HomeMy WebLinkAboutCT 90-04; Centex Homes; 1994-0155589; Petition & WaiverRECORDING REQUESTED BY AND )
WHEN RECORDED MAIL TO: 1 UFFICIR! HECURDS
City Clerk SBN DlEGU COUNTY RECORDER'S OFFICE
CITY OF CARLSBAD $78 RF: 15.00 FEES: 41.00
1200 Carlsbad Village Drive 1 * RF: 25.00
Carlsbad, CA 92008 1 !IF: 1.00
GREGORY SflITH, COUNTY RECORDER
SPACE AH
Parcel Nos. 255-031-22 and 255-031-23
PETITION, WAFER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE
WHEREAS, the undersigned Property Owner at this time is processing for
development within the City of Carlsbad (hereinafter referred to as "Ciw') a development
project known and identified as Tentative Tract Map CT 90-4 (hereinafter referred to as
the "Project"); 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 Zones 11 and 12 require the
guarantee of construction of the segments of Rancho Santa Fe and Olivenhain Roads
described in Section 1 herein prior to the recordation of any final maps or the issuance
of building pennits within the zones; and
WHEREAS, condition numbers 56, 57 and 63 of Tentative Tract Map CT 90-4
require that the Property Owner provide for the construction of certain public
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improvements including sections of Rancho Santa Fe Road; and
WHEREAS, compliance with the applicable Local Facilities Management Plans for
Zones 11 and 12 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 Zones 11 and 12, and
related tentative map condition numbers 56, 57 and 63 for Carlsbad Tract Map CT 90-4,
to provide a financial guarantee for the construction of those improvements described in
Section 1 below; and
WHEREAS, upon entering into this agreement and upon payment of the fair share
described herein, the City finds that property owner has provided adequate security for
the construction of Rancho Santa Fe Road, south of Olivenhain Road, and that bonds
posted to secure such improvements shall be released by the City Engineer; 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 circulatior, 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,
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' 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 more specifically described in Exhibit
"B" attached hereto. These improvements 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 Wideninn. and intersection imDrovements at
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 21 Phase 1 End to
Melrose Drive
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondarv Arterial
- Encinitas Citv Boundarv to Olivenhain Road Full ImDrovementd.
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
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Intention by the City Council to form said District, Property OtYner 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 one (1).
b) Said payment shall be made in the manner described in Exhibit "A" Rate
and Method for Determining Fair Share Obligation Rarlclto Slrrtta Fe and Olivenltain 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 one (I), as required by the
Local Facilities Management Plan for Zones 11 and 12 and Tentative Map CT 90-4,
condition numbers 56, 57 and 63, as these conditions apply to CT 90-4, 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
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improvements described in Section 1. 1182
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
Zones 11 and 12 or placed upon tentative map CT 90-4 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 g a, 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.
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The City is not required to establish an undeveloped land fax 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 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 ninety
(90) 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
amount paid by Property Owner under this agreement shall represent Property Owner's
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fair share cost for provision of those facilities described in paragraph one (1) and no
further payment will be due from or reimbursement due to Property Owner.
11. a) Compliance with this agreement will be accepted by City as an alternate
to the method described in the current Local Facilities Management Plan for Zones 11 and
12 for financing the improvements described in paragraph one (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.
b) Upon compliance with this agreement, the City shall release bonds and
agreements posted in conjunction with CT 90-4 to secure construction of Rancho Santa
Fe Road, south of Olivenhain Road. Said bonds being further descibed as follows:
Agreement 75-02, Labor and Materials Bond 11141308780, and Faithful Performance
Bond11141308780.
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 Zones 11 and 12 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
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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 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:
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
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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 &O day of ~S~I/Z,~ZG~
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tierra-santa-fe. 2/18/94
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PROPERTY OWNER CITY OF CARLSBAD, a municipal
CENTEX REAL ESTATE, a Nevada Corporation co
(Name of Property Owner)
".
By: nuLk, /dl(&-
IS^^.&,/,,- JH;,6;l;,' -
(sign herd I
(print name here)
(print name here)
IXUM~~J die P&;otrl -
(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
.-
ciwL BY Deputy City Attorney V>/~G L
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.CALIFORNIA &LL-PURPOSE ACKNOWLEDGMENT NO
I
the same In his/herlthelr authorized
capacity(ies), and that by hislherlthelr
INDA M. MAIN signature(s) on the instrument the person(s).
or the entity upon behalf of which Ihe
person(s) acted, executed the inslrumenl.
NOTARY PUBLIC-CALIFORNIA
WITWSS my hand and official seal.
- OPTIONAL SECTION - CAPACITY CLAIMED BY SIGNER.
Thouoh aaMe aoer nd mqdm !ha Io
1111 In Ihe daIa below. dolnp eo may provb
hvalmblE Io pemnr mynp m.m document. 0 INDIVIDUAL
CORPORATE OFFICER(S)
%personally known to me - OR - r] proved to me on the basis of satisfactory evidence
subscribed lo the withln instrument and ac-
lo be the person(s) whose name(s) islare
knowledged to me that he/she/they execuled
..
SIGNER IS REPRESENTING:
NAME OF PEPSONIS) OR EhTWllE4
0 PARTNER(S) 0 LIMITE$ n GENERAL
ATTORNEY-IN-FACT
0 TRUSTEE(S) 0 GUARDIAN/CONSERVATOR
0 OTtIER:
I
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATACHED TO TITLE OR TYPE OF DOCUMENT
THE DOCUMENT DESCRIBED AT RIGHT:
Thouph It10 dab requested here lb no1 requlrbd by Ian'.
It could prevent fravduibnt resnachment 01 IhB form. SIGNWS) OTHER THAN NAMED ABOVE
- - NUMBER OF PAGES DATE OF DOCUMENT ..-
01892 NATIONAL NOTARY ASSOCIATION * 8236 Rernmet Am.. P.O. Box 7184 * Canops Park, CA 81309 . .. ~~~ ~~
1 IS9
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO SANTA FE AND OLIVENHAIN ROAD
EXHIBIT A
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Rancho Santa Fe 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
(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.
Bm
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 1.0 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.
tiem-sanla-fe. 2/18/94
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 upon
execution of the agreement to pay fair share prior to final map approval, 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) Upon execution of the agreement to pay fair share 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. If the City Council determines that the City Engineeis
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.
Computation of Fair Share Obligation
Tierra Santa Fe CT 90-4
Type of Unit Amount Due Units Cost per EDU per unit Covered by Unit
Agreement
Single Family - detached units
$1,137,750 111 TOTAL
"_ "_ 6,150 0.6 Multifamily Units
- " "_ 8,200 0.8 Single Family - attached units
$1,137,750 111 $10,250 1 .o
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 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.
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.
tierra-santa-fc. 211844
June 29, 1993
Miss Victoria Wessel Vice President/Asset Manager Great,American Federal
6795 Landers Drive San Diego, CA 92121-2903
Savings Association
Re: Agreement for Waiver.of Prohibition Relating to Tentative Map
No. CT 90-04/Tierra Santa Fe.
The Carlsbad City Council, at its meeting of June 22, 1993, adopted Resolution No. 93-182, approving an agreement with Resolution Trust Corporation as Conservator of Great American Federal Savings Association for Waiver of Prohibition Against the Imposition of Conditions Upon the Approval of An Extension of Tentative Subdivision Map No. CT 90-04/Tierra Santa Fe.
Enclosed please find a fully executed copy of the agreement and a copy of Resolution'No. 93-182 for your files.
Assistant City Clerk
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Enclosures
1200 Carlsbad Village Drive - Carlsbad, California 92008-1 989 - (61 9) 434-2808 @