HomeMy WebLinkAbout2007-02-06; City Council; 18886; Assessment District Contract 2nd Amendment10
CITY OF CARLSBAD - AGENDA BILL
AB# 18,886
MTG. 2/06/07
DEPT. ENG
APPROVAL OF THE SECOND AMENDMENT TO THE
ACQUISITION/FINANCING AGREEMENT FOR
AOOCOCKVICMT" r\ICT"DI/r"*T" KIO OHHO H-1AoobooMblM 1 Ulo 1 KIU 1 INU. 2UOo-U1
(COLLEGE BOULEVARD AND CANNON ROAD EAST)
DEPT. HEAD ^ -f^f
CITY ATTY. ^gj?
CITYMGR. ^"^^
RECOMMENDED ACTION:
Adopt Resolution No. 2007-024 approving the Second Amendment to the Acquisition/Financing
Agreement for Assessment District No. 2003-01 (College Boulevard and Cannon Road East).
ITEM EXPLANATION:
On December 3, 2002, the City Council adopted Resolution No. 2002-349 approving an
Acquisition/Financing Agreement for the construction of Cannon Road East, College Boulevard, and
Master Drainage Plan Facilities BJB and BJA improvements in conjunction with the Calavera Hills II
development.
On September 16, 2003, the City Council adopted Resolution No. 2003-244 approving the final report
of the assessment engineer, declaring the results of the assessment ballot tabulation, confirming the
assessments and ordering the acquisition or construction of the improvements, together with
appurtenances, in Assessment District 2003-01 (College Boulevard and Cannon Road East). At that
same time, the City Council adopted Resolution No. 2003-245 approving the First Amendment to the
Acquisition/Financing Agreement.
On November 14, 2006, the City Council adopted Resolution No. 2006-324 approving the Robertson
Ranch Master Plan (MP 02-03). As a condition of approval, the developer is required to construct an
84" diameter storm drain along Cannon Road from the intersection of Cannon Road and
College Boulevard to just west of El Camino Real.
The proposed Second Amendment to the Acquisition/Financing Agreement provides for the inclusion
of the 84" diameter storm drain facility along Cannon Road as required by the project approvals.
The 84" storm drain will provide the same function and thereby eliminate the need to construct
improvements to the channel along the south side of Cannon Road which had been identified as a
facility in the City of Carlsbad Master Drainage and Storm Water Quality Management Plan. Prior to
purchasing the 84" storm drain pursuant to this Second Amendment, Assessment District 2003-01
must be modified to include the 84" storm drain as an improvement.
After Assessment District 2003-01 is successfully modified, the City would use a combination of
Planned Local Drainage Area (PLDA) funds and credits in addition to Assessment District 2003-01
bond proceeds to purchase the 84" storm drain line. The PLDA funds would be used to pay an amount
equal to the estimated cost of constructing the channel improvements which are being replaced by the
84" storm drain line. The Assessment District 2003-01 bond proceeds would be used to pay for
remaining costs of constructing the 84" storm drain as provided by the modification proceedings.
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
B/
D
D
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CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
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ENVIRONMENTAL IMPACT:
On November 14, 2006, the City Council adopted Resolution No. 2006-324 certifying the Program
Environmental Impact Report (EIR 03-03) and adopting the Candidate Findings of Fact, Statement of
Overriding Considerations, Mitigation Monitoring and Reporting Program for the Robertson Ranch
Master Plan. EIR 03-03 as certified by the City Council includes the 84" storm drain which is proposed
to be purchased/acquired in accordance with this Second Amendment to the Acquisition/Financing
Agreement.
FISCAL IMPACT:
The current estimate of the total funding needed to purchase the 84" storm drain is $3,250,000.
As described above, the funding would come from PLDA fees and Assessment District 2003-01 bond
proceeds. The funding from the PLDA fee program would include a PLDA fee credit of $434,000 and
$969,000 from the PLDA fee fund. The total funding from the PLDA fee program would be set at the
total of these two items which is $1,403,000. To the extent authorized by the successful completion of
Assessment District Modification Proceedings, which are needed to include the storm drain
improvements, the remaining costs would be funded from Assessment District bond proceeds.
The current estimate of the funding that will be needed from the Assessment District bond proceeds is
$1,847,000.
The first series of bonds for Assessment District 2003-01 were issued in 2004. At that time it was
planned that a second series of bonds would be issued at a later time associated with the
development of the Robertson Ranch East project. It is anticipated that the second series of bonds
will be presented to the City Council for consideration later this calendar year.
EXHIBITS:
1. Location Map
2. Resolution No. 2007-024 approving the Second Amendment to
Acquisition/Financing Agreement for Assessment District 2003-01 (College Boulevard and
Cannon Road East).
3. Second Amendment to Acquisition/Financing Agreement.
DEPARTMENT CONTACT: Marshall Plantz 760-602-2766 mplan@ci.carlsbad.ca.us
LOCATION MAP
LEGEND:
Y//////A BOUNDARY OF ASSESSMENT DISTRICT
PROPOSED 84" STORM DRAIN NOT TO SCALE
PROJECT NAME
SECOND AMENDMENT TO THE ACQUISITION I FINANCING AGREEMENT
ASSESSMENT DISTRICT NO. 2003-01 (COLLEGE BOULEVARD AND CANNON ROAD EAST)
EXHIBIT
1
DRAWN BY: SCOTT EVANS. CARLSBAD ENGINEERING DEPT. 01/24/07 C: \PLANNING A PROGRAMS\PLANTZ\CANNON 84 INCH STORM DRAIN.DWG
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RESOLUTION NO. 2007-024
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING THE SECOND
AMENDMENT TO THE ACQUISITION/FINANCING
4 AGREEMENT FOR ASSESSMENT DISTRICT 2003-01
(COLLEGE BOULEVARD AND CANNON ROAD EAST).
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WHEREAS, the City Council of the City of Carlsbad, California, pursuant to the provisions
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of Division 12 of the Streets and Highways Code of the State of California (the Municipal
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Improvement Act of 1913) (the "Improvement Act") has undertaken proceedings to form and has
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formed as Assessment District for the purposes of financing the acquisition or construction of
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certain works of improvement, together with appurtenances, such special assessment district
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known and designated as Assessment District 2003-01 (College Boulevard and Cannon Road
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East) (the "Assessment District"); and
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WHEREAS, the City Council did previously approve an Acquisition/Financing Agreement
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(the "Acquisition/Financing Agreement") made and entered into on December 11, 2002 by and
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between the City of Carlsbad and Calavera Hills II LLC (the "Developer") to establish the terms
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and conditions upon which the Improvements (as defined in the Acquisition/Financing
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Agreement) would be acquired by the City; and
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WHEREAS, the City Council did previously approve the First Amendment to the
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Acquisition/Financing Agreement (the "Acquisition/Financing Agreement") on September 16,
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2003 by and between the City of Carlsbad and Calavera Hills II LLC (the "Developer"); and
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WHEREAS, the City and Developer desire to amend the Acquisition/Financing Agreement
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by entering into the Second Amendment to the Acquisition/Financing Agreement, (the "Second
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Amendment").
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
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California, as follows:
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1. That the above recitations are true and correct.
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2. That the Second Amendment to the Acquisition/Financing Agreement, is approved
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and the Mayor is hereby authorized to execute said agreement.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 6th day of February, 2007, by the following vote:
AYES: Council Members Lewis, Kulchin, Hall, Packard
NOES: None.
ABSENT: Council Member Sigafoose.
LEWIS, May
ATTEST:
LORRAINE MTWOOD, City'Clerk
(SEAL)
f»
SECOND AMENDMENT TO ACQUISITION/FINANCING AGREEMENT
This Second Amendment to Acquisition/Financing Agreement ("Second
Amendment") by and between the City of Carlsbad, a municipal corporation duly organized and
validly existing under the Constitution and laws of the State of California (the "City"), and
Calavera Hills II, LLC, a California limited liability company (the "Developer"), is made and
entered into this ^"^ day of faarp our u , 2007.
RECITALS
WHEREAS, City and Developer entered into that certain Acquisition/Financing
Agreement dated December 11, 2002 (the "Original Agreement") and that certain First
Amendment to Acquisition/Financing Agreement dated September 16, 2003 (the "First
Amendment") amending the Original Agreement (the Original Agreement, as amended by the
First Amendment, is referred to as the "Existing Agreement"); and
WHEREAS, the Existing Agreement established the terms and conditions
pursuant to which the Developer would construct certain identified Improvements (as defined in
the Original Agreement) and the City would acquire such Improvements from the proceeds of
bonds to be issued by the City if the City formed a Financing District (as defined in the Original
Agreement) and the authorization for the levy of special assessments or special taxes was
approved by the owners of property within the Financing District and the issuance such bonds
was approved; and
WHEREAS, City and Developer completed proceedings to form a Financing
District designated as Assessment District No. 2003-01 (College Boulevard and Cannon Road
East) (the "Assessment District") consisting of two distinct benefit areas identified as "Benefit
Area No. 1" and "Benefit Area No. 2"; and
WHEREAS, in 2004 the City issued its City of Carlsbad Assessment District No.
2003-01 (College Boulevard and Cannon Road East) Benefit Area No. 1 (Calavera Hills II)
Limited Obligation Improvement Bonds (the "Benefit Area No. 1 Bonds") in the principal
amount of $11,760,000 secured by the assessments levied within Benefit Area No. 1 to finance
that portion of the costs of the acquisition of the Improvements representing the special benefit
from such Improvements received by the properties within Benefit Area No. 1; and
WHEREAS, Developer in order to proceed in a timely manner with the
development of its property known as Robertson Ranch East located within Benefit Area No. 2 is
required to construct an 84" storm drain along the Cannon Road frontage and more particularly
described in Attachment A hereto (the "Storm Drain Improvements") and has requested that the
City initiate proceedings to modify the Improvements authorized to be financed through the
Assessment District to include the Storm Drain Improvements; and
WHEREAS, Developer has further requested that the Existing Agreement be
amended to revise the Improvements to include the Storm Drain Improvements and to provide
MP/SDPUB\WDIVEN\34()413.I 1
Lf
that the City agree to acquire the Storm Drain Improvements upon the completion of the
construction thereof by the Developer; and
WHEREAS, the City is willing to amend the Existing Agreement to provide for
the acquisition by the City of the Storm Drain Improvements subject to the requirements of both
the Financing District Law (as defined in the Existing Agreement), the City's Financing District
Policies (as defined in the Existing Agreement) and the terms and conditions of the Existing
Agreement, as amended by this Second Amendment.
NOW, THEREFORE, it is mutually agreed between the respective parties as
follows:
1. Recitals. The above recitals are all true and correct.
2. Definitions. Capitalized terms not otherwise defined in this Second
Amendment shall have the meanings ascribed to them in the Existing Agreement.
3. Amendments.
(a) Subject to the successful completion of the Modification
Proceedings (defined below), the Improvements are modified to include the Storm Drain
Improvements. Exhibit "B" of the Existing Agreement is amended to add the Storm Drain
Improvements as Improvement No. 4, to be described as set forth in Attachment A hereto
(b) Payment of the Purchase Price for Storm Drain Improvements.
Except as provided in this Second Amendment, the Purchase Price for Storm Drain
Improvements shall be determined and shall be paid pursuant to the provisions of Section 7 of
the Existing Agreement. Bond proceeds that shall be eligible to purchase the Storm Drain
Improvements shall be limited to such proceeds as may be authorized pursuant to the
Modification Proceedings. Upon completion of the construction, satisfaction of all conditions
precedent as set forth in the Existing Agreement and acceptance by the City of the Storm Drain
Improvements, the Purchase Price (as defined in the Existing Agreement) thereof shall be paid as
follows:
(i) Developer shall be entitled to credit against the City's local
area drainage fees imposed in connection with the development within the
Robertson Ranch East Property in the amount of $434,000.
(ii) $969,000 shall be paid by the City from the local area
drainage fee fund,
(iii) an amount not to exceed that portion of the Purchase Price
for the Storm Drain Improvements representing the special benefit of the Storm
Drain Improvements received by properties within Benefit Area No. 1 shall be
paid from the proceeds of the Bonds secured by the assessments levied within
Benefit Area No. 1 if and to the extent that such proceeds are available for such
purpose, and
MP/SDPUB\WDIVEN\340413.1
(iv) an amount not to exceed that portion of the Purchase Price
representing the special benefit of the Storm Drain Improvements received by
properties within Benefit Area No. 2 shall be paid from the proceeds of Bonds to
be secured by the assessments levied within Benefit Area No. 2 if and to the
extent that such proceeds are available for such purpose.
4. Modification Proceedings. The City agrees to initiate proceedings to
consider the modification of the Improvements to include the Storm Drain Improvements, to
allocate the cost of the construction of the Storm Drain Improvements to the properties within
Benefit Area Nos. 1 and 2 based upon the special benefit to be received by such properties from
the Storm Drain Improvements and to modify the assessments previously levied within Benefit
Area No. 2 to include the special benefit received by the properties within Benefit Area No. 2
from the Storm Drain Improvements. Successful completion of the Modification Proceedings
shall be deemed to have occurred upon (a) the determination that a majority protest to the
increase in the assessments levied within Benefit Area No. 2 does not exist and (b) the adoption
of a resolution (the "Approving Resolution") by the City Council modifying the Improvements
to include the Storm Drain Improvements, approving an amendment to the original assessment
engineer's report for the Assessment District reflecting the inclusion of the Storm Drain
Improvements in the Improvements and allocating the costs thereof among the properties within
Benefit Area Nos. 1 and 2 to reflect the special benefit received by such properties from the
Storm Drain Improvements and confirming the increase in the assessments within Benefit Area
No. 2 to reflect the special benefits received by those properties from the Storm Drain
Improvements.
Developer acknowledges that the decision of the City Council to adopt the
Approving Resolution is a legislative action and the City may not enter into an agreement to
obligate the City Council to exercise its legislative discretion in a particular way. The approval of
this Second Amendment by the City Council does not, therefore, in any way create a contractual,
legal or equitable obligation of or commitment by the City Council to adopt the Approving
Resolution.
5. Effect of this Second Amendment on the Other Terms and Provisions of
the Existing Agreement. All terms and provisions of the Existing Agreement shall remain in full
force and legal effect except as expressly modified by the provisions of this Second Amendment.
6. Counterparts. This Second Amendment may be executed in counterparts,
each of which shall be deemed an original.
7. Authorized Signatories. Each signatory of a party hereto represents and
warrants to the other party that it has legal authority, capacity and direction from the principal to
enter into this Second Amendment, and that all resolutions and/or other actions have been taken
so as to enable such party to enter into this Second Amendment.
MP/SDPUB,\VD1VEN\340413.1
Executed by and between the parties hereto as of the day and year first above
written.
CITY:
City of Carlsb^, a municipal
of the Stette/ffjl
tion
ATTEST:
City Clerk
APPROVED AS TO FORM:
RONALD BALL
CITY ATTORNEY
C^pvrv
DEVELOPER:
Calavera Hills II, LLC, a California limited
liability company
By: McMillin Companies, LLC, a Delaware
limited liability company, its/manager
By:
Name:
Title:
By:_
Name:
Title:
yk&AJL
MP/SDPUB\WDIVEN\340413.1 °\
Attachment A
Modification of Exhibit B to the Existing Agreement
Exhibit A to the Existing Agreement is modified to add the following description of the Storm
Drain Improvements:
Improvement Estimated
Cost
4. 84" Storm Drain (along Cannon Road Frontage)-84" RCP storm drain and
appurtenances from the existing box culvert near the College Boulevard and Cannon
Road intersection to the outlet at 200± feet east of El Camino Real, modifications to the
existing box culvert to accommodate connection to the 84" RCP including splitter wall,
rip-rap outlet, access road to drain outlet, 10' x 4' box culvert, modification of existing
weir wall, approach apron and installation of rip-rap at outlet of existing box culvert,
and incidental costs of construction to the extent permitted as described in the
Acquisition/Financing Agreement.
$3,250,000±
The footnotes to Exhibit B to the Existing Agreement shall also apply to Improvement No. 4.
MP/SDPUB\WD1VEN\340413.1