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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 I 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 ) ) ) ) I ) ) ( 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, II II ( ( 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 I I ( \ sufficient financial guarantees for future construction of Property Owner's fair share of the circulation improvements; I 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, ( ( 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 ( ( 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 ( ( 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 ( ( 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 ( { 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 ( 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 ) ) ) S.S. On Apdl 23 , 1996 before me, ~dtt1-r3 fy1 _ kD::::i , a Notary Public in and for said state, personally appeared )(J,vi O_ ~-\MGTO-'\J\~ 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. ( 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. ( ( ~ ~ 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 ( 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 ----- ----- $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. ( ( 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.