HomeMy WebLinkAbout2009-10-06; City Council; 19978; Western Pacific Housine agreement amendmentCITY OF CARLSBAD - AGENDA BILL
19,978AB#
MTG. 10/6/09
DEPT. ENG
AMENDMENT NO. 1 TO THE REIMBURSEMENT
AGREEMENT WITH WESTERN PACIFIC HOUSING - EL
CAMINO, LLC FOR THE DESIGN AND CONSTRUCTION
OF POINSETTIA LANE
DEPT. HEAD fc.'J'J'
CITY ATTY.
CITY MGR.
RECOMMENDED ACTION:
Adopt Resolution No. 2009-238 approving Amendment No. 1 to the Reimbursement
Agreement with Western Pacific Housing - El Camino, LLC for the design and construction of
Poinsettia Lane.
ITEM EXPLANATION:
On July 24, 2001 the City Council adopted Resolution 2001-234 approving a reimbursement
agreement with Western Pacific Housing - El Camino Real, LLC providing for the reimbursement of
costs attributable to their design and construction of the core improvements of Poinsettia Lane
Reaches "F" and "G". The developer has completed the construction of Poinsettia Lane Reaches "F"
and "G". The agreement terminates on the earlier of (1) the date the City fully reimburses the
Developer or (2) January 1, 2010.
The money for the reimbursement will come from available Bridge and Thoroughfare District #2
(B&TD#2) funds. Poinsettia Lane Reach "E" is the only improvement associated with B&TD #2 that
has not been constructed. The estimated cost to construct Reach "E" exceeds the current balance of
B&TD #2 funds and as a result there are no currently available funds to reimburse the developer. In
the future, after the construction of Reach "E", a balance of B&TD #2 funds might 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
reimbursement agreement must be amended. The proposed Amendment No. 1 extends the term of
the reimbursement agreement by a maximum of ten years to the earlier of (1) the date the City fully
reimburses the Developer or (2) January 1, 2020.
ENVIRONMENTAL IMPACT:
Approval of Amendment No. 1 to the Reimbursement 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.
DEPARTMENT CONTACT: Marshall Plantz 760-602-2766 marshall.plantz@carlsbadca.gov
FOR CITY CLERKS USE ONLY
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
Knnaa
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER - SEE MINUTES
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Page 2
FISCAL IMPACT:
Amendment No. 1 to the reimbursement 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.
EXHIBITS:
1. Location Map
2. Resolution No. 2009-238 approving Amendment No. 1 to the Reimbursement
Agreement with Western Pacific Housing - El Camino, LLC for the design and construction of
Poinsettia Lane.
3. Amendment No. 1 to Agreement for Reimbursement of costs for design and construction of
improvements to Poinsettia Lane.
LOCATION MAP
NOT TO SCALE
VICINITY
MAP
NOT TO
SCALE
PROJECT NAME POINSETTIA LANE
REIMBURSEMENT AGREEMENT WITH
WESTERN PACIFIC HOUSING - EL CAMINO, LLC.
EXHIBIT
1
DRAW BY: SCOTT EVANS. CARLSBAD CNONEEBWe DOT. 9/02/09 C:\fLANNING A PROGRAMS\PLANTZ\f>OINSETTIA LANE REIUBURSEMENT REACHES E-&DHG 3
1
RESOLUTION NO. 2009-238
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING AMENDMENT NO. 1
TO THE REIMBURSEMENT AGREEMENT WITH WESTERN
4 PACIFIC HOUSING - EL CAMINO, LLC FOR THE DESIGN AND
CONSTRUCTION OF POINSETTIA LANE.
5
6 WHEREAS, on July 24, 2001 the City Council of the City of Carlsbad approved a
7 reimbursement agreement between the City of Carlsbad and Western Pacific Housing - El
8 Camino, LLC for reimbursement of costs for the design and construction of Poinsettia Lane; and
9 WHEREAS, the current reimbursement agreement terminates upon the earlier of (1) the
10 date that the City fully reimburses the Developer; or (2) January 1, 2010; and
WHEREAS, Western Pacific Housing - El Camino, LLC and the City of Carlsbad desire
12 to extend the term of the reimbursement agreement to enable reimbursement to be made once
13 Bridge & Thoroughfare District #2 funds are available.
14 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
... California, as follows:lo
1. That the above recitations are true and correct.
2. That Amendment No. 1 to the Reimbursement Agreement between the City of17
Carlsbad and Western Pacific Housing - El Camino, LLC for reimbursement of costs for the18
design and construction of Poinsettia Lane, is hereby approved and the Mayor is authorized to19
sign said agreement on behalf of the City of Carlsbad.
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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 October. 2009, by the following vote to wit:
AYES: Council Members Kulchin, Hall, Packard and Blackburn.
NOES: None.
ABSENT: Council Member Lewis.
CLAUDE A LEWIS, Mayor
ATTEST:
INE M\WOOD, City Clerk
X f T^ •• '• V-l- *>
A°/ *"&$&.-Q:t
AMENDMENT NO. 1 TO AGREEMENT FOR REIMBURSEMENTOF COSTS FOR DESIGN
AND CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE
(WESTERN PACIFIC HOUSING - EL CAMINO LLC)
This Amendment No. 1 is entered into and effective as of the I day of
, 2009, 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. The Parties acknowledge that the development within Bridge and Thoroughfare
District #2 (B&TD #2) is on-going and that the construction of Poinsettia Lane to be funded via
B&TD #2 has not been completed; and
B. The Parties desire to amend Section 11. (j) of the Reimbursement Agreement to revise
the date of termination of the Reimbursement Agreement; and
C. The Parties have agreed to a new date of termination of the Reimbursement
Agreement.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained
herein, City and Developer agree as follows:
1 . Section 11 .(j) of the Reimbursement 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 , 2020."
2. All other provisions of the Reimbursement Agreement, as may have been
amended from time to time, will remain in full force and effect.
City Attorney Approved Version #05.22.01
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
(print name/title)
(print nam«Vtitle
LiAtr$dr
(e-mairaddress)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
Mayor
ATTEST:
RRAiNE M. WOOD
ityC
If required by City, proper notarial 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.
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:
RONALD R. BALL, City Attorney
By:.
DeputyCityAttorneyY
City Attorney Approved Version #05.22.01
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
2'Offj before me,Af.
(Here insert name and title of the officer)
personally appeared 13 nV ( /3 ^ I p-/TJvA/ ,
who proved to me on the basis of satisfactory evidence to be the person^s^Tvhose name^Ci^/are subscribed to
the within instrument and^acknowledged to me that(fie/I'sfee/they executed the same in^^S/foer/their authorized
capacity(iespand that by\hi^hef/theif-«gnature(s)-en the instrument the person(s)ror the entity upon behalf of
which the persoi^s) 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.
MMKRLY N. MOLINA
Commission* 1632263 -
Notary Public - CoWomta |
Son Dtogo County
My Comm. Expfew Jon 17,201
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION 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 SIGNER
D Individual (s)
D Corporate Officer
D
D
D
D
(Title)
Partner(s)
Attorney-in-Fact
Trustee(s)
Other
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
document carefully for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
he/she/they, is /we ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
••• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
* Indicate title or type of attached document, number of pages and date.
•!• Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
2008 Version CAPA v 12.10.07 800-873-9865 www.NotarvClasses.com
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
5^n ^;County of
On
A
before me,
personally appeared
(Here insert name and title of the officer)
who proved to me on the basis of satisfactory evidence to be the person^) whose name(g^is/ape subscribed to
the within instrument and acknowledged to me that he/she/the^ executed the same in his/hef/thelr authorized
capacity(ies), and that by his/ker/thek signature^ on the instrument the person(s), or the entity upon behalf of
which the person^Tacted, 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.
MMME I. WELOON
Conwrtrton* 1649173
Nofcay Puttte - Codfomta
Son Dtogo County
MyComm.i«*wF«b2t. 2010
Signature of Notary Public (Notary Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages (^ Document Date r
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
D Individual (s)
8 Corporate Officer ^v. P./Msr oct
u
D
D
D
(Title) f
Partner(s)
Attorney-in-Fact
Trustee(s)
Other
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that is illegal for a notary in
California (i.e. certifying the authorized capacity of the signer). Please check the
document carefully for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
signers) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signerfs) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
t»/she/4h«)v is /aw-) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
•!• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
ff Indicate title or type of attached document, number of pages and date.
•> Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
2008 Version CAPA v 12.10.07 800-873-9865 www.NotaryClasses.com