HomeMy WebLinkAbout2019-11-19; City Council; ; Amendment No. 2 to the Reimbursement Agreement with Western Pacific Housing-El Camino LLC for the Design and Construction of Poinsettia Lane Reaches F and G.CA ~eview /rl,&,
~ CITY COUNCIL V Staff Report
Meeting Date:
To:
From:
Staff Contact:
Subject:
Nov. 19, 2019
Mayor and City Council
Scott Chadwick, City Manager
Hossein Ajideh, Engineering Manager
hossein.ajideh@carlsbadca.gov, 760-602-2756
Amendment No. 2 to the Reimbursement Agreement with Western Pacific
Housing-El Camino LLCforthe Design and Construction of Poinsettia Lane
Reaches F and G.
Recommended Action
Adopt a Resolution approving Amendment No. 2 to the Reimbursement Agreement with
Western Pacific Housing-El Camino LLC for the design and construction of Poinsettia Lane
Reaches F and G.
Executive Summary
The developer of the Lohf residential development, Western Pacific Housing -El Camino LLC
(Developer) has requested that the city extend the original Reimbursement Agreement for the
design and construction of Poinsettia Lane Reaches F an~ G (Agreement) for an additional 10
years. The Agreement was approved by the City Council on July 24, 2001, with a termination
date of Jan. 1, 2010. On Oct. 7, 2009, the parties executed Amendment No. 1 to the Agreement
to amend its termination date from Jan. 1, 2010, to Jan. 1, 2020. The money for the
reimbursement will come from available Bridge and Thoroughfare District No. 2 (B& TD #2)
funds.
Staff recommends approval of Amendment No. 2 to extend the terms of the Reimbursement
Agreement by a maximum of 10 years to the earlier of (1) the date the city fully reimburses the
Developer or (2) Jan. 1, 2030.
Discussion
The Lohf residential development (CT 97-15) was approved by the City Council on Aug. 17,
1999. The Developer subsequently acquired the adjacent Steiner property and obtained
approval for another residential subdivision (CT 99-13) from the city on Jan. 5, 2000. As a
condition of approval for both projects, the Developer was required to construct a portion of
Poinsettia Lane from El Camino Real to the western boundary of the Lohf development. For the
purpose of reimbursement, scheduling the Poinsettia Lane improvements was divided into two
distinct reaches delineated as the on-site and off-site improvements.
The on-site portion of Poinsettia Lane, located within the boundaries of the Lohf development
is known as Reach F and was required to serve the needs of the Lohf development.
Nov. 19, 2019 Item #6 Page 1 of 13
The off-site portion of Poinsettia Lane, extending easterly from the Lohf development boundary
to El Camino Real is known as Reach G and was determined to be in excess of the needs
required by the development. However, the Developer agreed to construct certain Reach G
improvements, provided the city reimburse the Developer on a progress payment basis.
The Developer has completed the construction of Poinsettia Lane Reaches F and G. A location
map for Poinsettia Lane Reaches F and G is shown in Exhibit 2.
On July 24, 2001, the City Council adopted Resolution No. 2001-234 approving the Agreement
with the Developer providing for the reimbursement of costs attributable to their design and
construction of the core improvements of Poinsettia Lane Reaches F and G. On Oct. 7, 2009, the
City Council approved Amendment No. 1 to the Agreement to amend its termination date from
Jan. 1, 2010, to Jan. 1, 2020.
Based on the Agreement, a portion of the on-site improvements are eligible for reimbursement
in accordance with the provisions of the B& TD #2 Fee Program. Pursuant to the terms of the
Agreement, reimbursement for ordinary reimbursable work was made after deducting fee
credits representing the development's fair share contributing to the B& TD #2 Fee Program.
Any remaining reimbursement is subject to availability of B& TD #2 funds and will be made on a
future schedule as determined by the City Council.
Poinsettia Lane Reach E is the only improvement associated with B& TD #2 that has not yet
been completed, and is still under construction by another developer. The estimated cost to
construct Reach E exceeds the current balance of B& TD #2 funds, and, as a result, funds are
insufficient to reimburse the Developer. In the future, after construction of Reach E, a balance
of B& TD #2 funds may be available to reimburse the Developer.
To extend the period of time during which the Developer may be reimbursed from B& TD #2
funds, the Agreement must be amended. The proposed Amendment No. 2 to the Agreement
extends the term of the Agreement by a maximum of 10 years to the earlier of (1) the date the
city fully reimburses the Developer or (2) Jan. 1, 2030.
Fiscal Analysis
Amendment No. 2 to the Agreement will enable the Developer to be reimbursed contingent
upon the availability of funds that are not otherwise needed to construct the remaining B& TD
#2 improvements. B& TD #2 funds may only be used to construct improvements associated with
the District. Surplus funds available after all the improvements and outstanding
reimbursements are completed will be refunded to the property owners in the District. As such,
these funds are not available for appropriation to other projects by the city.
Next Steps
Once Amendment No. 2 to the Agreement is executed, the Developer will be eligible to be
reimbursed contingent upon the availability of funds that are not otherwise needed to
construct the remaining B& TD #2 improvements, and subject to an audit of the actual cost data
as provided to the city.
Nov. 19, 2019 Item #6 Page 2 of 13
Environmental Evaluation (CEQA)
Approval of Amendment No. 2 to the Agreement does not constitute a "project" pursuant to
Section 15378(b)(4) of the California Environmental Quality Act (CEQA) and no environmental
review is required.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. City Council Resolution
2. Location Map for Poinsettia Lane Reaches F and G
Nov. 19, 2019 Item #6 Page 3 of 13
RESOLUTION NO. 2019-235
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA,
APPROVING AMENDMENT NO. 2 TO THE REIMBURSEMENT AGREEMENT WITH
WESTERN PACIFIC HOUSING -EL CAMINO, LLC FOR THE DESIGN AND
CONSTRUCTION OF POINSETTIA LANE REACHES F AND G.
WHEREAS, on July 24, 2001 the City Council of the City of Carlsbad approved a
reimbursement agreement (Agreement) between the City of Carlsbad (City) and Western Pacific
Housing -El Camino, LLC (Developer) for reimbursement of costs for the design and construction
of Poinsettia Lane Reaches F and G; and
WHEREAS, on Oct. 7, 2009, the Developer and the City (collectively, the "Parties")
executed Amendment No. 1 to the Agreement to amend its termination date from Jan. 1, 2010
to Jan. 1, 2020, to allow for additional time to potentially reimburse the Developer with funds
from the Bridge and Thoroughfare District #2 (B& TD #2) Fee Program; and
WHEREAS, the Parties acknowledge that, due to the current construction of Reach E of
Poinsettia Lane by another developer, the development within B&TD #2 remains ongoing and
that the construction of Poinsettia Lane to be funded via B& TD #2 has not been completed; and
WHEREAS, currently there are insufficient funds in the B& TD #2 Fee Program to reimburse
the Developer under the Agreement, however B& TD #2 funds may become available to do so
after construction of Reach E; and
WHEREAS, the Parties desire to extend the term of the Agreement to allow for additional
time to potentially reimburse the Developer after construction of Reach E is completed; and
WHEREAS, the Parties have negotiated and agreed to a new termination date for the
Agreement as the earlier of: (1) the date the city fully reimburses the Developer; or (2) Jan. 1,
2030.
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 of the City of Carlsbad is hereby authorized and directed to sign
Amendment No. 2 to the Agreement with Western Pacific Housing -El Camino, LLC, attached
hereto as Attachment A.
Nov. 19, 2019 Item #6 Page 4 of 13
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 19th day of November 2019, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
f p BARBARA ENGLESON, City Clerk c/!l
(SEAL) C/eo<
Nov. 19, 2019 Item #6 Page 5 of 13
AMENDMENT NO. 2 TO AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN
AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE
(WESTERN PACIFIC HOUSING -EL CAMINO, LLC)
This Amendment No. 2 is entered into and effective as of the ~5-l>L day of Novon bee , 2019, amending the agreement dated August 6, 2001 (the
"Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and Western
Pacific Housing, Inc., a Delaware Corporation, successor by merger to Western Pacific Housing
-El Camino, LLC, a Delaware Limited Liability Company ("Developer") (collectively, the "Parties")
for the reimbursement of costs for the design and construction of improvements to Poinsettia
Lane.
RECITALS
A. On October 7, 2009, the Parties executed Amendment No. 1 to the Agreement to
amend its termination date from January 1, 2010 to January 1, 2020; and
B. The Parties acknowledge that the development within Bridge and Thoroughfare
District #2 (B& TD #2) remains ongoing and that the construction of Poinsettia Lane to be funded
via B&TD #2 has not been completed; and
C. The Parties desire to amend Section 11.U) of the Agreement to revise the date of
termination; and
D. The Parties have negotiated and agreed to a new date of termination for the
Agreement.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Developer agree as follows:
1. Section 11.U) of the Agreement shall be revised to read as follows:
"This Reimbursement Agreement shall be effective as of the date hereof, and shall terminate upon
the earlier of (1) the date that the City fully reimburses Developer; or (2) January 1, 2030."
2. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
City Attorney Approved Version 9/27/16
Nov. 19, 2019 Item #6 Page 6 of 13
3. The individuals executing this Amendment and the instruments referenced in it on
behalf of Developer each represent and warrant that they have the legal power, right and actual
authority to bind Developer to the terms and conditions of this Amendment.
DEVELOPER
WESTERN PACIFIC HOUSING, INC., a
Delaware Corporation, successor by
merger to WESTERN PACIFIC
HOUSING -EL CAMINO, LLC, a
Delaware Limited Liability Company
By:
~-~·
(sign here)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By: 211Jfil
Mayor
/<v/!-r A, ,/ttdJdcu_/4is 1. Sa./l.t!'A;f!.y
(print name/title)
ATTEST:
(sign here
£-t~~ I~· l\luA,t-~ev1Y,.:/y /~
~, !ltd« frn,,n I be,v!J
,(t,, BARBARA ENGLESON 7 cij
City Clerk C/t'IJL
(print name/title)
If required by City, proper notarial acknowledgment of execution by Developer must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups:
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
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 Attorney
BY: Cee« A-£11~
Deputy City Attorney
City Attorney Approved Version 9/27/16
2 Nov. 19, 2019 Item #6 Page 7 of 13
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Callfomla All-Purpose Certificate of Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the '
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. I ---------------------------·--------______ J
State of California
County of ___ R_iv_e_rs_id_e ________ _ S.S.
On October 22, 2019 before me, __ A_n~g~e~ly_n_H_a_l_e_, _N_o_ta_ry"---P_u_b_lic _______ ~ ----------
personally appeared Barbara M. Murakami
Kurt A. Hubbell
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
t'S7are subscribed to the within instrument and acknowledged to me that he{sbetthey executed
the same in ~heir authorized capacity(ies), and that by I lisfl 1ei/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENAL TY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct. 1············~ •'.' o_,. /\NG ELYN HALE : ~ffly"°·•,c·•,,,_ ,.Jucy Duc:,. l·c Cal,forr,J 7 1 ~,.. .. ::~ ~j f\1vers1de C()lHlty ;
✓ ~ ' "! -~ '~ . ,..,.-... ~ommi5s1on.: 2232976
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OPTIONAL INFORMATION ------------
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a
The signer(s) capacity or authority is/are as:
· lndividual(s)
· Attorney-in-fact
Corporate Officer(s) ______________ _
Guardian/Conservator
_ Partner -Limited/General
Trustee(s)
Other: _________________ _
representing:
Method of Signer Identification
Proved to me on the basis of satisfactory evidence:
: form(s) of identification credible witness(es)
Notarial event is detailed in notary journal on:
Page#__ Entry# __
Notary contact: _________ _
· Signer(s) Thumbprints(s)
Nov. 19, 2019 Item #6 Page 8 of 13
CERTIFICATE OF ASSISTANT SECRETARY
The undersigned hereby certifies as follows:
1. She is a duly elected, qualified and acting Assistant Secretary of Western Pacific
Housing, Inc., a Delaware 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 April 6, 2018 (the
"Resolutions"). The Resolutions have not been amended, rescinded or modified with respect to the
officer listed, and remain in full force and effect as of the date hereof.
Election of Vice President of Forward Plannine and Assistant Secretary
WHEREAS, effective May 5, 2015, Kurt A. Hubbell was duly elected to the
office of Assistant Vice President of the Company in the Company's South Coast /
Inland Empire Division; and
WHEREAS, it is now desirable to promote Kurt A. Hubbell to the office of
Vice President of the Company, elect him as an Assistant Secretary of the Company
and to grant him additional duties and authority at this time.
~OW, THEREFORE,BEIT RESOLVED, that Kurt A. Hubbell is hereby
elected to the offices of Vice President and Assistant Secretary of the Company (the
"Vice Presidenl') in the Company's South Coast / Inland Empire Division (the
"Division '), 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 FURTHER, that the Vice President is hereby authorized on
behalf of (i) the Company, (ii) any partnership of which the Company is a general
partner, manager or agent, and (iii) any limited liability company of which the
Company is a member, manager or agent (collectively, the "Entities'') to sign, modify
and terminate, from time to time as he deems it to be in the best interest of the
Entities, homeowner association documents, CC&Rs, subdivision agreements, utility
agreements, condominium plans, all agency applications relating to development,
construction contracts, purchase orders, consultant agreements, final maps, permits,
engineering agreements and other similar or equivalent agreements or documents for
the Division relating to the business of the Entities.
RESOLVED FURTHER, that the Vice President is hereby authorized on
behalf of the Entities to sign, modify and terminate, from time to time as he deems
it to be in the best interest of the Entities, various agreements and documents for the
Nov. 19, 2019 Item #6 Page 9 of 13
Division including, but not limited to, conditions, subcontract agreements, general
contract agreements, bonds, affordable housing agreements, building permits,
improvement/development agreements and other similar or equivalent agreements
or documents for the Division relating to the business of the Entities.
RESOLVED FURTHER, that effective as of the date hereof, Kurt A.
Hubbell is hereby removed from the office of Assistant Vice President of the
Company.
RESOLVED FURTHER, that the authority hereby granted to the Vice
President supersedes authority previously granted by Written Consent of Sole
Director to the Vice President as of the date hereof.
IN WITNESS WHEREOF, the undersigned has signed on the 12th day of April, 2018.
Assistant Secretary
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Nov. 19, 2019 Item #6 Page 10 of 13
CERTIFICATE OF ASSISTANT SECRETARY
The undersigned hereby certifies as fo llows:
I. She is a duly elected, qualified and acting Assistant Secretary of Western Pacific
ow,ing, Inc., a Delaware corporation (the '-Co111pa11 }'"), 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 of resolutions related to the subject
matter as adopted by the Consent of Sole Director of the Company dated June 17, 2015 (the
"Resolutions"). The Resolutions have not been amended, rescinded or modified with respect to the
officer listed, and remain in full force and effect as of the date hereof.
Authority of Vice President of Forward Plannin~ and A sistant Secretary
WHEREAS, effecti ve September 12, 2005, Barbara M. Murakami was duly
elected to the office of Assistant Vice President of the Company in the Company's
Orange County/Inland Empire Division, which Division is now known as the South
Coast/Inland Empire Division;
WHEREAS, effective September 13, 2012, BarbaraM. Murakami was duly
elected to an additional office of Assistant Secretary of the Company in the
Company's South Coast/lnland Empire Division;
WHEREAS, effective May 5, 2015, Barbara M. Murakami was promoted to
the office of Vice President of the Company; and
WHEREAS, it is now desirable to expand Barbara M. Murakami 's authority
to include the execution of homeowner association documents, CC&Rs, subdivision
agreements and condominium plans as set forth in the resolutions below.
NOW THEREFORE, E'lT :ESOLVED, that Barbara M. Murakam i
shall continue to ho ld the offices of Vice P resident and Assistant Secretary of the
Company (the "Vice President~'). to serve in the Company's South Coast/Inland
Empire Division (the "Division"), until the next annual meeting of directors of the
Company and until her successor is duly elected and qualified or until her earlier
death, resignation or removal.
RESOLVED FURTHER, that the Vice President is hereby authorized and
empowered on behalf of (i) the Company, (ii ) any partnership of which the Company
is a general partner, manager or agent, and (iii) any limited liability company of
which the Company is a member, manager or agent ( collectively, the "Entities") to
sign, modify and terminate, from time to time as she deems it to be in the best
interest of the Entities, homeowner association documents, CC&Rs, subdivision
Nov. 19, 2019 Item #6 Page 11 of 13
agreements, utility agreements, condominium plans, all agency applications relating
to development, consultant agreements, maps and other similar or equivalent
agreements or documents for the Division relating to the business of the Entities.
RESOLVED FURTHER, that the Vice President is hereby authorized on
behalf of the Entities to sign, modify and terminate, from time to time as she deems
it to be in the best interest of the Entities, various agreements and documents for the
Division including, but not limited to, conditions, subcontract agreements, general
contract agreements, bonds, affordable housing agreements, building permits,
improvement/development agreements and other similar or equivalent agreements
or documents for the Division relating to the business of the Entities.
RESOLVED FURTHER, that the Vice President is hereby authorized and
empowered, in the Division and in the name and on behalf of the Entities, to execute
and deliver any and all documents and instruments, including without limitation,
general or special warranty deeds, bills of sale, lien waivers, owner's affidavits,
settlement statements and other conveyance documents and closing statements
necessary to close the sale of any one or more single-famil y residences on behalf of
the Entities.
RESOLVED FURTHER, that the authority hereby granted lo the Vice
President supersedes authority previously granted by Written Consent of Sole
Director to the Vice President as of the date hereof.
IN WITNESS WHEREOF, the undersigned has set her hand on the 30th day of June, 2015.
Assistant Secretary
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Nov. 19, 2019 Item #6 Page 12 of 13
LOCATION MAP
LAS PALMAS DR
POINSETTIA LANE
REACHES "E", "F" AND "G"
Autho1 Andy Chang Document Path Z IH0s<,P1n A11deh\Locat1on_Map\locationMap_Poinsett1nln mxd
EXHIBIT 2
EXHIBIT
2
Cl 0::
Nov. 19, 2019 Item #6 Page 13 of 13