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Home My WebLink AboutCFD 02; Los Coches Village LLC; 2009-0437079; Pay Fair Share Refund Rancho Santa Fe Rd AgreementRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DQC# 2009-0437079 AUG 05, 2009 8:22 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: 30.00 PAGES: 8 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND LOS COCHES VILLAGE, LLC, A NEW YORK 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 Los Coches Village, LLC, a New York Limited Liability Company (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 6-15-09 Pagel 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 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 April 8th, 2005 the Property Owner entered into a Fair Share Agreement (Doc. # 2005-0382009), which may have been amended from time to time, as part of its development project known/identified as Los Coches Village Shopping Center MS 02-08 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. 6-15-09 Page 2 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 $212,867 (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 6-15-09 - PageS 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 4 PROPERTY LOS ObCHES •U*By (sign here) ^ C. W. Clark, Inc., Manager By; Craig W. Clark, CITY OF CARLSBAD, a municipal corporation of the StaJ of California By: (print name/title) / cclark@cwclarkinc.cpm LORRAINE M City Clerk (sign here) C. W. Clark, Inc., Manager By: Craig W. Clark. Secretary (print name/title) cclark@cwclarkinc.com (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: oJl A Hv«. nvp. Assistant City Attorney 6-15-09 Page 5 / // im Signature of Notar/F W/i MX* ublic WITNESS my hand and official seal. ^ J ^ commn 17M092 I I Notary Public - California | San D(*go County ~ t (Area for Notary Seal) -OPTIONAL- g 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: Agreement between City of Carlsbad & Los Coches Village, LLC ^ Acknowledgment - Craig W. Clark, President I-> Document Date: 6/15/09 Number of Pages: 5 :t Signer(s) Other Than Named Above: / Capacity(ies) Claimed by Signer Signer's Name:_ V i—i , .... . Top of thumb here-y U Individual -> D Corporate Officer - Title(s):vY LJ Partner - Limited General ^ D Attorney in Fact ^ D Trustee ;</ D Guardian or Conservator^\ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A -^ X" -X* SX X-' -X- -*X XX » X< XK *« --X X" -X-X -X -X -X *< -X >X »X -X X *X X *< «< SX «X «X -X SX*y <> £ ^t State of California ^ J ss. ^ County of San Diego !^ On July 2, 2009 , before me, Morgan Kell, Notary Public ^ Date Name and Title of officer (e.g., "Jane Doe, Notary Public") -> |X personally appeared Craig W. Clark , NN Namete) of Signerte) ^|; who proved to me on the basis of satisfactory evidence to be the person's) whose name's) is/afe f 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|; I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing ^ paragraph is true and correct. RIGHT THUMBPRIN] ~HOF SIGNER CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ^ XX XX •«• XX XXXX- 'XX'-XX -«XXX XX «- XX XX -X-X -X-X-X-X-X *X £ State of California I / ss"4 County of San Diego On July 2, 2009 , before me, Morgan Kell, Notary Public Date Name and Title of officer (e.g., "Jane Doe, Notary Public") personally appeared Craig W. Clark , Name{s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name{s) is/afe 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(&) 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. 1T^ CommbHon # 170*092 INotoiy fume . Comomte | tan Oi«flo County = t Signature of Notary Pij \J (Area for Notary Seal) -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: Agreement between City of Carlsbad & Los Coches Village, LLC Acknowledgment - Craig W. Clark, Secretary Document Date: 6/15/09 Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT SIGNER-> Signer's Name: Y n i -i- -j i Top of thumb here*> D Individual D Corporate Officer - Title(s): D Partner - Limited General D Attorney in Fact D Trustee D Guardian or Conservator CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of £) Date7 personally appeared ^before u I , ft ."Here Inserlfljame afnd Title of the Offfcer Name(s) of Signer(s) SHERRY A. FREISINGER Commission # 1727064 Notary Public - California San Oi*go County 1! I who proved to me on the basis of satisfactory evidence to be the person(s/ whose name/s) is/ai*e subscribed to the within instrument and acknowledged to me that he/sh^/thyey executed the same in his/h^r/thelr authorized capacity(ie^), and that by his/h/^r/their 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 Place Notary Seal Above Signatun 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 Date: Otlia.(Jt.iLJL<L.(Jt.i 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 n Corporate Officer — Title(s): n Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT 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