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HomeMy WebLinkAboutCFD 02; LB/LAKESIDE CAPITAL PARTNERS LLC; 2010-0170281; Pay Fair Share Refund Rancho Santa Fe Rd Agreement10803 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOC# 2010-0170281 APR 06, 2010 3:26 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 36.00 PAGES: 10 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND THE SUCCESSORS IN INTEREST OF LB/L-CONCORDIA CARLSBAD-28, LLC, A DISSOLVED DELAWARE LIMITED LIABILITY COMPANY 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 LB/L-Concordia Carlsbad-28, LLC, a Delaware Limited Liability Company 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, LB/L-Concordia Carlsbad-28,LLC has dissolved and distributed its assets to successors-in-interest; and WHEREAS, LB/L-Concordia Carlsbad-28,LLC successor-in-interest is LB/L Concordia Master, LLC; and WHEREAS, LB/L Concordia Master, LLC was a Delaware Limited Liability Company that owned a One-Hundred Percent (100%) interest in LB/L Concordia Carlsbad-28,LLC; and WHEREAS, LB/L Concordia Master, LLC has dissolved and distributed its assets to successors-in-interest; and 6-15-09 Pagel 10804 WHEREAS, LB/L Concordia Master, LLC successors-in-interest are LB/Lakeside Capital Partners, LLC, a Delaware Limited Liability Company, and Concordia Communities, LLC, a Delaware Limited Liability Company; and WHEREAS, LB/Lakeside Capital Partners, LLC owns a Fifty Percent (50%) interest in the subject property and Concordia Communities, LLC owns a Fifty Percent interest in the subject property, collectively they own the entire subject property (collectively referred to as "Property Owner") that is the subject matter of the above-referenced Fair Share Agreement; 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 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 6-15-09 Page 2 10805 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 March 21st, 2000 the Property Owner entered into a Fair Share Agreement (Doc. # 2000-0201033), which may have been amended from time to time, as part of its development project known/identified as Carlsbad Tract Map 98-02 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 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 $79,800 (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. 5.a. On or about January 28th, 2005 LB/L-Concordia Carlsbad-28, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of Delaware (Doc # 040945400). On or about January 15 , 2009 6-15-09 Page 3 10806 LB/L-Concordia Master, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of Delaware (Doc # 081205616). According to the LB/L-Concordia Carlsbad-28, LLC Amended and Restated Operating Agreement (dated on or about September 29th, 1999), LB/L- Concordia Carlsbad-28, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest LB/L-Concordia Carlsbad-28, LLC: LB/L-Concordia Master, LLC 100% 100% According to the LB/L-Concordia Master, LLC Limited Liability Company Dissolution Agreement (dated on or about December 22nd, 2008), LB/L- Concordia Master, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest LB/L-Concordia Master, LLC: LB LI?"*' 50% Concordia Communities, LLC 50% 100% Accordingly, City will disburse Property Owner Refund Due based on member percentage interests as follows: Member's Name Refund Due LB/Lakeside Capital Partners, LLC $39,900.00 Concordia Communities. LLC $39.900.00 Total Property Owner Refund Due $79,800.00 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 6-15-09 Page 4 10807 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. 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 5 1080& PROPERTY OWNER *By: LB/Lakeside Ca^Hal Partners, (Marsha Jennings^Authorized Signatory) mjennings@lakesidecapital.com CITY OF CARLSBAD, a municipal corporation of the State of California *By: LB/Lake4ide Capful PartnersHJ_C3 (Marsha Jennings, Authorized Signatory) mjennings@lakesidecapital.com By:. LISA HILDABRAND City Manager ATTEST: (email address) / ' LORRA Clerk "By: Concordia Communities, LLC (O. Randolph Hall, President) randyhall@vzw.blackberry.net (email address) Concordia Communities, LLC (Don Underwood, CFO) don@concordiahomes.cc (email address) Proper notary acknowledgment of execution by each Property Owner or Successor-in-lnterest to Property Owner must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *Group A. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President 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: RONA AssistanfCity Attorney 6-15-09 Page 6 10809 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of tSftM t)\G£lO On f£h. q, 10 ID before me, ''Date personally appeared ShldUy Here Insert Name and Title of »he Officer >Uto\ 1C. Name(s) of Signer(s) HEATHER NICOLE STUOERJ COMM.# 1781099 ,n NOTARY PUBUC-CAUFORNIA J"SAN DIEGO COUNTY MyCom.EXf.NOT.1j.20Hy Place Notary Seal Above who 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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 seal. SignatiiriHjlftMll Ai \Ltiljb (Signature of Notary Public OPTIONAL 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: Document Date:Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER I Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402• www.NationalNotary.org Item #5907 Reorder:CallToll-Free 1 -800-876-6827 10810 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of OGf\ before me, 'Date personally appeared Q. RflJfV\M.p]r\ ftfl.\\ Here InserTNante and Title of the Officer Name(s) of Signer(s) HEATHER NICOLE STUDERCOHU.I 1781099NOTARY PUBLIC-CAllFOmUSAN OIEOO COUNTY ~MY com. Ew. Nov. II, 2011 f who 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 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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 seal. Place Notary Seal Above Signature OPTIONAL - Jk/t/MO nature of Notary Public 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: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1-800-876-6827 10811 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On Date * personally appeared O before me,Y. Here InsertName and Title of the Officer Name(s) of SigSerti) umnnnfljuuuuuuin/wwvwwwvwB"**ft^ANDRAYSARTINI 1 COMM. #1773271 3 NOTARY PUBLIC* CALIFORNIA § LOS ANGELES COUNTY who proved to me on the basis of satisfactory evidence to be the person($. whose name(^£js?sJfe subscribed to the within instrument and acknowledged to me that rX^sfieJJj^y executed the same in frCgTferffifeir authorized capacity(i)&), and that by r^tfRer^yfir signature^ on the instrument the person(j4, orTfie entity upon behalf of which the person($Lacted, 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. Place Notary Seal Above Signature of Notary Public OPTIONAL 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: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: \RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. ©2007 National Notary Association- 9350 De Soto Ave., P.O.Box 2402'Chatsworth,CA 91313-2402•www.NationalNotary.org Item #5907 Reorder:CallToll-Free 1-800-876-6827 10812 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of _J On _ ""Date personally appeared lamefs) ofSigner(s) '" SHEILA RENAEC08MN CwnmiMion 11848471 Notary PubNC'CaWornii San 0(600 County My Comm. Expires May 10,2013 who proved to me on the basis of satisfactory evidence to be the person(s)-whose namej&B^CiJ&fe' subscribed to the within instrument and acknowledged to me that heflghgythey executed the same irHii^fligihhetf authorized capacityjpes), and that by hrtZfie^t+wtr 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 seal. Place Notary Seal Above Signature, OPTIONAL Signature of Notary Public Though the information below /s 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: Document Date:Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2007 National Notary Association • 9350 De Soto Ave, P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827