HomeMy WebLinkAboutCT 90-30; Daniel T. Shelley; 2001-0050065; Petition & WaiverDOC # 2OOl-0050065
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
J&W 299 2001 3:12 PM
6743 OFFICM RECORDS SAN DIEGO COLINTY RRORDER’S OFFICE GREGORY f.&liITH, Ctl$TY$XRDER . . . llll#lll~llll~lll~ll~ll~lll~ll~lll~l A . 2001-0050005
Space Above This Line for Recorder’s Use
Assessor Parcel Nos. 264-01 O-41 -00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF UNIT 1 OF CT 90-03 (“AGREEMENT”)
WHEREAS, the undersigned Property Owner at this time is processing for
development with the City of Carlsbad (hereinafter referred to as “City”) a
development project known and identified as Unit 1 of Tentative Tract Map CT 90-03
(hereinafter referred to as the “Project”); and,
WHEREAS, the legal description for the Project is shown on Exhibit “B”
attached hereto; and,
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WHEREAS, City has determined this Project is located within the boundaries of
a proposed Community Facilities District known as Community Facilities District No. 2
- Ranch0 Santa Fe and Olivenhain Road (hereinafter referred to as “District”); and,
WHEREAS, the 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, condition number 37 of Tentative Tract Map CT 90-03 requires
that the Property Owner provide for or participate in the construction of certain public
improvements including sections of Ranch0 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 tentative map condition number 37 for Carlsbad Tract Map
CT 90-03, to provide a financial guarantee for the construction of those
improvements described in Section 1 below; and,
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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 the
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 financing of the following improvements (hereinafter
“Improvements”) which are generally described as follows:
a) Ranch0 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
d Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive
d) Ranch0 Santa Fe Road South (RSF So.) (Assumes Secondary
Arterial Standard - Encinitas City Boundary to Olivenhain Road Full Improvements.
2. The cost of construction, engineering, environmental mitigations legal
and other incidental expenses as set forth in the Improvements Budget will be funded
by the District.
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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 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, or provide, its fair share for
the improvements described in Section 1.
W Said payment, or provision, shall be made in the manner described
in Exhibit “A”, Rate and Method for Determining Fair Share Obligation Ranch0 Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
d 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 Section 1, as required by the Tentative
Map CT 90-03 condition number 37, as that condition applies to CT 90-03 subject to
adjustment as described in Section 9 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 the agreement shall
be satisfied upon payment of all taxes imposed, established and payable to said
District.
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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 has 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 and/or to post improvement bonds as required by the City
Engineer. Nor does this agreement relieve Property owner from providing other public
facilities required under conditions placed upon tentative map CT 90-03 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 section
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 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.
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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.
cl In the event that sufficient funds are not available from District’s
resources, Property Owner shall be reimbursed, 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 fund, at the discretion of the Finance Director.
10. 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 funds 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 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.
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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 staff 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 #I 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 and/or CFD #2 agreements
to prepay taxes. 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 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 who originally paid the taxes to the City under a prepayment
Agreement or to CFD #2.
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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) If the City does not receive requests for refund from 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 fund 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.
f) 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 right to any refunds under this section is assigned to another
party, 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 that 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.
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 local
facilities Management Zone 1 1 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 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.
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 required.
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 of the Project 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 with respect to the Project only and City, and shall run with the
Project and create an equitable servitude upon the Project.
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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:
Daniel T. Shelley
PO Box 230985
Encinitas, CA 92023-0985
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Ave.
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 Property Owner further 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 authorizations herein.
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Executed this /yeday of p&Z., , 2000.
*OWNER: CITY OF CARLSBAD, a
(title and organization of signatory)
By:
(sign here)
JANICE BREITENFELD,
Deputy City Clerk
(print name here)
(title and organization of signatory)
Approved as to form:
a
City Attorney
(Proper notarial acknowledgment of execution by *OWNERS 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.)
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ALL-PUliPOSE ACKNOWLEDGEMENT 6754
State of California
Ccunty of 53 YI bt& e
,
0 personally known to me - OR -. proved to me on the basis .of satisfactory
evidence to be the person(s) whose name(s)
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
signatures(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 INFORMATION
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
edgement to an unauthorized document.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL)
0 INDIVIDUAL q CORPORATE OFFICER
TITLE(S)
0 PARTNER(S)
0 ATTORNEY-IN-FAm q TRUSTENS) .
0 GUARDIAN/&SERVATOR
cl OTHER:
SICNERISREPRESENTING:
NAME OF PERSONGS) OR ENllTYWZS)
DESCRIPTION OF ATTACHED DOCUMENT
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
DATE OF DOCUMENT
RIGHT THUMBPRINT
OF
SIGNER
OTHER
Ai’A Sf39 VALLEY-SIERRA. 800-362-3369
,<
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EXHIBIT A
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCH0 SANTA FE AND OLIVENHAIN ROADS
The City Council shall use the following rate and method for determining the fair share
obligation for funding the construction of Ranch0 Santa Fe and Olivenhain Roads 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 owner’s intent to form CFD No. 2 to provide funding
for those improvements described within the Agreement.
The following rate and method shall be used to determine the fair share and amount
due from any property owners 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 per product classification as follows:
Product Classification Equivalent Dwelling Units
Single Family - Detached Units 1 .O EDU
Single Family - Attached Units 0.8 EDU
Multi-Family Units 0.6 EDU
Churches 4.0 EDU per Acre
Commercial/Industrial and other 10.0 EDU per Acre
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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 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 Payment
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 per EDU to be paid prior to
Council consideration of final map approval as described below.
1) 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
determined 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 taken place. Funds must be paid to the City before the final map
will be scheduled for Council consideration.
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2) In consideration of the work completed by Shelley on the improvements as defined
in the agreement, a credit of up to $136,845.92 may be applied to the amount
owed as calculated in 1) above. The amount of the credit will be determined by
the Public Works Director upon completion of an audit of the work. The credit will
apply upon final determination of the amount by the Public Works Director. Until
that time, all amounts are due and payable as stated in 1) above.
Computation of Fair Share Obligation
Shelley Property CT 90-03
Unit 1
W”u’Aber
Type of Unit EDU per Cost per
unit EDU
Units Covered
by
Agreement Amount Due
1 Single Family Detached
Units
10.0 $10,250 26 $266,500.
TOTAL 244 $266,500.
3) If the property owner has already obtained a final map for units conditioned
with the financing of Ranch0 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.
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EXHIBIT B
LEGAL DESCRIPTION
UNITNO. 1
BEING A PORTION OF LOT 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS
ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14;
SAID POINT BEING THE EASTERLY TERMINUS OF THAT CERTAIN CENTER LINE
DESCRIPTION RECORD FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON MARCH 12, 1996 AS DOCUMENT NO. 1996-0119577 OF OFFICIAL RECORDS;
THENCE ALONG SAID WESTERLY LINE;
1. SOUTH 02”41’19” EAST 724.89 FEET TO THE SOUTH LINE OF THE LAND DESCRIBED
AS PARCEL A-l JN DEED RECORDED NOVEMBER 28, 1984 AS FILE NO. 84-443590 OF
OFFICIAL RECORDS;
2. THENCE ALONG SAID LINE SOUTH 87”18’19” WEST 576.16 FEET TO THE SOUTHEAST
CORNER OF LAND DESCRIBED IN DEED RECORDED SEPTEMBER 21,1992 AS FILE NO.
1992-0597007 OF OFFICIAL RECORDS;
3. THENCE ALONG THE EASTERLY LINE OF SAID LAND NORTH 02”40’03” WEST 338.05
FEET TO AN ANGLE POINT;
4. THENCE NORTH 52’18’23” EAST 940.15 FEET;
5. THENCE NORTH 02’41’43” WEST 433.39 FEET TO THE NORTHEAST CORNER OF SAID
LAND, BEING ALSO ON THE CENTER LINE OF CALLE ACERVO AS GRANTED PER SAID
DOCUMENT NO. 1996-O 119577 OF OFFICIAL RECORDS, SAID POINT BEING THE
BEGINNING OF A NON-TANGENT 650.00 FOOT RADIUS OF CURVE, CONCAVE TO THE
SOUTH, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 02’48’02” EAST;
6. THENCE LEAVING SAID EASTERLY LINE AND ALONG SAID CENTER LINE AND THE ARC
OF SAID CURVE EASTERLY 109.77 FEET THROUGH A CENTRAL ANGLE OF 09’40’33”;
7. THENCE SOUTH 77’3 1’25” EAST 17 1.45 FEET TO THE BEGINNING OF A TANGENT
’ 1 ,OOO.OO FOOT RADIUS CURVE, CONCAVE TO THE NORTH, A RADIAL LINE TO SAID
BEGINNING BEARS SOUTH 12”28’35” WEST;
8. THENCE ALONG THE ARC OF SAID CURB EASTERLY 168.67 FEET THROUGH A CENTRAL
ANGLE OF 09”39’5 1”;
9. THENCE SOUTH 87” 11’16” EAST 60.17 FEET TO THE POINT OF BEGINNING.
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