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HomeMy WebLinkAboutCT 85-15; Greystone Homes; 2014-0153680; 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 DOCtt 2014-0153G80 iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiy^ APR 17, 2014 4:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg. Jr.. COUNTY RECORDER FEES: 33.00 PAGES: 7 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND GREYSTONE HOMES 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 Greystone Homes (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 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 2-25-14 Page 1 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 forthe final phase of improvements and the completion ofthe 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 ofthe surplus project funds priorto the completion ofthe 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, 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 agree as follows: 1. The above recitals are incorporated by this reference as though fully set forth herein. 2. On or about February 14*^, 1997 the Property Owner entered into a Fair Share Agreement (Doc. #1997-0174965), which may have been amended from time to time, as part of its development project known/identified as Tentative Tract Map 85-15 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 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 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. 2-25-14 „ , Page 2 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 $278,375 (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 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% of the estimated remaining expenses) for unanticipated future expenses. Available Revenues include all monies held by the City dedicated exclusively to the construction ofthe 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 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. Property Owner agrees to the methodology used in Paragraph 5 above for detennining the Refund Due to Property Owner. 8. Property Owner acknowledges and affimns 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 and the completion ofthe habitat monitoring period. 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 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 2-25-14 „ , —' • Page 3 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 ofthis Agreement. (Remainder of Page Intentionally Left Blank) 2-25-14 „ ^ Page 4 PROPERTYIQWNER CITY OF CARLSBAD, a y\Yi^i'\ov^ HoHt 3\v\i, municipal corporation of the State Oclo^wft^t^, tovpori/t+NO^ '-I ofCalifornia Bv: (QOV , City Manager J<XAI\^V Wiv^Q-u^/Viu f'rts-.elmV e/title) ' <L6-ov {IvwMi^f, i (sh^ ATTEST: (e^jiailjttldress) 'By ^ BARBARA ENGLESON llCflV^ City Clerk (sign here) (print name/title) (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. **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: CELIA AreREWER>City Attorney ssistant City Attorney 2 25 14 Page 5 STATE OF CALIFORNIA ) SS. COUNTY OF ORANGE ) On March 31, 2014, before me M. Sue Rudolph, Notary Public, personally appeared Yahya Zakour Baayoun and Anita Davey, who proved to me on the basis of satisfactory evidence, to be the persons whose name are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of California that the foregoing paragraph is true and correct. M. SUE RUDOLPH l^Z^^ Commission # 2003854 WITNESS my hand and official seal <§f?l^W Notary Public - California 1 Signature / V - C/^^ I^^LA^^ (SEAL) 2 Orange County g J ^^sS*^ My Comm. Expires Feb 9, 2017 \ State of California County of S^ty Dlfop ) CALIFORNIA ALL-PURPOSE ) CERTIFICATE OF ACKNOWLEDGMENT On _A-Pf~>l f^-Oy-f before me, /JL^Scta ^rre^/i'TmAk^+amJ P^.b).'c• (here insert nafne and title of the ofncer) personally appeared /sCtf^tryn S. £k>g(SO«^ who proved to me on the basis of satisfactory evidence to be the personjisf whose nameXs^is/^^re subscribed to the within instrument and acl<nowledged to me that jae/she/tbey executed the same in J>«/her/JJwr authorized capacityj^es)^ and that byJ>ts/her/^t>eff signaturfis)-'on the instrument the personj^, or the entity upon behalf of which the personj;s)^cted, 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. Signature ^^^^x^ -^Aj^ F<J^ LETICIA TREVliilO REYES I COMM. #1994847 i Notary PuWic • California g San Oiego County t My Comm. Bcpfes Oct. 212016[ (Seal) • OPTIONAL INFORMATION ) Copyright 2007-2012 Notary Rotary, Inc. PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Part Number 101772. Please contact your Authorized Reseller to purchase copies ofthis form.