Loading...
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Plantz 760-602-2766 marshall.plantz@carlsbadca.gov FOR CITY CLERKS USE ONLY COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED Knnaa CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES aaaa Page 2 FISCAL IMPACT: Amendment No. 1 to the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. 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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