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HomeMy WebLinkAboutSDP 05-15; Santa Fe La Costa LLC; 2014-0252467; Petition & WaiverDOCtt 2014-0252467 lilllliilllliiiillliiii JUN 18, 2014 11:03 AM RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE ErnesU. Dronenburg, Jr., COUNTY RECORDER FEES: 61.00 PAGES: Space Above This Une for Recorder's Use Assessor Parcel No. 223-060-28-00 PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF RANCHO LA COSTA BUILDING (SDP 05-15 and SDP 05-15x2) ("AGREEMENT") WHEREAS, the undersigned Property Owner at this time is processing for development with the City of Carisbad (hereinafter refenred to as "City") a development project known and identified as Rancho La Costa Building (SDP 05-15 and SDP 05-15x2), which consists of a one two-story commerdal building containing both retail and office uses, (hereinafter referred to as ttie "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 detemiined 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. 16 1 WHEREAS, the District is intended to be fonned 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. 9 of Planning Commission Resolution No. 6418 dated May 7, 2008, recommending approval of a site development plan (SDP 05-15), and as extended in Planning Commission Resolution No. 6948 dated March 20, 2013 (SDP 05- 15x2), requires the developer to comply with all conditions artd mitigation measures required as part of Zone 11 Local Facilities Management Plan; and, WHEREAS, pursuant to section 21.90.130 ofthe Municipal Code and pursuant to Local Facilities Management Plan, Zone 11, development permits can not be issued until the developer provkles 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 altemative method of financing the improvements descrit)ed in Section 1 herein that will allow Property Owner to discharge its fair share obligation for said improvemente 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 ofthe fair share described herein, has met the requirement set forth in Condition No. 9 of Planning Commission Resolution No. 6418 dated May 7, 2008, and as extended in Planning Commission Resolution No. 6948 dated March 20, 2013, and further delineated in the Local Facilities Management Plan, Zone 11, to provkle 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 fonmation of District which will cause the constiruction and installation and/or financing of the following improvements (hereinafter "Improvemente") which are generally described as follows: a) Rancho Santa Fe Road North Phase 1 (RSF No.l) La Costa Avenue to east of Mahr Reservoir b) Olivenhain Road Widening, and intersection improvemente at Olivenhain and El Camino Real c) Rancho Santa Fe Road Nortii Phase 2 (RSF No. 2) Phase 1 End to Melrose Drive. d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary Arterial Standard - Endnitas Citv Boundarv to Olivenhain Road Full Improvemente). 2. The cost of construction, engineering, environmental mitigations, legal and other incidental expenses as set forth in the Improvemente Budget will be funded by the District, if fonned, or by monies collected by the City for this purpose. 3. Property Owner acknowledges ite right to notice of and partidpati'on in all phases of fomiation under tiie "Mello-Roos Community Facilities Act of 1982," expressly 3 waives the proceedings required and all limiteitions contained in Title 5, Division 2, Chapter 2.5 of the Califomia Govemment Code and nonetheless with full knowledge of such righte, completely and forever waives such rights. Specifically, Property Owner hereby consente to the proceedings and waives any right to protest the formation of the District and the ordering of the improvemente under applicable Califomia statutes and consent to and support fonnation of saki 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 Coundl to fomn said District, Property Owner has entered into this Agreement and has paid to the City ail amounte due as descrit)ed herein. 4. a) Pn^rty Owner agrees to pay to City, or provide, ite fair share for the Improvemente described in Section 1. b) Said payment or provision, shall be made in the manner described in Exhibit "B", Rate and Metiiod for Detenmining 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 ite fair share of improvement coste as determined by City Council and set forth herein will satisfy their obligations for the construction ofthe Improvemente described in Section 1, as required by Condition No. 9 of Planning Commission Resolution No. 6418 dated May 7, 2008, and as extended in Planning Commission Resolution No. 6948 dated March 20,2013 and further delineated in the Local Facilities Management Plan, Zone 11, subject to adjustinent as described in Section 9 herein. e) Alternatively, if the District is formed and the Project is induded within it, Property Owner's obligation to pay ite 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 ite fair share and participate in the financing of improvements is voluntary and that without ttiis Agreement, Property Owner would be precluded from obtaining final map approvals or building and other development pemnite under the provisions ofthe General Plan, Chapter 21.90 ofthe Carisbad Municipal Code, applicable zone plan, financing plans and related documente until a satisfactory financing program has been developed to fund the construction of the Improvemente described in Section 1. 6. Property Owner hereby waives ite right to challenge the amount, establishment or imposition of said fair share and further waive any righte to pay said ^ir share under protest. 7. This Agreement does not affect, in any way whateoever, the obligation of Property Owner to pay any other fees or ass^smente 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 ite fair share is not a fee and waives any and all righte to notice of or challenges to the establishment or imposition of said fair share as a fee under provisions of Govemment 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 finandal obligation shall be recalculated using the taxing formula established for the District for the Improvemente desaibed in Paragraph 1. If that obligation is lower than the amount previously paid or provided by Property Owner to City, City shall reftind any excess, in the manner described below. b) Any refund shall be made from funds available within District upon District fomiation and shall not be an obligation of City's General fijnd or other revenue sources. c) in the event that suffident funds are not available from District's resources. Property Owner shall be reimbursed, as determined by the City Council, ttirough 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 ttie City under this Agreement shall be deposited in a special interest t)earing 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 Improvemente, any amount remaining in the special fund may be transferred to the CFD fund, at the discretion of the Administrative Services Director. 10. Upon completion of the Improvemente, and recording of the Notice of Completion for the final phase of the Improvements, the City Engineer shall detennine the total cost of all phases of the Improvemente and all related work (Coste), and the Administrative Services Director shall determine the total amount of revenue including fees, taxes, interest eamed on funds restricted to use only on the Improvemente, and other sources of funds received by the City dedicated to paying for the construction of the Improvemente (Revenues). The Administrative Services Director shall then compare the amount of Coste and Revenues to detennine if there are any excess Revenues as described below. If excess Revenues of more than $100,000 exist, the Administrative Services Director shall provide refunds to all eligible parties of all excess Revenues in an amount and in tiie manner described below. If excess Revenues are equal to, or less than $100,000, ttie City shall retain tiiese 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 coste to plan, design, construct, mitigate environmental impacts, inspect, and otherwise complete the project to the satisfaction of the City Engineer, induding applicable charges for City staff services. Total Revenues shall indude all monies held by the City dedicated exclusi>«ly to the construction of the Improvements including any fee revenues earmarked for the Project, CFD #2 taxes, applicable CFD #1 taxes, grante, and interest eamed on restricted funds as detennined by the Administrative Services Director. b) The amount of ttie refund due to any party shall be based on the proportion of that party's paymente under this Agreement based on ite 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 construded or to be construded wnthin, and participating in, CFD #2 and/or CFD #2 agreemente to prepay taxes. The amount ofthe refund shall be detennined by multiplying the proportional share computed above by the total amount of excess revenues. c) In order to share in the refijnd of any portion of the excess Revenues, the eligible party must request to be induded in the distribution of funds. Such request must be made within 90 days after ttie City Council's acceptance of the Notice of Completion for the final phase of the Improvemente. Each request must be accompanied by documente indicating dear title to tiie refund unless ttie request is being made by the party who originally pakJ the taxes to the City under a prepayment Agreement or to CFD #2. d) The Administrative Services Director shall compute the amount of the refund due each party as described above. Funds may be disbursed to the eligible parties following Coundl approval of such refunds. e) If the City does not receive requeste for refund from all eligible parties within the spedfied period, and all funds cannot be disbursed as provkled 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 Improvemente area, as detennined 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 entitied to a refund, and will mail notices of refund availability to the names and addresses in this file following the City Council's acceptence 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 entitied 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 witii this Agreement will be accepted by City as an alternate to the method described in tiie cunent Local Facilities Management Plan for local facilities Management Zone 11 for financing the Improvemente described in Paragraph 1. This Agreement does not require City to issue building pemnite or other development pemnite or grant approvals or relieve Property Owner of the obligation to comply with all applicabte provisions of law. including but not limited to Carisbad Municipal Code Tities 18, 19, 20 and 21. 12. Compliance witii the provisions of this Agreement is a condition of all future discretionary approval for the Improvemente. If Property Owner does not comply with the provisions of this Agreement, approval of the Project will not be consistent with the General Plan, tiie Growtti Management Program, and the Local Facilities Management Plan, and all subsequent discretionary approvals and pennits for the Project may be vinthheld by City. 13. In addition, tiie City will not approve any pending final maps, issue grading, building or other development pemnite or take any discretionary adion 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 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 responsibte 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 exerdse of these remedies. 16. This Agreement and tiie covenants conteined 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 ttie Projed and create an equitebte 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 postege prepaid. Delivery of notice to Property Owner shall t>e presumed to have been made on the date of mailing regardtess of receipt by Property Owner. Notices required to be given to Property Owner shall be addressed as follows: Rancho La Coste Village 9404 Genesee Ave., Ste. 330 La Jolla, CA 92037 Notices to tiie City shall be delivered to: Administrative Services Diredor City of Carisbad 9 1635 Faraday Avenue Carisbad, CA 92008 Each party shall notify the other immediately of any change that would require any notice delivered hereunder to be direded to anotiier 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 tiie Owner, and have the authority to execute this document, including the binding authorizations herein. (Remainder of Page Intentionally Left Blank) 10 PROPERTY OWNER Santa Fe La Costa, LLC, A Califomia Limited liability company (print name/title) J ' (e-mail adaress) "By: (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of Califomia By: ATTEST: BARBARA ENGLESON City Clerk (e-mail address) 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, Presklent, 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 seai empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attomey Assistant City Attomey 11 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of San Pi-ego On NAcLq 2-0,0014 before me, KAoYgye^yv '^~^( Y^ty^yu "-PuJ^ i C. , (Heresflsert name and title of theifficer) personally appeared who proved to me on the basis of satisfactory evidence to be the person^s.) whose name(:^ is/ap© subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hcr/thcir authorized capacity(4es^, and that by his/her/their signature^*) on the instrument the person^, or the entity upon behalf of which the person(-s^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SigHfrfure of Notary • Public (Notary Sea. i^^SmS/ San Diego county g 1^ ^TT^ ^^'rv^r^TTT^rr^r^^ MORGENFRY Commission # 1918442 Notary Public - Caliiornia San Diego County ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date 6>T>P C)5- \<o Awd spp bP> -16 »2. (Additional information) CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate OiJicer (Title) • Partner(s) • Attorney-in-Fact • Trustee(s) • Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and atiach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect fonns (i.e. Iw/she/thoy, is /afe) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. • Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different docimient. • Indicate title or type of attached document, number of pages and date. • Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document 2008 Version CAPA vl2.10.07 800-873-9865 www.NotaryClasses.com CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of 5^a>J OiV.g^::^ On Fe.(Q J,l,3Lo!^ before me, daiidc.i ^- LflroktJSr^ klr>+ar^ IC Date Here Insert Name a/id title of the Offic^ personally appeared Name(s) of Signer(s) I JANET H. LACKNER Commission # 1990987 Notary Public - California f San Diego County s My Comm. Expires Oct 11.20161 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(3^ is/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/tbeir authorized capacity(»»), and that by his/l«*/tfe©*r signature(i^ on the instrument the person(^, or the entity upon behalf of which the person(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signature* OPTIONAL Signature of Notary Public Though the infomation below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document:7^,-A'Agia, j/fivtiiy f (!^Ai5riJ T^^t^f/S/AoM <:)f A rnM/lou'it'^ t^tOlreSl Document Date: g. SUsi^ Number of Pages: Signer(s) Other Than Named Above: >J<^|L'>t-. Capaclty(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: .SarA^fk. /gt lx:>STty^ RIGHT THUMBPRINT OF SIGNER Top of tfiumb fiere Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of tfiumb tiere 9 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) EXHIBIT "A" LEGAL DESCRIPTION Real Property in the City of Carlsbad, County of San Diego, State of Califomia, more particularly described as follows: Parcel 1 of Parcel Map 12586, in the City of Carlsbad, County of San Diego, State of California, Filed in the Office ofthe County Recorder of San Diego County, Febmary 25, 1983. Assessor's parcel numbers: 223-060-28-00 (Remaindw 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 detennining the fair share obligation for funding the constmction 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 tiie 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 detennine 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 witii 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 Eouivalent 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/lndustiial and other 10.0 EDU per Acre The number of each type of unit included in a development shall be detennined by the City Engineer t>ased 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 infonnation from any property owner as may be necessary to make his detennination. The City Engineer is not required to make a detemiination on the number of EDUs for any project until adequate infonnation 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 detennination of the number of EDUs to be used in computing tiie fair share obligation for any project. Fair Share Amount and Method of Pavment 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 first 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 was reduced to $7,400 for each EDU. On February 25, 2014, through Resolution No. 2014-030, City Council approved a second partial refund of the fair share amount totaling $2,125 for each EDU to property owners who satisfied their fair share obligation prior to February 25, 2014. As a result, the fair share amount is now assessed at $5,275 for each EDU. The City shall collect $5,275 for each EDU as determined by the City Council. This amount shall be collected in one payment of $5,275 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 $5,275. If the City Council detemnined 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 Rancho La Costa Building Project No. Type of Unit EDU Cost per EDU Amount Due SDP 05- 15x2 Commercial Building 6.89 $5,275 $36,344.75 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.