fund or other revenue sources. c) In the event that sufficient funds are not available from District's resources, Property Owner shall be reimbursed, as determined by the City Council, through the payment of one-time taxes or annual undeveloped land taxes to the District. The City is not required to establish an undeveloped land tax within the District to provide such refund. d) No reimbursement is required until the City Council determines that sufficient funds are available. Any refund to Property Owner shall not include interest. e) Any payment received by the City under this Agreement shall be deposited in a special interest bearing fund and may only be used to fund the construction of the facilities described herein. Upon the fonnation of a CFD to fund these same Improvements, any amount remaining in the special fund may be transferred to the CFD fund, at the discretion of the Finance Director. 10. Upon completion of the Improvements, and recording of the Notice of Completion for the final phase of the Improvements, the City Engineer shall determine the total cost of all phases of the Improvements and all related work (Costs), and the Finance Director shall determine the total amount of revenue including fees, taxes, interest earned on funds restricted to use only on the Improvements, and other sources of funds received by the City dedicated to paying for the construction of the Improvements (Revenues). The Finance Director shall then compare the amount of Costs and Revenues to determine if there are any excess Revenues as described below. If excess Revenues of more than $100,000 exist, the Finance Director shall provide refunds to all eligible parties of all excess Revenues in an amount and in the manner described below. If excess Revenues are equal to, or less than $100,000, the City shall retain these funds in a special fund to be used to finance street repair, maintenance, and landscaping within the Improvements. a) The total amount of excess Revenues shall be detennined by deducting the amount of the project Costs from the available Revenues. Total project Costs shall include all costs to plan, design, construct, mitigate environmental impacts, inspect, and otherwise complete the project to the satisfaction of the City Engineer, including applicable charges for City staff services. Total Revenues shall include all monies held by the City dedicated exclusively to the construction of the Improvements including any fee revenues earmarked for the Project, CFD #2 taxes, applicable CFD #1 taxes, grants, and interest earned on restricted funds as determined by the Finance Director. b) The amount of the refund due to any party shall be based on the proportion of that party's payments under this Agreement based on its proportional share of Equivalent Dwelling Units constructed or to be constructed by that party, weighted as described in Exhibit B, divided by the total number of EDUs constructed or to be constructed within, and participating in, CFD #2 and/or CFD #2 agreements to prepay taxes. The amount of the refund shall be determined by multiplying the proportional share computed above by the total amount of excess revenues. c) In order to share in the refund of any portion of the excess Revenues, the eligible party must request to be included in the distribution of funds. Such request must be made within 90 days after the City Council's acceptance of the Notice of Completion for the final phase of the Improvements. Each request must be accompanied by documents indicating clear title to the refund unless the request is being made by the party who originally paid the taxes to the City under a prepayment Agreement or to CFD #2. d) The Finance Director shall compute the amount of the refund due each party as described above. Funds may be disbursed to the eligible parties following Council approval of such refunds. e) If the City does not receive requests for refund from all eligible parties within the specified period, and all funds cannot be disbursed as provided by this section, any remaining funds shall be held in a special fund to be used to support road and roadway maintenance in and around the Improvements area, as determined to be necessary by the City Engineer, and approved by the City Council. f) As a courtesy to all interested parties, the City will maintain a file of those individuals or companies entitled to a refund, and will mail notices of refund availability to the names and addresses in this file following the City Council's acceptance of the final Notice of Completion. It is the eligible party's responsibility to notify the City if the right to any refunds under this section is assigned to another party, or if there is a change in name or address for the eligible party. The City takes no responsibility for the accuracy of the information included in this file, and is under no obligation to locate persons or entities that are entitled to refunds. Failure to notify any party of the availability of excess Revenues shall not obligate the City in any way to extend or modify the above refund procedures. 11. Compliance with this Agreement will be accepted by City as an alternate to the method described in the current Local Facilities Management Plan for local facilities Management Zone 11 for financing the Improvements described in Paragraph 1. 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. 12. Compliance with the provisions of this Agreement is a condition of all future discretionary approval for the Improvements. 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, and the Local Facilities Management Plan, and all subsequent discretionary approvals and permits for the Project may be withheld by City. 13. In addition, the City will not approve any pending final maps, issue grading, building or other development permits or take any discretionary action until the Property Owner has complied with the terms of this Agreement due to be satisfied at the time such approval is required. 14. The City may, at its discretion, elect to pursue any remedy, legal or equitable 8 against Property Owner and Property Owner's successors, heirs, assigns, and transferees of the Project to secure compliance with this Agreement. 15. City 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 Property Owner's buildings, as a result of the exercise of any remedies provided to City in this Agreement. Property Owner agrees to indemnify City for any liabilities incurred by City as a result of City's exercise of these remedies. 16. 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 with respect to the Project only and City, and shall run with the Project and create an equitable servitude upon the Project. 17. 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: Property Development Centers, LLC Attn : Jim Reuter 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Notices to the City shall be delivered to: Finance Director City of Carlsbad 1635 Faraday Avenue Cartsbad, CA 92008 Each party shall notify the other immediately of any change that would require any notice delivered hereunder to be directed to another party. 18. This Agreement shall be recorded but shall not create a lien or security interest in the property. 19. The undersigned Property Owner further states, under penalty of perjury, that they are Owner of the property as described herein on Exhibit "A", or an authorized agent of the Owner, and have the authority to execute this document, including the binding authorizations herein. (Remainder of Page Intentionally Left Blank) 10 PROPERTY OWNER Property Development Centers LLC, A Delaware Limited liability *By: Safeway Inc., a Delaware corporation, its sole member CITY OF CARLSBAD, a municipal corporation of the State of California By: *By: . ^ (sign here) DMHUiAjM B^^^^^^/Assistant Vice President (print name/title) (e-mail address) (sign here) ^pJsr^ J. hou 1^ /Assistant Secretary (print name/title) StcJC, <bQu<^7(9 §)cfewa^^ 60^ (e-mail address) ATTEST: City Clerk '..Oj^^ 'tl ^ If required by City, proper notary acknowledgment of execution by contractor must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney Jsistant City Attorney 11 ACKNOWLEDGEMENT State of Califomia ) ) County of Alameda ) ss On September 27, 2012, before me, Dina Gutierrez, Notary Public, personally appeared Marilyn K. Beardsley and Steven J. Gouig, who proved to me on the basis of satisfactory evidence to be the persons v^hose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities and that by their signatures on the instrument the persons, or thie entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is tme and correct. WITNESS my hand and official seal. Signature DINAGUTtgRREZ COMM.* 1869946 NOTARY RUftJC • CAUFORNIA AUMEDA COUNTY MY COMM. EXP. MAY 18,2014 Seal EXHIBIT "A" LEGAL DESCRIPTION Real Property in the City of Cartsbad, County of San Diego, State of California, more particularly described as follows: Parcel 4 of City of Cartsbad Minor Subdivision No. 08-04 recorded by the County Recorder of the County of San Diego on July 11, 2012 as Parcel Map No. 20982. (Remainder of Page Intentionally Left Blank) EXHIBIT "B" RATE AND METHOD FOR DETERMINING FAIR SHARE OBLIGATION RANCHO SANTA FE AND OLIVENHAIN ROADS The City Council shall use the following rate and method for determining the fair share obligation for funding the construction of Rancho Santa Fe and Olivenhain Roads due from property conditioned to participate in the financing of these facilities. This calculation is done as part of an Agreement titled PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE (Agreement) which has been voluntarily entered into by the City of Carisbad and certain property owner wishing to proceed with development of their property in advance of the creation of Community Facilities District No. 2 (CFD No. 2). It is the City and property owner intent to form CFD No. 2 to provide funding for those improvements described within the Agreement. The following rate and method shall be used to determine the fair share and amount due from any property owner wishing to take advantage of this alternate funding mechanism. Basis for Cost Allocation The basis for allocation of costs to property conditioned with the financing of the improvements described in the Agreement shall be the Equivalent Dwelling Unit (EDU), which is defined per product classification as follows: Product Classification Equivalent Dwelling Units Single Family - Detached Units 1.0 EDU Single Family - Attached Units 0.8 EDU Multi-Family Units 0.6 EDU Churches 4.0 EDU per Acre Commercial/Industrial and other 10.0 EDU per Acre The number of each type of unit included in a development shall be determined by the City Engineer based on the most recent final map submitted to the City for approval. The EDU determination for non-residential development shall be made by the City Engineer when such a determination is requested by the property owner. The City Engineer may request additional information from any property owner as may be necessary to make his determination. The City Engineer is not required to make a determination on the number of EDUs for any project until adequate information is available. The City Engineer's determination shall be submitted to the City Council in the table below. The City Council shall make the final detemiination of the number of EDUs to be used in computing the fair share obligation for any project. Fair Share Amount and Method of Payment The fair share amount, as previously determined by the City Council, was $10,250 for each EDU. On June 23, 2009, through Resolution No. 2009-154, City Council approved a partial refund of the fair share amount totaling $2,850 for each EDU to property owners who satisfied their fair share obligation prior to June 23, 2009. As a result, the fair share amount is now assessed at $7,400 for each EDU. The City shall collect $7,400 for each EDU as determined by the City Council. This amount shall be collected in one payment of $7,400 per EDU to be paid prior to Council consideration of final map approval as described below. 1) Prior to the approval of a final map by the City Council, the property Owner shall pay to the City an amount equal to the number of EDUs included in said final map, as detennined by the City Engineer, times $7,400. If the City Council detennined that the City Engineer's calculation of the number of EDUs included on the final map is in error, the Council shall direct the City Engineer to amend his calculations and direct staff to bring the final map back for approval when such correction has taken place. Funds must be paid to the City before the final map will be scheduled for Council consideration. Computation of Fair Share Obligation La Costa Town Square Parcel CT No. Type of Unit EDU Cost per EDU Amount Due 1 N/A Single Family Detached Units 44.0 $7,400 $325,600 2 CT 01-09 Commercial 333.5 $7,400 $2,467,900 3 CT 08-07 OfFice 63.2 $7,400 $467,680 4 CT 08-03 Single Family Detached Units 63.0 $7,400 $466,200 Totai $3,727,380 2) If the property owner has already obtained a final map for units conditioned with the financing of Rancho Santa Fe and Olivenhain Road, the property owner shall pay to the City the net amount due shown above prior to entering into this Agreement.