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HomeMy WebLinkAboutCFD 02; Shelley, Agda B; 2009-0620058; Pay Fair Share Refund Rancho Santa Fe Rd Agreement2009-0620058 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 NOV 05, 2009 3:59 PM OFFICIAL RE CORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER. COUNTY RECORDER FEES: 31.00 PAGES:8 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND AGDA B. SHELLEY, AS EXECUTOR OF THE DANIEL T. SHELLEY ESTATE, AND THE SUCCESSOR IN INTEREST OF CONTINENTAL RESIDENTIAL, INC., A CALIFORNIA CORPORATION 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 Continental Residential, Inc., a California Corporation 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, Continental Residential, Inc. assigned its right to any reimbursement of excess revenues for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 to Daniel T. Shelley, a married man as his sole and separate property (hereinafter "Property Owner"); and WHEREAS, Property Owner Daniel T. Shelley passed away on February 21st, 2009; and WHEREAS, Agda B. Shelley, Daniel T. Shelley's wife, is the executor of the Daniel T. Shelley estate (hereinafter "Executor of Property Owner"); 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 6-15-09 Page 1 WHEREAS, funds received from Property Owner's predecessor-in- interest, Continental Residential, Inc., 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 WHEREAS, Executor of 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 by and through the Executor of Property Owner agree as follows: 1. The above recitals are incorporated by this reference as though fully set forth herein. 2. On or about January 24th, 2001 the Property Owner's predecessor-in- interest, Continental Residential, Inc., entered into a Fair Share Agreement (Doc. # 2001-0123814), which may have been amended from time to time, as part of 6-15-09 — --- - - - - Page 2 its development project known/identified as Tentative Tract Map CT 90-03 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 $441,750 (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 24th, 2000 Continental Residential, Inc. and Daniel T. Shelley executed a Third Amendment to Option Agreement and Escrow Instructions ("Third Amendment"). Pursuant to Section 10 of the Third Amendment Continental Residential assigned the right to receive any refunds under the Fair Share Agreement (Doc #2001- 0123814) for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 to Daniel T. Shelley, a married man as his sole and separate property. Furthermore, on or about January 31st, 2003, Continental Residential, Inc. executed an Assignment of Excess Revenues for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 assigning Continental Residential Inc.'s rights to any excess revenues to Daniel T. Shelley, a married man as his sole and separate property. On February 21st, 2009, Daniel T. Shelley passed away. 6-15-09 — - — — -— - - PageS On or about August 16th, 2009, Agda B. Shelley was appointed Executor of the Daniel T. Shelley estate. Accordingly, City will disburse Property Owner Refund Due to the Executor of Property Owner as follows: Successor in Interest's Name Refund Due Agda B. Shelley as Executor of the Estate of Daniel T.Shelley-Unit 2 $131,100.00 Agda B. Shelley_as Executor of the Estate of Daniel'l. Shelley - Unit 3 $310.650.00 Total Property Owner Refund Due $441,750.00 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. Executor of Property Owner agrees to the methodology used in Paragraph 5 above for determining the Refund Due to Property Owner. 8. Executor of 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. Executor of 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. Executor of 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 Property Owner's Fair Share Agreement, as may have been amended from time to time, will remain in full force and effect. 6-15-09- — — - - — Page 4 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 or Property Owner's Estate to the terms and conditions of this Agreement. (Remainder of Page Intentionally Left Blank) 6-15-09 „ — Page PROPERTY OWNER *By: I here) A G- PA B. S He Lie y As e*c-< (print .riame/title) OF DfwieLT* 5 (email address) /] x-: jv - -^-- * ^,- ,- ; /^ +-\ (sign here) (print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: t/r ATTEST. >A HILDABRAND^ . ,, City Manager CWHi"<- H<w-5 City Clerk (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: RONALD R. BALL, City Attorney \ Assistant City Attorney 6-15-09 Page 6 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On before me, (Here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person^) whose name(^f is/are subscribed to the within instrument and acknowledged to me that he/she/tkey executed the same in his/her/tbeir authorized capacity(j^), and that by his/her/the*-signatureO<) on the instrument the person^), or the entity upon behalf of which the person(V) 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. WITNBS (Notary Seal) CHARLES J. CETOLA COMM.I 1764395NOTARY PUBLIC-CALIFORNIA J" SAN DIEGO COUNTYMY COMM EXP. SEPT 25 2011j Signature of Notary Public . 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