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HomeMy WebLinkAboutCT 90-04; Centex Homes; 1997-0050367; Petition & Waiver. ,. ,’ I RECORDINGREQUESTED BY AM) WHEN RECORDED MAIL TO Clty Clerk CITY OF CARLSBAD Carisbad, CA 92008 1200 Carlsbad Village Drive j 1075 ilF: AF : 41. OF 1.00 HA\E ti D space Above This Linc fa Rscadds usc PETITION, WAIVER AND CONSENT TO CREATION OF A COMMUNITY FACILlTES DISTRICT AND AGREEMENT TO PAY FAIR SHARE WHEREAS, the undersigned Property Owner is processing, or has processed, for development with the City of Carlsbad (hereinafter referred to as “City”) a development project known and identified as Tentative Tract Map(s) CT 90-4 - , CT 85-10, and CT 89-18, (hereinafter referred to as the “Project”); and, CT 89-18 WHEREAS, the legal description for the Project is shown on Exhibit “B attached hereto; and, WHEREAS, City has determined this Project is 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 in the amount set forth in the Improvements Budget attached hereto marked Exhibit “C”; and, ” - 4 1076 ,I WHEREAS, Property Owner desires to proceed with processing prior to the formation of District; and, WHEREAS, various conditions of the Tentative Tract Maps for the Project require that the Property Owner provide for or participate in the construction of certain public improvements including sections of Rancho Santa Fe Road, and, WHEREAS, the compliance with 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 alternative method of financing the improvements described in Section 1 herein that will allow Property Owner to discharge its fair share and obligation for said improvements in lieu of, or in anticipation 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 tentative map conditions requiring the Project to provide a financial guarantee for the construction of those improvements described in Section 1 below; and, WHEREAS the City and Property Owners have previously entered into Similar agreement providing for prepayment for said Improvements by which Property Owner has over -paid its obligation, and the parties wish to supersede those agreements with this agreement providing for a special refind; and, ” T 1077 ., WHEREAS, Property Owner voluntarily enters into this agreement with respect to the Project; 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 and City hereby agree and certify to the following: 1. Property Owner hereby petitions the City for the initiation of the proceedings for the formation of District which will cause the construction and installation and/or hancing of the following improvements (hereinafter “Improvements” which are generally described as follows: a) Rancho Santa Fe Road North Phase 1 @SF 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 @SF No.2) Phase 1 End to Melrose Drive. d) Rancho Santa Fe Road South @SF So.) (Assumes Secondary Arterial Standard - Encinitas City Boundary to Olivenhain Road Full Improvements. 1078 2. The cost of construction, engineering, environmental mitigation’s legal and other incidental expenses as set forth in the “Improvements Budget” 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 with respect to the Project. The City shall exclude the Project fiom 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, or provide, its fair share for the Improvements described in Section 1. b) Said payment, or provision, 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 Exhibit “A” attached hereto. P ,- - - 1079 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 Section 1, as required by the Tentative Map@ for the Project as that condition applies to the Project, subject to adjustment as described in Section 10 herein, e) Alternatively, if the District is formed and Project is included within it, Property Owner’s obligations to pay its fair share pursuant to this 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 &om 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 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 has been developed to hnd 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 hrther 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 and/or to post improvement bonds as required by the City Engineer. Nor does this ” 1080 agreement relive Property owner from providing other public facilities required under conditions placed upon the Project by the applicable tentative map conditions. 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 section 66000 or any successor or related statutes. Sa) The City and Property Owner hereby agree that this agreement supersedes any prior written agreement between the City and Property Owner concerning Property Owner’s fair share obligation for the Project covered by this Agreement (a “Prior Agreement”), if any. b) The City acknowledges that, prior to December 10, 1996, the undersigned Property Owner had paid to the city excess fair share payments totaling $626,240 (206 single- family units times $3,040 per unit) (the “Excess Fair Share Payments”) pursuant to the following Prior Agreements between the City and Property Owner covering the Projects developed by Property Owner in Carlsbad: 1. Petition, Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share dated February 22, 1994 (covering Tentative Tract Map CT 90-4); 2. Petition, waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share (CT 85-10 Rice Property) dated August 11, 1995; and " 1081 3. Petition, Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share (CT 89-18 Rancho Verde) dated August 11, 1995. c) The City hereby agrees that the Excess Fair Share Payments will be applied as credits to the fair share payments due to City by Property Owner pursuant to this Agreement, up to a maximum of Ten Thousand Two Hundred Fifty Dollars ($10,250) per single-family unit, until a total of Six Hundred Twenty-Six Thousand Two Hundred Forty Dollars ($626,240) has been applied as credits to the fair share payments due pursuant to this Agreement. d) Upon Property Owner's written request to the City, in lieu of the credit arrangement described above, City will refund to Property Owner, by cash or check, the total amount of Excess Fair Share Payments not yet applied as creditdpursuant to the preceding paragraph. Property Owner may request such refund at any time. e) If Property Owner posted a letter of credit to secure fees due from Property Owner to the City pursuant to a Prior Agreement(s), the City agrees that Property Owner may reduce the amount of such letter of credit so that the balance of such letter of credit equals the total fees due pursuant to this agreement. 10) a) Ifthe 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 for the Improvements described in Paragraph 1. If that obligation is lower than the amount previously paid or provided by Property Owner to City, City shall refund any excess, in the manner described below. ” - - 1082 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 Owner 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) Any payment received by the City under this agreement shall be deposited in a special interest bearing 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 Improvements, any amount remaining in the special fund may be transferred to the CFD hd, at the discretion of the Finance Director. 11. Upon completion of the Improvements, and recording of the notice of completion for the final phase of the Improvements, the City Engineer shall determine the total cost of all phases of the Improvements and all related work (Costs), and the Finance Director shall determine the total amount of revenue including fees, taxes, interest earned on funds restricted to use only on the Improvements, and other sources of hnds received by the City dedicated to paying for the construction of the Improvements (Revenues). The Finance Director shall then compare the amount of Costs and Revenues to determine if there are any ,- - A - 1083 excess Revenues as described below. If excess Revenues of more than $100,000 exist, the Finance Director shall provide refunds to all eligible parties of all excess Revenues in an amount and in the manner described below. If excess Revenues are equal to, or less than $100,000 the City shall retain these funds in a special fund to be used to finance street repair, maintenance, and landscaping within the Improvements. a) The total amount of excess Revenues shall be determined by deducting the amount of the project Costs from the available Revenues. Total project Costs shall include all costs to plan, design, construct, mitigate environmental impacts, inspect, and otherwise complete the project to the satisfaction of the City Engineer, including applicable charges for City st& services. Total Revenues shall include all monies held by the City dedicated exclusively to the construction of the Improvements including any fee revenues earmarked for the Project, CFD #2 taxes, applicable CFD #1 taxes, grants, and interest earned on restricted funds as determined by the Finance Director. b) The amount of the refund due to any party shall be based on the proportion of that party’s payments under this agreement based on its’ proportional share of Equivalent Dwelling Units constructed or to be constructed by that party, weighted as described in Exhibit A, divided by the total number of EDUs constructed or to be constructed within, and participating in, CFD #2 andor this agreement. The amount of the refund shall be determined by multiplying the proportional share computed above by the total amount of excess revenues. c) In order to share in the refund of any portion of the excess Revenues, the eligible party must request to be included in the distribution of funds. Such request must be made within 90 days after the City Council’s acceptance of the Notice of Completion for the final 1084 phase of the Improvements. Each request must be accompanied by documents indicating clear title to the refund unless the request is being made by the party which originally paid the City pursuant to this agreement or paid taxes to CFD #2 d) The Finance Director shall compute the amount of the refund due each party as described above. Funds may be disbursed to the eligible parties following Council approval of such refunds. e) Ethe City does not receive requests for refund fiom all eligible parties within the specified period, and all funds cannot be disbursed as provided by this section, any remaining funds shall be held in a special find to be used to support road and roadway maintenance in and around the Improvements area, as determined to be necessary by the City Engineer, and approved by the City Council. 0 As a courtesy to all interested parties, the City will maintain a file of those individuals or companies entitled to a refund, and will mail notices of refund availability to the names and addresses in this file following the City Council’s acceptance of the final Notice of Completion. It is the eligible party’s responsibility to notify the City if the rights to any refunds under this section are assigned to another p arty, or if there is a change in name or address for the eligible party. The City takes no responsibility for the accuracy of the information included in this file, and is under no obligation to locate persons or entities who are entitled to refunds. Failure to notify any party of the availability of excess Revenues shall not obligate the City in any way to extend or modify the above refund procedures. - .- ” 1085 12. Compliance with this agreement will be accepted by City as an alternate to the method described in the current Local Facilities Management Plans for local facilities Management Zones 6,ll and 12 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. 13. Compliance with the provisions of this agreement is a condition of all future discretionary approval for the Improvements. 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, and the Local Facilities Management Plan, and all subsequent discretionary approvals and permits for the Project may be withheld by City. 14. 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 required. 15. 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 of the Project to secure compliance with this agreement. 16. 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 Owners buildings, as a result of the exercise of any 1086 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. 17. 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 with respect to the Project only and City, and shall run with the Project and create an equitable servitude upon the Project. 18. 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 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: Notices to the City shall be delivered to the Finance Director City of Carlsbad 1200 Carlsbad Village Drive Carlsbad. CA 92008 Notices to Property Owner shall be delivered to: Ron Brent CENTEX HOMES 5962 La Place Court, Suite 250 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. " 4 "- 1087 19. This agreement shall be recorded but shall not create a lien or security interest in the property. 20. The undersigned Property Owner hrther states, under penalty of perjury, that he is owner of the property as described herein on Exhibit "B, or an authorized agent of the owner, and has the authority to execute this document, including the binding authorization herein. Executed this 22 day of January , 1997. *OWNER: Centex Homes. a Nevada General Partnership B: Ron Brent ATTEST, (print name here) Division Vice President (title signatory) Aletha L. Rautenkranz, City Clerk A= ~.~ RonaldR. Ball /, a%.$ ;c City Attorney (Proper notarial acknowledgment of execution by '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. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT 1088 NO. 5907 beforeme, /daflcu Ro‘ldc hl0h.q NA~ITLE OF ~ICER ~ E.G.. “JANE DOE, NOTAR~BLIC.. personally appeared .. NAMEIS) OF SIGNERIS) 0 personally known to me - OR -Kproved to me on the basis of satisfactoty evidence NANCY WEK to be the person(s) whose name(s)@* subscribed to the withi ‘nstrument and ac- knowledged to me tha a h &eftbey executed the same in @he-&be# authorized capacity(ies), and that bmkd#&” signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT 0 INDIVIDUAL Petition, Waiver and Consent to 0 CORPORATE OFFICER Creation .. of a Community Facilities Paw F& TITLE@) WENT Share PARTNER(S) 0 LIMITED 0 GENERAL 0 ATrORNEY-IN-FACT Thirteen (13) NUMBER OF PAGES 0 TRUSTEE(S) GUARDIAN/CONSERVATOR 0 OTHER: January 22, 1997 DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSONlSI OR ENIITYIIES) SIGNER(S) OTHER THAN NAMED ABOVE 01993 NATIONAL NOTARY ASSOCIATION - 8236 Rernrnel Ave.. P.O. Box 71 84 - Canoga Park. CA 91 309-71 84 h 1039 EXHIBIT A RATE AND METHOD FOR DETERMINING FAIR SHARE OBLIGATION RANCHO SANTA FE AND OLIVENHAIN ROAD The City Council shall use the following rate and method for determining the fair share obligation for finding 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 SHARE (Agreement) which has been voluntarily entered into by the City of Carlsbad and certain property owners wishing to proceed with 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 finding 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 (EDQ 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 Second Dwelling Units 0.0 EDU " 6, - 1090 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 &om 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 table below. 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. Fair Share Amount and Method of Pavment The City shall collect $10,250 for each EDU as determined by the City Council. This amount shall be collected in one payment of $10,250. If the City Council determines 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 taken place. Funds must be paid to the City before the hal map will be scheduled for Council consideration. rh 1091 Centex Homes - CT 904, CT 86-10, CT 89-1 8 Computation of Fair Share Obligation hunt Paid Under Units I munt Units I hunt Due Unit of Units Per Unit Unit Project Remaining Balance Type of Due Prior Agreamantr Total Cost Per Total Number EDU CTW.4 141 1,445,250 33 338,250 SingleFamiiy 1.0 174 10,250 1,783,500 CT89-18 92 943,000 97 994,250 Single Family 1 .o 189 10,250 1,937,250 CT 8510 0 0 111 1,137,750 SlngleFamiiy 1.0 111 10,250 1,137,750 Total 474 4,858,500 241 2,470,250 233 2,388,250 2) Ifthe 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 net amount due shown above prior to entering into this agreement. EXHIBIT "B" 1092 LEGAL DESCRIPTION TIERRA SANTA FE (CT 90-4) (sonata) ynitl Lots 1 through 20. inclusive, of Map No. 13116 recorded on June 28. 1994,~~ shown on TSF CT 90-4-1, File No. 19940409165 of the Official Records of San Diego County, California and Lots 21 through 100, inclusive of Map No. 1314 recorded onSeptember 16, 1994, IIS shown on TSF CT 90-4-2, File No. 19944554780 of the Official Records of San Diego County, California. yniL2 Lots 101 through 111, inclusive of Map No. 13144 recorded on September 16, 1994, 8~ shown on TSF CT 904-2, File No. 1994-0554780 of the OfFcial Records of San Diego County. California. I LEGAL DESCRIPTION 1093 1402 CT 85-10 RICE PROPERTY THE EASTERLY HALF OF LOT 14 AND A PORTION OF THE WESTERLY HALF OF LOT 14. AND THE SOUTH 60 FEET OF THE WEST HALF OF LOT 14 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. CT 89-18 RANCHO VERDE LEGAL DESCRIPTION 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. . 25\4U;J'93 ..- - C. F.. 3.2 - PRELIMINARY COST ESTlh ? SUMMARY PAGE NO. 1 1095 EXHIBIT "C" CITY OF CARLSBAD COMMUNITY FACILITIES DISTRICT NO. 2 STAGE COST SUMMARY STAGE 1: OLIVENHAIN ROAD AREA A, (@ EL CAMINO REAL) $2,~03,aaa AREA B. (@ RANCHO SANTA FE RD.) $91 2,000 DETENTION BASIN 'D' $871,000 STAGES 2: RANCHO SANTA FE ROAD, PHASE I $15,032,000 STAGES 3: RANCHO SANTA FE ROAD. PHASE II $1 4,230,000 STAGE 4: RANCHO SANTA FE ROAD SOUTH $3,109,000 FILE: SUMMARY.WQ1 - PREPARED BY: HELMING ENGINEERING, INC.