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HomeMy WebLinkAbout2000-10-03; City Council; 15921; Terraces At Sunny Creek4B# 1~5; q&i UITG. October 3,200O IEPT. ENG e h. b CITY OF CARLSBAD - AGENDA BILL TITLE: APPROVAL OF PRE-PAYMENT AGREEMENT FOR COLLEGE BLVD AND CANNON ROAD-EAST FEE PROGRAM AND CREDIT AGREEMENT FOR CONSTRUCTION OF A PORTION OF COLLEGE BLVD AND APPROVAL OF FINAL MAP FOR CARLSBAD TRACT CT 96-02. THE TERRACES AT SUNNY CREEK DEPT. HEi! &d RECOMMENDED ACTION: Adopt Resolution No. gm-3 10 approving and authorizing execution of a Petition, Waiver and Consent to Creation of a Facility Impact Fee Program, and Agreement to Pay Fair Share Cost of College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a Point located approximately 1200-feet east of College Boulevard, and Credit Agreement for Portion of College Boulevard to be constructed per CT 96-02 made with The Terraces at Sunny Creek, LLC, a California limited liability company, and to adopt Resolution No. 1 approving the final map for Carlsbad Tract CT 96-02 The Terraces at Sunny Creek and authorizing the City Clerk to process the map for recording. ITEM EXPLANATION: The Terraces at Sunny Creek LLC (“Property Owner”) is developing the property known as The Terraces at Sunny Creek, CT 96-02 (the “Project”). The Project includes a condition for the Property Owner to enter into a Pre-Payment Agreement to secure the Owners obligation of Fair Share cost towards the future Facility Fee Impact Fee Program (currently entitled: Bridge and Thoroughfare District No. 4) that is intended to construct College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a Point located approximately 1200-feet east of College Boulevard (the “Improvements”). The purpose of the future Bridge and Thoroughfare District No. 4 (“Fee Program”) is to provide a funding mechanism for the Improvements. City staff, with consultant support, is currently performing a Fee Study for the Fee Program. The Facility Impact Fees for Fee Program are based on the amount of average daily trips (“ADT”) of vehicles generated by the Project (“Facility Impact Fees”). Based on the current estimated cost of the Improvements and the estimated ADT of the Project, the City has determined an estimated Fair Share unit cost that will be applied to the Project. The current estimated Fair Share unit cost is $950 per ADT generated by the Project. Based on the estimated Fair Share unit cost and the total ADT generated by the Project, the Property Owner is currently responsible for an estimated total Fair Share cost of $2,078,600 (“total estimated Fair Share cost”). The total estimated Fair Share cost will be paid by the Property Owner incrementally prior to issuance of each building permit within the Project and will be based on the ADT generated per each building permit authorized. The Property Owner is aware that the estimated Fair Share unit cost and total estimated Fair Share cost’are approximate and are subject to change once the final Facility Impact Fee and the Fee Program is established by City Council. Agenda Bill No. Is! q & I Page 2 The Project also includes a condition for the Property Owner to construct a portion of College Boulevard that lies within the Fee Program. This work is considered Creditable Work and the Property Owner would be eligible for credit and/or reimbursement by the Fee Program. The Creditable Work is secured via a Subdivision Improvement Agreement and security instrument for City drawing No. 361-6 on file at the Engineering Department under CT 96-02. The cost of Creditable Work is estimated at $488,418 (“Credit”). For the purposes of this Project, this Creditable Work will be processed as a Credit towards the Owners total estimated Fair Share cost towards the Fee Program. After subtracting the Credit from the total estimated Fair Share cost of $2,078,600, this leaves the Property Owner a remaining $1590,182 to secure. The Property Owner has satisfied this by providing instruments of security for the remainder of the total estimated Fair Share cost via a: 1) Letter of Credit for $973,660 and, 2) Performance Bond for $616,522. These instruments secure the Owners remaining obligation of the total estimated Fair Share cost. As the Property Owner seeks building permits and pays the Facility Impact Fees for the Project, these securities will be reduced in increments as specified in the attached Agreement (see Exhibit 2). The Property Owner is in agreement with all the provisions of the Agreement. Engineering staff has also completed checking the final map of Carlsbad Tract CT 96-02, also known as The Terraces at Sunny Creek. This is a 40.62-acre property subdivided for residential development. This subdivision is within Local Facilities Management Plan (LFMP) Zone 15 and is generally located northeast of the intersection of El Camino Real and College Boulevard. It is comprised of 181 lots with uses as follows: 172 family dwellings lots, 1 multi-family affordable housing lot, 1 open space, 2 recreation lots, and 5 private street lots. The final map conforms substantially with the tentative map as recommended for approval by Planning Commission on July 1, 1998 per PC Resolution No. 4292 and approved by City Council on November 17, 1998 per Resolution 98-337. The final map also conforms to the General Plan, all the applicable requirements of the Municipal Code, City Standards, and Growth Management Plan. The developer, The Terraces at Sunny Creek LLC, a California Limited Liability Company, is requesting the recordation of said final map. The developer has received environmental approval, via an approved Environmental Impact Report (EIR 98-Ol), to construct the portion of College Boulevard as part of the Project. This approval was granted by City Council November 17, 1998 per Resolution 98-377. FISCAL IMPACT: No City funds are being allocated or dedicated by entering into this Agreement. The attached Agreement in Exhibit 2 binds the Property Owner to pay Fair Share costs towards the Fee Program. The Owner, by constructing a portion of College Boulevard as part of the Project, will be credited against the Fair Share payment due and no reimbursement payments are anticipated. The Property Owner will be able pull a certain number of building permits, without paying the unit Fair Share costs, until this credit has been expended. Once the credit is expended, the Property Owner shall, prior to issuance of building permits, deposit fees based on Fair Share unit costs of $950/ADT or according to the fees as established by City Council. Although the Fee Program is not yet formed, it will be one of the funding sources intended to construct College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a Point located approximately 1200-feet east of Agenda Bill No. Page 3 15 ; 4 a \ College Boulevard. It is anticipated that the proposed Fee Program, together with City funding allocations, if any, will be brought before City Council for approval and implementation at a later date. The developer pays a plan check fee for the Project to cover the expense of plan checking and processing the final map for recording. There is no fiscal impact to the City. All appropriate fees will be paid if and when building permits are issued for this project. EXHIBITS: 1. 2. Location Map. Resolution No. am-3 10 approving and authorizing execution of a Petition, Waiver and Consent to Creation of a Facility Impact Fee Program, and Agreement to Pay Fair Share Cost of College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a Point located approximately 1200-feet east of College Boulevard and Credit Agreement for Portion of College Boulevard to be constructed per CT 96-02. 3. Resolution No. a-3 1 \ approving a final map for Carlsbad Tract CT 96-02 and authorizing the City Clerk to process the map for recording. I LW WI \ I w I I NOT TO SCALE \ CITY OF LNE,N,TAS~-~l~ ! 1 PROJECT NAME r- THE TERRACES AT SUNNY CREEK - RESOLUTION NO. 2ooo-310 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING EXECUTION OF A PETITION, WAIVER AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COSTS OF COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE DRIVE AND CANNON ROAD FROM EL CAMINO REAL TO A POINT LOCATED APPOXIMATELY 1200-FEET EAST OF COLLEGE BOULEVARD AND CREDIT AGREEMENT FOR PORTION OF COLLEGE BOULEVARD TO BE CONSTRUCTED PER CT 96-02 9 WHEREAS, as a condition of approval, The Terraces at Sunny Creek, LLC, a California limited liability company (the “Property Owner”) is required to pay their Fair Share cost of the 10 construction of College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon ” Road from El Camino Real to a point located approximately 1200-feet east of College Boulevard l2 (the “Improvements”) prior to further development of CT 96-02 (the “Project”) as defined in the 13 Agreement attached as Exhibit “A”; and 14 WHEREAS, the City Council of the City of Carlsbad has required that the funding of the 15 Improvements must be guaranteed before any development takes place in the area bounded by ,a Local Facilities Management Zone 15; and, 17 WHEREAS, City staff is actively pursuing formation of a Facili& Impact Fee Program to finance the Improvements (“Fee Program”); and, 18 19 WHEREAS, the Project contains a condition for the Property Owner to construct a portion of College Boulevard that lies within proposed Fee Program (the “College Boulevard 20 II improvements”); and, 21 WHEREAS, the City Council finds that, with the construction of the College Boulevard 22 improvements by the Property Owner, the existing circulation improvements are adequate to 23 serve the needs of the Project and that all growth management circulation standards will be met 24 for the Project; and, 25 WHEREAS, although the Council anticipates the Fee Program will be formed in the near 26 future, the Council is willing to consider alternative financing proposals during the period from the 27 present to the formation date of the fee program; and, WHEREAS, such interim financing program will only be considered as long as the Council 28 finds that the formation of the fee program is proceeding in a reasonable manner; and, 1 WHEREAS, the Council finds that the formation of the Fee Program is proceeding in a 2 reasonable manner; and, 3 WHEREAS, the Council finds that the guarantee provisions related to the Improvements 4 may be met through an interim financing program using an agreement between certain property 5 owners and the City whereby the property owner agrees to secure prepayment of his/her Fair Share cost of the Improvements within the Fee Program; and, 6 WHEREAS, the Council finds that The Terraces at Sunny Creek, LLC, a California limited 7 liability company, may enter into the attached agreement entitled “Petition, Waiver and Consent to 8 Creation of a Facility Impact Fee Program, and Agreement to Pay Fair Share Cost of College 9 Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real IO to a point located approximately 1200-feet east of College Boulevard, and Credit Agreement for 11 Portion of College Boulevard to be constructed per CT 96-02” (Exhibit “A”) in satisfaction of their 12 obligation under the Project financing conditions, 13 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 14 California, as follows: 1. That the above recitations are true and correct. 15 2. That the form of the “PETITION, WAIVER AND CONSENT TO CREATION OF A 16 FACILITY IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COST OF I7 COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE DRIVE AND I8 CANNON ROAD FROM EL CAMINO REAL TO A POINT LOCATED APPOXIMATELY 1200- 19 FEET EAST OF COLLEGE BOULEVARD, AND CREDIT AGREEMENT FOR PORTION OF 20 COLLEGE BOULEVARD TO BE CONSTRUCTED PER CT 96-02”, Exhibit “A” attached hereto, is 21 hereby accepted. 22 3. That the Mayor is hereby authorized to execute the Agreement shown in Exhibit “A 23 that has been executed by The Terraces at Sunny Creek, LLC, a California limited liability 24 company. II 25 II 26 II 27 II 28 II 1 2 3 4 5 6 7 8 11 12 13 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4. That the City Clerk is hereby directed to transmit the executed Agreement for recordation with copies to the City Engineer and The Terraces at Sunny Creek, LLC, a California limited liability company, 2006 Palomar Airport Road, Ste 113, Carlsbad, CA 92008. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 3.rd day of October , 2000 by the following vote, to wit: AYES: co until Members Lewis, Finnila, Nygaard and Kulchin NOES: None ATTEST *i+xYwvz , OOD, City Clerk w=w City of Carlsbad Records Management Department October 11,200O Gregory J. Smith San Diego County Recorder Post Office Box 1750 San Diego, CA 92112-4147 Enclosed for recordation are the following described documents: PETITION, WAIVER AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COST OF COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE DRIVE AND CANNON ROAD FROM EL CAMINO REAL TO A POINT LOCATED APPROXIMATELY 1200-FEET EAST OF COLLEGE BOULEVARD AND CREDIT AGREEMENT FOR PORTION OF COLLEGE BOULEVARD TO BE CONSTRUCTED PER CT 96-02 APN: 209-090-I -10,209-090-l 2 209-060-59 CT 96-02 Also enclosed are instructions on how the City is to be billed for the recordation fees incurred. Thank you for your assistance in this matter. Sincerely, Debra Doerfler u Office of the City Clerk Enclosure 1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 - (760) 434-2808 @ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA. 92008 SPACE ABOVE THIS LINE FOR RECORDER’S USE Project no. CT 96-02 Parcel No. 209-090- 1 - 10, 209-090-12 209-060-59 Legal Description: Attached Exhibit “A” PETITION, WAIVER AND CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM, AND AGREEMENT TO PAY FAIR SHARE COST OF COLLEGE BOULEVARD FROM EL CAMINO REAL TO CARLSBAD VILLAGE DRIVE AND CANNON ROAD FROM EL CAMINO REAL TO A POINT LOCATED APPROXIMATELY 1200-FEET EAST OF COLLEGE BOULEVARD AND CREDIT AGREEMENT FOR PORTION OF COLLEGE BOULEVARD TO BE CONSTRUCTED PER CT 96-02 RECITALS: A. WHEREAS, The Terraces at Sunny Creek, LLC (the “Property Owner”) is processing a development within the City of Carlsbad (the “City”). The development project is known and identified as The Terraces at Sunny Creek, CT 96-02 (the “Project”), located within real property owned by Property Owner; the legal description of said real property is attached hereto as Exhibit “A” and is incorporated herein by reference; and, 8. WHEREAS, the City has determined Project to be located within the boundaries of a proposed benefit area for a Facility Impact Fee Program to be known as Bridge and Thoroughfare District No. 4 - Cannon Road East and College Boulevard North (the “Fee Program”); and, C. WHEREAS, the Fee Program is intended to be formed to finance those Improvements generally described in Paragraph 1 below; and, D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area of benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code (CMC) Section 20.08.140); amendment to the Traffic Impact Fee (CMC Chapter 18.42); a new 1 Terraces Petition Agreement Final Version 9/22/00 d - development Impact Fee enacted pursuant to Government Code Section 66000 et seq.; any combination thereof; or otherwise; and, E. WHEREAS, the Property Owner desires to proceed with processing of the Project prior to City determination of the form or establishment of the Fee Program; and, F. WHEREAS, the Local Facilities Management Plan for Zone 15 requires a guarantee for the construction of segments of College Boulevard and Cannon Road, described in Paragraph 1 below, prior to the recordation of any final maps or the issuance of building permits within the zone; and, G. WHEREAS, Condition Number 11 (as that condition relates to the funding and construction of College Boulevard and Cannon Road) of the tentative tract map approved for the Project, pursuant to Planning Commission Resolution No. 4292 and City Council Resolution No. 98-3 37, requires the Property Owner to provide for the construction of certain public improvements including a portion of College Boulevard; and, H. WHEREAS, compliance with the applicable Local Facilities Management Plan for Zone 15 and tentative map conditions for the Project is a condition of approval for the final map for the Project; and, I. WHEREAS, the City and the Property Owner desire to agree to a guarantee which ensures the Property Owner’s Fair Share cost of the financing for the Improvements described in Paragraph 1 below that will allow the Property Owner to proceed with the processing of a final map and development of the Project in advance of the formation of the Fee Program for the construction of College Boulevard and Cannon Road; and, J. WHEREAS, City Council agrees that Property Owner, upon entering into this Agreement and upon payment of the Fair Share cost of the Improvement described herein, has met the requirement set forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 15 and related tentative map Condition Number 11 (as that condition relates to the funding and construction of College Boulevard and Cannon Road) for the Project to provide a financial guarantee for the construction of those Improvements described in Paragraph 1 below; and, K. WHEREAS, the Property Owner voluntarily enters into this Agreement; and, L. WHEREAS, the City Council has determined that due to the size of the Project, there will be no major impacts on the circulation system at the present time if the development of the Project is allowed to proceed with sufficient financial guarantees for actual construction to meet Property Owner’s Fair Share cost of the Improvements. 2 Terraces Petition Agreement Final Version 9/22/00 4 NOW, THEREFORE, in consideration of proceeding with the processing of the Project, the undersigned Property Owner hereby agrees, waives and consents as follows: 1. Petition for Proceedings The Property Owner hereby petitions the City for the initiation of proceedings of a Fee Program which will cause the construction and installation and/or financing of the following arterial improvements (the “Improvements”) which are more specifically described as follows: College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a point located approximately 1200-feet east of College Boulevard. The Improvements proposed for inclusion may include full- width grading for an 82-foot wide major arterial roadway within a 102-foot wide road right-of-way, with related drainage Improvements, and two M-foot wide paved travel lanes, median curbs along both edges of a raised unimproved median strip for College Boulevard from El Camino Real to Carlsbad Village Drive and Cannon Road from El Camino Real to a point located approximately 1200-feet east of College Boulevard, all built to City of Carlsbad major arterial standards. The improvements also include transition improvements to full major arterial improvements at existing and future intersections with arterial roadways. The costs of construction, engineering, design, construction inspection, contract administration, construction engineering, environmental mitigation, condemnation costs for the necessary right-of-way and slope easements, legal and other incidental expenses of the Improvements will be funded by the Fee Program. 2. Waiver of Protest Rights. The Property Owner acknowledges its right to notice of, and participation in, all phases of the establishment of Fee Program and expressly waives any right to protest or oppose the imposition or formation of the Fee Program, including, but not limited to those provided for under California State Law. Property Owner’s waiver of its right to protest establishment or formation of the Fee Program shall not, notwithstanding the cost and fee estimates below, prevent the Property Owner from protesting the amount of the fee or extent of the Improvements for College Boulevard and Cannon Road. 3. Fair Share Obligations. a. The Property Owner agrees to pay City the estimated fair share costs for the Improvements (“Fair Share”). Fair Share, as defined in this Agreement, shall be a figure based on the amount of traffic generated by projects within the subject facilities management zone and Terraces Petition Agreement Final Version 9nuoo the actual cost of those Improvements. Currently, the parties estimate that the Fair Share unit cost would be based on $950 per average daily trip (ADT) generated by each dwelling unit or units within the Project (“estimated Fair Share Unit Cost”). b. The Property Owner is obligated by Condition Number 11 of the tentative map for the Project to construct portions of College Boulevard, some of which are within the Fee Program and some of which are not within the Fee Program. The cost of those portions of College Boulevard constructed by the Property Owner which are described in Paragraph 1 and are included within the Fee Program (“Creditable Work”) are fully creditable and/or reimbursable against payment of future fees into the Fee Program pursuant to the provisions of this Agreement. Those portions of College Boulevard constructed by the Property Owner that are not described in Paragraph 1 or are not included within the Fee Program are not considered creditable and/or reimbursable against payment of future fees into the Fee Program. The Property Owner and City agree that, for purposes of this Agreement, the dollar amount of the Creditable Work of the Property Owner’s College Boulevard improvement obligation is estimated at $488,418.00 (“Estimated Credit”) as detailed within Exhibit “B” and by this reference made a part hereof. The future calculation of Creditable Work shall be based on the categories provided in Exhibit “B”. These amounts are based on the work described in Paragraph 1 and may change if the description of the work changes, subject to approval by City. No credit shall be made for work that is not covered by the Fee Program. C. The Property Owner shall enter into a standard City Subdivision Improvement Agreement for CT 96-02, incorporated herein and by this provision made a part hereof, for the Creditable Work and post the required improvement security in accordance with City requirements. Among other construction, the Creditable Work for College Boulevard is reflected on approved City Drawing number 36 l-6. The Property Owner shall cause construction of the Creditable Work within the time limits established by the conditions of approval for the Project and/or as provided for in the Subdivision Improvement Agreement. City shall grant reduction and/or release of the improvement security used to secure the Creditable Work in accordance with the terms of the Subdivision Improvement Agreement, not by this Agreement. d. The actual amount of Property Owner’s Fair Share cost under the Fee Program shall be determined by City Council, based on a preponderance of evidence and consistent with Paragraph 7 of this Agreement, when the City Council establishes the Fee Program. e. The City’ s current estimate of the Property Owner’s Fair Share cost under the Fee Program is $2,078,600, based upon the following calculation: 172 single-family units at 10 ADT/unit, plus 50 apartment units at 6 ADT/unit, plus 28 granny flats at 6 ADT/unit, each multiplied by the estimated Fair Share Unit Cost of $950/ADT. In order to secure payment of Property Owner’ s Fair Share cost, in addition to agreeing to construct the Creditable Work, the Property Owner shall deposit with the City a security bond for facilities Improvements in the amount of $616,522 (the “Bond”) and a letter of credit in the amount of $973,660 (the “Letter 4 Terraces Petition Agreement Final Version 9/22/00 of Credit”). The Property Owner shall provide the Bond and Letter of Credit to the City before recordation of a final map for any phase or phases within the Project. Both the Bond and Letter of Credit shall be in a form reasonably acceptable to City. f. Prior to issuance of building permits for the Project, the Property Owner shall deposit funds with the City that are intended to pay Property Owner’s Fair Share cost (the “Fee Deposit”) to the extent the estimated Fair Share exceeds the estimated Creditable Work. The City agrees to grant the Property Owner a credit towards the Fair Share costs in an amount equal to that of the estimated Creditable Work ($488,4 18), provided the Creditable Work is constructed with good faith effort by the Property Owner as determined by City. It is estimated that the Property Owner’s credit will be exceeded once the City has issued the Property Owner enough building permits generating more than a total of 5 14 ADT. This figure is based on 5 14 ADT multiplied by $950/ADT, near the Estimated Creditable amount of $488,418. Once the amount of the Creditable Work has been exceeded through the issuance of building permits, the Property Owner shall then pay the Fee Deposit before the issuance of each building permit thereafter. The Fair Share shall equal the estimated Fee Deposit of $950/ADT times the number of ADT’s generated by the development authorized by each building permit. After formation of the Fee Program, the Property Owner shall pay the Fee Deposit as adopted by the City Council pursuant to formation of the Fee Program prior to the issuance of any building permit for the Project pursuant to Paragraph 7. g. Once the Property Owner makes payments of the Fee Deposit, the City shall allow the reduction and release of the Letter of Credit and Bond; however, the reduction of the Letter of credit and Bond shall be in increments of not less than $100,000. Reductions shall first be made against the-Letter of Credit and then against the Bond. However, the City shall not release the last $100,000 of the Bond until both (i) completion of the audit of cost of the Creditable Work and approval by the City, pursuant to Paragraph 9, and (ii) either (a) establishment of the Fee Program or (b) termination of this Agreement pursuant to Paragraph 10. h. Provision by the Property Owner of the Letter of Credit and Bond, and the contractual covenant created by this Agreement, including actual construction of the Creditable Work, satisfy Property Owner’s obligations for the construction of the Improvements, as required by the Local Facilities Management Plan for Zone 15 and Condition Number 11 (as that condition relates to the funding and construction of College Boulevard and Cannon Road). City shall not impose any additional obligations on the Project or on the Property for land or Improvements related to College Boulevard and/or Cannon Road. 4. Reimbursement. In the event the actual dollar amount of Creditable Work done by the Property Owner exceeds the Property Owner’ s Fair Share cost under the Fee Program as established by City Council, the Property Owner is eligible to receive reimbursement from the proceeds of the Fee Program on a Terraces Petition Agreement Final Version 9/22100 schedule as determined by the City Council. In no case shall the City reimburse the Property Owner for any portion of the Creditable Work done by the Property Owner without first entering into a subsequent reimbursement agreement between the City and the Property Owner. Any reimbursement made pursuant to Paragraph 3 shall be made from funds available through the collection of fees under the Fee Program and shall not be an obligation of City’s General Fund or other revenue source. City makes no guarantee, implied or otherwise, that adequate funds will be collected pursuant to the approved Fee Program to fully compensate the Property Owner for any or all Creditable Work done by the Property Owner. This reimbursement shall be made notwithstanding and in addition to any reductions in the Bond and/or Letter of Credit made pursuant to Section 3g, because the Bond and Letter of Credit are only security for payment of the Property Owner’s Fair Share obligation to the Fee Program and not an additional charge. 5. Voluntarv Participation. The Property Owner acknowledges that this Agreement to pay its Fair Share and thereby participate in the financing of Improvements is voluntary and that without this Agreement, the 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 had been developed to fund construction of the Improvements. 6. Other Fees and Assessments. This Agreement does not waive, in any way whatsoever, the obligation of the Property Owner to pay any fees or assessments associated with the Property Owner’ s development other than obligations associated with College Boulevard and Cannon Road, nor does this Agreement relieve the Property Owner from providing other public facilities required under conditions of the Local Facilities Management Plan for Zone 15 or placed upon the Project by the City. 7. Financial Obligations. a. If prior to January 1,2003, the Fee Program for College Boulevard and Cannon Road is established, subsequent to deposit of the Bond and Letter of Credit by the Property Owner pursuant to this Agreement, the Property Owner’s financial obligation shall be recalculated at that time, using the fee formula established under the approved Fee Program. If the Fee Program obligation is different from the Fee Deposit amount, Bond and Letter of Credit, plus any accrued interest, plus any other amounts previously paid by the Property Owner to the City, the City shall refund any excess (“Excess”), or the Property Owner will pay to the City any additional amount due (“Shortfall”). b. Although the Property Owner has secured the Fair Share cost via instruments of security, the Property Owner is responsible to pay the Fair Share cost identified in this 6 Terraces Petition Agreement Final Version 9nuoo \3 Agreement in order to finance the Improvements of the Fee Program, plus any Shortfall. C. The City’s growth management plan identities the minimum level of service that circulation roads must meet. At any point during construction of the Project, and in the event the City’s roadway circulation elements begin to fail and are measured by the City to be below the minimum level of service thresholds, then the City shall inform the Property Owner, via certified mail, to pay to the City the Property Owner’s Fair Share cost, plus any Shortfall due to the Fee Program. Upon notice to the Property Owner by the City, the Property Owner shall be responsible to pay the total Fair Share cost, plus any Shortfall within 60 days of the City’s notice. If within 60 days after written notification, the Property Owner has not provided funds to match the amount of their total Fair Share cost, plus any Shortfall, the City shall have the option to call for the Bond and/or Letter of Credit in an amount equal to the Property Owners total Fair Share cost, plus any Shortfall. d. Refund of any Excess shall be made from funds available through the collection of Fee Program fees and shall not be an obligation of the City’s General Fund or other revenue sources. e. If a Shortfall exists, the Finance Director shall notify the Property Owner, via certified mail, of the amount of such Shortfall. The amount of said Shortfall shall be due and payable to the City 30 days after the mailing of such notice. f. The computation of the amount of any Shortfall shall not include interest charges. If payment in full of the Shortfall is not made by the Property Owner within ninety (90) da; of notice of said Shortfall by the Finance Director, the amount due shall constitute a lien on any portion of the property within the Project for which a building permit has not been issued by the City. City may deny the issuance of building permits and/or take any other action allowed by law to deny further development of Project property subject to this Agreement, and to collect such Shortfall including, but not limited to, enforcement of the lien on the property. The City’s recordation of a lien shall not affect its ability to recover the Shortfall by other legal means concurrently, but no double recovery will be allowed. The cost of such collection shall be an obligation of the Property Owner and shall be added to the amount of the Shortfall payment due to the City. h. Any payment received by the City under this Agreement shall be deposited in a special fund and may only be used to fund the construction of the facilities described herein. Upon the establishment of a Fee Program to fund these same facilities, any amount remaining in the special fund may be transferred to the Facility Fee Fund, at the discretion of the Finance Director. 8. Termination of Agreement. 7 Terraces Petition Agreement Final Version 9/22/00 On or after the effective date of the Fee Program adopted by the City Council, the Property Owner may elect to terminate this Agreement. The Property Owner shall give written notice to the City of its intent to terminate this Agreement. Upon receipt of such notice, the City shall review the Fee Deposit amount, Bond and Letter of Credit for the Project and determine the amount of any Shortfall or refund due under the provisions of this Agreement and the amount of any remaining credits pursuant to this paragraph 7, if any. Upon payment of the Shortfall, if any, by the Property Owner and upon the determination by the City that the Project is subject to the adopted Fee Program, the City shall file a notice of release and termination of Agreement with the Office of the County Recorder of the County of San Diego. Termination of this Agreement by the City shall affect only those portions of the Project that have not recorded a final map prior to the filing of the notice of release and termination of Agreement. All money or credits received in satisfaction of the terms of this Agreement for any portion of the Project for which a final map has been recorded prior to termination of the Agreement shall be considered to have satisfied the Fee Program requirements for those lots or units included within such recorded map. Any additional credits in excess of the needs created by the recording of a phased final map shall be made available to the Property Owner for use on the remaining unrecorded portion of the project in accordance with any provisions for the allowance of credits under the adopted Fee Program. 9. Audit Request. a. Within 90 days of the completion of the Creditable Work, and acceptance by the City pursuant to the terms of the Subdivision Improvement Agreement, the Property Owner shall submit an Audit Request for the Creditable Work. The purpose of the Audit Request is to conclusively establish the amount of credit that the Property Owner will receive against payment of the Fair Share contribution to the Fee Program for the construction of that portion of the Improvements required by Condition No. 11 for the Project. b. The Audit Request shall include copies of plans, specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by City to evidence the completion and payment for each item of Creditable Work. The Audit Request will be processed and audited for the City by a reputable consulting engineer selected by the City (“Auditing Engineer”). The costs of the Auditing Engineer shall be paid by the Property Owner, but shall be added to the cost of the Creditable Work. Upon selection of the Auditing Engineer, the Property Owner shall within 30 days of written notification by the City deposit with the City a sum of money in an amount estimated by the City to complete the audit. C. Exhibit B sets forth the preliminary cost estimate for the Creditable Work. The parties acknowledge that Exhibit B, which was prepared by the Property Owner’s engineers, is for illustrative purposes only and that all costs are subject to audit for eligibility for credit and/or reimbursement in accordance with the provisions of this Agreement. Terraces Petition Agreement Final Version 9/22mo d. The cost of Creditable Work may include an overhead allocation limited to four percent (4%) the total of actual Creditable Work in lieu of other credit for the Property Owner’s costs incurred for salary and benefits for staff of the Property Owner’s home offices, purchasing department expense, supervision above the level of on-site superintendent, and general corporate, legal and accounting fees. e. The cost of Creditable Work may include the cost of premiums paid by the Property Owner for Creditable Work and/or performance bonds relating to the construction of Improvements limited to one and one half percent (1.5%) of the total of all Creditable Work for such construction. f. The cost of Creditable Work may include amount paid by the Property Owner and limited to one and eight tenths percent (1.8%) of the total of all Creditable Work relating to the construction of Improvements as an allowance to cover the allocable portion of premiums paid by the Property Owner for blanket liability insurance coverage. g- The City shall, within 30 days after the Audit Engineer’s approval, make a final determination on the final Creditable Work costs to be credited towards the Property Owner’s obligation of fees due for the Project. 10. Sunset Provision for Fee Promam. If the Fee Program has not been established for any reason by January 1,2003, the amount paid or obligated to be paid by the Property Owner under this Agreement, including any credits or reimbursements due pursuant to this Agreement, shall be deemed to represent the Property Owner’s Fair Share cost for provision of the Improvements and no further payment will be due from or reimbursement due to the Property Owner. 11. Compliance with Applicable Law. Compliance with this Agreement shall be accepted by the City as an alternate to the method described in the current Local Facilities Management Plan for Zone 15 for financing the Improvements described in Paragraph 1, above. This Agreement does not require the City to issue building permits or other development permits or grant approvals or relieve the 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 2 1. 12. Compliance with Proiect Conditions. . Compliance with the provisions of this Agreement is a condition of all future discretionary approvals for the Project. If the 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 Terraces Petition Agreement Final Version 9/22/00 Management Program, the Local Facilities Management Plan, or the applicable financing plan for Zone 15 and all subsequent discretionary approvals and permits for the Project shall be withheld by the City. 13. Disputes. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not otherwise settled by agreement between parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement, shall be produced to writing by the Property Owner or by the City’s Public Works Director. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The Public Works Director or the Property Owner receiving the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the Office of the City Manager. The City Council may then opt to consider the directed solution to the problem. In such cases, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from pursuing other remedies available to them at law. 14. Covenants. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns, and transferees of the Property Owner and the City, and run with the Property and create an equitable servitude upon the Property. However, the Property Owner, as the term is used in this Agreement, shall not include the Property Owner of any real property for which a residential building permit has been issued, and the City shall record a release of this Agreement as to any individual lot for which a building permit has been issued. The City may, at its discretion, elect to pursue any remedy, legal or equitable against the Property Owner or Property Owner’s successors, heirs, assigns, and transferees, with the exception of owners of individual lots for which a building permit has been issued, to secure compliance with this Agreement. 15. Liabilitv. The City shall not, nor shall any officer or employee of the City, be liable or responsible for any loss or damage incurred by the Property Owner or any successor or assign of Property Owner, or by any occupant in Project, as a result of the exercise of any remedies provided to the City in this Agreement. The Property Owner agrees to indemnify the City for any liabilities incurred by the City as a result of the City’s exercise of these remedies. 16. Notifications. Terraces Petition Agreement Final Version 9i22/00 10 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 shall be presumed to have been made on the date of delivery or three (3) days after the date of mailing regardless of receipt. Notices required to be given to the Property Owner shall be addressed as follows: The Terraces at Sunny Creek, LLC c/o Gateway Ivey Ranch Associates, Inc. Attention: Mr. Chris Dahrling 2006 Palomar Airport Road, Suite 113 Carlsbad, California 92008 Telephone: (760) 639-6390 Facsimile: (760) 639-6305 Notices to the City shall be delivered to the following: Public Works Director CITY OF CARLSBAD 163 5 Faraday Avenue Carlsbad, CA 92008 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 17. Other Provisions. a. Neither the Property Owner nor any of Property Owner’ s agents or contractors are or shall be considered to be agents of the City in connection with the performance of Property Owner’ s obligations under this Agreement. b. Performance by the Property Owner of this Agreement shall not be construed to vest Property Owner’ s right with respect to any change in zoning or building law or ordinance. C. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. d. This Agreement shall be interpreted and enforced under the laws of the State of California and the parties agree and hereby stipulate that the proper venue and jurisdiction for resolution of any disputes arising out of this agreement is San Diego County, California. II II II Terraces Petition Agreement Final Version 9122100 11 e. The undersigned entity further states, under penalty of perjury, that it is the owner of the property described herein, or an authorized agent of the owner, and has the authority to sign this document including the creation of the covenants herein. Executed this 22nd day of September , XmJ PROPERTY OWNER: THE TERRACES AT SUNNY CREEK, LLC, A California limited liability company By: GATEWAY IVEY RANCH ASSOCIATES, INC., a California George Szabo, Jr./President Name and Title of Signatory By: Sign here CITY- L APPROVED AS TO FORM: ::#;~;jl: ATTEST: By::- City Clerk Name and Title of Signatory By: CANAM PROPERTIES, LLC, a zzmd liability company, Name and Title of Signatory (Attach Notarial Acknowledgements) Terraces Petition Agreement Final Version 9122100 12 CALIFORNIA ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY OF San Diego On September 22, 2000 beforeme, Jeanette Taylor, Notary Public ’ DATE NAME, TITLE OF OFFICER - E.G., “JANE OOE, NOTARY f’WK= personally appeared, George Szabo, Jr. personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized oapacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and offiiial seal. OPTIONAL INFORMATION TITLE OR TYPE OF DOCUMENT The Terraces at Sunny Creek Bridge R Thorouqhfare Agreement DATEOFDOCUMEIUT September 22. 2000 NUMBER OF PAGES l6 SIGNER(S) OTHER THAN NAMED ABOVE - CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA DATE personally appeared, me (or proved to me on the basis of satisfactov evidence) to be the person@& whose name@ is/et+subscribed to the within instrument and acknowledged to me that he/w they executed the same in his/be##& authorized capacity(ies), and that by his/he##&i+ signature(s$on the instrument the person&, or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. .< OPTIONALINFOItMATION TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE Page 1 of 2 LEGAL DESCRIPTION FOR SUNNYCREEK PORTION OF COLLEGE BOULEVARD BRIDGE AND THOROUGHFARE DISTRICT EXHIBIT “A” Lots 1 through 9 inclusive, a portion of Lot 10 and a portion of the Remainder Parcel of Carlsbad Tract No. 83-36, according to Map thereof No. 11242, filed in the Office of the County Recorder of San Diego County on May 23,1985, together with a portion of Lot B of the Ranch0 Agua Hedionda, according to Map thereof No. 823, filed in the Office of the County Recorder of San Diego County on November 16, 1896, in the City of Carlsbad, County of San Diego, State of California, described as follows: Beginning at the intersection of the Easterly Right of Way Line of College Boulevard (102.00 feet wide) with the Northerly Boundary of said Map No. 11242; thence along said Easterly Right of Way Line South 22’49’22” West, 31.17 feet to the beginning of a tangent 25.00 foot radius curve concave Northeasterly; thence leaving said Easterly Right of Way Line counterclockwise along the arc of said curve through a central angle of 90°00’OO” a distance of 39.27 feet; thence tangent to said curve South 67°10’38” East, 226.14 feet to the beginning of a tangent 242.00 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 02”45’38’ a distance of 11.66 feet to a point in the arc of said curve to which a radial line bears North 25°35’OO” East; thence leaving said curve North 22’53’11” East, 56.33 feet to an angle point in the Boundary of said Map No. 11242; thence along said Boundary North 22’53’11” East, 252.87 feet; thence leaving said Boundary South 47’27’35” East, 355.16 feet; thence South 82’45’06” East, 39.00 feet; thence South 25°51’OO” East, 70.46 feet; thence South 64°09’OO” West, 93.60 feet to the beginning of a tangent 188.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 17°14’OO” a distance of 56.55 feet; thence tangent to said curve South 8 l”23’OO” West, 67.42 feet to the beginning of a tangent 88.00 foot radius curve concave Northeasterly; thence Southwesterly, Westerly and Northwesterly along the arc of said curve through a central angle of 36°26’04” a distance of 55.96 feet; thence tangent to said curve North 62” 11’00” West, 53.06 feet to the beginning of a tangent 57.00 foot radius curve concave Southerly; thence Northwesterly, Westerly and Southwesterly along the arc of said curve through a central angle of 55°25’44” a distance of 55.14 feet to a point of cusp with a 50.00 foot radius curve concave Southwesterly, a radial line to said point from said 50.00 foot radius curve bears North 31°12’02” East, thence leaving the arc of said 57.00 foot radius curve Southeasterly along the arc of said 50.00 foot radius curve through a central angle of 47’52’13” a distance of 41.77 feet to a point of reverse curvature with a 30.00 foot radius curve concave Southerly, a radial line to said point Page 2 of 2 from said 30.00 foot radius curve bears North 41°14’18” West thence leaving the arc of said 50.00 foot radius curve Northeasterly, Easterly and Southeasterly along the arc of said 30.00 foot radius curve through a central angle of 69°03’18” a distance of 36.16 feet; thence tangent to said curve South 62°11’OO” East’ 35.93 feet to the beginning of a tangent 112.00 foot radius curve concave Northeasterly; thence Southeasterly, Easterly and Northeasterly along the arc of said curve through a central angle of 36°26’04” a distance of 71.22 feet; thence tangent to said curve North 81°23’OO” East, 67.42 feet to the beginning of a tangent 212.00 foot radius curve concave Northwesterly; thence Northeasterly along the arc of said curve through a central angle of 17°14’OO” a distance of 63.76 feet; thence tangent to said curve North 64°09’OO” East, 93.60 feet; thence South 25°51’OO” East, 63.50 feet; thence North 55’24’29” East, 38.85 feet; thence North 85’06’08” East, 30.87 feet; thence South 72°15’OO” East’ 61.73 feet; thence South 88O57’00” East, 99.26 feet; thence South 83°41’OO” East, 141.32 feet; thence South 72’23’22” East, 66.27 feet; thence South 51°51’30” East, 246.42 feet; thence South 00”58’00” East, 59.51 feet; thence South 30°17’OO” East, 184.06 feet; thence South 85O46’44” East, 27.96 feet; thence South 27’56’45” East, 55.50 feet; thence South 11’06’22” East, 63.25 feet; thence South 30°17’OO” East, 109.31 feet; thence South 22’32’12” East, 57.33 feet; thence South 38’47’09” East, 65.94 feet; thence South 76°03’19’ East’ 101.50 feet to the East Boundary of the Remainder Parcel as shown on said Map No. 11242; thence along said Boundary South 20’49’45” West, 550.70 feet to a point in the arc of an 1863.00 foot radius curve concave Southwesterly, a radial line to said point bears North 36’12’15” East; thence Northwesterly along the arc of said curve through a central angle of 20’43’58” a distance of 674.14 feet; thence tangent to said curve North 74’31’43” West, 917.75 feet; thence North 69°56’OO” West, 97.59 feet; thence North 72’30’00” West, 18.58 feet to a point in the arc of a non-tangent 1932.00 foot radius curve concave Northeasterly, a radial line to said point bears South 18’54’33” West; thence Northwesterly along the arc of said curve through a central angle of 07°38’11” a distance of 257.49 feet to a point of compound curvature with a 25.00 foot radius curve concave Northeasterly, a radial line to said point from said 25.00 foot radius curve bears South 26°32’44” West; thence clockwise along the arc of said curve through a central angle of 86O16’38” a distance of 37.65 feet; thence North 22’49’22” East, 870.12 feet to the Point of Beginning. This legal description was prepared by me or under my direction. -=FiGI Lo. p$&gA.J Francis W. Fitzpa&k L. S. 4539 License expires Sept. 30,2002 I . : I E I i : : . i i i I i , 1 ! I . c i . r : , i . : . 5 . : . ! a . . i 3 . . I! . E I : . E i I i I I i I e i : 9 ; , i 1 I 5 : : l r 5 ! I 7 r ! I ; z ; i : + ( ! A ;! e e ; : : l ! i i i i i r . EXHIBIT B TRAFFIC SlGRAL IYPROVWENTS lTEM QN UNIT PRlCE EXTENSION MODIFY EXISTING STREET LIGHT AT ECR 1 83250.00 8325o.w a32so.w I REMAlNlNG IMPROVEMENTS STREET LIGHTS TOTAL 4 2997.00 119SS.ocl 394810.96 a32so.w Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - RESOLUTION NO. 2000-311 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE FINAL MAP FOR CARLSBAD TRACT CT 96-02, THE TERRACES AT SUNNY CREEK AND AUTHORIZING THE CITY CLERK TO PROCESS THE MAP FOR RECORDING. WHEREAS, The Terraces at Sunny Creek LLC, a California Limited Liability Company (developer) has submitted a final map known as Carlsbad Tract CT 96-02 to the City of Carlsbad for approval; and, WHEREAS, the tentative map of Carlsbad Tract CT 96-02 with conditions, was approved/recommended for approval by the Planning Commission on 7/1/l 998, pursuant to Resolution No. 4292, and by City Council on November 17, 1998 per Resolution 98-337; and, WHEREAS, the Public Works Director has determined that said map substantially conforms to said conditionally approved tentative map; and, WHEREAS, the conditions of approval for said final map have been completed or secured; and, WHEREAS, the developer has offered public street and public easements for dedication to the City of Carlsbad; and, WHEREAS, the proposed street vacations of the underlying development have been processed under the Street and Highway Codes, where the existing streets are being superceded with new streets, and that no objects where received after notices were sent out to affected utility agencies; and, WHEREAS, the final map conforms to the City of Carlsbad General Plan and all requirements of City Codes and Standards; and, WHEREAS, the City Council of the City of Carlsbad determined it to be in the public interest to approve said final map. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That said final map known as Carlsbad Tract CT 96-02, which is on file with the Public Works Director and is incorporated herein by reference, is accepted. 3. That the City accepts the dedications shown on the final map. 4. The City vacates the underlying streets as shown on said final map. 1 5. That the City Clerk is authorized to sign the Certificate of Acceptance on the final 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 18 23 24 26 27 28 map. 6. That the City Clerk is authorized to cause the original final map to be recorded in the Office of the County Recorder of San Diego County, State of California. 7. That the City Clerk is authorized to release the final map to First American Title Insurance Company for recording in the Office of the County Recorder. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 3rd day of October , 2000 by the following vote, to wit: AYES: Council Members Lewis, Finnila, Nygaard and Kulchin NOES: None (SEAL)