HomeMy WebLinkAboutCT 85-15; CITY OF CARLSBAD; 1996-0234385; Petition & Waiver. ,,p~~A$E 9PMPLETE/,INFORMAf 'N.
RECORDING REQUESTED BY: L~C tt 1996-0234385
6/9◄
City Clerk
City of Carlshad
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AND WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
921
08-MAY-1996 11~52 AM
OFFICIAL RECORDS .
SAH DIEGO CDUHTY RECORDER'S OFFICE
GREGORY SMITH, COUHTY RECORDER
FEES: 1 0. 00
PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY
FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHARE
CT 85-15 PARK VIEW WEST
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
(Additional recording fee applies)
Rec .Fonn KR15
RECORDING ~cQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
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SPACE ABOVE THIS LINE FOR RECORDER'S USE.
Parcel Nos. 264-010-21,22, 23 & 25
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE
CT 85-15 PARK VIEW WEST
WHEREAS, the undersigned Property Owner at this time is processing
for development within the City of Carlsbad (hereinafter referred to as "City")
a development project known and identified as Tentative Tract Map CT 85-15
(hereinafter referred to as the "Project"); and,
WHEREAS, The legal description for project is shown on Attachment
11811 attached hereto; and,
WHEREAS, City has determined this Project to be 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, District is intended to be formed to finance these
improvements generally described.in Section 1 herein; and,
WHEREAS, Property Owner desires to proceed with processing prior to
the formation of District: and,
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WHEREAS, the Local Facilities Management Plan for Zone 11 requires
the guarantee of construction of the segments of Rancho Santa Fe Road and
Olivenhain Road described in Section 1 herein prior to the recordation of any
final maps or the issuance of building permits within the zone; and,
WHEREAS, Condition No. 9, 59 and 69 of Tentative Trace Map CT 85-15
(as amended by council resolution No. 8168, 9/10/85) ("Conditions") require
that th13 Property Owner provide for the construction of certain public
improvements including sections of Rancho Santa Fe Road and Olivenhain
Road; and,
WHEREAS, compliance with the applicable Local Facilities Management
Plans for Zone 11 and tentative map conditions is a condition of approval for
the final map for the Project; and
WHEREAS, the city and Property Owner desire to agree to an alternate
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 participation in Distinct; 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 the Local Facilities Management Plan for Local
Facilities Zone 11, and related Conditions to provide a financial guarantee for
the construction of those improvements described in Section 1 below; and,
WHEREAS, Property Owner voluntarily enters into this agreement; and,
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
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sufficient financial guarantees for future construction of Property Owner's fair
share of the circulation improvements;
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NOW, THEREFORE, in consideration of proceeding with the processing
of Project, the undersigned Property Owner hereby agrees and certifies to the
following:
1. Property Owner hereby petitions the City for the initiation of
proceedings for the formation of District which will cause the construction and
installation and/or financing of the following improvements which are generally
described as follows:
a) Rancho Santa Fe Road North Phase 1 {RSF No. 1) La
Costa Avenue to east of Mahr Reservoir
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 of Melrose Drive
d) Rancho Santa Fe Road South (RSF So.) {Assumes
Secondary Arterial -Encinitas City Boundary to Olivenhain Road Full
Improvements)
2. The cost of construction, engineering, legal and other incidental
expenses will be funded by the District.
3. Property Owner acknowledges its right to notice of and
participation in all phases of formation 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 of the California
Government code and nonetheless with full knowledge of such rights,
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completely and forever waives such rights. Specifically, Property owner hereby
consents to the proceedings and waives any right to protest the formation of
the District and the ordering of the improvements under applicable California
Statutes and consents to and supports formation of said District. The City
shall exclude Property Owner 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 its fair share for the
improvements described in Paragraph 1.
b) Said payment shall be made in the manner described in
Attachment 11A" 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
Attachment 'W' attached hereto.
d) Payment by Property Owner of its fair share of
improvement costs as determined by City Council and set forth herein will
satisfy its obligations for the construction of the improvements described in
Paragraph 1, as required by the Local Facilities Management Plan for Zone 11
and related Conditions, subject to adjustment as described in Paragraph 9.
e) Alternatively, if the District is formed and Project is included
within it, Property Owner's obligations to pay its fair share pursuant to the
agreement shall be satisfied upon payment of all taxes imposed, established
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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 permits under the
provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code,
applicqble zone plan, financing plans and related documents until a
satisfactory financing program had been developed to fund the construction
of the improvements described in Section 1.
6. Property Owner hereby waives his right to challenge the amount,
establishment or imposition of said fair share and further waives 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. Nor does this agreement relieve Property
Owner from providing other public facilities required under conditions of the
Local Facilities Management Plan for Zone 11 or placed upon tentative map
CT 85-15 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
sections 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 formula established
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for the District. If that obligation is different from the amount previously paid
by Property Owner to City, City shall refund any excess, or Property Owner will
pay to City any additional amount due (Shortfall).
b) Any refund shall be made from funds available within
District upon District formation and shall not be an obligation of City's General
Fund or other revenue sources.
c) In the event that insufficient funds are available from
District's resources, Property owners shall be reimbursed in the order in which
funds were deposited with City as soon as sufficient funds become available,
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 area available. Any refund to Property Owner
shall not include interest.
e) If a shortfall exists, Property Owner shall be notified of the
amount of such Shortfall by the finance Director via certified mail. The amount
of said Shortfall shall be due and payable to City thirty (30) days after the
mailing of such notice.
f) The computation of the amount of any Shortfall shall not
include interest charges.
g) If no payment of the Shortfall is made by Property Owner
within thirty (30) days of notice of said Shortfall by the Finance Director, City
may deny the issuance of building permits and/or take any other action
allowed by law to deny further development of property subject to this
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agreement and to collect such Shortfall including, but not limited to, a lien on
the property. City's recordation of a lien shall not affect its ability to recover
the Shortfall by other legal means concurrently, but no double recovery will be
allowed. The cost of such collection shall be an obligation of Property Owner
and shall be added to the amount of the Shortfall payment due City.
h) Any payment received by the City under this agreement
shall oe deposited in a special fund and may only be used to fund · the
construction of the facilities described herein. Upon the formation of a CFO
to fund these same facilities any amount remaining in the special fund may be
transferred to the CFO fund, at the discretion of the Finance Director.
10. If the District has not been formed for any reason by January 1,
1999, the amounts payable by Property Owner under this agreement shall
represent Property Owner's fair share cost for provision of those facilities
described in Paragraph 1 and no additional fee, assessment, or charge will be
due from or reimbursement due to Property Owner.
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 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 all applicable provisions of law, including but not
limited to, Carlsbad Municipal Code Titles 18, 19,20, and 21.
12. Compliance with the provisions of this agreement is a condition
of all future discretionary approvals for the Project. If Property Owner does not
comply with the provisions of this agreement, approval of the Project will not
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be consistent with the General Plan, the Growth Management Program, the
Local Facilities Management Pla17 or the applicable financing plan for Zone 11
and all subsequent discretionary approvals and permits for the Project shall 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 \ . .mtil the Property Owner has complied with the terms of this agreement
due to be satisfied at the time such approval is requested.
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 tranferees, with the exception of owners of individual lots of which
building permits have been issued, to secure compliance with this agreement.
15. City shall not, nor shall any officer 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 agreement. 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 and City and shall run with the real property and
create an equitable servitude upon the real property.
17. All notices provided for under this agreement shall be in writing
and shall be delivered in person or serve by certified mail postage prepaid.
Delivery of notice to Property owner shall be presumed to have been made on
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the date of mailing regardless of receipt by Property Owner. Notices required
to be giver;, to Property Owner shall be addressed as follows:
Bill Allen
West Coast Land fund L.P.
1999 Avenue of the Stars Suite 1200
Los Angeles, CA 90067
Notices to the City shall be delivered to the Finance Director, City of
Carlsbad, 1200 Carlsbad Village Drive, Carlsbad, 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 further states, under penalty of perjury, that he
is the owner of the property as described herein, or an authorized agent of the
owner, and has the authority to execute this document, including the binding
authorizations herein.
Executed this t ~ day of --$--+-=-~-~----' 1996.
CITY OF CARLSBAD, a municipal corporation of the State of California.
(Notarial acknowledgement of execution by PROPERTY OWNER must be
attached.)
(President or vice-president and secretary or assistant secretary must sign for
corporations. If only one officer signs, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal
empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
PROPERTY OWNER
WEST COAST LAND FUND, L.P.,
a Delaware limited partnership, doing business
in California as WCLF, L.P.
By: West Coast Equity, L.P.,
a Delaware limited partnership,
its general partner
By: CITCG, L.P., a Delaware limited
partnership, its general partner
By: Colony Investment Partnership 111-NLF, L.P., a
Delaware limited partnership, its general partner
By: Colony GP-NLF, L.P.
a Delaware limited partnership
its general partner
Name: Kevin C. McTavlsh -----V-ic-e~P=r_e_s ....... ,a.--e-=ntc-----
Title: -------------
STATE OF CALIFORNIA
COUNTY OF LOS ANGE;LES
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S.S.
On Apdl 23 , 1996 before me, ~dtt1-r3 fy1 _ kD::::i ,
a Notary Public in and for said state, personally appeared
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personally known to me (oF proved to me on the basis of satisfactory evidence) to be
the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature~)
on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
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ATTACHMENT 11A11
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE ROAD AND OLIVENHAIN ROAD
The City Council shall use the following rate and method for determining the
fair share obligation for funding the construction of Rancho Santa Fe Road and
Olivenhain road 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 Carlsbad and certain
property owners wishing to proceed with the development of their property in
advance of the creation of Community Facilities District No. 2 (CFO No. 2). It
is the City and property owners intent to form CFO No. 2 to provide funding
for those improvements described within the above referenced agreement.
The following rate and method shall be used to determine the fair share and
amount due from any property owner wishing to take advantage of this
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 as follows for residential developments:
Residential EDU Allocation
Single Family -Detached Units
Single Family -Attached Units
Multi Family Units
1.0 EDU
0.8 EDU
0.6 EDU
The number of each type of unit included in a development shall be
determined 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 information is available.
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The City Engineer's determination shall be submitted to the City Council in the
staff report accompanying the Agreement. The City Council shall make the
final determination of the number of EDUs to be used in comp,uting the fair
share obligation for any project.
Fair Share Amount and Method of Payment
The City shall collect $13,290 for each EDU as determined by the City Council.
This amount shall be collected in two separate payments, $10,250 per EDU to
be paid as described below, and $3,040 per EDU at the time a building permit
is issued. The manner of payment is more fully described below.
The Property Owner shall pay their fair share to the City of Carlsbad in the
following manner.
1) a) Because the Property Owner may, at his/her discretion, divide
the Project into phases, requiring the approval of multiple final
maps, the Property Owner shall, upon execution of this
agreement, provide the City with a Letter of Credit from a
financial institution acceptable to the Finance Director, for the
amount shown on the table below, less any amount paid under
the agreement.
b) Following execution of the Agreement to Pay Fair Share, and
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 determined by
the City Engineer, times $10,250 for all units included on the
subject final map. If the City Council determines that the City
Engineer's calculation of the 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 been made. The Property Owner shall retain
the right to phase the approval of final maps as allowed by the
City Engineer, and shall only be required to pay the obligation for
those units receiving final approval.
c) The Property Owner shall pay the amounts due for each
successive phase prior to the approval of each final map. The
Finance Director may authorize a reduction in the amount of the
Letter of Credit following such subsequent payments.
Type of Unit
Single
Family -
detached
units
Single
Family -
attached
units
Multifamily
Units
TOTAL
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Computation of Fair Share Obligation
Park View West Ct 85-15
EDU per Cost per' Units
unit unit Covered by
Agreement
1.0 $10,250 131
0.8 8,200 ---
0.6 6,150 ---
131
Amount Due
$1,342,750
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$1,347.750
2) Prior to the issuance of a building permit by the City the property
owners shall pay to the City an amount equal to the number of EDUs
included on such building permit, as determined by the City Engineer, times
$3,040.
3) a) 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
amount equal to $10,250 times the number of EDUs included
on such final map as determined by the City Council prior to
entering into this agreement.
b) Prior to the issuance of a building permit by the City the
Property Owner shall pay to the City an amount equal to the
number of EDUs included on such building permit, as
determined by the City Engineer, times $3,040.
4) The City Engineer shall prepare a report detailing the calculation of
the number of EDUs associated with this agreement. Said report shall be
made available to the City Council and Property Owner for review.
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ATTACHMENT 118 11
LEGAL DESCRIPTION
PARCEL 1 OF PARCEL MAP NO. 13524, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, OCTOBER 25,
1984, AS FILE NO. 84-403293 OF OFFICIAL RECORDS.