HomeMy WebLinkAboutCFD 01; Aviara Black Rail 16 LLC; 0; Petition & WaiverExhibit 2
CONSENT AND WAIVER TO SHORTENING OF TIME
FOR CONDUCTING A SPECIAL ELECTION IN
PROPERTY PROPOSED TO BE ANNEXED TO
CITY OF CARLSBAD
COMMUNITY FACILITIES DISTRICT NO. 1
AND APPOINTMENT OF AUTHORIZED REPRESENTATIVES
ANNEXATION NO. 05/06-01
TO: CITY COUNCIL
COMMUNITY FACILITIES DISTRICT NO. 1
OF THE CITY OF CARLSBAD
THE UNDERSIGNED DOES HEREBY CERTIFY UNDER PENALTY OF PERJURY
AS FOLLOWS:
1. The undersigned is the owner, or the duly authorized representative of such owner, of the
real property described in Exhibit "A" attached hereto and incorporated herein by reference (the
"Property"), and, in such capacity, possesses all legal authority necessary to execute this Consent
and Waiver as and on behalf of the owner of the Property (the "Owner") in connection with the
annexation of the Property to the District (as defined below).
2. The Owner is aware of and understands the following:
A. The City of Carlsbad has conducted proceedings pursuant to the "Mello-Roos
Community Facilities Act of 1982", (Government Code $533 1 1 and following)
(the "Acttt) to form a community facilities district known and designated as
Community Facilities District No. 1 (the "District") to finance the following
described public facilities (the "Public Facilities"):
(1) Public facilities generally described as new library facility, major addition
to an existing library building, a City Hall complex, and the addition of
office and warehouse facilities at the public safety center;
(2) Park improvements generally described as the Macario Canyon Park;
(3) Major street improvements in portions of the following designated public
streets:
(a.) Faraday Avenue;
(b.) Cannon Road;
(c.) La Costa Avenue;
(d.) (e.) Leucadia Boulevard.
OlivenhaidRancho Santa Fe Road; and
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(4) Major bridge and overpass facilities generally described as:
(a.) La Costa Interchange;
(b.) Poinsettia Interchange; and
(c.) Palomar Airport Road Interchange.
B. The City and the qualified electors of the District did authorize the issuance of
bonds of the District in an aggregate principal amount of $130,000,000 subject to
inflation to finance the acquisition or construction of the Public Facilities and the
levy of the special tax set forth in Exhibit ltBt' hereto (the "Special Tax") within
the District to pay for the Public Facilities, to pay debt service on bonds of the
District, or both.
C. The City Council of the City (the "City Council") has also undertaken
proceedings pursuant to Article 3.5 of the Act to provide for the future annexation
of certain territory, including the Property, to the District. On May 18, 1993, the
City Council held a public hearing as required by the Act to consider the future
annexation of such territory, including the Property, to the District. Notice of
such public hearing was given in the form and manner as required by law. A
protest to such future annexation was not received from 50% or more of the
registered voters, or six registered voters, whichever is more, residing in the
territory proposed to be annexed in the future or the owners of one-half or more of
the area of land in the territory proposed to be annexed in the future. At the
conclusion of such public hearing, the City Council did approve and provide for
the annexation of the territory, including the Property, proposed for annexation in
the future upon the unanimous approval of the owner or owners of each parcel or
parcels at the time that such parcel or parcels are annexed, without additional
hearings.
D. The Act further requires, as a prerequisite to the levy of any special taxes within
the Property or the issuance of bonds secured by such special taxes, that the City
Council must submit the question of whether or not to levy any special tax within
the Property to the qualified electors of the Property at a special election. The Act
further provides that 2/3's of the qualified electors must vote in favor of the levy
of the special tax.
E. The Act provides that the qualified electors of the Property shall be the voters
registered to vote within Property if at least twelve (12) persons, who need not
necessarily be the same twelve (12) persons, have been registered to vote within
the Property for each of the ninety (90) days preceding the close of the public
hearing to consider the annexation of the Property to the District. Otherwise, the
Act provides that the vote shall be by the landowners of the Property with each
such landowner who is the owner of record at the close of such public hearing, or
the authorized representative of such owner, having one vote for each acre or
portion of an acre of land that such landowner owns within the Property.
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F. The provisions of the Act require that such special election be held at least ninety
(90) but not more than one hundred eighty days (1 80) following the date of the
submission of the question of levying the special tax to the qualified electors of
the Property; provided, however, any such special election time limit specified by
the Act or requirement pertaining to the conduct of such a special election may be
waived with the unanimous consent of the qualified electors of the Property and
the concurrence of the official conducting the election. As is stated below, it is
proposed that the special election shall be held on Wednesday, November 9th,
2005 at 9:30 a.m. or such other date upon which all of the qualified electors of the
Property and the official conducting the election may concur.
3. The Owner consents to and expressly approves the annexation of the Property to the
District and the authorization for the levy of the Special Tax within the Property without further
public hearing conducted pursuant to the provisions of the Act. The Owner waives any right
which the Owner may have to make any protest or complaint or undertake any legal action
challenging the validity of the proceedings of the City to authorize the future annexation of the
Property to the District or any necessity, requirement, right or entitlement for further public
hearing pertaining to the annexation of the Property to the District and the levy of the Special
Tax within the Property.
4.
the ninety (90) days preceding the date of this Consent and Waiver.
Owner certifies that there have been no persons residing within the Property for each of
5. Owner desires that the special election be held on Wednesday, November 9th, 2005 at
9:30 a.m. or such other date as the qualified electors and the City Clerk of the City, acting as the
official conducting the election (the "City Clerk"), may mutually agree.
6. Owner expressly consents to the following:
A.
B.
C.
D.
E.
To the conduct of the special election on Wednesday, November 9th, 2005 at 9:30
a.m. or such other date as the qualified electors and the City Clerk may mutually
agree.
Owner expressly waives any right which owner may have to have the special
election conducted within the time periods specified in Government Code Section
53326.
Owner waives any requirement for the mailing of the election ballot.
Owner further waives any right or entitlement which Owner may have to have the
ballot for such election accompanied by arguments for or against the ballot
measure and the impartial analysis as otherwise required by Government Code
Section 53327, and/or the statement required by Elections Code Section 5300 and
following pertaining to the issuance of bonds.
Owner waives any protest, complaint or legal action of any nature whatsoever
pertaining to the procedures to be undertaken for the conduct of such election,
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including but not limited to, the shortening of all time periods pertaining to the
special election, including but not limited to, the time for holding the special
election and the necessity and requirement for any newspaper publication of the
notice of such special election and the lack of arguments and impartial analysis.
[Remainder of this page intentionally left blank.]
4 I\
PROPERTY OWNER APPOINTMENT OF AUTHORIZED REPRESENTATIVES
The owner hereby appoints &&PI &e,.+ or &C.r At&& ,
alternatively, as its authorized representative to vote in the subject special election, and the
e of each alternative representative is set forth
%Me1 J&!Q,+
(=;PO# Md4A/C
(Type or Print Name of Representative)
(Type or Print Name of Representative)
PROPERTY OWNER DESIGNATION OF ADDRESS FOR MAILING OF MATERIALS
The owner requests that all materials related to this annexation be mailed to the following
address:
The owner waives any right or requirement to have such materials mailed to the address shown
on the assessor’s roll of the County of San Diego.
5 t2.
THIS CONSENT AND WAIVER AND APPOINTMENT OF AUTHORIZED
REPRESENTATIVES was exec ted this dnd day of &(ember 20=, in
Gul hiego y &It ? 0Jrlt.G .
/ JQAPC UdJ
Type or Print Name of Signor
If the person executing this document is not the owner of the property for which this document is
being submitted but is signing for and on behalf of such owner, please fill in the name of the
owner of the property on the line provided below:
6
WRITTEN CONSENT OF BOARD
OF
OF DIRECTORS
McCOMIC CONSOLIDATED, INC.
May 21,2004
The undersigned, as sole member of the Board of Directors of McComic Consolidated,
hc., a corporation organized under the laws of the State of California (“Company”), does
by this unanimous written consent of director adopt the following resolutions:
RESOLVED, the Company Board of Directors has determined it is in the best interest of
the Company to develop real property located in California, and to authorize Company
officers to execute such agreements, contracts, or other instruments as necessary in
conjunction With‘Company’ s real property development business, including, but not
limited to, executing Purchase Agreements, Construction Loans, Construction Contracts,
California Department of Real Estate documents, and other land development-related
documents (collectively ‘9evelopment Agreements”).
RESOLVED, that Company officers R Barry McComic, R. Geoffrey McComic, and
James Wait are each hereby authorized to execute Development Agreements on behalf of
the company if such Development Agreements reasonably relate to Company’s real
property development (either on behalf of Company, or, if Company is the managing
member of an LLC engaged in real property development, as the LLC managing member).
RESOLVED, that the above- identified Company officers are hrther authorized and
directed to execute such Mer documents, and to take such further actions, as are
reasonably necessary to accomplish the purposes of these resolutions.
The undersigned directs that this unanimous written consent be filed with the minutes of
proceedings of the Company’s Board of Directors.
This unanimous written consent of Company director is adopted pursuant to California
Corporations Code Section 307(b) and Company Bylaws Article III, Section 13,
authorizing Company Board of Directors action by unanimous written consent.
Dated: May 21, 2004 /4d t L
R. BARRY MckbMIC
SOLE DIRECTOR
Flle # 2005635 510092 State of California
Kevin Shelley
Secretary of State
A $70.00 RUng fee must aEEompany this form,
LIMITED LJABILITY COMPANY
ARTICLES OF ORGANIZATION I FEB 2 2 2005
KEV~N SHELLEY
Secretary of State
NOTE: A llmlted liability carnpeny is not permitted to render professlonal servlces.
. NAME OF THE INITIAL AGENT FOR SERVICE OF PRDCESS James Weit
I IF AN INDIVIDUAL THE ADDRESS OF THE INlTlAL AGENT FOR SERVICE OF PROCE88 IN CALFORNiA
ADORESS 9968 Hibert Street, Suite 102
ctrf SanDlem STATE CA ZIPCODE 92131
ONE MANAGER
MORE THAN ONE MANAGER
ALL LIMITED LIABILITY COMPANY MEMBER[S)
Real Estate Developrnant
February 14,2008
NAME r James wait
FIRM
ADDRESS
CITY/STATB Sari Diago, CA
AViaf8 Blaak Rall Rbad 10, LLC
9968 Hlbett Street, Stilt@ 102
ZIP CODE 192131 1
LLC-1 (REV QW20M) APPRQVEOWSECRFIARYOFSTATE
SECRETARY OF STATE
I, Keuin Shelley, Secretary of State of the State of
That the attached transcript of ___ I page(s) has
been compared with the record on file in this office, of
which it purports to be a copy, and that it is full, true
and correct.
California, hereby certify:
IN WITNESS WHEREOF, I execute this
certificate and affix the Great Seal of the State of California this day of
7(L &%
Secretary of State
SecrSlale Fom Cf.107 (rev 1/03)
.-- OSP 03 nosio Ii
Feb, 21, 2005 1:41PM
. SECRETARY OF STAX flu NUMBgR
200505510092
State of Californra
Kevin Shelley Secretary of State
STATEMENT OF INFORMATION
(Limited Liability Company)
3. STATE OR PLACE OF ORGANlZATlON
#
I. LIMITED UABILITY COMPANY NAME (Please do not alter If name Is prepltnled.)
Aviara Black Rail Road 16, LLC
ENDORSED - FILED in the office of the Secretary of State of the State of Callfomla
MAR 0 1 2005
KEVIN SHELLEY, Secretary of State
NIwi ADDRESS CITY AND $TAX ZIPCODE
GENt FOR SERVICE OF PROCESS (If the agent lo an indluldual, the agent must renlde In Callfotnla and lam 1 I must bo campbud wlth a Calltornla
idreee, If the agent ie a corporallon, the agent mu8t have on file with the Calfomla Seaetaty of State a certificate pursuant to Corporations Code section 505 and item 11 must be leR blank)
1, NAME OF AGENT FOR SERVICE OF PROCESS
lames Walt
I. ADDRESS OF AGE" FOR SERVICE OF PROCESS IN CAlllEORNvIt IF AN INDMPUAL
b968 Hibert Stnst. Suite 102 San Dlwo en 92131
CIW 6TA.E ZIP CODE
YPE OF BUSINESS
!. DESCRlBE ME NPE OF BUSINESS OF THE LIMITED LiABIUN COMPANY
leal Estate Development
1, THE INFORMATION CONTAINED HEREIN IS TRUE AND CORRECT. ....T
Fabwary 14,2005
DATE
IUE DATE:
APPROVEDBYSECReTARYOFSTATE GI2 (REV0812004) 17
I, Kevin Shelley, Secretary of State of the State of
That the attached transcript of
California, hereby certify:
page(s) has
been compared with the record on file in this office, of
, which it purports to be a copy, and that it is full, true
and correct.
IN WITNESS WHEREOI;: I execute this
certificate and affix the Great Seal of
the State of California this day of FED 2 8 ‘100~
Sec/Slalc Farm CE-107 (rev. 1/03]
. . .- OSP 03 80510
The Property
Ownership:
Aviara Black Rail Road 16, LLC., a limited
EXHIBIT “A”
DESCRIPTION OF PROPERTY
is identified and described as:
Assessor Parcel Number(s): Acreage:
21 5-080-28-00 1.18
Total:
liability company and Lindquist Development
Co., Inc., an Oregon Corporation
1 Parcel 1.18
A
EXHIBIT “B”
RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX
COMMUNITY FACILITIES DISTRICT NO. 1
CITY OF CARLSBAD
PROPERTY CATEGORIES AND MAXIMUM TAX
All taxable property within the boundaries of the Future Annexation Area shall be
subject to ANNUAL SPECIAL TAXES as applicable based upon the rates as
established for the original Community Facilities District No. 1 and further based upon
the property categories, maximum tax rates, increases and status of the issuance of
building permits, all as hereinafter set forth. Improvement Area I refers to all properties
within the boundaries of the City of Carlsbad Bridge and Thoroughfare District.
Improvement Area II is for all remaining properties within the Community Facilities
District, not within the Bridge and Thoroughfare District.
RESIDENTIAL PROPERTY
ANNUAL SPECIAL TAX - UNDEVELOPED PROPERTY
All taxable property prior to the issuance of a building permit shall be subject to the
following maximum annual special taxes, subject to increases as set forth herein:
MAXIMUM ANNUAL SPECIAL TAX - UNDEVELOPED PROPERTY
PER DEVELOPABLE ACRE FOR FISCAL YEAR 1990/1991
IMPROVEMENT IMPROVEMENT
PROPERTY CATEGORY AREA I AREA II
Residential Low $ 281.00
Residential Low to Medium 772.00
Residential Medium 1,294.00
Residential Medium to High 1,984.00
Residential High 2,793.00
$ 277.00
760.00
1,217.00
1,868.00
2,739.00
SPECIAL DEVELOPMENT TAX - ONE TIME
Upon the issuance of a building permit, all Residential properties shall be subject to the
following described SPECIAL DEVELOPMENT TAX - ONE TIME, also subject to
increases as set forth herein, as follows:
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MAXIMUM SPECIAL DEVELOPMENT TAX - ONE TIME PER
RESIDENTIAL DWELLING UNIT FOR FISCAL YEAR 1990/1991
IMPROVEMENT IMPROVEMENT
PROPERTY CATEGORY AREA I AREA II
Residential Low $ 4,452.00
Residential Low to Medium 4,452.00
Residential Medium 2,810.00
Residential Medium to High 2,810.00
Residential High 2,810.00
$ 3,835.00
3,835.00
2,312.00
2,312.00
2,3 12.00
COMMERCIAL, INDUSTRIAL AND OTHER PROPERTY
ANNUAL SPECIAL TAX - UNDEVELOPED PROPERTY
All taxable Commercial and Industrial Property prior to the issuance of a building permit
shall be subject to the following maximum annual special taxes, also subject to
increases as set forth herein:
MAXIMUM ANNUAL SPECIAL TAX - UNDEVELOPED PROPERTY
PER DEVELOPABLE ACRE FOR FISCAL YEAR 1990/1991
IMPROVEMENT IMPROVEMENT
AREA I AREA II
Commercial Property $ 2,400.00 $ 1,600.00
Industrial Property 1,200.00 960.00
Agricultural Property -0- -0-
All Commercial and Industrial Property, upon the issuance of a building permit, shall
have the option to (1) pay the SPECIAL DEVELOPMENT TAX - ONE TIME or (2)
assume the ANNUAL SPECIAL TAX - DEVELOPED PROPERTY for a period of not to
exceed twenty-five (25) years, generally in the amounts per property category as
follows:
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MAXIMUM SPECIAL DEVELOPMENT TAX - ONE TIME FOR FISCAL
YEAR 1990/91 PER SQUARE FOOT OF BUILDING AREA
PROPERTY CATEGORY
COMMERCIAL USE IMPROVEMENT
DES I G N AT1 0 N S AREA I
Restaurant - Fast Food $ 28.46
Outdoor Tennis Courts
Convenience Market
Bank with Drive-thru
Campground
Restaurant - Sit Down
Marina
Bank - Walk In
Auto - Gasoline
Grocery Store
S & L with Drive-thru
Bowling Center
Restaurant - Quality
Neighborhood Shopping Center
Auto Car Wash
S & L -Walk In
Race Track
Library
Community Shopping Center
Hospital - General
Hotel - Conv. Fac/Comm.
Auto - Repair & Sales
Regional Shopping Center
Discount Store
Golf Course
Church
Office - Government
Commercial Shops
Health Club
Motel
Office - High Rise
Office - Commercial, 100,000 SF
Lu m be r/H a rd wa re Store
Office - Medical
Hospital - Convalescent
Indoor Sports Arena
28.14
27.31
18.06
17.51
15.17
14.85
12.83
8.1 1
7.78
7.59
6.63
6.57
6.46
6.31
5.51
5.10
4.26
4.24
3.88
3.47
3.41
3.35
3.22
3.06
2.99
2.93
2.90
2.89
2.69
2.67
2.56
2.47
2.42
2.33
2.33
IMPROVEMENT
AREA I1
$ 7.58
7.26
6.74
5.72
4.99
4.73
4.41
4.60
2.89
2.56
3.48
2.83
3.09
2.27
2.52
3.03
2.33
2.86
1.80
3.18
2.52
1.58
1.61
1.58
2.14
1.94
1.88
1.58
1.85
2.06
1.84
1.75
1.58
2.07
2.23
2.23
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PROPERTY CATEGORY
COMMERCIAL USE IMPROVEMENT
DES I G N AT I 0 N S AREA I
Resort Hotel
University
Junior College
2.30
2.26
2.19
All other Commercial Properties
not identified above 2.14
INDUSTRIAL USE IMPROVEMENT
DES I G N AT IO N S AREA I
Heliports $ 10.63
Industrial-Commercial
Business Park 2.14
All other Industrial Properties
not identified above 1.74
IMPROVEMENT
AREA II
1.98
1.91
1.90
1.44
IMPROVEMENT
AREA II
$ 3.67
1.51
I .42
OR, IN THE ALTERNATEl
ANNUAL SPECIAL TAX
The “Maximum Annual Special Tax - Developed Property” for any Fiscal Year shall not
exceed 13.81 Oh of the authorized “Maximum Special Development Tax - One Time” for
the various Commercial and Industrial Property categories as set forth above in the
amount applicable and annually adjusted for each Fiscal Year.
ANNUAL TAX INCREASE
The above SPECIAL TAXES for the taxable properties are applicable for the fiscal year
1990/91, and are all subject to annual increases to reflect increases in construction
costs. The Construction Cost Index of the Enqineerinq News-Record, titled “ENR Cost
Indexes in 22 Cities” will be used. The Index published for the month of April for the
City of Los Angeles under the column heading of “Percentage Change from Last Year”
will annually inflate each of the Maximum Annual Taxes for each year for properties as
follows:
A. PROPERTIES WITHIN THE DISTRICT: Not to exceed 50% of the
a bove-referenced increase.
B -4
B. PROPERTIES TO BE SUBSEQUENTLY ANNEXED: Not to exceed 100%
of the above-referenced increase until annexed.
TERM OF TAX
The above taxes shall be levied until all bonds have been discharged and facilities
funded and/or guaranteed, and the SPECIAL DEVELOPMENT TAX - ONE TIME has
been paid; however, the ANNUAL SPECIAL TAX - DEVELOPED PROPERTY shall not
be levied for a period in excess of twenty-five (25) years per parcel.
Residential:
Once a building permit has been issued for Residential property and the SPECIAL
DEVELOPMENT TAX - ONE TIME has been paid, the property no longer will be
subject to any annual special tax.
Commercial and Industrial:
The Commercial and Industrial properties, upon the issuance of a building permit, have
the option to (1) pay the SPECIAL DEVELOPMENT TAX - ONE TIME or (2) assume
the ANNUAL SPECIAL TAX - DEVELOPED PROPERTY, as set forth above. Upon the
issuance of any building permit, no further increase or escalation is authorized.
ALLOCATION OF COST AND TAX
Total capital costs for all authorized facilities shall be allocated as follows: 65% to
Residential property, 35% to Commercial and Industrial property. The above costs
exclude costs of issuance as needed.
Residential property shall be taxed in an amount sufficient to meet the 65% share of
facilities, which tax will include costs of issuance, interest and other costs, including
sinking fund payments for future construction as applicable.
Commercial and Industrial property shall be taxed in an amount sufficient to meet the
35% share of facilities, which tax will include costs of issuance, interest and other costs,
including sinking fund payments for future construction as applicable.
COLLECTION OF ANNUAL TAX
Residential:
Determine monies necessary to make payment on bond debt service, replenish
reserve, call bonds, pay bonds and Community Facilities District No. 1 administrative
costs, and pay for public capital facilities. FIRST: Reduce this amount by the funds
collected from Special Development Tax - One Time levied against residential
properties. SECOND: The remaining funds needed are to be collected by the levy of
the annual Special Tax - Undeveloped Property on undeveloped taxable residential
acreage, in the proportional amounts of each property category as required, not to
exceed the maximum authorized tax.
Commercial and Industrial:
Determine monies necessary to make payment on bond debt service, replenish
reserve, call bonds, pay bonds, and Community Facilities District No. 1 administrative
costs, and pay for current or future public capital facilities. FIRST: Reduce this amount
by the funds collected from Special Development Tax - One Time and annual Special
Tax - Developed Property levied against Commercial and Industrial properties.
SECOND: Levy the annual Special Tax - Undeveloped Property on undeveloped
taxable Commercial and Industrial acreage in the proportional amounts for each
property category as required, not to exceed the maximum tax.
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