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HomeMy WebLinkAboutCT 02-17; CWV La Costa 49 LLC; 2015-0251035; Pay Fair Share Refund Rancho Santa Fe Rd AgreementDOC# 2015-0251035 RECORDING REQUESTED BY AND WHEN RECORDED MAILTO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carisbad, CA 92008 May 18, 2015 12:07 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0,00 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND FAIR OAKS VALLEY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, AND THE SUCCESSOR IN INTEREST OF CWV LA COSTA 49 LLC, A 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 FACIUTIES DISTRICT NO. 2 WHEREAS, the City of Carlsbad ("City") and CWV La Costa 49 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, CWV La Costa 49 LLC assigned its right to any reimbursement of excess revenues to Fair Oaks Valley, LLC for a development project known and identified as Fair Oaks Valley (CT 02-17), which consists of forty-nine (49) residential lots, (hereinafter "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 WHEREAS, funds received from Property Owner's predecessor-in- interest, CWV La Costa 49 LLC, before CFD No. 2 was created were deposited into an account pursuant to the Fair Share Agreements for project improvements; and 2-25-14 Page 1 WHEREAS, CFD No. 2 District has not been formally created, as intended; and WHEREAS, until the CFD No. 2 District is fomnally 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 the completion of the habitat monitoring period; 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 release a majority portion of the surplus project funds prior to the completion of the habitat monitoring period; 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 ofthe 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 December 19, 2013 the Property Owner's predecessor-in- interest, CWV La Costa 49 LLC, entered into a Fair Share Agreement (Doc. #2013-0729622), which may have been amended from time to time, as part of its development project known/identified as Tentative Tract Map CT 02-17 for purposes of satisfying their obligations for the construction of public improvements, as described in said Fair Share Agreement. 2-25-14 „ , Page 2 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 and the completion of the habitat monitoring period. Notwithstanding, the City Engineer and City Administrative Services Director have determined the total cost required to complete the outstanding public improvements and has detennined that excess revenues exist within the RSF Rd Project account. As a result, the City has decided to refund a portion ofthe excess revenues to Property Owner based on the fomriula set forth below and subject to City Council approval. 4. The current EDU fee contribution is $7,400 per EDU. The new EDU fee contribution is $5,275 per EDU. City shall refund $2,125 per EDU, to the Property Owner (hereinafter "Refund") which represents the difference between the current EDU rate of $7,400 per EDU and the new EDU rate of $5,275 per EDU. 5. City will pay Property Owner $104,125 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by the City of Carlsbad. The amount ofthe Refund Due has been determined by multiplying the proportional share ("Proportional Share") by the total amount of excess revenues ("Excess Revenues"). Proportional Share was detennined as of January 31, 2014 based on what each Property Owner contributed in prepayment fees divided by the total amount of prepayment fees contributed. Excess Revenues as of January 31, 2014 are Available Revenues less the sum of project costs plus estimated future project expenses plus a buffer (calculated at 100% ofthe 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 May 8, 2014, CWV La Costa 49 LLC executed a document to assign CWV La Costa 49 LLC's rights to any current or future surplus revenues of project funds to Fair Oaks Valley, LLC. 6. Upon completion of the project improvements and the recording of the applicable Notice of Completion for the final phase of the improvements and the completion ofthe habitat monitoring period, an accounting will be completed and the Administrative Services 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 detemiining the Refund Due to Property Owner. 2-25-14 Pages 8. Executor of Property Owner acknowledges and afflnns that the City is not obligated to refund surplus project funds, if any, until completion of all applicable improvements and the recordation ofthe Notice of Completion for the final phase of improvements and the completion ofthe habitat monitoring period. 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 hannless 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 (e.g. CWV La Costa 49 LLC as predecessor-in-interest) 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) 2-25-14 Page 4 PROPERTY OWNER Fair Oaks Valley, LLC, A Califemia^Anited LiabilityuCompany (sign here) CITY OF CARLSABD, a municipal corporation of the State of California City Marf&gec (print name/title) ^ ATTEST: (e-mail address) (sign here) BARBARA ENGLESON City Clerk (print name/title) d u,v CL © me.. Coyv\. (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: CELIA A. BRE Attorney SV^. A^istant City Attorney 2-25-14 Page 5 ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Illinois County ot Mflt£^"SCM^ > On ^'- 15- 15 betoreme, $Vl eC^Aa iPl erft^trOn i (date) (insert name and title of the officer) personally appeared ^VlO-vU^ T)uVi\/j-tr2 Name(s) of 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/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 Illinois that the foregoing paragraph is true and correct. OFRCIAL SEAL SHEENA L.PIERANTONI Notary Public - State of Illinois My Commission Expires Jul 23,2015 WlTNES^my pand arjd official seal. Signature Signature of Notary Public Place Notary Seal Above GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of the Notary: -6 ran -Lo Commission Number: Date Commission Expires: n-^ ^-16 County Where Bond is Filed: Manufacturer or Vendor Number: (Located on both sides of the notary seal border) Signatun Citv of Carlsbad Place of Execution: Office of the Citv Clerk/Cltv of Carlsbad Date: ^ ^ ^ Rec. Form #R10 (Rev.7/96) CALIFORNIA ALL-PURPOSE ACKNOWLEDQMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate Is attached, and not the truthfulness, accuracy, or validity of that document. State of California County ot.SglrA Q^^^^^jO ) ' '^"^'^ Here Insert Name and Title of the Officer ^ iC Dati personally appeared ^ , Mere insert Name ana t^p\e(s) of Signer^ who proved to me on the basis of satisfactory evidence to be the pet^n^ whose r\ame^(^^e subpcrijDed to the within instrumept and acknowledged to me that h^^^hey executed the same in hisi^j^their authorized capacityfi^), and that by hial^their signature(^Jon the instrument the persar^), or tfie entity upon behalf of whicn the personi^acted, executed the instrument. 1 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 OFFICIAL SEAL APRIL BARCENAS ^ NOTARY PUBLIC-CALIFORNlAg COMM. NO. 2052678 SAN DIEGO COUNTY MY COMM. EXP. OEC. 20, 2017 J Signature. Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attaclied Do<^ Title or Type of Document: Number of Pages: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ©2014 National Notary Association • wvw.NationalNotary.org • 1 -800-US NOTARY (1 -800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ^.>^t-^ On hay ^. ^oi.'S Dafe personally appeared _ before me, /JL-Hria TfTV'. njp fityf„^^ Ajy^^ P' «^ Here Insert Name and Title of the Officer Namejs^ of Signer)^ who proved to me on the basis of satisfactory evidence to be the personj^whose namej^\slsffe subscribed to the within instrument and acknowledged to me that>»e/she^they executed the same in tiie/her/JIserr authorized capacityiieS), and that by J^is^her/yaefrsignatur^on the instrument the persoo^ or the entity upon behalf of which the persoQ^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. LETICIA TREVINO REYES I COMM. #1994847 i Notary Pubtic • California g San Oiego County ^ My Comm. Expires Oct. 21.2016 [ WITNESS my hand and official seal. Signature yfkj^r^ j^Ajj^tS^ pt^^^ Signature of Notary Pablic Place Notary Seal Above OPTIONAL Though this section Is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document Description of Attached Document Title or Type of Document: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Document Date: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907