HomeMy WebLinkAboutSDP 99-07; Rancho La Costa Village LLC; 2002-0096321; Petition & Waiver\ ?\ RECORDING REQUESTED BY AND
Jk WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOC # 2002-0096321
FEB 04s 2002 4:26 PM
FEES: 0.00
Space Above This Line for Recorder’s Use
Assessor Parcel No. 223-060-29-00
PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE COST
OF SDP 99-07 (”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 Site Development Plan SDP 99-07
(hereinafter referred to as the “Project”); and,
WHEREAS, the legal description for the Project is shown on Exhibit “A”
attached hereto and incorporated herein by reference; 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
- Rancho 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 No. 34 of Planning Commission Resolution No. 4809
requires 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 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 Site Development Plan 99-07 Condition No. 34 of Planning
Commission Resolution No. 4809 to provide a financial guarantee for the construction
of those improvements described in Section 1 below: and,
WHEREAS, Property Owner voluntarily enters into this Agreement with respect
to the Project: and,
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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) Rancho 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
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to
Melrose Drive.
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondarv
Arterial Standard - Encinitas Citv 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.
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,"
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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 consent to and support 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.
b) Said payment, or provision, shall be made in the manner described
in Exhibit "B", Rate and Method for Determining Fair Share Obligation Rancho Santa
Fe and Olivenhain Road, which is incorporated herein by reference.
c) The amount of Property Owner's fair share will be conclusively
determined by the City Council in the manner described in Exhibit "B" attached hereto
and incorporated herein by reference.
d) Payment by Property Owner of its fair share of improvement costs
as determined by City Council and set forth herein will satisfy their obligations for the
construction of the Improvements described in Section 1, as required by the Site
Development Plan 99-07 Condition No. 34 of Planning Commission Resolution No.
4809, subject to adjustment as described in Section 9 herein.
e) Alternatively, if the District is formed and the Project is included
within it, Property Owner's obligation to pay its fair share pursuant to the Agreement
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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 has been developed to
fund the construction of the Improvements described in Section 1.
6. Property Owner hereby waives its right to challenge the amount,
establishment or imposition of said fair share and further waive 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 andlor 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 Site Development Plan SDP 99-
07 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 gt
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
obligation shall be recalculated using the taxing formula established
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Owner's financial
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.
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 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
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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.
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 #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 B, 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
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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.
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.
1 1. 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 11 for financing the Improvements described in Paragraph
1. This Agreement does not require City to issue building permits or other
development permits or grant approvals or relieve Property Owner of the obligation to
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comply with all applicable provisions of law, including but not limited to Carlsbad
Municipal Code Titles 18, 19, 20 and 21.
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:
Rancho La Costa Village LLC
c/o Pacific La Costa Village, LLC
Richard S. Simis
15938 Bernard0 Center Dr.
San Diego, CA 92127
Notices to the City shall be delivered to:
Finance Director
City of Carlsbad
1635 Faraday Avenue
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 they are Owner of the property as described herein on Exhibit "A", or an
authorized agent of the Owner, and have the authority to execute this document,
including the binding authorizations herein.
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Executed this 27fi day of Ahugmb&& 2001
*OWNER:
RANCHO LA COSTA VILLAGE, LLC, a
California Limited Liabilitv Companv
By : Pacific La Costa Village, LLC, a
California Limited Liability Company as
managing member of Rancho La Costa
ATTEST:
(print name)
MANAGING MEMBER. PACIFIC LA COSTA VILLAGE LWAINEW. MOD #
(title and organization of signatory) City Clerk v
KAREN R. KUNDTZ, Assistant City Clerk
December 10, 2001
Approved as to form:
By :
(sign here)
City Attorney
(print name)
(title and organization of signatory)
EXHIBIT A
LEGAL DESCRIPTION
SDP 99-07
RANCHO LA COSTA VILLAGE
Parcel 2 of Parcel Map No.12586, in the City of Carlsbad, County of
San Diego, State of California, recorded on February 25, 1983 as
file/page No. 83-060578 of official records in the office of the County
Recorder of San Diego County.
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EXHIBIT B
RATE AND METHOD FOR DETERMINING
FAIR SHARE OBLIGATION
RANCHO 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 Rancho 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 Owner 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 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 owner wishing to take advantage of this alternate funding
mechanism.
Basis for Cost Allocation
The basis for allocation of costs to property conditioned with the financing of the
improvements described in the Agreement shall be the Equivalent Dwelling Unit
(EDU), which is defined per product classification as follows:
Product Classification
Single Family - Detached Units
Single Family - Attached Units
Multi-Family Units
Churches
Cornrnercial/lndustriaI and other
Equivalent Dwellinq Units
1 .O EDU
0.8 EDU
0.6 EDU
4.0 EDU per Acre
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 $1 0,250 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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Computation of Fair Share Obligation II
Rancho La Costa Village SDP 99-07
2) 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 net amount due shown above prior to entering into this
Agreement.
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e.. I_.
EXBIBIT 3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California ( 1
& personally known to me
evidence
to be the person(s) whose narne(s) islare
subscribed to the within instrument and
acknowledged to me that helshelthey executed
the same in hislherltheir 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.
roved to me on the basis of satisfactory
Place Notary Seal Above
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attac
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
0 Individual
Signer's Name:
C Corporate Officer - Title(s):
Z Partner - i! Limited 0 General
0 Trustee
U Attorney in Fact
Other: .& &> 0 Guardian or Conservator
Signer Is Representing: k* (/L/~P .
0 1997 Naflonal Notary A55oclat1on f 0350 De Solo Ave., PO. Box 2402. Chatsworth, CA 01313.2402 Prod. No. 5907 Reorder Call Toll~Free 1-800-876-6827