HomeMy WebLinkAbout1994-03-01; City Council; Resolution 94-65a-, I1 0 0
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RESOLUTION NO. 4 4 - 6 5
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE FORM OF A
PREPAYMENT AGREEMENT BETWEEN THE CITY OF
CARLSBAD AND CENTEX REAL ESTATE CORPORATION
WHEREAS, the City of Carlsbad City Council has required that the funding of
Rancho Santa Fe Road and Olivenhain Road (Project) must be guaranteed before any
development takes place in the area bounded by Local Facilities Management Zones 11
and 12, and portions of Zone 6, and
WHEREAS, the Council had directed City staff to proceed with the formation of
a Community Facilities District (CFD No. 2) to finance the Project, and
WHEREAS, although the Council anticipates that CFD No. 2 will be formed in the
near future, the Council is willing to consider alternative financing proposals during the
period from the present to the formation date of CFD No. 2, and
WHEREAS, such interim financing program will only be considered as long as the
Council finds that the formation of CFD No. 2 is proceeding in a reasonable manner, and
WHEREAS, the Council finds that the formation of CFD No. 2 is proceeding in
a reasonable manner, and
WHEREAS, the Council finds that the guarantee provisions related to the Project
may be met through an interim financing program using an agreement between certain
property owners and the City whereby the property owner agrees to prepay his/her fair
share of costs associated with the Project, and
WHEREAS, Centex Real Estate Corporation (Centex) intends to build a 111-unit
development in Local Facilities Management Zone 11, known as Tierra Santa Fe CT 90-4,
and
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- /I 0 0 ll WHEREAS, the City Engineer has determined that, due to the size of the Centex
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development, there will be no major impact on the circulation system at the present time
if the Centex development is allowed to proceed, and
WHEREAS, the Council finds that Centex may enter into the attached Agreement
to Pay Fair Share (Exhibit A) in satisfaction of their obligation under the Project
financing conditions.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the form of the PETITION, WAIVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY
FAIR SHARE, Exhibit A attached here to, is hereby approved.
3. That the Mayor is hereby authorized to enter into the agreement shown
in Exhibit A with Centex.
4. The amount that is immediately due and payable to the City by Centex
shall be equal to $1,137,750 (111 units @ $10,250 per unit), with additional payments
to be made to the City as described in the attached agreement.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council on
the 1st day of MARCH , 1994, by the following vote, to wit:
AYES: Council Members Lewis, Stanton, Kulchin, Nygaard, Finnila
NOES: None
ABSENT: None
ATi'EST:
M%UTENKRANZ, @- City Clerk
(SEAL)
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.* RECORDING REQUESTED BY AND 1
WHEN RECORDED MAIL TO: 1
City Clerk 1
CITY OF WSBAD 1
1200 Carlsbad Village Drive 1
Carlsbad, CA 92008 1
SPACE ABOVE THIS LINE FOR RECORDER'S USE.
Parcel No.
PETITION, WATVER AND CONSENT TO CREATION
OF A COMMUNITY FACILITIES DISTRICT
AND AGREEMENT TO PAY FAIR SHARE
WHEREAS, the undersigned Property Owner at this time is processing f
development within the City of Carlsbad (hereinafter referred to as "City") a developme
project known and identified as Tentative Tract Map CT 90-4 (hereinafter referred to
the "Project"); and
WHEREAS, City has determined this Project to be located within the boundari
of a proposed Community Facilities District known as Community Facilities District N
2 - Rancho Santa Fe and Olivenhain Road (hereinafter referred to as "District"); and
WHEREAS, District is intended to be formed to finance those improvemen
generally described in Section 1 herein; and
WHEREAS, Property Owner desires to proceed with processing prior to tl
formation of District; and
WHEREAS, the Local Facilities Management Plans for Zones 11 and 12 require ti
guarantee of construction of the segments of Rancho Santa Fe and Olivenhain Roac
described in Section 1 herein prior to the recordation of any final maps or the issuanc
of building permits within the zones; and
WHEREAS, condition numbers 56, 57 and 63 of Tentative Tract Map CT 90
require that the Property Owner provide for the construction of certain pub1
tierra-santa-fe. 2/18/94
V' e 0 .' improvements including sections of Rancho Santa Fe Road; and .
WHEREAS, compliance with the applicable Local Facilities Management Plans f
Zones 11 and 12 and tentative map conditions is a condition of approval for the fir
map for the Project; and
WHEREAS, the City and Property Owner desire to agree to an alternate meth
of financing the' improvements described in Section 1 herein that will allow Propel
Owner to discharge its fair share obligation for said improvements in lieu of participatic
in District; and
WHEREAS, the City Council agrees that Property Owner, upon entering into tl
agreement and upon payment of the fair share described herein, has met the requireme
set forth in the Local Facilities Management Plan for Local Facilities Zones 11 and 12, a
related tentative map condition numbers 56, 57 and 63 for Carlsbad Tract Map CT 90,
to provide a financial guarantee for the construction of those improvements described
Section 1 below; and
WHEREAS, upon entering into this agreement and upon payment of the fair sha
described herein, the City finds that property owner has provided adequate security f
the construction of Rancho Santa Fe Road, south of Olivenhain Road, and that bon
posted to secure such improvements shall be released by the City Engineer; and
WHEREAS, Property Owner voluntarily enters into this agreement; and
WHEREAS, the City Council has determined that due to the size of the propos
development, there will be no major impact on the circulation system at the present ti1
if development of the Project is allowed to proceed with sufficient financial guarante
for future construction of Property Owner's fair share of the circulation improvement
NOW, THEREFORE, in consideration of proceeding with the processing of Proje
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" 0 0 .. the undersigned Property Owner hereby agrees and certifies to the following:
1. Property Owner hereby petitions the City for the initiation of proceedinl
for the formation of District which will cause the construction and installation and/(
financing of the following improvements which are more specifically described in Exhit
"B" attached hereto. These improvements are generally described as, follows:
a) Rancho Santa Fe Road North Phase 1 (RSF No. 1) La Costa Avenl
to east of Mahr Reservoir
b) Olivenhain Road Widenina, and intersection improvements
Olivenhain and El Camino Real
c) Rancho Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End
Melrose Drive
d) Rancho Santa Fe Road South (RSF So.) (Assumes Secondary Arter
- Encinitas City Boundarv to Olivenhain Road Full Improvements).
2. The cost of construction, engineering, legal and other incidental expen:
will be funded by the District.
3. Property Owner acknowledges its right to notice of and participation in
phases of formation under the "Mello-Roos Community Facilities Act of 1982," expres
waives the proceedings required and all limitations contained in Title 5, Division
Chapter 2.5 of the California Government Code and nonetheless with full knowledge
such rights, completely and forever waives such rights. Specifically, Property Ow
hereby consents to the proceedings and waives any right to protest the formation of 1
District and the ordering of the improvements under applicable California statutes 2
consents to and supports formation of said District. The City shall exclude Prope
Owner from the District boundary map if, prior to the adoption of a Resolution
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1. Intention by the City Council to form said District, Property Owner has entered into tl
agreement and has paid to the City all amounts due as described herein.
4. a) Property Owner agrees to pay to City its fair share for the improve me^
described in paragraph one (1).
b) Said payment shall be made in the manner described in Exhibit "A" RI
and Method for Determining Fair Share Obligcztion Rarzcho Smra Fe and Olivenhain Rod
which is incorporated herein by reference.
c) The amount of Property Owner's fair share will be conclusive
determined by the City Council in the manner described in Exhibit "A" attached heret
d) Payment by Property Owner of its fair share of improvement costs
determined by City Council and set forth herein will satisfy its obligations for t:
construction of the improvements described in paragraph one (I), as required by tl
Local Facilities Management Plan for Zones 11 and 12 and Tentative Map CT 90-
condition numbers 56, 57 and 63, as these conditions apply to CT 90-4, subject
adjustment as described in Paragraph 9.
e) Alternatively, if the District is formed and Project is included within i
Property Owner's obligations to pay its fair share pursuant to the agreement shall E
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 a1
participate in the financing of improvements is voluntary and that without this agreemel
Property Owner would be precluded from obtaining final map approvals or building ar
other development permits under the provisions of the General Plan, Chapter 21.90 of tk
Carlsbad Municipal Code, applicable zone plan, financing plans and related documen
until a satisfactory financing program had been developed to fund the construction of tk
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e improvements described in Section 1.
e
6. Property Owner hereby waives his right to challenge the amoun
establishment or imposition of said fair share and further waives any rights to pay sa
fair share under protest.
7. This agreement does not affect, in any way whatsoever, the obligation
Property Owner to pay any other fees or assessments associated with Property Ownel
development. Nor does this agreement relieve Property Owner from providing 0th
public facilities required under conditions of the Local Facilities Management Plan f
Zones 11 and 12 or placed upon tentative map CT 90-4 by the City.
8. Property Owner agrees that payment of its fair share is not a fee and waiv
any and all rights to notice of or challenges to the establishment or imposition of said f;
share as a fee under provisions of Government Code sections 66000 et sea., or a:
successor or related statutes.
9. a) If the District is formed subsequent to the payment by Property Owner
the fair share pursuant to this agreement, Property Owner's financial obligation shall
recalculated using the taxing formula established for the District. If that obligation
different from the amount previously paid by Property Owner to City, City shall refu
any excess, or Property Owner will pay to City any additional amount due (Shortfall
b) Any refund shall be made from funds available within District upon Distr
formation and shall not be an obligation of City's General Fund or other revenue sourc
c) in the event that insufficient funds are available from District's resourc
Property Owners shall be reimbursed in the order in which funds were deposited w
City as soon as sufficient funds become available, as determined by the City Coun
through the payment of one-time taxes or annual undeveloped land taxes to the Distr
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I x 0 0 .. The City is not required to establish an undeveloped land tax within the District
provide such refund.
d) No reimbursement is required until the City Council determines th
sufficient funds are available. Any refund to Property Owner shall not include interes
e) If a shortfall exists, Property Owner shall be notified of the amount of su
Shortfall by the Finance Director via certified mail. The amount of said Shortfall sh
be due and payable to City 30 days after the mailing of such notice.
f) The computation of the amount of any Shortfall shall not include inter1
charges.
g) If no payment of the Shortfall is made by Property Owner within ninl
(90) days of notice of said Shortfall by the Finance Director, City may deny the isma
of building permits and/or take any other action allowed by law to deny furtl
development of property subject to this agreement and to collect such Shortfall includi
but not limited to, a lien on the property. City's recordation of a lien shall not affect
ability to recover the Shortfall by other legal means concurrently, but no double recov
will be allowed. The cost of such collection shall be an obligation of Property Owner i
shall be added to the amount of the Shortfall payment due City.
h) Any payment received by the City under this agreement shall be depos
in a special fund and may only be used to fund the construction of the facilities descri
herein. Upon the formation of a CFD to fund these same facilities any amount remair
in the special fund may be transferred to the CFD Fund, at the discretion of the Fine
Director.
10. If the District has not been formed for any reason by January 1, 1999,
amount paid by Property Owner under this agreement shall represent Property OW
tierra-santa-fe. 2/16/94
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0 0 .. fair share cost for provision of those facilities described in paragraph one (1) and
further payment will be due from or reimbursement due to Property Owner.
11. a) Compliance with this agreement will be accepted by City as an altern;
to the method described in the current Local Facilities Management Plan for Zones 11 a
12 for financing the improvements described in paragraph one (1). This agreement dc
not require City to issue building permits or other development permits or grant approv
or relieve Property Owner of the obligation to comply with all applicable provisions
law, including but not limited to, Carlsbad Municipal Code Titles 18, 19, 20 and 21.
b) Upon compliance with this agreement, the City shall release bonds i
agreements posted in conjunction with CT 90-4 to secure construction of Rancho Sa.
Fe Road, south of Olivenhain Road. Said bonds being further descibed as follol
Agreement 75-02, Labor and Materials Bond 11 141308780, and Faithful Performa!
Bond 11141308780.
12. Compliance with the provisions of this agreement is a condition of all fut
discretionary approvals for the Project. If Property Owner does not comply with
provisions of this agreement, approval of the Project will not be consistent with
General Plan, the Growth Management Program, the Local Facilities Management P
or the applicable financing plan for Zones 11 and 12 and all subsequent discretion
approvals and permits for the Project shall be withheld by City.
13. In addition, the City will not approve any pending final maps, issue grad:
building or other development permits or take any discretionary action until the Propc
Owner has complied with the terms of this agreement due to be satisfied at the time s
approval is requested.
14. The City may, at its discretion, elect to pursue any remedy, lega:
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.I equitable against Property Owner and Property Owner's successors, heirs, assigns, a~
transferees, with the exception of owners of individual lots for which building perm
have been issued, to secure compliance with this agreement.
15. City shall not, nor shall any officer or employee of City, be liable
responsible for any loss or damage incurred by Property Owner or any. successor or assi
of Property Owner, or by any occupant in Property Owner's buildings, as a result of t
exercise of any remedies provided to City in this agreement. Property Owner agrees
indemnify City for any liabilities incurred by City as a result of City's exercise of thc
remedies.
16. This agreement and the covenants contained herein shall be binding upon a
inure to the benefit of the successors, heirs, assigns and transferees of Property OWI
and City and shall run with the real property and create an equitable servitude upon 1
real property.
17. All notices provided for under this agreement shall be in writing and shall
delivered in person or served by certified mail postage prepaid. Delivery of notice
Property Owner shall be presumed to have been made on the date of mailing regardl
of receipt by Property Owner. Notices required to be given to Property Owner shall
addressed as follows:
Centex Real Estate Corporation
5962 La Place Court
Suite 250
Carlsbad, CA 92008
Notices to the City shall be delivered to the Finance Director, City of Carlsk
1200 Carlsbad Village Drive, Carlsbad, CA 92008.
Each party shall notify the other immediately of any change that would req
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a 0 any notice delivered hereunder to be directed to another party.
18. This agreement shall be recorded but shall not create a lien or security intere
in the property.
19. The undersigned further states, under penalty of perjury, that he is the om
of the property as described herein, or an authorized agent of the owner, and has t
authority to execute this document, including the binding authorizations herein,
Executed this $% day of CCA,!.,::~ ,+A,
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tierra-santa-fe. 2/18/94
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0 0
.+ PROPERTY OWNER CtTY OF CARLSBAD, a municipal
CENTEX REAL ESTATE, a Nevada Corporation co f the State of ,
(Name of Property Owner)
!
By: - I >&;-:\,. r !(&,L-
(sign her&
1 ! 2,. ,I :,[,, \ J,,L &I-,-
(print name here)
C j !'/( f/ch/ j /,e.$ >, ;J :; ,&, r
(print name here)
a~~od t)iu &a;ocwT
(title and organization of signatory)
(Notarial acknowledgment of execution by 'PROPERTY OWNER must be attached.)
(President or vice-president and secretary or assistant secretary must sign f
corporations. If only one officer signs, the corporation must attach a resolution certific
bind the corporation.)
APPROVED AS TO FORM:
?. by the secretary or assistant secretary under corporate seal empowering that officer
;;E
BY QL
Deputy city Attorney +/w
tierra-santa-fe. a18194
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,- PROPERTY OWNER CITY OF CARLSBAD, a municipal CENTEX KEAL ESTATE., a Nevada Corporation co f the State of .,
(Name of Property Owner)
-1 I
By: * * '! .-; ; ~ &,,". I .'*-L L I ,/" I,
(sign herd T
! *,.; ,!',:. Lj*,- La,",-
(print narne here)
I ' !'/I f/CW / ,. 5 >( j, ; ,c, ,
I Mrtw JZ,ue&iCIL
(print narne here)
TXJM~~J Uics Pgs;Otpl &
(title and organization of signatory)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
CAPACITY CLAIMED B\
ThoughEtaanrdcmnOtrspJnI
1111 In the dam Wlow. dolnp a0 '1 On d -2a-4q before me, CifldCG R. HCbQ
ck ahflick personally appeeredaOU5(- 3&5Cr 4- &L
Invarwb)olo~t~O".th
INDIVIDUAL
0 CORPORATE OFFICER DATE NAME. TITLE Of OFflCER * E.O.. 'JANE DOE. NOT= PUBLUY
WME(S) OF SG?lEp(S) 1 Tmacs)
qersonally known to me - OR - proved to me on the basis of satisfactory evidence a GEN to be the person(s) whose name(s) islare
a PARTNER(S) uMr
[7 AnoRNk?-IN-FACT subscrlbed to the within instrument and ac- rd . knowledged to me that he/she/they executed . 0 TRUSTEE(S1 1 the same in his/her/their authorized
capacity(ies), and that by his/her/their LINDA M. McCAIN signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
NOTARY WBLIC;CAUFORN!A
c] GUARDIANICONSERVI 0 OTI-IER:
SIGNER IS REPRESEN
WIT SS my hand and official seal. N&E OF PEQSON(S) OR EEmTY(I.
"- &&rnrn[/& SIGNATURE OF WTAW "
OPTIONAL SECTION
THIS CERTIFICATE MUST BE ATTACHED TO TITLE OR TYPE Of DOCUMENT
THE DOCUMENT DESCRIBED AT RIGHT:
Though Ihe drtr requested horr h no( rqulred by law,
I! could prvent fraudulent rramchmr~ d th!r form SIGNEW) OTHER THAN NAMED ABOVE
- NUMBER OF PAGES DATE OF DOCUMENT
Or992 NATIONAL NOTARY ASSOCIATION 8238 Remmet Ave., P.O. Box 7184 Caws p --. I.""_ .
c 0 0 EXHIBIT
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 sha
obligation for funding the construction of Rancho Santa Fe and Olivenhain Road due frc
property conditioned to participate in the financing of these facilities. This calculatil
is done as part of an agreement titled PETITION, WAIVER AND CONSENT TO CREATIC
OF A COMMUNITY FACILITIES DISTRICT AND AGREEMENT TO PAY FAIR SHAl
(Agreement) which has been voluntarily entered into by the City of Carlsbad and cert:
property owners wishing to proceed with the development of their property in advar
of the creation of Community Facilities District No. 2 (CFD No. 2). It is the City a
property owners intent to form CFD No. 2 to provide funding for those improve me^
described within the above referenced agreement.
The following rate and method shall be used to determine the fair share and amount d
from any property owner wishing to take advantage of this alternate funding mechanis
Basis for Cost Allocation
The basis for allocation of costs to property conditioned with the financing of
improvements described in the Agreement shall be the Equivalent Dwelling Unit (EL
which is defined as follows for residential developments:
Residential EDU Allocation
Single Family - Detached Units 1.0 EDU
Single Family - Attached Units 0.8 EDU
Multi Family Units 0.6 EDU
The number of each type of unit included in a development shall be determined by
City Engineer based on the most recent final map submitted to the City for approv;
The EDU determination for non-residential development shall be made by the (
Engineer when such a determination is requested by the property owner. The (
Engineer may request additional information from any property owner as may
necessary to make his determination. The City Engineer is not required to mak
determination on the number of EDUs for any project until adequate informatio
available.
The City Engineer's determination shall be submitted to the City Council in the :
report accompanying the Agreement. The City Council shall make the final determina
of the number of EDUs to be used in computing the fair share obligation for any pro:
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m e Fair Share Amount arid Method of Payment
The City shall collect $13,290 for each EDU as determined by the City Council. TI
amount shall be collected in two 'separate payments, $10,250 per. EDU to be paid up
execution of the agreement to pay fair share prior to final map approval, and $3,040 I
EDU at the time a building permit is issued. The manner of payment is more fu
described below.
The property owner shall pay their fair share to the City of Carlsbad in the followj
manner::
1) Upon execution of the agreement to pay fair share prior to the approval of a fir
map by the City Council, the property owner shall pay to the City an amount eql
to the number of EDUs included in said final map, as determined by the C
Engineer, times $10,250. If the City Council determines that the City Enginee
calculation of the number of EDUs included on the final map is in error, t
Council shall direct the City Engineer to amend his calculations and direct staff
bring the final map back for approval when such correction has been made.
Computation of Fair Share Obligation
Tierra Santa Fe CT 90-4
- r
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Type of Unit Amount Due units cost per EDU per unit Covered by Unit
Agreement
Single Family - detached units
$1,137,750 111 TOTAL
-" "- 6,150 0.6 Multifamily Units
-" "- 8,200 0.8 Single Family - attached units
$1,137,750 111 $10,250 1 .o
2) Prior to the issuance of a building permit by the City the property owners shall pay to 1
City an amount equal to the number of EDUs included on such building pennit,
determined by the City Engineer, times $3,040.
3) a) If the property owner has already obtained a final map for units conditioned with i
financing of Rancho Santa Fe and Olivenhain Road, the property owner shall pay to 1
City the amount equal to $10,250 times the number of EDUs included on such final IT
as determined by the City Council prior to entering into this agreement
b) Prior to the issuance of a building permit by the City the property owners shall pay
the City an amount equal to the number of EDUs included on such building permit,
determined by the City Engineer, times $3,040.
4) The City Engineer shall prepare a report detailing the calculation of the number of ED
associated with this agreement. Said report shall be made available to the City Cour
and property owner for review.
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