HomeMy WebLinkAboutCFD 02; CalPac Homes California Pacific Homes Inc; 2009-0437081; Pay Fair Share Refund Rancho Santa Fe Rd Agreementr/P
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DQCtf 2009-0437081
AUG 05, 2009 8:22 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 27.00
PAGES:
Space Above This Line for Recorder's Use
AGREEMENT BETWEEN CITY OF CARLSBAD
AND CALIFORNIA PACIFIC HOMES FOR
PARTIAL REFUND OF FEES PAID PURSUANT TO
AN AGREEMENT TO PAY FAIR SHARE
RELATED TO RANCHO SANTA FE ROAD - COMMUNITY
FACILITIES DISTRICT NO. 2
WHEREAS, the City of Carlsbad ("City") and California Pacific Homes
(hereinafter "Property Owner") previously entered into an Agreement to Pay Fair
Share (hereinafter "Fair Share Agreement") for the construction of certain public
improvements, including sections of Rancho Santa Fe Road; and
WHEREAS, the City by and through the City Council for the City of
Carlsbad intended to create a Community Facilities District, No. 2 (hereinafter
"CFD No. 2") to finance those project improvements when needed; and
WHEREAS, funds received from Property Owners before CFD No. 2 was
created were deposited into an account pursuant to the Fair Share Agreements
for project improvements; and
WHEREAS, CFD No. 2 District has not been formally created, as
intended; and
WHEREAS, until the CFD No. 2 District is formally created, the project is
called the Rancho Santa Fe Road ("RSF Rd") Project; and
WHEREAS, the Council has determined that there exist a surplus of RSF
Rd Project funds on deposit in part because the City secured federal funds for
6-15-09 Pagel
the project improvements which were not anticipated when the original funding
matrix was designed; and
WHEREAS, the City is not required to refund surplus project funds until
completion of all applicable improvements and the recordation of the Notice of
Completion for the final phase of improvements; and
WHEREAS, City Council believes it would be equitable to the Property
Owners who paid their fair share into the RSF Rd Project account to begin
releasing a portion of the surplus project funds prior to completing all applicable
improvements; and
WHEREAS, the City will maintain appropriate funds to ensure that all
estimated future project expenses and buffer for unanticipated expenses are
funded; and
WHEREAS, the City, from time to time, has amended the Equivalent
Dwelling Units (EDU) rate and method for determining fair share obligation; and
WHEREAS, Property Owner voluntarily enters into this agreement to
obtain a partial refund of fees (hereinafter "Refund Agreement") paid pursuant to
their/its Fair Share Agreement; and
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants contained herein, City and Property Owner agree as follows:
1. The above recitals are incorporated by this reference as though fully set
forth herein.
2. On or about February 21st, 1997 the Property Owner entered into a Fair
Share Agreement (Doc. # 1997-0174966), which may have been amended from
time to time, as part of its development project known/identified as Tentative
Tract Map CT 85-9 for purposes of satisfying their obligations for the construction
of public improvements, as described in said Fair Share Agreement.
3. The City is not required to refund surplus project funds until completion of
the applicable public improvements and the recordation of the Notice of
Completion for the final phase of improvements. Notwithstanding, the City
Engineer and City Finance Director have determined the total cost required to
complete the outstanding public improvements and has determined that excess
revenues exist within the RSF Rd Project account. As a result, the City has
decided to refund a portion of the excess revenues to Property Owner based on
the formula set forth below and subject to City Council approval.
4. The current EDU fee contribution is $10,250 per EDU. The new EDU fee
contribution is $7,400 per EDU. City shall refund $2,850 per EDU, to the Property
6-15-09 Page 2
Owner (hereinafter "Refund") which represents the difference between the initial
EDU rate of $10,250 per EDU and the new EDU rate of $7,400 per EDU.
5. City will pay Property Owner $290,700 (hereinafter "Refund Due") within
thirty days of the date this Refund Agreement is signed by the City of Carlsbad.
The amount of the Refund Due has been determined by multiplying the
proportional share ("Proportional Share") by the total amount of excess revenues
("Excess Revenues"). Proportional Share was determined as of June 30, 2008
based on what each Property Owner contributed in prepayment fees divided by
the total amount of prepayment fees contributed. Excess Revenues as of June
30, 2008 are Available Revenues less the sum of project costs plus estimated
future project expenses plus a buffer (calculated at 100% of the estimated
remaining expenses) for unanticipated future expenses. Available Revenues
include all monies held by the City dedicated exclusively to the construction of
the Improvements as defined in the Property Owner's Fair Share Agreement.
6. Upon completion of the project improvements and the recording of the
applicable Notice of Completion for the final phase of the improvements, an
accounting will be completed and the Finance Director will determine if any
excess revenues remain and will disperse excess revenues in accordance to the
Property Owner's Fair Share Agreement, and taking into account any Refund
Due amounts that Property Owner may have accepted before the recordation of
the Notice of Completion.
7. Property Owner agrees to the methodology used in Paragraph 5 above for
determining the Refund Due to Property Owner.
8. Property Owner acknowledges and affirms that the City is not obligated to
refund surplus project funds, if any, until completion of all applicable
improvements and the recordation of the Notice of Completion for the final phase
of improvements.
9. Property Owner hereby waives its right, if any, to challenge the Refund
Due amount and further waives its right, if any, to accept the Refund Due amount
under protest.
10. Property Owner agrees to indemnify and hold harmless the City and its
officers, officials, employees and volunteers from and against all claims,
damages, losses and expenses including attorneys fees arising out of the partial
refund payment to Property Owner or enforcing any term and/or condition of this
Agreement that is caused by any negligence, recklessness, or willful misconduct
of the Property Owner, employees, agents or anyone directly or indirectly
representing Property Owner for whose acts any of them may be liable. For
purposes of this paragraph, claims includes any third party claim made or
asserted by said third party that the partial refund should have been made to the
third party and not to Property Owner or Property Owner's agent.
6-15-09 PageS
11. All other provisions of the undersigned Property Owner's Fair Share
Agreement, as may have been amended from time to time, will remain in full
force and effect.
12. The individuals executing this Agreement and the instruments referenced
in it on behalf of Property Owner each represent and warrant that they have the
legal power, right and actual authority to bind Property Owner to the terms and
conditions of this Agreement.
(Remainder of Page Intentionally Left Blank)
6-15-09 Page 4
PROPERTY OWNER
jrmerly
sign here)
Daniel C. Hedigan, Executive Vice President
(print name/title)
CITY OF
municipal cor
of California
By:
CARLSBAD, a
oration oHhe.Staie
(e-mail address)
"By'i^u/L-..
• (signmere)
LORRAINE
City Clerk
Brigid D. AteMhea, Secretary
(print name/title)
(e-mail address)
If required by City, proper notary acknowledgment of execution by contractor
must be attached. If a Corporation. Agreement must be signed by one corporate
officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
*Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering the officer(s) signing to
bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Bv:
, AssistanfCity Attorney
6-15-09 PageS
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On before me,_, Notary Public,_
persona appeared DANIEL C. HEDIGAN, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his authorized capacity, and that by
his signature on the instrument the person, or the entity upon behalf of which the person
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS
Signatun
d official seal.
CRISTINA S. CALOERONE
Commission # 1749791
Notary Public - California
Orange County
MyComm. Expires Jun 19,2011
\
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
On before me,
(Seal)
Notary Public,
personally appeared BRIGID D. McMAHON, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that she executed the same in her authorized capacity, and that
by her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seat?
Signature
^ "jONI fiftOSSMAN "
CommlMlon* 1736093
Notary Public • California
Orang* County
MrComm.apimA|y30.2011
1
(Seal)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of.
Date
before me,
personally appeared
ru,
0
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Here Insert Name anCTitle df the Office
Name(s) of Signer(s)
\SHtSRYA. FREISINGM
Commission # 1727064
Notary Public - California |
Son Olego County 1
MyComm.Bd»»Nb2&20l1 I
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
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capacity(ieg), and that by his/h6r/t|?feir signature^ on the
instrument the person(s)r, or the entity upon behalf of
which the person(?) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my
Signature
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