HomeMy WebLinkAboutCT 89-18; Centex Homes; 1995-0369575; Petition & Waiverd. + 40C # 1995-0369575
, RECORDING REQUESTED BY AND ) id-AUG-1995 12~44 PM
WHEN RECORDED MAIL TO. ) City Clerk ) i 4 0 3 ShN DIEGD COUNTY RECORDER'S OFFICE CITY OF CARLSBAD 1 . GREGORY SIlITHs CWNTY RECORDER 1200 Carlsbad Village Drive 1 RF: 18.00 FEES: 66.00
Carlsbad, CA 92008 1 BF: 27.00 nF! 1.00
OFFICIL RECORDS ,
SPACE ABOVE THIS LINE FOR RECORDER'S USE.
Parcel Nos. 264-010-21. 22. 23 & 25 CT rq- 18
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE
CT 89-18 RANCHO VERDE
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 89-18 (hereinafter referred to as the "Project"); and
WHEREAS, the legal description for Project is shown on Exhibit "B" 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 those improvements generally
described in Section 1 herein; and
WHEREAS, Property Owner desires to proceed with processing prior to the formation
of District; and
WHEREAS, the Local Facilities Management Plans 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 zones; and
+ -_ 1404 WHEREAS, Condition No. 9 of Tentative Tract Map CT 89-18, and Condition No.
1 of Council Resolution No. 90-274 approving CT 89-18 ("Conditions") require that the
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 District; 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 sufficient financial guarantees for future
construction of Property Owner's fair share of the circulation improvements;
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 andlor financing of
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the following improvements which are generally described as follows: 1405
a) Rancho Santa Fe Road North Phase 1 (RSF No. 1) La Costa Avenue to east
of Mahr Reservoir
b) Olivenhain Road Wideninc. and intersection improvements at Olivenhain and
El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to MelroK
Drive
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary Arterial -
1
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.
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t- 4 1406
b) Said payment shall be made in the manner described in Exhibit “A“ 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 Exhibit “A“ 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, applicable 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
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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 89-18 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 gt m, 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 are 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.
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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 be deposited in
a special fund and may only be used to fund the construction of the facilities described herein.
Upon the formation of a CFD to fund these same facilities any amount remaining in the special
fund may be transferred to the CFD 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.
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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 Plan 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 until 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 transferees, with
the exception of owners of individual lots for 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 served by certified mail postage prepaid. Delivery of notice to Property
c
Owner shall be presumed to have been made on the date of mailing regardless of receipt by
Property Owner. Notices required to be given to Property Owner shall be addressed as
follows:
Mark Rohrlick, Vice President
Centex Real Estate Corporation
5962 La Place Court
Suite 250
Carlsbad, CA 92008
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.
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Executed this &?day of -&&.A& , 19K
PROPERTY OWNER CITY OF CARLSBAD, a m
CENTEX REAL ESTATE, a Nevada Corporation
(Name of Property Owner)
..
CLAUDE A LEWIS, Mayor
(print name here)
(print name here)
hily/s/O/c/ lh8- P2E3/&7-
(title and organization of signatory)
(Notarial acknowledgment 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 #&&,ney
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CALIFORNIA ALL-PURPOSr ACKNOWLEDGMENT
-
whose name@) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by
his/her/their signature@) on the instrument the person@),
or the entity upon behalf of which the person@) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notaw Public
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer@) Other Than Named Above:
Capacity(ies) Claimed by Signer@)
0 Corporate Officer
0 Attorney-in-Fact
0 Guardian or Conservator
Signer Is Representing:
0 1994 Nalional NotarfA8SIXiialion. 8236 Rsrnrnel Ave.. P.0. Sox 7184 f Canoga Pah. CA 91309-7184 Pmd. NO. 5907 Reorder: Call Toll-Free 1-800.8766827
0 Individual
0 Corporate Officer
0 Partner - 0 Limited 0 General
Title@):
0 Attorney-in-Fact
0 Trustee-
0 Guardian or Conservator
0 Other: opo urn ere
I I
Signer Is Representing:
I I
EXHIBIT “A“
RATE AND METHOD FOR DETERMINING 1813
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 (CFD No. 2). It is the City and property
owners intent to form CFD 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 1 .O EDU
Single Family - Attached Units 0.8 EDU
Multi Family Units 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 computing the fair share obligation for any project.
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Fair Share Amount am Method of Payment 141 4
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 intends to 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.
Computation of Fair Share Obligation
Rancho Verde CT 89-18
Type of Unit Amount Due Units Cost per EDU per unit Agreement Covered by Unit
Single Family - detached units "_ "_ 8.200 0.8 Single Family - attached units
$1,783,500 174 $10,250 1 .o
Multifamily Units
TOTAL . . $$ 783'500:. 174
~ ~~~
0.6 "_ "_ 6,150 . ..
s. . . . . *: . .
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.
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3) a) If the Propc.ry 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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LEGAL DESCRIPTION
CT 89-18
RANCHOVERDE
PORTIONS OF LOTS 8,9, AND 15 OF THE SUBDIVISION OF
RANCHO LAS ENCINITAS IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO MAP THEREOF NO. 848, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 27, 1898.
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