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HomeMy WebLinkAboutCFD 02; SHELLEY, DANIEL T; 2010-0340596; Pay Fair Share Refund Rancho Santa Fe Rd Agreementi op RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOCtt 2010-0340596 JUL07, 2010 8:38 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: 42.00 PAGES:10 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND CHARLES DUVIVIER AND KATHRYN DUVIVIER, SUCCESSORS IN INTEREST OF UNIT 1 OF TENATIVE TRACK MAP CT 90-03 AND UNIT 1 OF CARLSBAD TRACK NUMBER 90-03 [FINAL MAP NUMBER 14134] 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 Daniel T. Shelley, a married man as his sole and separate property, owned Unit 1 of Tentative Track Map CT 90-03 ("Shelley Property - Unit 1") 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 Daniel T. Shelley, 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 for all property owners, including Daniel T. Shelley, who paid their fair share into the RSF Rd Project account to begin receiving 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, prior to February 27, 2001, Rancho Mesa Verde, LLC a California Limited Liability Corporation was formed by Charles DuVivier and Kathryn DuVivier equally and each of them were the managing partners of Rancho Mesa Verde, LLC; and WHEREAS, on or about February 27, 2001 Daniel T. Shelley sold or otherwise conveyed Unit 1 of Tentative Tract Map CT 90-03 to Rancho Mesa Verde, LLC a California Limited Liability Corporation [Grant Deed: Doc. No. 2001-0111268 on file in the San Diego County Recorder's Office]; and WHEREAS, on or about December 21, 2004 Rancho Mesa Verde, LLC was dissolved and distributed its Shelley Property - Unit 1 asset to Charles DuVivier and Kathryn DuVivier as successors-in-interest to Rancho Mesa Verde, LLC; and WHEREAS, Charles DuVivier and Kathryn DuVivier as successors-in- interest each own an undivided interest in Shelley Property - Unit 1 and collectively they own the entire Shelley Property - Unit 1 ; and WHEREAS, the City of Carlsbad, in a letter dated August 6, 2004, acknowledged that Daniel T. Shelley was entitled to certain excess revenues, if they arise, pursuant to the Fair Share Agreement, including excess revenues in the Shelley Property - Unit 1; and WHEREAS, Daniel T. Shelley passed away on February 21, 2009; and 6-15-09 „ ,— Page 2 WHEREAS, Agda B. Shelley, Daniel T. Shelley's wife, is the executor of the Daniel T. Shelley estate; and WHEREAS, Agda B. Shelley assigned her right to any reimbursement of excess revenues in the Shelley Property - Unit 1 to Charles DuVivier and Kathryn DuVivier; and WHEREAS, Charles DuVivier and Kathryn DuVivier voluntarily enters into this agreement to obtain a partial refund of fees (hereinafter "Refund Agreement") paid pursuant to Daniel T. Shelley's Fair Share Agreement; and NOW, THEREFORE, in consideration of the above recitals and the mutual covenants contained herein, City and Charles DuVivier and Kathryn DuVivier agree as follows: 1. The above recitals are incorporated by this reference as though fully set forth herein. 2. On or about December 19, 2000 Charles DuVivier and Kathryn DuVivier's predecessor-in-interest, Daniel T. Shelley, entered into a Fair Share Agreement (Doc. # 2001-0050065), which may have been amended from time to time, as part of its development project known/identified as Unit 1 of 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 jointly to Charles DuVivier and Kathryn DuVivier, as successor's-in-interest, 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 Charles DuVivier and Kathryn DuVivier (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 Charles DuVivier and Kathryn DuVivier $74,100 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by the City of Carlsbad. 6-15-09 ^_^PageS 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 had 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 applicable property owner's Fair Share Agreement. 5.a. On or about February 27, 2001 Daniel T. Shelley sold or otherwise conveyed Unit 1 of Tentative Tract Map CT 90-03 to Rancho Mesa Verde, LLC a California Limited Liability Corporation (Document # 2001-0111268). On or about December 21, 2004 Rancho Mesa Verde, LLC filed a Limited Liability Company Certificate of Dissolution with the Secretary of State of the State of California (Doc. # 200102610038). According to the Rancho Mesa Verde, LLC Operating Agreement (dated on or about January 23, 2001), Rancho Mesa Verde, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Rancho Mesa Verde, LLC: Charles DuVivier 50% Kathryn DuVivier 50% 100% Daniel T. Shelley is entitled to certain excess revenues in Shelley Property - Unit 1, if they arise, pursuant to the Fair Share Agreement. On February 21, 2009 Daniel T. Shelley passed away. On or about August 16, 2009 Agda B. Shelley was appointed Executor of the Daniel T. Shelley estate and is entitled to certain excess revenues in Shelley Property - Unit 1, if they arise, pursuant to the Fair Share Agreement. On or about May 3, 2010 Agda B. Shelley executed an Assignment of Excess Revenues for Shelley Property - Unit 1 [Tentative Tract Map CT 90-03] assigning all of Daniel T. Shelley's rights to any excess revenues in Shelley Properly - Unit 1 under the Fair Share Agreement (Doc. # 2001-0050065) to Charles DuVivier and Kathryn DuVivier. 6-15-09 Page 4 Accordingly, as to Shelley Property - Unit 1, City will disburse Agda B. Shelley's Refund Due as executor of the Daniel T. Shelly estate to Charles DuVivier and Kathryn DuVivier based on member percentage interests as follows: Successor in Interest's Name Refund Due Charles DuVivier $37,050.00 Kathrvn DuVivier $37.050.00 Total Refund Due Charles DuVivier and «7A .nn nnKathryn DuVivier V4,iuu.uu 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 Daniel T. Shelley's Fair Share Agreement, as modified by the Agda B. Shelley Assignment of Excess Revenues to Charles DuVivier and Kathryn DuVivier and taking into account any Refund Due amounts that Charles DuVivier and Kathryn DuVivier may have accepted before the recordation of the Notice of Completion. 7. Charles DuVivier and Kathryn DuVivier agree to the methodology used in Paragraph 5 above for determining the Refund Due to Charles DuVivier and Kathryn DuVivier. 8. Charles DuVivier and Kathryn DuVivier 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. Charles DuVivier and Kathryn DuVivier 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. Charles DuVivier and Kathryn DuVivier 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 Charles DuVivier and Kathryn DuVivier or enforcing any term and/or condition of this Agreement that is caused by any negligence, recklessness, or willful misconduct of Charles DuVivier and/or Kathryn DuVivier, employees, agents or anyone directly or indirectly representing Charles DuVivier and/or Kathryn DuVivier 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 Charles DuVivier and Kathryn DuVivier or to Charles DuVivier and Kathryn DuVivier's agent. 6-15-09 PageS 11. All other provisions of the Daniel T. Shelley 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 their own behalf each represent and warrant that they have the legal power, right and actual authority to bind the party on whose behalf they are signing to the terms and conditions of this Agreement. (Remainder of Page Intentionally Left Blank) 6-15-09 Page 6 kBy:_ (sign here) Charles DuVivier (print name/title) DuVivierSD@aol.com (email address) (sign here) Kathryn DuVivier (print name/title) Duv2@me.com (email address) The Estate of Daniel T. Shelley By:.JL Adga £& Shelley, Executor of the Estate of Daniel T. Shelley CITY OF CARLSBAD, a municipal corporation of the State of California LISA HILDABRAND City Manager ATTEST: /^ /tOFflBAIN ElvTwOODc) c City Clerk Proper notary acknowledgment of execution by each property owner, Successor-in-lnterest to property owner, or Executor of an estate 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 By* Assistant City Attorney 6-15-09 Page? CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On lHOM^ Date '/ personally appeared ^/flbefore me, _ L^un~Urli cL^un~ lere Insert Name and Title of-#ie Officer in /1/^/v/^A/.: Name(s) of Signer(s) SHEILA RENAE COWAN Commission * 1848471 Notary Public-California S«nOto«o County who proved to me on the basis of satisfactory evidence to be the person(^whose namej(8)dSia» subscribed to the within instrument and acknowledged to me that "tie^fipftfoey executed the same in hra(fier?)heirauthorized capacityjJies^fTand that by hrst^^thBirsignature^sfon 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 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 Corporate Officer — Title(s): D Partner — D Limited n General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here 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 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 ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego ss. 30*0 before me. A*fc Notary Public (DATE) personally appeared I\J H5"fc (NOTARY) SIGNER(S) 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/sh«/they executed the same in his/her/their authorized capacity(ies), and that byius/ber/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. OFFICIAL SEAL A.VASVANI iTARYPlCOMM.NQ.I8W13 SANWEOO-COUNTY.MYCOMM.EXP.AUa8,2D12 Effective January 1, 2006, the California certificate of acknowledgment must be in the form set forth in Civil Code section 1189, rather than "substantially" in the form set forth therein. The form set forth in Civil Code section 1189 did not change, but variations in the California form are no longer permitted. (The law regarding acknowledgments to be used with documents to be filed in other states has not changed (Civil Code §1189(c)). WITNESS my hand and official seal. NOTARY'S SIGNATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- -edgment to an unauthorized document. . _,- ,„„„_„,_„_--,„„„„„,,.,„„:-„___,„_.,.___„.._.,..._,.„.,.,,., ,.-„.„- CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT G INDIVIDUAL fj CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) PARTNER(S) ATTORNEY-IN-FACT TRUSTEE(S) GUARDIAN/CONSERVATOR OTHER: NUMBER OF PAGES DATE OF DOCUMENT OTHER SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) RIGHT THUMBPRINT OF SIGNER CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of California County of On before me, personally appeared O- (Here insert natrfe and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(^) whose name(^j is/are subscribed to the within instrument and acknowledged to me that he/she/tfeay executed the same in h*s/her/tkeir authorized capacityQ^s), and that by his/her/tfeeir signature^ on the instrument the person($, 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. CHARLES J. CETOLA £«"•* 1N4395 (Notary Seal) „ toOBoCflwnr -JJT Com. £». SECT. 25.2011 f Signature of Notary Publ ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages r Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER D Individual (s) D Corporate Officer D Dn D (Title) Partner(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. 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