HomeMy WebLinkAboutCT 97-13; Carlsbad Oaks North Partners LP; 2004-1180069; Petition & WaiverDOC # 2005-096481 9
RECORDING REQUESTED BY:
Carlsbad City Clerk’s Office
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
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NDV 04,2005 4:33 PM
OFFICIAL RECORDS
GREGURY J SMITH, COUNTY RECORDER
FEES 22 uo 6 PAGES
SAN DIEGO COUNTY RECORDER’S OFFICE
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Amendment No. 1 to Waiver and Consent to Creation of the
Community Facilities District (CT 97-13)
Carlsbad Oaks North Partners, L.P.
Recorded oriqinal agreement December 15,2004 as Document No. 2004-
1 180069
9-(4-05
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Amendment No. 1 to Waiver and Consent to Creation of the
Community Facilities District(CT 97-13)
WHEREAS, the City of Carlsbad (“City”) and Carlsbad Oaks North Partners, L.P. (“Property
Owner”) entered into that certain “Waiver and Consent to Creation of a Community Facilities
District and Agreement to Pay Fair Share Cost of CT 97-13” recorded December 15, 2004 as
Document No. 2004-1 180069; and
WHEREAS, Section 4(b) of the Original Agreement requires, among other things, that Property
Owner deposit with the City a letter of credit or cash (the “Deposit”) equal to Property Owner’s
fair share of the cost of the extension of Melrose Drive from Palomar Airport Road to Vista City
limits (the “Melrose Drive Extension”) prior to the transfer of a fee simple interest in all or any
portion of CT 97-13 or issuance of a building permit for the first commercial structure to be
constructed within CT 97-13; and
WHEREAS, since execution of the Original Agreement, all of the right-of-way for the Melrose
Drive Extension has been dedicated to the City, all resource agency permits required for the
Melrose Drive Extension have been obtained by the City and performance bonds have been
provided for completion of the Melrose Drive Extension; and
WHEREAS, all of the participating property owners in the Community Facilities District (the
“CFD’) proposed to finance the Melrose Drive Extension, among other improvements, have
executed agreements like the Original Agreement consenting to the formation of the CFD to
finance their fair share of the costs of the Melrose Drive Extension; and
WHEREAS, the Property Owners in the proposed CFD continue to cooperate and work
diligently toward its formation which is expected to occur soon and within the year but after the
sale of the first commercial lot; and
WHEREAS, this amendment shall be recorded to, among other things, insure that prospective
purchasers are aware of this contingent obligation; and
WHEREAS, Property Owner has commenced construction of the Faraday Avenue
Improvements required by the approvals for CT 97-13 pursuant to the Original Agreement and
applicable subdivision improvement agreements.
NOW, THEREFORE, in consideration of proceeding with the formation of the CFD, the
processing of CT 97- 13 and commencement of the Faraday Avenue Improvements, the Property
Owner and City hereby agree to the following:
1. Section 4(b) of the Original Agreement shall be amended as follows:
Property Owner’s payment of its Fair Share of Melrose Drive
Extension, initially estimated to be in an amount not to exceed
$2,066,223, shall be secured by the posting of cash or a letter of
credit with the City of Carlsbad, in a form and from a financial
WaivedConsent Amendment
16466-3/2100660.1
8/22/05
institution acceptable to the Finance Director, within ninety (90)
days of a demand to the owner by the Finance Director. If not paid
or an extension of the demand for payment is made by the City
Council, the Property owner and its successors in interest agree
that the obligation shall become a lien on all parcels with the
subdivision and shall be entitled to enforcement, collection and
priority as a tax lien.
2. Except as modified herein the Original Agreement shall remain in full force and
effect.
Executed this Enday of September, 20C5
CARLSBAD OAKS NORTH PARTNERS
L.P., a California limited partnership
By: SUN TECH INVESTMENTS COW.,
a California corporation,
ATTEST:
Its: General
By:
Title: President
By:
Name: Theodore Tchan
Title: Vice President
Title:
WaiverIConsent Amendment
16466-312 100660.1
2 8/22/05
-VED AS TO FORM: -
Title: City Attorney
WaivedConsent Amendment
16466-312100660.1
3 8/22/05
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
'1 State of California 1 ss. Countyof San Diego
On September 9,2005 , before me, Susan E. Eubank, Notarv Public
Date Name and Title of Ofiicer (e.g.. "Jane Doe, Notary Public")
personally appeared Paul K. Tchann and Theodore Tchang
Name@) of Signer@)
Kl personally known to me 0 proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) Mare
subscribed to the within instrument and
acknowledged to me that bdeklthey executed
the same in kirlhryltheir authorized
capacity(ies), and that by hislherltheir
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
Place Notary Seal Above
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: sent No. 1 to Waiver and Consent to CrPU
Document Date: Number of Pages:
of the Community Facilities District (CT97-13)
Signerts) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name: Paill K. and Theodore Tchang
0 Individual
E3 Corporate Officer - Title(s):
partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
Sun Tech Investments Corp.and
T Pmicient YT1-
0 1999 National Notary Assxiation - 9350 Do Solo Ave., P.O. Box 2402 * Chalswonh, CA 91313-2402 * www.nationalnotan/org Prod. No. 5907 Reorder Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
a } SS.
State of California
Countyof SA0 DIE@ 1 I State of California
Countyof 1 ss. SA0 DIE@
On 9 -16- &bo5 , before me, Tsk6- Name and Title of JDUlm Officer (e g , "Jane Doe, Notary Public")
personally appeared
Date CCmm A- CaLVs fiMP K&&AJ p. KtrNvp 7-z
Name@) of Slgner(s)
personally known to me % proved to me on the basis of satisfactory
evidence
Place Notary Seal Above
to be the person(s) whose name(s) *are
subscribed to the within instrument and
acknowledged to me thatbkhelthey executed
the same in hidbedtheir authorized
capacity(ies), and that by hislherltheir
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.
(u2UAkLu Signaturaf Notary Public Pi! u
OPTIONAL
Though the information be/ow is not required by /aw, it may prove va/uab/e 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:
Number of Pages: Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer's Name:
0 Individual
0 Corporate Officer - Title(s):
Partner - Limited General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing: u
0 1997 National Notary Association - 9350 De Soto Ave.. P.O. Box 2402 Chatsworth. CA 91313-2402 Prod No. 5907 Reorder. Call Toll-Free 1-800-876-6827
DOC # 2004-1 180069
.
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Carlsbad City Clerk’s Office
1200 Carlsbad Village Drive
Carlsbad, California 92008
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER’S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 0.00
PAGES: 15
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Space Above Line for Recorder’s Use Only
WAIVER AND CONSENT TO
CREATION OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF CT 97-13 (‘(AGREEMENT”)
WHEREAS, the undersigned Property Owner is processing for development with the
City of Carlsbad (hereinafter referred to as “City”) a development project known and identified
as Tentative Trace Map CT 97-13 (hereinafter referred to as the “Project”); and
WHEREAS, the legal description for the property included in the Project (the “Property”)
is shown on Exhibit “A” attached hereto and incorporated herein by reference; and
WHEREAS, City has determined this Project is located within the boundaries of a
proposed Community Facilities District known as Community Facilities District No. 3 (Faraday
Ave. and Melrose Drive) (hereinafter referred to as the “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 obtain City approval of a final subdivision map
for the Project prior to the formation of District; and
Waiver and Consent
16466-3/2008291.2 10/1 9/04
WHEREAS, a condition of approval of Tentative Tract Map CT 97-13 states: “Prior to
recordation of a final map or issuance of a grading permit, whichever occurs first, a financial
guarantee for the construction of Melrose Drive shall be approved by the Carlsbad City Council.
The project shall be responsible for a proportionate share of the cost of construction of Melrose
Drive.” (the “Tentative Map Condition”); 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 improvement of Melrose Drive as described in Section 1 herein that will allow
Property Owner to discharge its fair share obligation for said improvement in lieu of, or in
anticipation of, participation in District; and
WHEREAS, the City Council agrees that Property Owner, upon entering into and
complying with the terms of this Agreement including, without limitation, the terms for payment
of the fair share described herein, has met the requirement set forth in the Tentative Map
Condition, to provide a financial guarantee for the construction of the improvement of Melrose
Drive described in Section 1 below; and
WHEREAS, the Property Owner voluntarily enters into this Agreement with respect to
the Project; and
WHEREAS, the City Council has determined that in consideration of the improvement
phasing program described below, 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 Melrose Drive;
Waiver and Consent
16466-3/2008291.2 2 10/19/04
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 has previously petitioned 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, among others (hereinafter “Improvements”),
which are generally described as follows:
(a) El Fuerte from northerly terminus to the future extension of Faraday
Avenue (“El Fuerte”);
(b)
(c)
Faraday Ave. from Orion St. to Melrose Dr. (“Faraday Avenue”);
Melrose Dr. from Palomar Airport Rd. to the Vista City limits (“Melrose
Drive”) ;
(d) Palomar Airport Road Widening from West of Melrose Drive Intersection
to the Vista City Limits;
(e) Melrose Drive construction of right turn lane south of Palomar Airport
Road.
2. The cost of construction, engineering, environmental mitigation, legal and other
incidental expenses of the Improvements will be funded by the District if and when formed.
3. Property Owner acknowledges its rights to notice of and participation in all
phases of formation under the “Mello-Roos Community Facilities Act of 1982,” and hereby
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
Waiver and Consent
16466-3/2008291.2 3 1 Oil 9/04
of the Improvements under applicable California statutes and consents to and supports formation
of said District with respect to the Project.
4.
(a) Property Owner agrees to pay to City, or provide its fair share of the costs
of the Melrose Drive improvements (“Fair Share”) as set forth below.
(b) Property Owner’s payment of its Fair Share, initially estimated to be in the
amount of $2,066,223, shall be secured by the posting of cash or a letter of credit, in a form and
from a financial institution acceptable to the City Finance Director, prior to the earlier of (i)
transfer of a fee simple interest in all or any portion of the Property or (ii) issuance of a building
permit for the first commercial structure to be constructed within the Project. If any portion of
the Project is transferred without the posting of the required security, both the succeeding
property owner and Property Owner shall be jointly and severally responsible for providing the
required security.
(c) The Property Owner’s Fair Share will be conclusively determined by the
City Council in the manner described in Exhibit “B” attached hereto and incorporated herein by
reference based upon (i) the actual costs of Melrose Drive or such other alternative
improvements found by the City Council to be functionally equivalent to Melrose Drive
(“Functionally Equivalent Improvements”), if the District is not formed, or (ii) according to the
methodology used to establish the spread of special taxes of the District, if the District is formed.
Any funds paid to the City shall be held in an interest-bearing account and
disbursed only for use in the construction of Melrose Drive or the Functionally Equivalent
Improvements.
(d)
Waiver and Consent
16466-3/2008291.2 4 10/19/04
(e) Alternatively, if the District is formed
Property Owner’s obligation to pay its Fair Share pursuant
and the Project is included within it,
to this Agreement shall be satisfied
upon formation of the District through the issuance of bonds and levy of special taxes of the
District. In addition, within a reasonable time after formation of the District all funds held by the
City provided by the Property Owner pursuant to this Agreement that have not been previously
expended for Faraday Avenue or Functionally Equivalent Improvements will be returned to the
Property Owner or any letter of credit provided on behalf of the Property Owner pursuant to this
Agreement will be released. For purposes of this Section 4(e), “formation of the District” shall
mean (i) the District has been established and authorized to finance the Melrose Drive
improvements, among others, (ii) the qualified electors of the District have authorized the special
taxes and bonded indebtedness of the District and (iii) the limitations period has expired for
challenging such election.
(0 Property owner agrees to construct Faraday Avenue and El Fuerte in
accordance with its conditions of approval and the applicable Subdivision Improvement(s)
Agreements for CT 97- 13.
5. Property Owner acknowledges that this Agreement to pay its Fair Share and
participate in the financing of the Melrose Drive 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 Faraday Avenue improvements.
6. Property Owner hereby waives its right to challenge the amount, establishment or
imposition of said Fair Share and further waives any rights to pay said Fair Share under protest.
Waiver and Consent
16466-3/2008291.2 5 I O/ 1 9/04
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 the Property by the applicable Tentative Tract Map CT 97-13 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 ay successor or related
statutes.
9.
(a) In the event no District is formed, funds on deposit will be utilized only as
a fair share of costs to otherwise complete Melrose Drive or Functionally Equivalent
Improvements.
(b) If the actual Fair Share obligation is lower than the amount previously
deposited or provided by Property Owner to City, City shall refund any excess, in the manner
described in this Section 9 and in Section 10 below.
(c) Any refund shall be made from funds available within District upon
District formation or the completion of construction of Melrose Drive or the Functionally
Equivalent Improvements and shall not be an obligation of City’s General fund or other revenue
sources.
Waiver and Consent
16466-3/2008291.2 6 10/19/04
17428’
(d) No reimbursement is required unless and until the City Council determines
that sufficient funds are available to complete construction of Melrose Drive or the Functionally
Equivalent Improvements.
10.
(a) Upon completion of Melrose Drive or the Functionally Equivalent
Improvements, and recording of the Notice of Completion for the final phase of the construction,
the City Engineer shall determine the total cost of all construction and all related work (“Costs”),
and the Finance Director shall determine the total amount of revenue including fees, taxes,
interest earned on funds received by the City dedicated to paying for such construction
(“Revenues”). The Finance Director shall then compare the amount of Costs and Revenues to
determine if there are any excess Revenues in an amount and in the manner described below. If
excess Revenues are equal to, or less than $10,000, the City shall retain these funds in a special
fund to be used to finance street repair, maintenance, and landscaping of the Improvements.
(b) The total amount of excess Revenue shall be determined by deducting the
amount of the 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 Melrose Drive or the Functionally Equivalent Improvements including any fee
revenues earmarked on restricted funds as determined by the Finance Director.
(c) The amount of the refund due to Property Owner shall be based on its
proportionate share of the Costs and Revenues as determined in accordance with Exhibit B.
Waiver and Consent
16466-3/2008291.2 7 10/19/04
(d) 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 construction. 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 funds to the City
pursuant to this Agreement. 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 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.
(e) The Finance Director shall compute the amount of the refund due the
Property Owner as described above. Funds may be reimbursed to the Property Owner following
City Council approval of such reimbursement.
11. Compliance with this Agreement will be accepted by City as the financial
guarantee for Melrose Drive required by the Tentative Map Condition.
12. 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.
Waiver and Consent
16466-3/2008291.2 8 1011 9/04
13. Compliance with the provisions of this Agreement is a condition of all hture
discretionary approval 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, and the Local Facilities Management Plan, all subsequent discretionary
approvals and permits for the Project may be withheld by the 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 the 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 by the 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 Property only and City, and shall run with the Property and create an equitable
servitude upon the Property.
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
Waiver and Consent
16466-3/2008291.2 9 1 Oil 9/04
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 and/or City shall be addressed
as follows:
Notices to the City shall be delivered to the:
Finance Director
City of Carlsbad
163 5 Faraday Avenue
Carlsbad, CA 92008
Notices to Property Owner shall be delivered to:
Carlsbad Oaks North Partners, L.P.
Attn: Ted Tchang
Mailing: P.O. Box 80036
Street: 3575 Kenyon Street
San Diego, CA 92138
San Diego, CA 921 10
Each party shall notify the other of any change that would requiem any notice delivered
hereunder to be directed to another party.
19. This Agreement shall be recorded but shall not create a lien or security interest in
the Project.
Waiver and Consent
16466-3/2008291.2
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Waiver and Consent
16466-3/200829 1.2 11 10/19/04
17433‘
20. The undersigned Property Owner further states, under penalty of perjury, that he
is owner of the property as described in Exhibit “A”, or an authorized agent of the Property
Owner, and has the authority to execute this document, including the biding authorization herein.
Executed thislzhday of November ,2004.
CARLSBAD OAKS NORTH PARTNERS
L.P., a California limited partnership
By: SUN TECH INVESTMENTS COW.,
a California corporation,
Title: President
By:
Name:
Title:
CITY OF CARLSBAD, a municipal
corporation of the Seof California
ATTEST:
APPROVED AS TO FORM:
Name:
Title:
Waiver and Consent
16466-3/2008291.2 12 10/19104
17434
THE STATE OF ~alifornia. 1 1
COUNTY OF Sari Diego 1
On NnvPdr 19 , 2004, before me, a F- F,,hn,,k (name of
Notary Public), a Notary Public in and for said State, duly commissioned and sworn, personally
appeared Paul K. Tchang , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity(ies), and that by
his signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
My commission expires:
COMM. # 1394222
(NOTARIAL SEAL)
THE STATE OF
1
COUNTY OF )
On , 2004, before me, (name of
Notary Public), a Notary Public in and for said State, duly commissioned and sworn, personally
appeared , personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity(ies), and that by
his signatme(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public in and for State of
My commission expires:
(NOTARIAL SEAL)
Waiver and Consent
16466-3/2008291.2 13 1 011 9/04
EXHIBIT "A"
DESCRIPTION OF PROPERTY
LEGAL DESCRIPTION
Real property in the City of Carlsbad, County of San Diego, State of California, described as
follows:
Carlsbad Tract No. 97-13, Carlsbad Oaks North being a Subdivision of That portion of Lot
"B" of Rancho Agua Hedionda, in the City of Carlsbad, County of San Diego, State of California,
according to Map thereof No. 823, filed in the office of the County recorder of San Diego County,
November 16, 1896.
Waiver and Consent
16466-3/2008291.2 14 10/19/04
EXHIBIT “B”
METHODOLOGY OF COST ALLOCATION
17436
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a c
Waiver and Consent
16466-3/2008291.2 15 10/19/04