HomeMy WebLinkAbout2013-12-03; City Council; 21441; Authorize Prepayment Agreement CMV La Costa 49 LLCCITY OF CARLSBAD - AGENDA BILL
AB#
MTG.
DEPT.
21.441
12/03/13
FIN
AUTHORIZE PREPAYMENT
AGREEMENT BETWEEN THE CITY
OF CARLSBAD AND
CWV LA COSTA 49, LLC
DEPT. DIRECTOR
CITY ATTORNEY
CITY MANAGER \^
RECOMMENDED ACTION:
Adopt Resolution No. 2013-276 _, authorizing the Mayor to execute a prepayment
agreement between the City of Carlsbad and CWV La Costa 49, LLC for the Fair Oaks Valley
residential project (CT 02-17).
ITEM EXPLANATION:
One of Council's strategic goals is to provide and maintain a multi-modal transportation system
that moves goods, services, and people throughout Carlsbad in a safe and efficient manner.
This is reflected in the Growth Management Plan which requires each zone within the city to
complete a Local Facilities Management Plan identifying how the zone will furnish the
necessary public facilities to serve its needs.
For a number of years, staff has worked with property owners in Local Facilities Management
Zones 11,12 and a small portion of 6, to form a Community Facilities District (CFD) that would
finance the construction of Rancho Santa Fe Road and Olivenhain Road improvements, as
required by the Local Facilities Management Plan for these zones. This CFD (to be designated
as CFD No. 2 if formed) was intended to provide the property owners and the city with a feasible
financing tool to guarantee funds would be available to construct the roads. However, delays in
the formation of the CFD created development delay issues for some of the property owners in
the proposed CFD who had met all ofthe non-circulation conditions placed on their maps.
To address the development delay issues certain property owners faced. Council began
allowing property owners to prepay their obligation under the proposed CFD No. 2 during late
1993 in exchange for a "prepayment" agreement. The prepayment agreement allows each
developer to meet their obligation to participate in the funding of the Zone 11 circulation system
by paying a fixed fee per housing unit. The prepayment agreements authorized by Council
make two significant findings. First, the prepayment of the property owner's fair share
represents an adequate financing guarantee under the Growth Management Program. This
finding is based on the special case assumption that a CFD could be formed and that it is the
CFD which actually provides the financing guarantee. Secondly, the project does not create a
major impact on the existing circulation facilities. The City Engineer agrees with these findings
as they relate to this project.
DEPARTMENT CONTACT: Roxanne Muhlmeister 760-602-2417
roxanne.muhlmeister(5jcarlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC •
DENIED • CONTINUED TO DATE UNKNOWN •
CONTINUED • RETURNED TO STAFF •
WITHDRAWN • OTHER-SEE MINUTES •
AMENDED •
Page 2
Since late 1993, 15 property owners have signed Fair Share Agreements approved by Council
allowing them to pay their fair share amount. The prepayment fees paid under the Fair Share
Agreements enabled the design and construction of the road improvements to commence. Five
major road projects were financed through funds generated by the proposed CFD No. 2. These
five projects include:
• Olivenhain Road from Amargosa Drive to El Camino Real (complete);
• Rancho Santa Fe Road from Olivenhain Road south into Encinitas (completed by the
developer ofthe Shelley property - Continental Homes);
• the intersection of Rancho Santa Fe Road and Olivenhain Road including the completion
of the Olivenhain Road improvements between Rancho Santa Fe Road and Los Pinos
Circle (complete);
• Rancho Santa Fe Road Phase I from La Costa Avenue to San Elijo Road (complete);
and,
• Rancho Santa Fe Road Phase II from San Elijo Road to Melrose Drive (complete).
The prepayment fees are also enabling the environmental mitigation, monitoring, and restoration
for Rancho Santa Fe Road North, Phase I and II required for the disturbance to wetiand, upland,
and ephemeral stream areas within the project location. A portion of the mitigation took place
on-site (construction complete). The on-site mitigation was located in the area under and
adjacent to the new bridges over San Marcos Creek. The on-site mitigation is currently In the
five year monitoring and maintenance period. A portion of the mitigation is taking place off-site
at San Marcos Creek east of Melrose Drive in the City of San Marcos (construction complete).
The off-site mitigation is currently in the five year monitoring and maintenance period.
Staff is requesting Council to authorize CWV La Costa 49, LLC to prepay their proposed CFD
No. 2 obligations for the Fair Oaks Valley project. The CWV La Costa 49, LLC project is located
in Zone 11 as shown on the attached location map (Exhibit 1). The prepayment agreement is
for the Fair Oaks Valley project consisting of the construction of:
• 49 detached residential units (CT 02-17).
Approving the prepayment agreement allows the project to proceed through the development
approval process by providing a mechanism to meet circulation element financing requirements
found in the Local Facilities Management Plan for Zone 11.
FISCAL IMPACT:
The funding of the Rancho Santa Fe Road and Olivenhain Road projects has been a major
concern of the city and the property owners for many years. The project affects the
development of about 2,400 acres of land in southeast Carisbad. Total project costs are
projected to total over $50 million. Funding for the project will come from prepayments of, and
taxes collected under, CFD No. 2 if it is created, as well as a contribution of $6 million from CFD
No. 1 and several federal grants.
CWV La Costa 49, LLC-Fair Oaks Valley (CT 02-17) will contribute $362,600 to the CFD No. 2
Fund to pay their fair share of the project costs, which are $7,400 per Equivalent Dwelling Unit
(EDU). The fair share amount, as previously determined by the City Council, was $10,250 for
each EDU. On June 23, 2009, through Resolution No. 2009-154, City Council approved a
partial refund of the fair share amount totaling $2,850 for each EDU to property owners who
satisfied their fair share obligation prior to June 23, 2009. As a result, the fair share amount is
Page 3
now assessed at $7,400 for each EDU. The calculation of the fee amount is on the last page of
the Agreement.
ENVIRONMENTAL IMPACT:
A condition of approval for the Fair Oaks Valley project requires an agreement for prepayment
of the project's funding obligation to improve Rancho Santa Fe Road. These roadway
Improvements, as well as the four other completed road projects financed through funds
generated by the proposed CFD No. 2, have been subject to previously completed
environmental review.
EXHIBITS:
1. Location Map.
2. Resolution No. 2013-276 authorizing the Mayor to execute a prepayment
agreement between the City of Carisbad and CWV La Costa 49, LLC for the Fair Oaks
Valley project (CT 02-17).
3. Petition, Waiver, and Consent to Creation of a Community Facilities District and
Agreement to Pay Fair Share Cost of Fair Oaks Valley (CT 02-17).
Exhibit 1
LOCATION MAP
NOT TO SCALE
PROJECT NAME
FAIR OAKS VALLEY
PROJECT
NUMBER
CT02-17
EXHIBIT
PLOTTED BY: SCOTT PLOT DATE: 10/30/13 PATH:D:\PEVELOPUENT PR0JECTS\CT\CT02-17.Dm
Exhibit 2
1 RESOLUTION NO. 2013-276
2 A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING
3 THE MAYOR TO EXECUTE A PREPAYMENT
AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND CWV LA COSTA 49, LLC FOR THE FAIR OAKS
5 VALLEY PROJECT (CT 02-17)
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WHEREAS, the City of Carisbad City Council has required that the funding of
Rancho Santa Fe Road and Olivenhain Road (Project) 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 Project when needed; and
WHEREAS, 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 Project
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 Project; and
WHEREAS, CVW La Costa 49, LLC intends to build 49 detached residential
units in LFMZ 11 identified as CT 02-17; and
WHEREAS, the City Engineer has determined that, due to the size of the
residential development, there will be no major impact on the circulation system at the
present time ifthe development is allowed to proceed; and,
WHEREAS, the Council finds that CWV La Costa 49, LLC may enter into the
attached Agreements to Pay Fair Share in satisfaction of their obligation under the
Project financing conditions; and
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Exhibit 2
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 Mayor is hereby authorized to enter into the attached agreements
entitled "Petition, Waiver and Consent to Creation of a Community Facilities District and
Agreement to Pay Fair Share Cost of Fair Oaks Valley (CT 02-17)" between the City of
Carisbad and CVW La Costa 49, LLC.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City
of Carlsbad on the 3^^^ day of December 2013, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Blackburn, Douglas.
None.
ABSENT: None.
ATTEST:
Uf
BMBARA ENGLESON/City Clerk
Mm O:
EXHIBIT 3
PETITION, WAIVER, AND CONSENT TO CREATION OF A COMMUNITY
FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE COST OF
FAIR OAKS VALLEY (CT 02-17).
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITYOF CARLSBAD
1200 Carlsbad Village Drive
Carisbad, CA 92008
Space Above This Une for Recorder's Use
Assessor Parcel No. 223-061-01-00; 223-061-02-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF FAIR OAKS VALLEY (CT 02-17) ("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 Fair Oaks Valley (CT 02-17), which consists of forty-nine
(49) residential lots, (hereinafter referred to as the "Project"); and,
WHEREAS, the legal description for the Project is shown on Exhibit "A" attached
hereto and incorporated herein by reference; and,
WHEREAS, City has determined this Project is located within the boundaries of a
proposed Community Facilities District known as Community Facilities District No. 2 -
Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "District"); and,
WHEREAS, the District is intended to be formed to finance those improvements
generally described in Section 1 herein; and,
WHEREAS, Property Owner desires to proceed with processing prior to the
fomiation of District; and,
WHEREAS, Condition No. 41 ofPlanning Commission Resolution No. 5954 dated
August 17, 2005, recommending approval ofCarlsbad Tract Map No. 02-17 (CT 02-17),
requires the developer to comply with all conditions and mitigation measures required as
part of Zone 11 Local Facilities Management Plan; and,
WHEREAS, pursuant to section 21.90.130 ofthe Municipal Code and pursuant to
Local Facilities Management Plan, Zone 11, development permits can not be issued until
the developer provides a financial guarantee towards its fair-share cost of Improvements,
which for Zone 11, Includes segments of Rancho Santa Fe Road; and,
WHEREAS, the City and Properiy Owner desire to agree to an altemative method
of financing the improvements described in Section 1 herein that will allow Property Owner
to discharge its fair share obligation for said improvements in lieu of, or in anticipation of,
participation in District; and,
WHEREAS, the City Council agrees that Property Owner, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement
set forth in Condition No. 41 of Planning Commission Resolution No. 5954 dated August
17, 2005, and as referenced in City Council Resolution No. 2005-294, and further
delineated in the Local Facilities Management Plan, Zone 11, to provide a financial
guarantee forthe construction of those improvements described in Section 1 below; and,
WHEREAS, Property Owner voluntarily enters into this Agreement with respect to
the Project; and,
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WHEREAS, the City Council has determined that due to the size of the proposed
development, there will be no major impact on the circulation system at the present time if
development of the Project Is allowed to proceed with sufficient financial guarantees for
the construction of Property Owner's fair share of the circulation improvements;
NOW, THEREFORE, in consideration of proceeding with the processing of the
Project, the undersigned Property Owner and City hereby agree and certify to the
following:
1. Property Owner hereby petitions the City for the Initiation of the proceedings
for the formation of District which will cause the construction and installation and/or
financing of the following improvements (hereinafter "Improvements") which are generally
described as follows:
a) Rancho Santa Fe Road North Phase 1 (RSF No.l) La Costa Avenue
to east of Mahr Resen/oir
b) Olivenhain Road Widening, and intersection improvements at
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondan/
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 wilt be funded by the
District, if formed, or by monies collected by the City for this purpose,
3. Property Owner acknowledges its right to notice of and participation in all
phases of fomnation under the "Mello-Roos Community Facilities Act of 1982," expressly
waives the proceedings required and all limitations contained In Title 5, Division 2, Chapter
2.5 ofthe California Govemment Code and nonetheless with full knowledge of such rights,
completely and forever waives such rights. Specifically, Property Owner hereby consents
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to the proceedings and waives any right to protest the formation of the District and the
ordering of the Improvements under applicabie Califomia statutes and consent to and
support formation of said District with respect to the ProjecL The City shall exclude the
Project from the District boundary map If, prior to the adoption of a Resolution of Intention
by the City Council to form said District, Property Owner has entered into this Agreement
and has paid to the City all amounts due as described herein.
4. a) Property Owner agrees to pay to City, or provide, its fair share for the
Improvements described in Section 1.
b) Said payment, or provision, shall be made in the manner described In
Exhibit "B", Rate and Method for Determining Fair Share Obligation Rancho Santa Fe and
Olivenhain Road, which is incorporated herein by reference.
c) The amount of Property Owner's fair share will be conclusively
determined by the City Council in the manner described in Exhibit "B" attached hereto and
incorporated herein by reference.
d) Payment by Property Owner of its fair share of improvement costs as
determined by City Council and set forth herein will satisfy their obligations for the
construction of the Improvements described in Section 1, as required by Condition No. 41
of Planning Commission Resolution No. 5954 dated August 17, 2005, and as referenced in
City Council Resolution No. 2005-294, and further delineated in the Local Facilities
Management Plan, Zone 11, subject to adjustment as described In Section 9 herein.
e) Altematively, if the District is fomned and the Project is included within
it, Property Owner's obligation to pay its fair share pursuant to the Agreement shall be
satisfied upon payment of all taxes Imposed, established and payable to said District.
5. Property Owner acknowledges that this Agreement to pay its fair share and
participate In the financing of improvements is voluntary and that without this Agreement,
Property Owner would be precluded from obtaining final map approvals or building and
other development permrts under the provisions of the General Plan, Chapter 21.90 of the
Carisbad Municipal Code, applicable zone plan, financing pians and related documents
until a satisfactory financing program has been developed to fund the construction of the
Improvements described in Section 1.
6. Property Owner hereby waives its right to challenge the amount,
establishment or imposition of said fair share and further waive any rights to pay said fair
share under protest.
7. This Agreement does not affect, in any way whatsoever, the obligation of
Property Owner to pay any other fees or assessments associated with Property Owner's
development and/or to post Improvement bonds as required by the City Engineer. Nor
does this Agreement relieve Property Owner from providing other public facilities required
under conditions placed upon the Project by the City.
8. Property Owner agrees that payment of its fair share is not a fee and waives
any and all rights to notice of or challenges to the establishment or Imposition of said fair
share as a fee under provisions of Government Code section 66000 et seq.. or any
successor or related statutes.
9. a) If the District is formed subsequent to the payment by Property Owner
of the fair share pursuant to this Agreement, Property Owner's financial obligation shall be
recalculated using the taxing fonnula established for the District for the Improvements
described in Paragraph 1. If that obligation is lower than the amount previously paid or
provided by Property Owner to City, City shall refund any excess, in the manner described
below.
b) Any refund shall be made from funds available within District upon
District fonnation 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 fnDm 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 availabte. 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 Administrative Services 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 atl related work (Costs), and the
Administrative Services Director shall determine the total amount of revenue including
fees, taxes, interest eamed on funds restricted to use only on the Improvements, and other
sources of funds received by the City dedicated to paying for the construction of tiie
Improvements (Revenues). The Administrative Services 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 Administrative
Services 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, constnjct, mitigate environmental impacts, inspect, and
othenA/ise complete the project to the satisfaction of the City Engineer, including applicable
charges for City staff sen/ices. Total Revenues shall include all monies held by the City
dedicated exclusively to the construction of the Improvements including any fee revenues
earmarked for the Project, CFD #2 taxes, applicable CFD #1 taxes, grants, and interest
eamed on restricted funds as determined by the Administrative Services 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 wrthin, and participating in, CFD #2 and/or CFD #2 agreements to prepay
taxes. The amount of the refund shall be detennined by multiplying the proportional share
computed above by the total amount of excess revenues.
c) In order to share In the refund of any portion of the excess Revenues, the
eligible party must request to be included in the distribution of funds. Such request must
be made within 90 days after the City Council's acceptance of the Notice of Completion for
the final phase of the Improvements. Each request must be accompanied by documents
indicating clear title to the refund unless the request is being made by the party who
originally paid the taxes to the City under a prepayment Agreement or to CFD #2.
d) The Administrative Services Director shalt 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 tiie City Council.
f) Asa courtesy to ail interested parties, the City will maintain a file of those
individuals or companies entitled to a refund, and will mall 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
infonnation included in this file, and is under no obligation to locate persons or entities that
are entitied to refijnds. 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 ail applicable
provisions of law, including but not limited to Carisbad Municipal Code Tities 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 pennits 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 tiie Property
Owner has complied with the ternis of this Agreement due to be satisfied at the time such
approval is required.
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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 ofRcer 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 AgreemenL Property Owner agrees
to Indemnify City for any liabilities incurred by City as a result of City's exercise of these
remedies.
16. This Agreement and the covenants contained herein shall be binding upon
and inure to the benefit of the successors, heirs, assigns, and transferees of Property
Owner with respect to the Project only and City, and shall run with the Project and create
an equitable servitude upon the Project.
17. All notices provided for under this Agreement shall be in writing and shall be
delivered In person or served by certified mail postage prepaid. Delivery of notice to
Property Owner shalt 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:
CWV La Costa 49, LLC
Attn : Jack A. Hepworth
5927 Priestly Drive, Ste. 110
Carisbad, CA 92008
Notices to the City shall be delivered to:
Administrative Sen/ices Director
City of Carlsbad
1635 Faraday Avenue
Carisbad, CA 92008
Each party shall notify the other Immediately of any change that would require any
notice delivered hereunder to be 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 ttiey are Owner of the property as described herein on Exhibit "A", or an authorized
agent of the Owner, and have the authority to execute this document, including the binding
authorizations herein.
(Remainder of Page intentionally Left Blank)
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li?
PROPERTY OWNER
CWV La Costa 49 LLC,
A Delaware Limited liability company
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
(sign here
(print name/title)
ATTEST:
(e-maii address)
*By: ENGLESON/
(sign here)
(print name/title)
(e-mail address)
If required by City, proper notary acknowledgment of execution by contractor must be
attached. If a Corporation. Agreement must be signed by one corporate officer from each
of the following two groups.
"Group A. **Group B.
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER. City Attomey
AssStantcity Attomey
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CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of Califomia
County of Sgv^
OnJ^iliilS before me.
personally appeared _
V-J (Here inserTname and title of the offiW^)
who proved to me on the basis of satisfactory evidence to be the personfs) whose name^) is/are subscribed to
the within instrument and acknowledged to me that he/sfee/they executed the same in his/hei#te4r authorized
capacityCi^s), and that by his/ber/ttieir signature(s) on the instrument the person(s), or the entity upon behalf of
which the person^^ acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph
is true and correct. ^^tr--^^^^t
2 MORGENFRY f
i^^^A&k Commission # 1918442 |
«?TTT.i.T-oo u J J • 1 1 <l-(r»''I^J Notary Public - CalWornia z
WITNpSS my hand and official seal. San Diego County J
1 ^^^S0^ ffiy Comm. Expires Dec 24,20141
Signature of Notary Public
ADDITIONAL OPTIONAL INFORMATION
DESCRff TION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGI
• Individual (s)
• Corporate Officer
(Title)
• Partner
• Attolliey-in-Fact
• Trustee(s)
• Other
INSTRUCTIONS FOR COMPLETING TmS,
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT eiVIL CODE §1189
State of California
Countv of P^^gQ }
On October 21, 2013befQre me,
Date
M.K. Stuckey, notary public
Here Inserl Name and Title of the Officer
personally appeared Donald W. Fontana
Name(s) of Slgner(s)
M. K. STUCKEY
Commission # 1933217
Notary Public - California z
San Diego County ^
My Comm. Expires Mav 16.20151
who proved to me on the basis of satisfactory
evidence to be the person^) whose name^) is/g|re
subscribed to the within instrument and acknowledged
to me that he/^e/th'^ executed the same in
his/IWr/tlli^r authorized capacity(i^), and that by
his/rt|r/tl^r signatureO0 on the instrument the
person(^, or the entity upon behalf of which the
person(!^ acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal Above
Signatur'e:
Signature of Notary Publi( t
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Capaclty(ies) Cia!iKi@d by Slgn@r(s)
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Signer Is Representing:
OF SIGNER
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Signer's Name:
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> 2010 National Notary Associafion • NalionalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
to
MEMBERS' ACTION
OF
CALIFORNIA WEST COMMUNITIES, LLC,
a California limited liability company
The foliowing action is taken by Robert H. Thome, Trustee of The Thome Family
Trust udt Dated August 31, 2004 ("Thorne Trust"); Gregory E. Harris, Tmstee of The
Gregory And Leslie Harris Family Tmst u/d/t March 2, 2000 ("Harris Trust"); and
Donald W. Fontana, an individual ("Fontana"), the sole Members of CALIFORNIA
WEST COMMUNITIES, LLC, a Califomia limited liability company ("Company"), by
unanimous written consent without a meeting.
WHEREAS, the Company is acting as the Manager of CWV LA COSTA 49
LLC, a Delaware limited liability company ("CWV LA COSTA") and is
authorized, pursuant to the terms ofthe Limited Liability Company Agreement of
CWV LA COSTA, to execute and deliver the following documents, which are
necessary to develop CWV LA COSTA's property: (a) Declaration of Restrictive
Covenant, (b) Amendment ofthe Affordable Housing Agreement, (c) Fair Share
Costs Agreement, (d) Covenant of Easement Landscape at Lots 37-41, (e)
Covenant of Easement Private Storm Drain Easement, (f) Encroachment
Agreement Private Storm Drain Cleanout, (g) Hold Harmless Agreement
Panhandle Lots 47 & 52, (h) Street Tree Maintenance Agreement, and (i)
Encroachment Agreement Private Street Lights (the "Project Documents").
WHEREAS, Thome Trust, Harris Tmst, and Fontana desire to authorize and
empower each of Thome Tmst, Harris Trust, and Fontana, acting unilaterally to
execute and deliver the Project Documents for and on behalf of and in the name
of Company.
RESOLVED FURTHER, that each of Authorized Agents are authorized to
perform all acts and do all things which he deems necessary or desirable to
consummate the transactions contemplated by the Project Documents, with such
modifications, amendments or further agreements, certificates and other
instmments or documents as he, in his discretion, may deem necessary or
desirable and in the best interest of the Company in his capacity as a Managing
Member of the Company.
The members of the Company are hereby directed to file this Member's Action
with the minutes of the proceedings of the Company.
Dated: October 2013 'A
Gregory H. Harris, Trustee of the
Gregory and Leslie Harris Family
Tmst u/d/t March 2,2000, Member
Robert H. Thome, Trustee of the
Thome Family Trust udt Dated
August 31,2004, Member
Donald W
Member
an individual,
tt
EXHIBIT "A"
LEGAL DESCRIPTION
Real Property In the City of Carlsbad, County of San DIego, State of Califomia, more
particularly described as follows:
A portion of the east half of lot 6 of Rancho Las Encinitas, in the City of Carlsbad, County
of San DIego, State of California, according to map thereof no. 848, filed in the office ofthe
county recorder of San DIego County, June 27,1898
Assessor's parcel numbers:
223-061-01-00
223-061-02-00
(Remainder of Page Intentionally Left Blank)
EXHIBIT "B"
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE AND OLIVENHAIN ROADS
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Rancho Santa Fe and Olivenhain Roads due
from property conditioned to participate in the financing of these facilities. This calculation
is done as part of an Agreement titled PETITION, WAIVER AND CONSENT TO
CREATION OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY
FAIR SHARE (Agreement) which has been voluntarily entered into by the City of Carisbad
and certain property owner wishing to proceed with development of their property In
advance of the creation of Community Facilities District No. 2 (CFD No. 2). It Is the City
and property owner intent to fomi CFD No. 2 to provide funding for those improvements
described within the AgreemenL
The following rate and method shall be used to determine the fair share and amount due
from any property owner wishing to take advantage ofthis 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 Eauivalent Dwellina Units
Single Family - Detached Units 1.0 EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10.0 EDU per Acre
The number of each type of unit included In a development shall be detemiined 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 infomnation is
available.
The City Engineer's determination shall be submitted to the Crty Council in the table below.
The City Council shall make the final detennination 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 fair share amount, as previously detennined by the City Council, was $10,250 for
each EDU. On June 23, 2009, through Resolution No. 2009-154. City Council approved a
partial reftind of the fair share amount totaling $2,850 for each EDU to property owners
who satisfied their fair share obligation prior to June 23, 2009. As a result, the fair share
amount is now assessed at $7,400 for each EDU.
The City shall collect $7,400 for each EDU as detennined by the City Council. This
amount shall be collected in one payment of $7,400 per EDU to be paid prior to Council
consideration of final map approval as described below.
1) Prior to the approval of a final map by the City Council, the property Owner shall pay to
the City an amount equal to the number of EDUs included In said final map, as
detennined by the City Engineer, times $7,400. If the City Council detennined that the
City Engineer's calculation ofthe number of EDUs included on the final map is in error,
the Council shall direct the City Engineer to amend his calculations and direct staff to
bring the final map back for approval when such correction has taken place. Funds
must be paid to the City before the final map will be scheduled for Council
consideration.
Computation of Fair Share Obligation
Fair Oaks Valley
CT No. Type of Unit EDU
Cost per
EDU Amount Due
CT 02-17 Single Family Detached
Units 49.0 $7,400 $362,600
2) If the property owner has already obtained a final map for units conditioned with the
financing of Rancho Santa Fe and Olivenhain Road, the property owner shall pay to
the City the net amount due shown above prior to entering into this Agreement.
25