HomeMy WebLinkAbout2001-01-09; City Council; 16015; APPROVE FINAL MAPS OF CT 90-03, APPROVE AND AUTHORIZE EXECUTION OF THE PREPAYMENT AGREEMENTS TOWARD OLIVENHAIN RD AND RANCHO SANTA FE RD IMPROVEMENTSr”-
. ,rTY OF CARLSBAD - AGEi: BILL
AB# /&;o I< TITLE:
APPROVE FINAL MAPS OF CARLSBAD TRACT NO. CT 90-03
MTG. l-9-200 1 SHELLEY PROPERTY, UNITS 1 AND 2 AND
APPROVE AND AUTHORIZE EXECUTION OF THE DEPT. ENG PREPAYMENT AGREEMENTS TOWARD OLIVENHAIN ROAD
AND RANCH0 SANTA FE ROAD IMPROVEMENTS
RECOMMENDED ACTION:,,, 8 ,\Q
0% \’ +$+ Adopt Resolution N& 2’ 2” 2’ ’ approving the final maps for Carlsbad Tract No. CT 90-
03, Shelley Property, Units 1 and 2, authorizing the City Clerk to process the maps for recordation and approving and authorizing execution of two prepayment agreements toward
Olivenhain Road and Ranch0 Santa Fe Road improvements with Daniel T. Shelley as owner of
Unit 1 of CT 90-03 and Continental Residential Inc., a California corporation (“Continental”), as
owner of Units 2, 3, and 4 of CT 90-03.
ITEM EXPLANATION:
Carlsbad Tract No. CT 90-03, known as the Shelley Property (the “Project”), is a major subdivision consisting of 4 phases, or Units as approved on the original Tentative Map. Daniel
T. Shelley owns Unit 1 of CT 90-03 and Continental owns Units 2, 3 and 4 of CT 90-03
(collectively, “Owners”). The Owners are currently seeking approval of Units 1 and 2 at this
time. Continental has expressed that they will seek approval of Units 3 and 4 at a later date.
Engineering staff has completed checking the final maps of CT 90-03, Units 1 and 2. This
Project is located within Local Facilities Management Plan (LFMP) Zone 11 and is generally
located at the northeast corner of Ranch0 Santa Fe Road and Calle Acervo. Unit 1 of CT 90-03
is comprised of 26 single-family residential units and Unit 2 is comprised of 46 single-family
residential units.
The final maps for Units 1 and 2 conform substantially with the Tentative Map for CT 90-03 as
recommended for approval by the Planning Commission on October 7, 1998 pursuant to
Planning Commission Resolution No. 4350 and approved by City Council pursuant to City
Council Resolution 98-417 on December 15, 1998. The final maps for Units 1 and 2 also conform to the General Plan, all applicable requirements of the Municipal Code, City Standards,
and the Growth Management Plan. Daniel T. Shelley, owner of Unit 1, is requesting the
recordation of said final map. Continental, owner of Unit 2, is requesting the recordation of said
final map.
This Project also includes a condition of approval for the Owners to enter into prepayment
agreements to secure their obligation for fair share cost towards a future Community Facilities
District (CFD) that will improve the southern segments of Ranch0 Santa Fe Road and a portion
of Olivenhain Road (the “Improvements”). Staff has worked for a number of years with property owners in LFMP Zones 11, 12 and a small portion of Zone 6 to form a CFD to finance the
Improvements. This CFD (known as CFD No. 2) is intended to provide the property owners and the City with a feasible financing tool that could guarantee that funds would be available for
the construction of the Improvements, when needed. The delays in the formation of the CFD
proved to be a major problem for some of the property owners in the area who had met all of the non-circulation conditions placed on their maps.
Beginning in late 1993, the City Council began to allow property owners to enter into
prepayment agreements for them to prepay their anticipated obligation under the proposed
CFD No. 2. The prepayment agreement provides the City with: A) the support of the property
owner in the formation of proposed CFD No. 2, and B) funds to construct those segments of the
Improvements deemed most critical.
. Page 2 of Agenda Bill No.:&,, 0 6
The City Council has approved ten (10) prepayment agreements since 1993. The funds generated
from these prepayment agreements have allowed the design and construction of the Improvements
to commence. Three major road segments will be financed through funds generated by proposed
CFD No. 2. These include: 1) Olivenhain Road from Armagosa Drive to El Camino Real, which is
completed, 2) Ranch0 Santa Fe Road from Olivenhain Road south into Encinitas, most of which is
under design, and 3) Ranch0 Santa Fe Road from La Costa Avenue to Melrose Drive, which is in
the Federal environmental review and permitting process and is scheduled to start construction in
spring of 2001.
The prepayment agreements allow the owners to pay a fixed fee ($10,250) for each dwelling unit included on the final maps. By approving the prepayment agreements, the City Council will make
two significant findings. First, the prepayment of the Owner’s fair share cost of Improvements represents an adequate financing guarantee under the Growth Management Plan. This finding is
based on the special case assumption that a CFD is in the formation process, and it is the CFD that
actually provides the financing guarantee for the Improvements. Second, that the Project, as conditioned to construct a portion of the Improvements and pay their fair share of the cost of the
Improvements, does not create a major impact on the existing circulation facilities. The City
Engineer and Finance Director both agree with these findings as they relate to this Project.
Since there are two owners, two separate prepayment agreements were prepared. Pursuant to the
conditions for CT 90-03 the Owners will be constructing a portion of the Improvements. The prepayment agreements allow for credit towards their fees based on the audited cost of the portion
of Improvements they construct. Any amounts not paid or credited at the time of final map approval will be secured with either bonds or letters of credit in an amount not less than the amount
owed under the prepayment agreements.
The owners of CT 90-03, Daniel T. Shelley and Continental, are in agreement with the provisions of
the prepayment agreement.
ENVIRONMENTAL:
The Owners received environmental approval, via a certified Environmental Impact Report (EIR 90-
06) to construct the Project and a portion of the Improvements along the Project frontage of
Ranch0 Santa Fe Road. This approval was granted pursuant to City Council Resolution 98-417,
approved December 15,1998.
That portion of the Improvements without environmental approvals, as previously mentioned, is
being processed separately and is not part of this Project.
FISCAL IMPACT:
Final map approval is for Units 1 and 2 of CT 90-03. The Owners have paid plan check fees to
cover the expense of plan checking and processing the final maps for recording. All other
appropriate fees will be paid if and when building permits are issued for this Project.
The prepayment agreements for CFD No. 2 cover all Units of CT 90-03 (Units l-4, inclusive).
Under the prepayment agreements, contributions of $2,501,000 in cash or portions of the Improvements constructed will eventually be made to the proposed CFD No. 2 to satisfy the
Owners’ fair share cost of the Improvements. The total Improvement cost for CFD No. 2 are projected at over $40 million and affect the
development of approximately 2,400 acres of land in southeast Carlsbad. Payment of the
proposed CFD No. 2 Improvements is covered by prepayments of, and taxes collected under the proposed CFD No. 2 as well as a contribution of $6 million from CFD No. I.
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6age 3 of Agenda Bill No. 2, o/s-
EXHIBITS:
1. Location Map for Carlsbad Tract No. CT 90-03, Unit 1.
2.
3.
Location Map for Carlsbad Tract No. CT 90-03, Unit 2.
Resolution No.200 ! -7 approving a final map for Carlsbad Tract No. CT 90-03, Shelley
Property, Unit I, and authorizing the City Clerk to process the final map for recordation.
4. Resolution No. Jm/ -8 approving a final map for Carlsbad Tract No. CT 90-03, Shelley
Property, Unit 2, and authorizing the City Clerk to process the final map for recordation.
5. Resolution No. goo/- 9 approving and authorizing execution of a Petition, Waiver And
Consent To Creation Of A Community Facilities District And Agreement To Pay Fair Share Cost Of Unit 1 OF CT 90-03, with Daniel T. Shelley.
6. Resolution No. 200 i-/o approving and authorizing execution of a Petition, Waiver And
Consent To Creation Of A Community Facilities District And Agreement To Pay Fair Share
Cost Of CT 90-03 with Continental Residential, Inc., a California Corporation.
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CITY OF OCEANSIDE
SI
PROJECT NAME PROJECT EXHIBIT
SHELLEY PROPERTY - UNIT I NUMBER
CT97-03 I
WN BY: SCOTT EVANS, CARLSBAD ENGlNEERlNG DEPT. 12/15/00 C: \DEVElOPMENJ PROJECJS\Cl97-03UNIJI.DW
CITY OF 0
PROJECT NAME PROJECT EXHIBIT
SHELLEY PROPERTY - UNIT 2 NUMBER
m-97-03 2
w BY: scorr EVANS, CARLSBAO ENGINEERING DEPT. rsps/oo c: \DEMLOPMEN~ pRomrs\cr97-03uNirz.m
RESOLUTION NO. 2001-7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE FINAL MAP
FOR CARLSBAD TRACT NO. CT 90-03, SHELLEY PROPERTY, UNIT 1, AND AUTHORIZING THE CITY CLERK
TO PROCESS THE FINAL MAP FOR RECORDATION.
WHEREAS, Daniel T. Shelley (“Owner”), has submitted a final map known as Carlsbad
Tract No. CT 90-03, Shelley Property, Unit 1 to the City of Carlsbad for approval; and
7 WHEREAS, the tentative map of Carlsbad Tract No. CT 90-03 with conditions, was
8 recommended for approval by the Planning Commission on October 7, 1998 per Planning
g Commission Resolution No. 4350 and approved by the City Council per Resolution 98-417 on
IO December 15,1998; and
11 WHEREAS, the City Engineer has determined that said final map substantially conforms
,z to said conditionally approved tentative map; and
13 WHEREAS, the conditions of approval for said final map have been completed or’.
14 secured; and
WHEREAS, the Owner has offered public easements for dedication to the City of
15 Carlsbad; and
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WHEREAS, the final map conforms to the City of Carlsbad General Plan and all
requirements of City Codes and Standards; and
18 WHEREAS, the City Council of the City of Carlsbad has determined it to be in the public
1s interest to approve said final map; and
20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
21 California, as follows:
22 1. That the above recitations are true and correct.
23 2. That the final map known as Carlsbad Tract No. CT 90-03, Shelley Property, Unit
24 1, which is on file with the City Engineer and is incorporated herein by reference, is accepted.
3. That the City accepts the dedications shown on the final map.
25 4. That the City Clerk is authorized to sign the Certificate of Acceptance on the
26 final map.
27 5. That the City Clerk is authorized to cause the original final map be recorded in the
28 Office of the County Recorder of San Diego County, State of California.
1 6. That the City Clerk is authorized to release the final map to Chicago Title
2 Insurance Company for recording in the Office of the County Recorder.
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4 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 9th day of January , 2001 by the following vote, to wit:
5 AYES: Council Members Lewis, Kulchin, Finnila, Nygaard and Hall.
6 NOES: None
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RESOLUTION NO. 2001-7 PG 2
RESOLUTION NO. 2001-8
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE FINAL MAP
FOR CARLSBAD TRACT NO. CT 90-03, SHELLEY
PROPERTY, UNIT 2, AND AUTHORIZING THE CITY CLERK
TO PROCESS THE FINAL MAP FOR RECORDATION.
WHEREAS, Continental Residential Inc., a California corporation (“Owner”), has
submitted a final map known as Carlsbad Tract No. CT 90-03, Shelley Property, Unit 2 to the City
of Carlsbad for approval; and
WHEREAS, the tentative map of Carlsbad Tract No. CT 90-03 with conditions, was
recommended for approval by the Planning Commission on October 7, 1998 per Planning
Commission Resolution No. 4350 and approved by the City Council per Resolution 98-417 on
December 15,1998; and
WHEREAS, the City Engineer has determined that said final 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 Owner has offered public easements for dedication to the City of
Carlsbad; 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 has determined it to be in the public
interest to approve said final map; and
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 the final map known as Carlsbad Tract No. CT 90-03, Shelley Property, Unit
2, which is on file with the City Engineer and is incorporated herein by reference, is accepted.
3. That the City accepts the dedications shown on the final map.
4. That the City Clerk is authorized to sign the Certificate of Acceptance on the
final map.
5. That the City Clerk is authorized to cause the original final map be recorded in the
Office of the County Recorder of San Diego County, State of California.
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6. That the City Clerk is authorized to release the final map to Chicago 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 9th day of January 9 2001 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard and Hall.
NOES: None
Al-TEST: n
(SEAL)
RESOLUTION NO. 2001-8 PG 2
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RESOLUTION NO. 2001-g
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXECUTION
OF A PETITION, WAIVER AND CONSENT TO CREATION OF A
COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO
PAY FAIR SHARE COST OF UNIT 1 OF CT 90-03, WITH
DANIEL T. SHELLEY.
WHEREAS, the City of Carlsbad City Council (the “Council”) has required that the
funding of improvements to segments of Ranch0 Santa Fe Road and Olivenhain Road (the
“Improvements”) must be guaranteed before any development takes place in the area
bounded by Local Facilities Management Zones 11 and 12, and portions of Zone 6; and
WHEREAS, the Council has directed City staff to proceed with the formation of a Community
Facilities District (CFD No. 2) to finance the Improvements; and
WHEREAS, although the Council anticipates that CFD No. 2 will be formed in the future,
the Council is willing to consider alternative financing proposals during the period from the
present to the formation date of CFD No. 2; and
WHEREAS, the Council finds that the guarantee provisions related to the Improvements
may be met through an interim financing program using an agreement between certain property
owners and the City whereby the property owner agrees to prepay his/her fair share of costs
associated with the Improvements; and
WHEREAS, Daniel T. Shelley intends to build a 26 unit development in Local Facilities
Management Zone 11 known as Unit 1 of the Shelley Property, CT 90-03, and
WHEREAS, the City Engineer has determined that the Shelley development, as
conditioned to construct a portion of the Improvements and to pay their fair share cost of the
Improvements, will not create a major impact on the circulation system at the present time if the
Shelley development is allowed to proceed; and
WHEREAS, the Council finds that Daniel T. Shelley may’ enter into the attached
Agreement to Pay Fair Share [Exhibit A (Shelley), attached hereto] in satisfaction of his
obligations under the financing conditions for the Improvements.
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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 the “PETITION, WAIVER AND CONSENT TO CREATION OF A
COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE”,
Exhibit A (Shelley) attached hereto, is hereby approved.
3. That the Mayor is hereby authorized to execute the agreement attached as Exhibit
A (Shelley) with Daniel T. Shelley.
4. That the City Clerk is hereby authorized to cause the agreement attached as
Exhibit A (Shelley) to be recorded in the Office of the County Recorder of San
Diego County, State of California, after the Mayor has executed said agreement.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 9th dayOf January , 2001 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard and Hall.
NOES: None
ABSENT: None
II Al-l-EST:
II LORRAINE M. WOOD, City Clerk
(SEAL)
RESOLUTION NO. 2001-g PG 2
DOG # 2001-0050065
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village
Carlsbad, CA 92008
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
L Drive
f % P
JAN 23s 2001 3=12 FIMi
6743 OFFICIk REalRDs SAN DIEGO COUNTY RECORDER’S MFICE GllENRY J. SHITH, COlJHW BlZl?DER FEES: 52.00
\b \ Space Above This Line for Recorder’s Use
Assessor Parcel Nos. 264-O 1 O-41 -00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF UNIT 1 OF CT 90-03 (“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 Unit 1 of Tentative Tract Map CT 90-03
(hereinafter referred to as the “Project”); and,
WHEREAS, the legal description for the Project is shown on Exhibit “B”
attached hereto; and,
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WHEREAS, City has determined this Project is located within the boundaries of
a proposed Community Facilities District known as Community Facilities District No. 2
- Ranch0 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 number 37 of Tentative Tract Map CT 90-03 requires
that the Property Owner provide for or participate in the construction of certain public
improvements including sections of Ranch0 Santa Fe Road; and,
WHEREAS, the compliance with tentative map conditions is a condition of
approval for the final map for the Project; 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 and 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 tentative map condition number 37 for Carlsbad Tract Map
CT 90-03, to provide a financial guarantee for the construction of those
improvements described in Section 1 below; and,
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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 future 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) Ranch0 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
cl Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive
4 Ranch0 Santa Fe Road South (RSF So.) (Assumes Secondarv
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.
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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 of the California Government Code and nonetheless with full
knowledge of such rights, completely and forever waives such rights. Specifically,
Property Owner hereby consents 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 consents to and supports 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 “A”, Rate and Method for Determining Fair Share Obligation Ranch0 Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
cl The amount of Property Owner’s fair share will be conclusively
determined by the City Council in the manner described in Exhibit “A” attached
hereto.
4 Payment by Property Owner of its fair share of improvement costs
as determined by City Council and set forth herein will satisfy its obligations for the
construction of the improvements described in Section 1, as required by the Tentative
Map CT 90-03 condition number 37, as that condition applies to CT 90-03 subject to
adjustment as described in Section 9 herein.
4 Alternatively, if the District is formed and Project is included within
it, Property Owner’s obligations to pay its fair share pursuant to the agreement shall
be satisfied upon payment of all taxes imposed, established and payable to said
District.
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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 his right to challenge the amount,
establishment or imposition of said fair share and further waives 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 tentative map CT 90-03 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.
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W 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 formation 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.
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a) The total amount of excess Revenues shall be determined 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 #I 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 A, 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.
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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.
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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.
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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 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.
9
6752
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:
Daniel T. Shelley
PO Box 230985
Encinitas, CA 92023-0985
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Ave.
Carlsbad, 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 he is owner of the property as described herein on Exhibit “B”, or an authorized
agent of the owner, and has the authority to execute this document, including the
binding authorizations herein.
10
6753
Executed this /‘??day of p&Z, , 2000.
*OWNER:
,27tiHG< V
(title and organization of signatory)
By:
(sign here)
(print name here)
(title and organization of signatory)
ATTEST,
JANICE BREITENFELD,
Deputy City Clerk
Approved as to form:
City Attorney
(Proper notarial acknowledgment of execution by *OWNERS must be attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering that
officer to bind the corporation.)
11
ALL-PUiPOSE ACKNOWLEDGEMENT 6754
State of California
Ccunty of fin Blhs 6 1
ss.
On
personally appeared
,
SIGNER(SJ
0 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
capacity(ies), and that by his/her/their
signatures(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 official seal.
OPTIONALINFORMATION
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
edgement to an unauthorized document.
CAPACITYCLAIMEDBYSICNER(PRlNCIPAL)
Ei
INDIVIDUAL
CORPORATE OFFICER
DESCRIPTIONOFATTACHEDDOCUMENT
TITLE49
0 PARTNER(S)
Cl ATMRNEY-IN-FACT
/-J TRUSTEE@)
0 GUARDIAN/C&SERVATOR q OTHER:
.
SIGNER IS REPRESENTING:
NAME OF PERSON(S ENl-ITWIESI
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
OTHER
I RIGHT THUMBPRINT E
OF B s SIGNER s s
E
APA 5199 VALLEY-SIERRA, 800-362-3369
6755
EXHIBIT A
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCH0 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 Ranch0 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
Carlsbad and certain property owners 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’s 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 owners 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 .O 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
12
6756
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 determination 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 City shall collect $10,250 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $10,250 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 determined by the City Engineer, times $10,250. If the City Council
determined 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.
13
6757
2) In consideration of the work completed by Shelley on the improvements as defined
in the agreement, a credit of up to $136,845.92 may be applied to the amount
owed as calculated in 1) above. The amount of the credit will be determined by
the Public Works Director upon completion of an audit of the work. The credit will
apply upon final determination of the amount by the Public Works Director. Until
that time, all amounts are due and payable as stated in 1) above.
Computation of Fair Share Obligation
Shelley Property CT 90-03
Unit 1
kKber
Type of Unit EDU per Cost per
unit EDU
Units Covered
bv Agreement Amount Due
1 Single Family Detached
Units
10.0 $10,250 26 $266,500.
TOTAL 244 $266,500.
3) If the property owner has already obtained a final map for units conditioned
with the financing of Ranch0 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.
14
6758
EXHIBIT B
LEGAL DESCRIPTION
UNITNO. 1
BEING A PORTION OF LOT 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS
ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14;
SAID POINT BEING THE EASTERLY TERMINUS OF THAT CERTAIN CENTER LINE
DESCRIPTION RECORD FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON MARCH 12,1996 AS DOCUMENT NO. 1996-0119577 OF OFFICIAL RECORDS;
THENCE ALONG SAID WESTERLY LINE;
1. SOUTH 02’41’19” EAST 724.89 FEET TO THE SOUTH LINE OF THE LAND DESCRIBED
AS PARCEL A-l IN DEED RECORDED NOVEMBER 28,1984 AS FILE NO. 84-443590 OF
OFFICIAL RECORDS;
2. THENCE ALONG SAID LINE SOUTH 87’18’19” WEST 576.16 FEET TO THE SOUTHEAST
CORNER OF LAND DESCRIBED IN DEED RECORDED SEPTEMBER 21,1992 AS FILE NO.
1992-0597007 OF OFFICIAL RECORDS;
3. THENCE ALONG THE EASTERLY LJNE OF SAID LAND NORTH 02”40’03” WEST 338.05
FEET TO AN ANGLE POINT;
4. THENCE NORTH 52” 18’23” EAST 940.15 FEET;
5. THENCE NORTH 02’41’43” WEST 433.39 FEET TO THE NORTHEAST CORNER OF SAID
LAND, BEING ALSO ON THE CENTER LINE OF CALLE ACERVO AS GRANTED PER SAID
DOCUMENT NO. 1996-O 119577 OF OFFICIAL RECORDS, SAID POINT BEING THE
BEGINNING OF A NON-TANGENT 650.00 FOOT RADIUS OF CURVE, CONCAVE TO THE
SOUTH, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 02”48’02” EAST;
6. THENCE LEAVING SAID EASTERLY LINE AND ALONG SAID CENTER LINE AND THE ARC
OF SAID CURVE EASTERLY 109.77 FEET THROUGH A CENTRAL ANGLE OF 09’40’33”;
7. THENCE SOUTH 77’3 1’25” EAST 171.45 FEET TO THE BEGINNING OF A TANGENT
l,OOO.OO FOOT RADIUS CURVE, CONCAVE TO THE NORTH, A RADIAL LINE TO SAID
BEGINNING BEARS SOUTH 12’28’35” WEST;
8. THENCE ALONG THE ARC OF SAID CURB EASTERLY 168.67 FEET THROUGH A CENTRAL
ANGLE OF 09’39’51”;
9. THENCE SOUTH 87” 11’16” EAST 60.17 FEET TO THE POINT OF BEGINNING.
15
WHEREAS, the City of Carlsbad City Council (the “Council”) has required that the
funding of improvements to segments of Ranch0 Santa Fe Road and Olivenhain Road (the
RESOLUTION NO. 2001-10
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE EXECUTION OF
A PETITION, WAIVER AND CONSENT TO CREATION OF A
COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY
FAIR SHARE COST OF CT 90-03 WITH CONTINENTAL
RESIDENTIAL. INC., A CALIFORNIA CORPORATION.
9 ‘Improvements”) must be guaranteed before any development takes place in the area
10 bounded by Local Facilities Management Zones 11 and 12, and portions of Zone 6; and
11 WHEREAS, the Council has directed City staff to proceed with the formation of a
12 Community Facilities District (CFD No. 2) to finance the Improvements; and
13 WHEREAS, although the Council anticipates that CFD No. 2 will be formed in the future,
14 the Council is willing to consider alternative financing proposals during the period from the
present to the formation date of CFD No. 2; and
15
16
WHEREAS, the Council finds that the guarantee provisions related to the Improvements
may be met through an interim financing program using an agreement between certain property
17 owners and the City whereby the property owner agrees to prepay his/her fair share of costs
Ia associated with the Improvements; and
19 WHEREAS, Continental Residential, Inc. intends to build a 218 unit development in Local
20 Facilities Management Zone 11 known as Units 2, 3 and 4 of the Shelley Property, CT 90-03,
21 and
22 WHEREAS, the City Engineer has determined that the Shelley development, as
23 conditioned to construct a portion of the Improvements and to pay their fair share cost of the
24 Improvements, will not create a major impact on the circulation system at the present time if the
Shelley development is allowed to proceed; and
25
26
WHEREAS, the Council finds that Continental Residential, Inc. may enter into the
attached Agreement to Pay Fair Share [Exhibit A (Continental), attached hereto] in satisfaction of
27 their obligation under the financing conditions for the Improvements.
28 ill
1 NOW THEREFORE BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
2
3
4
5
6
7
a
9
10
follows:
1. That the above recitations are true and correct.
2. That the “PETITION, WAIVER AND CONSENT TO CREATION OF A
COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE
COST OF CT 90-03”, Exhibit A (Continental) attached hereto, is hereby approved.
3. That the Mayor is hereby authorized to execute the agreement attached as Exhibit
A (Continental) with Continental Residential, Inc., a California Corporation.
4. That the City Clerk is hereby authorized to cause the agreement attached as
Exhibit A (Continental) to be recorded in the Office of the County Recorder of San
Diego County, State of California, after the Mayor has executed said agreement.
11
12
13
14
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 9th day of January , 2001 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard and Hall.
16
17
la
19
20
21 ATTEST:
<( &h;76
WOOD, City Clerk 24
25
26
27
28
,4
11 RESOLUTION NO. 2001-10 PG 2
DOC # 2001-0123814
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
jG5 CITY OF CARLSBAD
1200 Carlsbad Village Drive
I ,“:l)-fJ Carlsbad, CA 92008
t-i6
MAR 05% 2001 2=12 PM
OFFICIfk !aORiM Silt4 DIEGU COUNTY RECORDER’S OFFICE GREGORY fiEi41TH, ~T~~~OR~ . . .
Space Above This Line for Recorder’s Use
Assessor Parcel Nos. 264-O 1 o-42-00,
264-O 1 o-43-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CT 90-03 (“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 Tentative Tract Map CT 90-03
(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
- Ranch0 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 number 37 of Tentative Tract Map CT 90-03 requires
that the Property Owner provide for or participate in the construction of certain public
improvements including sections of Ranch0 Santa Fe Road; and,
WHEREAS, the compliance with tentative map conditions is a condition of
approval for the final map for the Project; 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 and 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 tentative map condition number 37 for Carlsbad Tract Map
CT 90-03, 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,
2
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 future 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) Ranch0 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
cl Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
dl Ranch0 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.
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,”
3
expressly waives the proceedings required and all limitations contained in Title 5,
Division 2, Chapter 2.5 of the California Government Code and nonetheless with full
knowledge of such rights, completely and forever waives such rights. Specifically,
Property Owner hereby consents 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 Ranch0 Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
cl 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 the Tentative
Map CT 90-03 condition number 37, as that condition applies to CT 90-03 subject to
adjustment as described in Section 9 herein.
d 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
4
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. Noi does this Agreement relieve Property Owner from providing other
public facilities required under conditions placed upon tentative map CT 90-03 by the
City.
.
8. Property Owner agrees that payment of its fair share is not a fee and
waive 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 a
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
5
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.
cl 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.
4 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 formation 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,
6
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 determined 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 #I 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
7
dQ
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 who 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 1 1 for financing the Improvements described in Paragraph
8
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 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
9
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:
Continental Residential, Inc.
2237 Faraday Avenue, Suite 100
Carlsbad, CA 92008
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Avenue
Carlsbad, 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 authorirations herein.
10
$5 26-l
Executed this %$ day of r -2!Ee+# 2886:
*OWNER:
CONTINENTAL RESIDENTIAL, INC.
(sign here)
mm A* LoTC+eP,
(print name)
(title and organization of signatory)
(sign here)
(print name)
(title and organization of signatory)
- ” Mayor
ATTEST:
City Clerk
Apppved as to form:
City Attorney
(Proper notarial acknowledgment of execution by *OWNER must be attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering that
officer to bind the corporation.)
11
CERTIFICATE OF ASSISTANT SECRETARY
The undersigned hereby certifies as follows:
1. He is a duly elected, qualified and acting Assistant Secretary of Continental
Residential, Inc., a California corporation (the “Company”), is familiar with the facts herein certified
and is duly author&d to certify the same.
2. The following is a true, correct and complete copy ofresolutions related to the subject
matter as adopted by the Consent of SoIe Director of the Company dated January 1, 2000 (the
“Resolutions“). The Resolutions have not been amended, rescinded or modified and remain in full
force and effect as of the date hereof.
Authoritv of David A. Lother. Vice President
WHEREAS, effective April 20,1998, David A. Lother was elected to, and
continues to serve in, the office of Vice Rresident of the Company (the ‘Vice
President”), to seme until the next annual meeting of the directors of the Company
and until his successor is duly elected and qualified or until his earlier death,
resignation or removal.
RESOLVED, that in COnneCtiOn with land development for the Company,
without the prior approval, and without the signature, of any other officer of the
Company, the Vice President is hereby author&d and empowered, in the name and
on behalfof the Company, to execute and deliver contracts, agreements and other
documents and instruments for the subdivision, development and/or iuiprovement of
real property, including sub&m-actor agreements, maintenance contracts,
applications to the Department of Real Estate for approval of budgets, homeowner
association documents and vacio~~ other documents, homeowner association
documents, entitlement submissions, security bonds, subdivision improvement
agreements, permit applications, easement deeds, agreements with adjacent property
owners, consulting contracts and similar or equivalent agreements, documents or
instruments.
IN WITNESS WHEREOF, the undersigned has set his hand on the 26th day of
January, 2000. _. I
/&I2fIk+
Paul W. Buchschacher,
Assistant Secretary
State of California
County of San Diego
)
1 ss.
)
On January 24, 2001 before me, Toni Carter, Notary Public, personally
appeared David A. Lother, of Continental Residential, Inc., personally
known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITj#ESS mAhand and official seal. I
Toni Carter, Notary Public
Exhibit ‘A
Legal Descriptions
UNIT NO. 2
BEING A PORTlON OF LOTS 13 AND 14 OF THE SUBDNISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP
THEREOF NO. 646, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14, SAID POINT BEING THE
EASTERLY TERMINUS OF THAT CERTAIN CENTERLINE DESCRIPTION RECORDED IN SAlD COUNTY RECORDER’S
OFFICE ON MARCH 12.1996 AS DOCUMENT NO. 19960119577 OF OFFICIAL RECORDS; THENCE ALONG SAID
CENTERLINE
1. NORTH 67’11’16” WEST 66.17 FEET TO THE BEGINNING OF A TANGENT 1 .OOO.OO FOOT RADIUS CURVE
CONCAVE TO THE NORTH; THENCE ALONG THE ARC OF SAID CURVE 2. WESTERLY 166.67 FEET THROUGH A CENTRAL ANGLE OF 09’39’51’; THENCE
3. NORTH 77’31’29 WEST 171.45 FEET TO THE BEGINNING OF A TANGENT 650.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTH; THENCEALONG THE ARC OF SAlD CURVE
4. WESTERLY AND SOUTHWESTERLY 758.44 FEET THROUGH A CENTRAL ANGLE OF 66’51’16’ TO THE
NORTHEASTERLY TERMINUS OF THAT CERTAlN COURSE ON THE CENTERLINE OF THE STREET EASEMENT RECORDED IN SAlD COUNTY RECORDER’S OFFICE AS DOCUMENT NO. 1993-0106952 OF OFFICIAL RECORDS,
DESCRIBED THEREON AS LINE BEARING NORTH 35’37’30= EAST 445.51 FEET; THENCE ALONG SAID CENTERLINE
5. SOUTH 35’37’19’ WEST 342.76 FEET: THENCE LEAVING SAlD LINE 6. NORTH 54’22’41’ WEST 30.00 FE- THENCE
7. NORTH POYO’l5” WEST 169.56 FEET; THENCE 6. NORTH 06’53’24” WEST TO ME BEGINNING OF A NON-TANGENT 70.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADlAL LINE TO SAID BEGINNING BEARS SOUTH 06’53’24. EAST THENCE ALONG THE ARC
OF SAlD CURVE 9. WESTERLY, NORTHWESTERLY, AND NORTHERLY 96.61 FEET THROUGH A CENTRAL ANGLE OF 79’04’30. TO THE BEGINNING OF A 50.00 FOOT RADIUS REVERSE CURVE CONCAVE TO THE SOUTHWEST, A RADIAL LINE TO
SAlD BEGINNING BEARS NORTH 72’11’06” EAST; THENCE ALONG THE ARC OF SAlD CURVE
10. NORTHERLY AND NORTHWESTERLY 26.56 FEET THROUGH A CENTRAL ANGLE OF 23’3323’; THENCE 11. NORTH 41’22’17‘WEST 63.67 FEET: THENCE 12. NORTH 46’37’43’ EAST 60.00 FEET; THENCE
13. NORTH 52’12’49= EAST 77.66 FEET; THENCE 14. NORTH 34’46’43’ EAST 163.41 FEET; THENCE
15. NORTH 47.27’35. EAST 263.45 FEET; THENCE
16. NORTH 62’07’33’ EAST 206.99 FEET; THENCE 17. NORTH 70’56’06’ EAST 267.76 FErr; THENCE
16. NORTH 63’16’07- EAST 210.65 FEET; THENCE
19. SOUTH 65.36’47- EAST 261.53 FEET; THENCE 20. NORTH 82’29’19’ EAST 106.01 FEET; THENCE
21. SOLlTH 61’02tO9’ EAST 162.27 FEET TO SAlD WESTERLY LINE OF THE EAST HALF OF SAID LOT 14; THENCE
ALONG SAID UNE 22. SOUTH 02’41’19’ EAST 360.66 FEETTO THE POINT OF BEGINNlNG.
CONTAINS 13.536 ACRES, MORE OR LESS.
Page 1 of 3
L
Exhibit ‘A
Legal Descriptions
UNIT NO. 3
BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDNISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO.
846, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID LOT 14; THENCE ALONG THE NORTHERLY LINE OF SAlD LOT 14
NORTH 67’36’50” EAST 661.34 FEET (RECORD NORTH 67’11’20” EAST 661.65 FEET PER DEED RECORDED NOVEMBER 26.1984
AS FILE NO. 84443590 OF OFFICIAL RECORDS) TO AN ANGLE POINT ON THE NORTHERLY AND EASTERLY BOUNDARY OF THE
LAND DESCRIBED IN DEED TO FRITZ WEIGAND AND WIFE, RECORDED APRIL 23,1929 IN BOOK 1620. PAGE 213 OF DEEDS; THENCE ALONG SAlD BOUNDARY SOUTH 02’48’11” EAST 330.03 FEET (RECORD SOUTH 03’14’40” EAST) TO THE TRUE PofNT
OF BEGINNING; THENCE LEAVING SAlD BOUNDARY
1. SOUTH 57’31’17. WEST 976.00 FEET; THENCE
2. SOUTH 60’25’51 WEST 925.00 FEET TO A POINT ON THE CENTERLINE OF RANCH0 SANTA FE ROAD, ALSO KNOWN AS ROAD SURVEY NO 454-h SAID POINT THE BEGINNING OF A NON-TANGENT 1900.00 FOOT RADIUS CURVE CONCAVE TO THE
NORTHEAST, A RADIAL LINE TO SAlD BEGINNING BEARS SOUTH 57’44’23” WESI; THENCE ALONG THE ARC OF SAID CURVE
AND SAID CENTERLINE
3. SOUTHEASTERLY 73.16 FEETTHROUGH A CENTRAL ANGLE OF 4’11’341 THENCE 4. SOiJTH 36’27’11” EAST 1250.58 FEET TO THE BEGINNING OF A TANGENT 1 W0.W FOOT RADIUS CURVE CONCAVE TO THE
NORTHEAST; THENCE ALONG THE ARC OF SAlD CURVE 5. SOUTHEASTERLY 31257 FEET THROUGH A CENTRAL ANGLE OF 17’54’32; THENCE
6. SOUTH 54.21’43” EAST 158.16 FEET TO AN ANGLE POINT, SAlD ANGLE POINT BEING ALSO THE CENTERLINE INTERSECTION WITH AVENIDA LA POSTA AS MONUMENTED ACCORDING TO TRACT MAP NO. 3697-l FILED IN THE OFFICE
OF THE COUNTY RECORDED OF SAID COUNTY ON JANUARY 6.1983. SAID POINT BEING ALSO THE MOST WESTERLY CORNER OF LAND DESCRIBED IN DEED RECORDED SEPTEMBER 21.1992 AS DOCUMENT NO. 19924597007 OF OFFICIAL
RECORDS; THENCE ALONG THE NORTHWESTERLY LINE OF SAlD LAND 7. NORTH 35’37’19. EAST 106.96 FEFT; THENCE LEAVING SAlD LINE
6. NORTH 54’22’41’WEST 30.00 FEET; THENCE 9. NORTH 20’40’15” WEST 189.50 FEET, THENCE
10. NORTH 06’53’24” WEST 29.62 FEET TO THE BEGINNING OF A NON-TANGENT 70.W FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADlAl LINE TO SAID BEGINNING BEARS SOUTH 08’53’24 EAST; THENCE ALONG THE ARC OF SAID CURVE
ll_ WESTERLY, NORTHWESTERLY, AND NORTHERLY 96.61 FEET THROUGH A CENTRAL ANGLE OF 79’04’30. TO THE
BEGINNING OF A 50.00 FOOT RADIUS REVERSE CURVE CONCAVE TO THE SOUTHWEST; THENCE ALONG THE ARC OF SAlD REVERSE CURVE
12. NORTHERLY 20.56 FEET, THROUGH A CENTRAL ANGLE OF 2333’23”; THENCE 13. NORTH 41’22’17’ WEST 83.67 FEET; THENCE
14. NORTH 46’37.43’ EAST 60.00 FEET; THENCE 15. NORTH 52’12’49’ EAST 77.66 FEET; THENCE
16. NORTH 34’46’43’ EAST 183.41 FEET; THENCE 17. NORTH 47’27’35. EAST 293.45 FEFT; THENCE
18. NORTH 62’07’33’ EAST 296.99 FEET; THENCE
19. NORTH 70’58’08” EAST 297.76 FEET; THENCE 20. NORTH 83’18’07- EAST 210.65 FEET; THENCE
21. SOUTH 85’36’47” EAST 281.53 FEET; THENCE
22. NORTH 82’29’19’ EAST 198.01 FEET; THENCE
23. SOUTH 81’02’09” EAST 162.27 FEET TO A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14 AND THE EASTERLY LINE OF THE LANDS DESCRlBED IN SAID DEED RECORDED AS FILE NO. 84-443590 OF OFFICIAL RECORDS;
THENCE ALONG SAID EASTERLY LINE
24. NORTH 02’41’19’ WEST 835.62 FE- THENCE
25. SOUTH 87’32’30” WEST 659.93 FEET; THENCE 26. NORTH 02’48’11” WEST 330.03 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINS 47.630 ACRES, MORE OR LESS.
Page 2 of 3
Exhibit ‘A
Legal Descriptions
UNIT NO. 4
BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDMSION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO.
646, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 14; THENCE ALONG THE NORTHERLY LINE OF SAID LOT
1. NORTH 67’36’50” EAST 661.34 FEET TO TO AN ANGLE POINT IN THE NORTHERLY AND EASTERLY BOUNDARY OF THE LAND DESCRIBED IN DEED TO FRllZ WEIGAND AND WIFE, RECORDED APRIL 23,192Q IN BOOK 1620, PAGE 213 OF
DEEDS; THENCE ALONG SAlD BOUNDARY
2. SOUTH 02’46’11’ EAST 330.03 FEET; THENCE LEAVING SAlD BOUNDARY 3. SOUTH 57-31’17’ WEST 976.00 FEFT: THENCE
4. SOUTH 60’25’52 WEST 925.00 FEET TO A POINT ON THE CENTERLINE OF RANCH0 SANTA FE ROAD, ALSO KNOWN AS ROAD SURVEY NO. 454-A, SAID POINT LIES ON THE ARC OF A NON-TANGENT l,OOO.W FOOT RADIUS CURVE CONCAVE
TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 57’44’23” WEST; THENCE ALONG THE ARC OF SAlD CURVE AND CENTERLINE 5. NORTHWESTERLY 219,Ol FEET THROUGH A CENTRAL ANGLE OF 12’32’54”; THENCE 6. NORTH 19’42’43’ WEST 766.03 FEET TO THE NORTHERLY LINE OF SAID LOT 13; THENCE ALONG SAID NORTHERLY
UNE 7. NORTH 67’29’39. EAST $416.42 FEET TO THE POINT OF BEGINNING.
CONTAINS 33.272 ACRES, MORE OR LESS.
Page 3 of 3
EXHIBIT B
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCH0 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 Ranch0 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
Carlsbad 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 .O 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 EDU per Acre
12
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 determination of
be used in computing the fair share obligation for any project.
the number of EDUs to
Fair Share Amount and Method of Pavment
The City shall collect $10,250 for each EDU as determined by the City Council. This
amount shall be collected in’ one payment of $10,250 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 determined by the City Engineer, times $10,250. If the City Council
determined 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 unless the alternative method described
in the Sections below is fulfilled.
13
2) If the “Agreement for Reimbursement of Costs for the Construction of Ranch0
Santa Fe Road from Calle Acervo to the Northern Boundary of Shelley Property
between the City of Carlsbad and Continental Residential, Inc.” (Agreement for
Reimbursement), has been executed; then, in consideration of the commitments
made in the Agreement for Reimbursement, payment of the total amount due may
be made as specified in section 7 of the Agreement for Reimbursement. If such an
alternative method is exercised, the following guarantees must be in place prior to
scheduling the final maps for Council consideration:
a) For unit 2 of CT 90-03: A letter of credit must be given to the City to
guarantee the payment of the amount described above prior to the City
Council’s approval of the final map. Such letter of credit shall be for no less
than the total amount due for each unit as shown below. The letter of credit
may be drawn upon if needed for the construction of the “District
Improvements” as defined in the Agreement for Reimbursement. The letter of
credit may be reduced from time to time in an amount equal to the approved
Reimbursement Requests discussed in Section 7 of the Agreement for
Reimbursement. Such reductions shall be in increments of no less than
$250,000.
.
b) For units 3 and 4 of CT 90-03: Property Owner must post labor and materials
bonds for the construction of the District Improvements as defined in the
Agreement for Reimbursement. Such bonds must be in excess of the total
amount due for each unit as shown below and must be posted prior to the
approval of the final map for either unit.
3) If the Agreement for Reimbursement has not been executed; then, in consideration
of the tentative map conditions and in anticipation of the execution of the
Agreement for Reimbursement discussed above, the following alternative method
is available for Unit 2 of CT 90-03 only. A letter of credit may be given to the City
to guarantee the payment of the amount described in 1) above prior to the City
14
Council’s approval of the final map. Such letter of credit shall be for no less than
the total amount due for each unit as shown below. The letter of credit may be
drawn upon if needed for the construction of the “District Improvements” and may
be drawn in full if the Agreement for Reimbursement is not executed within six (6)
months of this agreement.
Computation of Fair Share Obligation
Shelley Property CT 90-03
Units 2 through 4
Amount Due
4) If the property owner has already obtained a final map for units conditioned
with the financing of Ranch0 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
or shall have posted a bond and/or letter of credit as set forth in Sections 2 and 3
above.
15
Bed&f America ea
DATE: DECEMBER 14, 2000
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: 3033319
BENEFICIARY
CITY OF CARLSBAD
1635 FARADAY AVENUE
CARLSBAD, CALIFORNIA 92008
ATTENTION: FINANCE DIRECTOR
APPLICANT
D.R. HORTON - CONTINENTAL SAN DIEGO
2237 FARADAY AVENUE, STE. 100
CARLSBAD, CA 92008
AMOUNT
USD 471,500.00
FOUR HUNDRED SEVENTY ONE THOUSAND
FIVE HUNDRED AND 00/100'S U.S.
DOLLARS
EXPIRATION
DECEMBER 14, 2001 AT OUR COUNTERS
DEAR CITY OF CARLSBAD:
WE HEREBY ESTABLISH OUR IRREVOCABLE LETTER OF CREDIT NUMBER.3033319,
IN THE AMOUNT OF FOUR HUNDRED SEVENTY ONE THOUSAND FIVE HUNDRED AND
OO/lOO U.S. DOLLARS ($471,500.00) IN FAVOR OF THE CITY OF CARLSBAD, A
MUNICIPAL CORPORATION OF THE STATE OF CALIFORNIA, HEREINAFTER REFERRED
TO AS "CITY" , ISSUED IN CONNECTION WITH THE REQUIREMENTS OF THAT
CERTAIN AGREEMENT ENTITLED "PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE
COSTS" ENTERED INTO BETWEEN CITY AND CONTINENTAL RESIDENTIAL, INC.,
HEREINAFTER REFERRED TO AS "PRINCIPAL", COVERING CERTAIN FEES TO BE
PAID OR, ALTERNATIVELY, IMPROVEMENTS OR WORK TO BE INSTALLED OR DONE
IN OR FOR THAT CERTAIN SUBDIVISION KNOWN AS DESIGNATED AS SHELLEY
PROPERTY UNIT NO. 2, CT 90-03 BY PRINCIPAL AND IN ACCORDANCE WITH SAID
AGREEMENT.
THIS LETTER OF CREDIT IS AVAILABLE TO CITY AGAINST CITY'S DRAFT(S)
DRAWN AT SIGHT ON US WHEN ACCOMPANIED BY:
CITY'S WRITTEN STATEMENT (SIGNED BY THE FINANCE DIRECTOR, CITY
MANAGER, OR CITY ATTORNEY) CERTIFYING THAT THERE HAS BEEN FAILURE OF
THE PRINCIPAL TO ADHERE TO THE PROVISIONS OF THE ABOVE AGREEMENT AND
FURTHER THAT THE AMOUNT OF THE DRAFT ACCOMPANYING THIS STATEMENT IS
NOW DUE AND PAYABLE. L
PARTIAL DRAWINGS ARE PERMITTED. /
ALL DRAFTS UNDER THIS LETTER OF CREDIT SHALL BE MARKED "DRAWN UNDER
IRREVOCABLE LETTER OF CREDIT NUMBER 3033319 ISSUED BY BANX OF AMERICA,
N.A., 333 SOUTH BEAUDRY AVENUE, 19== FLOOR, LOS ANGELES, CA 90017,
MAIL CODE: cA9-703-19-23.
THIS LETTER OF CREDIT EXPIRES ONE YEAR FROM THE DATE HEREOF AND SHALL
BE DEEMED AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR A ONE YEAR
PERIOD UPON SUCH DATE AND UPON EACH ANNIVERSARY OF SUCH DATE, UNLESS
AT LEAST SIXTY (60) DAYS PRIOR TO SUCH DATE OR EACH ANNIVERSARY OF
SUCH DATE WE NOTIFY THE CITY CLERK IN WRITING BY REGISTERED MAIL OR
OVERNIGHT COURIER SERVICE THAT WE ELECT NOT TO SO EXTEND THIS LETTER
OF CREDIT. UPON RECEIPT BY CITY OF SUCH NOTICE CITY MAY AUTOMATICALLY
Bank of America, N.A. Trade Operations
Mail Code: CA9-703-19-09
333 S. Beaudry Avenue, 19th Floor. Los Angeles, CA 90017
OO-35OZOZNSB 9.l999-CA9 I9 0 Recycled Paper
’ . . Bad&f Amierica ew
PAGE: 2
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: 3033319
DRAW TO THE FULL AMOUNT REMAINING ON THIS LETTER OF CREDIT BY A CLEAN
DRAFT, WITH NO SUPPORTING DOCUMENTS, AND BANK WILL PAY CITY UPON
RECEIPT OF SUCH DRAFT.
WE EXPRESSLY AGREE WITH CITY THAT ALL DRAFTS DRAWN UNDER AND IN
COMPLIANCE WITH THE TERMS OF THIS LETTER OF CREDIT SHALL BE DULY
HONORED BY US. THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM
CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS, 1993 REV., PUBLISHED BY
THE INTERNATIONAL CHAMBER OF COMMERCE, ICC PUBLICATION NO. 500 TO THE
EXTENT IT IS NOT INCONSISTENT WITH APPLICABLE LAWS OF THE STATE OF
CALIFORNIA.
BANK OF AMERICA, N.A.
MANUEL BANUELOS
Banlt of America. N.A. Trade Operations
Mad Code: CA9-703-19-09
333 S. Beaudry Avenue. 19th Floor, Los Angeles, CA 90017
IX-35-0202NSB 9.1999..CA9 19
AUTHORIZED SIGNATURE
+$ Recycled Paper
Records Management Department
January 17,200l
Gregory J. Smith
San Diego County Recorder
PO Box 1750
San Diego, CA 92 112-4 147
the following described documents:
, WAiVER AND CONSENT TO CREATION OF A
AND AGREEMENT TO PAY FAIR SHARE COST 0
2. PETITION, WAM3R AND CONSENT TO CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAiX SHARE COST OF WNIT 1 OF CT 90-03
APN: 264-010-41-00,
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,
oI.)JJQ /p+ -r
DebraDoerfler .
Office of the City Clerk
Enclo!mes (2) 7f
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“1-a
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1200 Carlsbad Villaae Drb- l Carl.qhad. CA cb7nn8-i cm!9 0 17finl PRd-7808 a
2001-0050055
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
6704
DOE # 2001-0050055
JIlN 239 2001 3:11 PM
OFFICIAL REm SAN DIEGO CouKly RECURDER’S OFFICE GREGORY J. SHITH, CDUNTY RECORDER FEES: 5El.00
Space Above This Line for Recorder’s Use
Assessor Parcel Nos. 264-O 1 o-42-00,
264-O 1 o-43-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CT 90-03 (“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 Tentative Tract Map CT 90-03
(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,
I-9-w dg "/ 14 50 ZOOI-/O
6705
WHEREAS, City has determined this Project is located within the boundaries of
a proposed Community Facilities District known as Community Facilities District No. 2
- Ranch0 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 number 37 of Tentative Tract Map CT 90-03 requires
that the Property Owner provide for or participate in the construction of certain public
improvements including sections of Ranch0 Santa Fe Road; and,
WHEREAS, the compliance with tentative map conditions is a condition of
approval for the final map for the Project; 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 and 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 tentative map condition number 37 for Carlsbad Tract Map
CT 90-03, 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,
2 \ s \
6706
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 future 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) Ranch0 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
d Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
d) Ranch0 Santa Fe Road South (RSF So.) (Assumes Secondary
Arterial Standard - Encinitas City 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.
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,”
3
, .,
6707
expressly waives the proceedings required and all limitations contained in Title 5,
Division 2, Chapter 2.5 of the California Government Code and nonetheless with full
knowledge of such rights, completely and forever waives such rights. Specifically,
Property Owner hereby consents 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 Ranch0 Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
d 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 the Tentative
Map CT 90-03 condition number 37, as that condition applies to CT 90-03 subject to
adjustment as described in Section 9 herein.
d 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
4
6708
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 tentative map CT 90-03 by the
City.
8. Property Owner agrees that payment of its fair share is not a fee and
waive 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 a
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
5
6709’
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.
d 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 formation 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,
6
6710
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 determined 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 #l 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
7
1. I
6711
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 who 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.
1 1. 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
8
3 I
. . .
6712
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 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
9
6713
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:
Continental Residential, Inc.
2237 Faraday Avenue, Suite 100
Carlsbad, CA 92008
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Avenue
Carlsbad, 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.
10
6714
Executed this Fk 20 day of pwsMeER 2000.
*OWNER:
CONTINENTAL RESIDENTIAL, INC.
By:
(sign here)
(print name)
(title and organization of signatory)
By:
(sign here)
(print name)
(title and organization of signatory)
ATTEST:
&RRAINE M. WOOD
City Clerk
JANICE BREITENFELD,
Deputy City Clerk
Aphoved as to form:
*
City Attorney
(Proper notarial acknowledgment of execution by *OWNER must be attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering that
officer to bind the corporation.)
11
6'715
CERTIFICATE OF ASSISTANT SECRETARY
The undersigned hereby certifies as follows:
1. He is a duly elected, qualified and acting Assistant Secretary of Continental
Residential, Inc., a California corporation (the “Company”), is familiar with the facts herein certified
and is duly authorized to certify the same.
2. The following is a true, correct and complete copy ofresolutions related to the subject
matter as adopted by the Consent of Sole Director of the Company dated January 1, 2000 (the
“Resolutions”). The Resolutions have not been amended, rescinded or modified and remain in full
force and effect as of the date hereof.
Authority of David A. Lother. Yice President
WHEREAS, effective April 20,1998, David A. Lother was elected to, and
continues to serve in, the office of Vice President of the Company (the “Vice
President”), to serve until the next annual meeting of the directors of the Company
and until his successor is duly elected and qualified or until his earlier death,
resignation or removal.
RESOLVED, that in connection with land development for the Company,
without the prior approval, and without the signature, of any other officer of the
Company, the Vice President is hereby authorized and empowered, in the name and
on behalf of the Company, to execute and deliver contracts, agreements and other
documents and instruments for the subdivision, development and/or improvement of
real property, including subContractor agreements, maintenance contracts,
applications to the Department of Real Estate for approval of budgets, homeowner
association documents and various other documents, homeowner association
documents, entitlement submissions, security bonds, subdivision improvement
agreements, permit applications, easement deeds, agreements with adjacent property
owners, consulting contracts and similar or equivalent agreements, documents or
instruments.
IN WITNESS WHEREOF, the undersigned has set his hand on the 26th day of
January, 2000. 0
Paul W. Buchschacher,
Assistant Secretary
6716
State of California )
> ss.
County of San Diego )
On December 20, 2000 before me, Michele A. Kittinger, Notary Public,
personally appeared David A. Lother, of Continental Residential, Inc.,
personally known to me to be the person whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
MICHELE A. KIlTiNGER
Commission # 1236464
Notary t?Jbfii - California g
San Di0 County
MyComm.E3@resOct4,31103
WITNESS my hand and official seal.
Miclkle A. Kittinger, N&ary Public
EXHIBIT A
671'7
JJNIT NO. 2
BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO. 848,
ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO. IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO. STATE OF
CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POtNT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14, SAID POINT BEING THE EASTERLY TERMINUS
OF THAT CERTAIN CENTERLINE DESCRIPTION RECORDED IN SAID COUNTY RECORDER’S OFFICE ON MARCH 12, 1996 AS
DOCUMENT NO. 1996-0119577 OF OFFICIAL RECORDS; THENCE ALONG SAID CENTERLINE
1. NORTH 87”11’16” WEST 60.17 FEET TO THE BEGINNING OF A TANGENT l,OOO.OO FOOT RADIUS CURVE CONCAVE TO THE
NORTH;
2.
3.
THENCE ALONG THE ARC OF SAID CURVE WESTERLY 168.67 FEET THROUGH A CENTRAL ANGLE OF 09”39’51”;
THENCE NORTH 77”31’25” WEST 171.45 FEET TO THE BEGINNING OF A TANGENT 650.00 FOOT RADIUS CURVE CONCAVE TO
THE SOUTH;
4.
5.
6. I.
8.
THENCE ALONG THE ARC OF SAID CURVE WESTERLY AND SOUTHWESTERLY 758.44 FEET THROUGH A CENTRAL ANGLE OF
66”51’16” TO THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE ON THE CENTERLINE OF THE STREET
EASEMENT RECORDED IN SAID COUNTY RECORDER’S OFFICE AS DOCUMENT NO. 1993-0108952 OF OFFICIAL RECORDS,
DESCRIBED THEREON AS LINE BEARING NORTH 35”37’30” EAST 445.51 FEET; THENCE ALONG SAID CENTERLINE SOUTH 35”37’19” WEST 342.76 FEET; THENCE LEAVING SAID LINE NORTH 54’22’41” WEST 30.00 FEET;
THENCE NORTH 20’40’15” WEST 189.50 FEET;
9.
10
THENCE NORTH 06’53’24” WEST TO THE BEGINNING OF A NON-TANGENT 70.00 FOOT RADIUS CURVE CONCAVE TO THE
NORTHEAST, A RADIAL LINE TO SAlD BEGINNING BEARS SOUTH 06”5324” EAST;
THENCE ALONG THE ARC OF SAID CURVE WESTERLY, NORTHWESTERLY, AND NORTHERLY 96.61 FEET THROUGH A
CENTRAL ANGLE OF 79’04’30” TO THE BEGINNING OF A 50.00 FOOT RADIUS REVERSE CURVE CONCAVE TO THE
SOUTHWEST, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 72”11’06” EAST;
THENCE ALONG THE ARC OF SAID CURVE NORTHERLY AND NORTHWESTERLY 20.56 FEET THROUGH A CENTRAL ANGLE OF
23”3323”;
Il. THENCE NORTH 41”22’17” WEST 83.67 FEET;
12. THENCE NORTH 48’37’43” EAST 60.00 FEET;
13. THENCE NORTH 52”12’49” EAST 77.88 FEET;
14. THENCE NORTH 34”46’43” EAST 183.41 FEET;
15. THENCE NORTH 47”27’35” EAST 203.45 FEET;
16. THENCE NORTH 62”07’33” EAST 208.99 FEET; 17. THENCE NORTH 70”56’06” EAST 207.76 FEET;
18. THENCE NORTH 83’18’07” EAST 210.65 FEET; 19. THENCE SOUTH 85”38’47” EAST 281.53 FEET;
20. THENCE NORTH 82”29’19” EAST 108.01 FEET;
21. THENCE SOUTH 61’02’09” EAST 162.27 FEET TO SAID WESTERLY LINE OF THE EAST HALF OF SAID LOT 14;
22. THENCE ALONG SAID LINE SOUTH 02”41’19” EAST 360.68 FEET TO THE POINT OF BEGINNING.
CONTAINS 13.536 ACRES. MORE OR LESS.
6718
EXHIBIT B
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCH0 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 Ranch0 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
Carlsbad 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 .O EDU
Single Family - Attached Units 0.6 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10 EDU per Acre
12
6919’
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 determination of the number of EDUs to
be used in computing the fair share obligation for any project.
Fair Share Amount and Method of Pavment
The City shall collect $10,250 for each EDU as determined by the City Council. This
amount shall be collected in one payment of $10,250 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 determined by the City Engineer, times $10,250. If the City Council
determined 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 unless the alternative method described
in the Sections below is fulfilled.
13
6’720
2) If the “Agreement for Reimbursement of Costs for the Construction of Ranch0
Santa Fe Road from Calle Acervo to the Northern Boundary of Shelley Property
between the City of Carlsbad and Continental Residential, Inc.” (Agreement for
Reimbursement), has been executed; then, in consideration of the commitments
made in the Agreement for Reimbursement, payment of the total amount due may
be made as specified in section 7 of the Agreement for Reimbursement. If such an
alternative method is exercised, the following guarantees must be in place prior to
scheduling the final maps for Council consideration:
a) For unit 2 of CT 90-03: A letter of credit must be given to the City to
guarantee the payment of the amount described above prior to the City
Council’s approval of the final map. Such letter of credit shall be for no less
than the total amount due for each unit as shown below. The letter of credit
may be drawn upon if needed for the construction of the “District
Improvements” as defined in the Agreement for Reimbursement. The letter of
credit may be reduced from time to time in an amount equal to the approved
Reimbursement Requests discussed in Section 7 of the Agreement for
Reimbursement. Such reductions shall be in increments of no less than
$250,000.
b) For units 3 and 4 of CT 90-03: Property Owner must post labor and materials
bonds for the construction of the District Improvements as defined in the
Agreement for Reimbursement. Such bonds must be in excess of the total
amount due for each unit as shown below and must be posted prior to the
approval of the final map for either unit.
3) If the Agreement for Reimbursement has not been executed; then, in consideration
of the tentative map conditions and in anticipation of the execution of the
Agreement for Reimbursement discussed above, the following alternative method
is available for Unit 2 of CT 90-03 only. A letter of credit may be given to the City
to guarantee the payment of the amount described in 1) above prior to the City
14
. .
. 6’7211
Council’s approval of the final map. Such letter of credit shall be for no less than
the total amount due for each unit as shown below. The letter of credit may be
drawn upon if needed for the construction of the “District Improvements” and may
be drawn in full if the Agreement for Reimbursement is not executed within six (6)
months of this agreement.
Computation of Fair Share Obligation
Shelley Property CT 90-03
Units 2 through 4
&kber
Type of Unit EDU per Cost per
unit EDU
Units Covered
by Agreement Amount Due
2 Single Family Detached
Units
10.0 $10,250 46 $471,500
3 Single Family Detached
Units
10.0 $10,250 109 $1,117,250
4 Single Family Detached 10.0 $10,250 63 $645,750
Units
TOTAL 218 $2,234,500
4) If the property owner has already obtained a final map for units conditioned
with the financing of Ranch0 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
or shall have posted a bond and/or letter of credit as set forth in Sections 2 and 3
above.
15
From the desk of...
Lisa Hildabrand
City of Carlsbad
Records Management Department
February 16,200l
Gregory J. Smith
San Diego County Recorder
PO Box 1750
San Diego, CA 921124147
On JAN 29, 2001 DOC # 2001-0050055 (a copy of the front page is attached) was recorded in your
offices. This document contains errors in the legal description and a new document needs to be recorded
in place of the old document referred to above.
Please find enclosed for recordation the following:
PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILITIES
DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF CT 90-03 (“AGREEMENT”)
APN: 264-010-42-00
264-010-43-00
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.
Debra Doerfler
Enclosures (2)
1200 Carisbad Village Drive * Carlsbad, CA 92008-1989 - (760) 434-2808 @
2001-0050065
off1c1131 RECORDS SIW DIEGIJ Mxw RECORDER’S OFFICE 6704 GREGORY ~ITHI CWt&REIiRRDER . . .
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village
Carlsbad, CA 92008
Space Above This Line for Recorder’s Use
Assessor Parcel Nos. 264-O 1 o-42-00,
264-01 o-43-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CT 90-03 (“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 Tentative Tract Map CT 90-03
(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,
1
I-9-n/ $I 0 MI __I , ,,‘,?l - Ial