HomeMy WebLinkAbout2009-06-23; City Council; 19866; Ranch Sant Fe Rd repaymentsCITY OF CARLSBAD - AGENDA BILL
AB# 19,866
MTG. 6/23/09
DEPT. FIN
REFUND AGREEMENT AND PARTIAL
REFUND OF PREPAYMENT FEES IN THE
RANCHO SANTA FE ROAD PROJECT
DEPT. HEAD
CITY ATTY/W
CITY MGR.
RECOMMENDED ACTION:
Adopt Resolution No. 2009-154 _, approving the Refund Agreement and authorizing a
partial refund of prepayment fees to the parties listed in Exhibit 2.
ITEM EXPLANATION:
One of Council's strategic goals is to provide and maintain a multi-modal transportation
system that moves goods, services, and people throughout Carlsbad in a safe and efficient
manner. This is reflected in the Growth Management Plan which requires each zone within
the City to complete a Local Facilities Management Plan identifying how the zone will furnish
the necessary public facilities to serve its needs.
For a number of years, staff has worked with property owners in Local Facilities Management
Zones 11, 12 and a small portion of 6, to form a Community Facilities District ("CFD") that
would finance the construction of Rancho Santa Fe Road and Olivenhain Road
improvements, as required by the Local Facilities Management Plan for these zones. This
CFD (to be designated as CFD No. 2 if formed) was intended to provide the property owners
and the City with a feasible financing tool to guarantee funds would be available to construct
the roads. However, delays in the formation of the CFD created development delay issues
for some of the property owners in the proposed CFD who had met all of the non-circulation
conditions placed on their maps.
To address the development delay issues certain property owners faced, Council began
allowing property owners to prepay their obligation under the proposed CFD No. 2 (until CFD
No. 2 is formally created, the project is called the Rancho Santa Fe Road "RSF Rd" Project)
during late 1993 in exchange for a prepayment agreement ("Fair Share Agreement"). The
Fair Share Agreement allows each developer to meet their obligation to participate in the
funding of the Zone 11 circulation system by paying a fixed fee per housing unit. The Fair
Share Agreements authorized by Council made two significant findings. First, the
prepayment of the property owner's fair share represents an adequate financing guarantee
under the Growth Management Program. This finding is based on the special case
assumption that a CFD could be formed and that it is the CFD which actually provides the
financing guarantee. Secondly, the project does not create a major impact on the existing
circulation facilities. The City Engineer agrees with these findings as they relate to this
project.
DEPARTMENT CONTACT: Aaron Beanan 760-602-2430 aaron.beanan@carlsbadca.gov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION:APPROVED
DENIED
CONTINUED D
WITHDRAWN D
AMENDED D
CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER - SEE MINUTES D
Page 2
Since late 1993, 13 property owners have signed Fair Share Agreements approved by
Council allowing them to pay their fair share amount. The prepayment fees paid under the
Fair Share Agreements enabled the design and construction of the road improvements to
commence. Five major road projects are financed through funds generated by the RSF Rd
Project's Fair Share Agreements. These road projects include: Olivenhain Road from
Amargosa Drive to El Camino Real (complete); Rancho Santa Fe Road from Olivenhain
Road south into Encinitas, (completed by the developer of the Shelley property - Continental
Homes); the intersection of Rancho Santa Fe Road and Olivenhain Road including the
completion of the Olivenhain Road improvements between Rancho Santa Fe Road and Los
Pinos Circle, (under construction); Rancho Santa Fe Road Phase I from La Costa Avenue to
San Elijo Road (complete); and, Rancho Santa Fe Road Phase II from San Elijo Road to
Melrose Drive (complete). The prepayment fees are also enabling the environmental
mitigation, monitoring, and restoration for Rancho Santa Fe Road North, Phase 1 and 2
required for the disturbance to wetland, upland, and ephemeral stream areas within the
project location. A portion of the mitigation took place on-site (construction complete). The
on-site mitigation was located in the area under and adjacent to the new bridges over San
Marcos Creek. The on-site mitigation is currently in the five year monitoring and
maintenance period. A portion of the mitigation is taking place off-site at San Marcos Creek
east of Melrose Drive in the City of San Marcos (construction in progress). Once the
construction of the off-site mitigation is complete, it will be monitored and maintained for five
years.
FISCAL IMPACT:
Funding the roadway projects in the RSF Rd Project area has been a concern to both the
City and affected property owners. To ensure all roadway and appurtenant improvements
were financed within the RSF Rd Project area, the City and property owners agreed to the
following fair share funding matrix based on an Equivalent Dwelling Units (EDUs) by product
classification methodology:
PRODUCT CLASSIFICATION
Single Family - Detached Units
Single Family - Attached Units
Multi-Family Units
Churches
Commercial/Industrial and Other
EQUIVALENT DWELLING UNITS
1.0 EDU
0.80 EDU
0.60 EDU
4.0 EDU per Acre
10.0 EDU per Acre
FAIR SHARE AMOUNT
$10,250
$8,200
$6,150
$41, 000 per Acre
$102,500 per Acre
In addition to the property owner fair share fee requirements, the City agreed to contribute
$5,700,000 from CFD No. 1 to help finance the roadway improvements.
Subsequent to the development of this funding matrix, the City secured Federal grants to
help finance a portion of the improvements for Phase I and Phase II of the Rancho Santa Fe
Road Project. As these funds were not part of the original funding matrix, the RSF Rd Project
now has surplus funds. Pursuant to the Fair Share Agreements, the City is only required to
refund surplus funds upon completion of all applicable improvements and the recordation of
the Notice of Completion for the final phase of improvements. However, City staff felt it would
be equitable to the property owner's who paid their fair share under the RSF Rd Project's Fair
Share Agreements to begin releasing a portion of the surplus funds prior to completing all
applicable improvements.
Page 3
Revenues from the prepayment fees generated by the Fair Share Agreements to date, the
$5,700,000 contribution from CFD No. 1, Federal grants, and interest earnings total
$68,247,525 as of June 30, 2008. Expenses total $50,596,903 as of June 30, 2008. An
estimated $7,466,672 remains in road expenditures and mitigation costs. This estimated
amount also includes a buffer for un-anticipated future expenses. Additional prepayment fee
revenues totaling $6,012,250 are anticipated from two property owners who have not yet
developed but will be required to sign Fair Share Agreements. However, the partial refund
being proposed assumes that the additional prepayment fee revenues will not be received.
Using this methodology ensures all improvements will be built as their completion is not
contingent on future revenues but on existing funds. The information below outlines the
refund calculation methodology and is based on data as of June 30, 2008:
»,</'/' ,M ','ji^.^'i'' '•'Qji-"''CHCCiSikfF% f^&t'J^i II'' ATTll^Kl>MiCnr^l^"^lllW^I (\fmtSf • • ^ *''' i'*'«*<' "* ' * J^'''' I* A \t '• i * ' • ' - , ^\^Zf Turilliir Tufrrnlfcii\jJP\f tmsf\ f JTafill^iirifciu 1 MJVf tir Vri«»VrViff I^ ' ' ' - •' ' "**'' "' •' . •' " ' I______^.^^^^^^^__^^^^_^^^^^^_^_^^____^_____^^.^^__^_^_^^^^^_|
Receipts $61,992,144
Expenses (50,596,903)
Transfers ln/(0ut) 6,255,381
Available Balance $17,650,622
Less: Estimated Future Expenses ($7,466,672)
Available Balance for Partial Refund $10,183,950
Total EDU Contribution . 3,567.21
Partial Refund per EDLK1) $2,855
Partial Refund per EDU (rounded down}* $2,850
Total Partial Refund*2) $10,166,549
Available Balance $17,650,622
Less: Partial Refund (10,166,549)
Remaining Fund Balance $7,484,073
(1) The Partial Refund per EDU is calculated by dividing the "Available Balance for
Partial Refund" by the "Total EDU Contribution".
(2) The Total Partial Refund is calculated by multiplying the "Partial Refund per EDU
(rounded down)" by the "Total EDU Contribution".
*A partial refund per EDU of $2,850 would also be reflected in the prepayment fee
still due from two property owners. Instead of paying $10,250/EDU they would pay
$7,400/EDU.
As the information above indicates, refunding $2,850 per EDU will result in refunding
$10,166,549 of the current surplus balance. This refund amount leaves $7,484,073 available
to finish constructing the intersection of Rancho Santa Fe Road and Olivenhain Road,
including the completion of the Olivenhain Road improvements between Rancho Santa Fe
Road and Los Pinos Circle, and the on-site and off-site wetland mitigation, monitoring, and
Page 4
maintenance. This amount also includes funds for future staff time, miscellaneous
expenditures, and a buffer for un-anticipated expenditures. Additionally, for future developers,
the fair share funding matrix based on an Equivalent Dwelling Units (EDUs) by product
classification methodology for the RSF Rd Project would be altered by the partial refund as
follows:
^IWma^f ICATlCWt
Single Family - Detached Units
Single Family - Attached Units
Multi-Family Units
Churches
Commercial/Industrial and Other
EQUIVALEMT DWELLING 4JNITS r
1.0 EDU
0.80 EDU
0.60 EDU
4.0 EDU per Acre
10.0 EDU per Acre
iS^I^R SH«?E!AMOUN1 ^f .,:• £
$7,400
$5,920
$4,440
$29,600 per Acre
$74,000 per Acre
Only property owners who have paid their fair share for the improvements within the RSF Rd
Project area (i.e. entered into a Fair Share Agreement) are eligible for this partial refund.
Exhibit 2 is the list of the property owners who are eligible to receive a pro-rata share of this
partial refund. Exhibit 3 is each property owner's pro-rata portion of this partial refund based
on their EDU contribution by project.
Consistent with the Fair Share Agreements, the City will mail a notice of this partial refund
process to the property owners, as listed in the Fair Share Agreements, with instructions on
obtaining their partial refund. To obtain their pro-rata share of this partial refund, the property
owner will be required to sign an agreement to obtain a partial refund of fees (hereinafter
"Refund Agreement" and attached as Exhibit 4) paid pursuant to their/its Fair Share
Agreement. The Refund Agreement will attach to each applicable party's original Fair Share
Agreement; not supplant it. The Refund Agreement formalizes the new funding matrix and
rate per EDU that results from the partial refund with each applicable property owner.
This refund represents a partial refund since all improvements have not yet been constructed
and the final Notice of Completion has not been filed. Once all improvements have been
constructed, the final Notice of Completion has been filed, and there are no outstanding
expenses, the Finance Department will prepare a final refund, using the same methodology
as in this partial refund, pursuant to the Fair Share Agreements.
ENVIRONMENTAL IMPACT:
Pursuant to Public Resources Code Section 21065 and CEQA Guidelines Section 15378, this
does not constitute a "project" within the meaning of CEQA and, therefore, does not require
an environmental review.
EXHIBITS:
1. Resolution No. 2009-154 , approving the Refund Agreement and authorizing
a partial refund of prepayment fees to the parties listed in Exhibit 2.
2. Eligible Party List.
3. Amount of Partial Refund by Development.
4. Refund Agreement.
Exhibit 1
1 RESOLUTION NO. 2009-154
2 A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING
3 THE REFUND AGREEMENT AND AUTHORIZING A
PARTIAL REFUND OF PREPAYMENT FEES TO THE
PARTIES LISTED IN EXHIBIT 2
5
6 WHEREAS, the City Council of the City of Carlsbad, California, has required the
7
funding of Rancho Santa Fe Road and Olivenhain Road ("Project") be guaranteed prior
8
to any development in the area bounded by Local Facilities Management Zones 11,12
and portions of 6; and
11 WHEREAS, the Council has directed City staff to proceed with the formation of a
12 Community Facilities District ("CFD No. 2") to finance the project when needed; and
13 WHEREAS, the Council has been willing to consider alternative financing
14 proposals during the period from the present to the formation date of CFD No. 2; and
15 WHEREAS, CFD No. 2 has not yet been formally created; and
16 WHEREAS, until CFD No. 2 is formally created, the Project is called the Rancho
17
Santa Fe Road ("RSF Rd") Project; and
18
WHEREAS, the Council found that the guarantee provisions related to the19
Project could be met through an interim financing program using an agreement between
certain property owners and the City whereby the property owner agreed to prepay
22 his/her fair share of costs associated with the Project; and
23 WHEREAS, the property owners listed in Exhibit 2 have agreed to prepay their
24 fair share of the costs associated with the Project; and
25 WHEREAS, the property owners listed in Exhibit 2 have prepaid their fair share
of the costs associated with the Project pursuant to the Fair Share Agreements; and
27"
28
Exhibit 1
1 WHEREAS, surplus Project funds currently exist in part because the City
2 secured Federal funds for the Project not anticipated in the original funding matrix; and
3 WHEREAS, the City is not required to refund surplus Project funds until
4 completion of all applicable improvements and the recordation of the Notice of
.5
Completion for the final phase of improvements.
6
WHEREAS, City Council believes it would be equitable to the property owner's
7
who paid their fair share into the RSF Rd Project to begin releasing a portion of the8
g surplus Project funds prior to completing all applicable improvements; and
10 WHEREAS, the City will maintain appropriate funds to ensure that all estimated
11 future Project expenses and a buffer for unanticipated expenses are funded; and
12 WHEREAS, the property owners listed in Exhibit 2 will be required to sign an
13 agreement to obtain a partial refund of fees (hereinafter "Refund Agreement" and
14 attached as Exhibit 4) paid pursuant to their/its Fair Share Agreement; and
15 WHEREAS, the City Council has previously approved Fair Share Agreements
16
with the property owners listed in Exhibit 2 allowing for the prepayment of fees to be
17
assessed under the RSF Rd Project as an acceptable form of interim financing for the
18
Rancho Santa Fe Road Projects; andi y
20 WHEREAS, the approval of the Refund Agreement will not affect the City's ability
21 to finance the needed improvements on/along Rancho Santa Fe Road; and
22 NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:
23 1. That the above recitals are all true and correct.
2. That the Refund Agreement, Exhibit 4 attached hereto, is hereby
25
approved.
26
3. That the individual pro-rata refunds listed in Exhibit 3, attached
27
hereto, to the individual property owners listed in Exhibit 2, attached hereto,
28
Exhibit 1
1 are hereby approved upon completion of the Refund Agreement by the
2 applicable individual property owner.
3 4. That the City Manager is hereby authorized to sign the Refund
4 Agreement with each applicable individual property owner.
5 5. That the Finance Director is authorized to transfer up to $25,000 from
6
the Rancho Santa Fe Road Project Fund to the General Fund to cover the
7
estimated staff time associated with the preparation of the partial refund8
g calculated at the applicable average fully-burdened hourly rate by position.
10 6. That the Finance Director is authorized to appropriate $10,166,549 to
1 1 the Rancho Santa Fe Road Project Fund for the Rancho Santa Fe Road
12 partial refund.
13 7. That the City Clerk is hereby authorized and directed to record each
14 applicable and fully executed property owner's Refund Agreement with the
15 San Diego County Recorder's Office.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 23rd day of June 2009, by the following vote to wit:
AYES:
NOES:
ABSENT:
Council Members Lewis, Kulchin, Hall, Packard, Blackburn
None
None
LORRAtN€ M. WOOD, Ci
Karen R. Kundtz, Assista
(SEAL)
lerk
ity Clerk
'* -i-.<->
Exhibit 2
ELIGIBLE PARTY LIST
mOJeOTNAME
California Pacific Homes (CT 85-9)
Centex - Sonata/Tierra Santa (CT 90-4)
Centex - Santa Fe Trails/Rice Property (CT 85-10)
Centex - Rancho Verde (CT 89-18)
Greystone Homes - Park View West (CT 85-15)
Arroyo La Costa - Units 1 & 2 (CT 88-03)
Southwest/Arroyo (CT 88-03)
Meadowlands(CT85-19)
Keystone La Costa (CT 96-04)
LB/L Concordia (CT 98-02)
Shelley- Unit 1 (CT 90-03)
Shelley -Unit 2 (CT 90-03)*
Shelley- Unit 3(CT 90-03)*
Continental -Unit 4 (CT 90-03)*
Rancho La Costa Village (SDP 99-07)
PROPERTY OWNER OF RECORpy - :' •,
California Pacific Homes
9191 Towne Centre Drive, Suite L101
San Diego, CA 92 122
Centex Homes
5962 La Place Court, Suite 250
Carlsbad, CA 92008
Centex Homes
5962 La Place Court, Suite 250
Carlsbad, CA 92008
Centex Homes
5962 La Place Court, Suite 250
Carlsbad, CA 92008
Greystone Homes
495 East Rincon, Suite 115
Corona, CA 91 71 9
Real Estate Collateral Management Company
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Real Estate Collateral Management Company
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Jenna Group, Inc.
3101 Villa Way
Newport Beach, CA 92663
Keystone La Costa, LLC
5333 Mission Center Road, Suite 360
San Diego, CA 921 08
LB/L Concordia Carlsbad-28-LLC
7130 Avenida Encinas, Suite 200
Carlsbad, CA 92009
Dan Shelley (c/o Agda Shelley)
P.O. Box 7294
Rancho Santa Fe, CA 92067
Dan Shelley (c/o Agda Shelley)
P.O. Box 7294
Rancho Santa Fe, CA 92067
Dan Shelley (c/o Agda Shelley)
P.O. Box 7294
Rancho Santa Fe, CA 92067
Continental Residential, Inc.
2237 Faraday Avenue, Suite 100
Carlsbad, CA 92008
Rancho La Costa Village, LLC (c/o Pacific La Costa
Village, LLC)
15938 Bernardo Center Drive
San Diego, CA 921 27
Exhibit 2
ELIGIBLE PARTY LIST (CONTINUED)
^!fe*ife ^>tffl0^m&^ ' V.fey W
La Costa Oaks (CT 02-02, 02-03, 02-04, 02-05)
La Costa Ridge (CT 99-04)
La Costa Ridge (CT 99-04; Lot 223)
LDS/Church of Jesus Christ (CUP 01-04)
Los Coches Village
O^v^'PRQPERT^OW^ .,
Real Estate Collateral Management Company (c/o
Morrow Development)
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Real Estate Collateral Management Company (c/o
Morrow Development)
1903 Wright Place, Suite 180
Carlsbad, CA 92008
La Costa Ridge 2.6 (c/o D.R. Morton)
5790 Fleet Street, Suite 210
Carlsbad, CA 92008
The Church of Jesus Christ of Latter Day Saints
50 East North Temple Street
Salt Lake City, Utah 841 50
Los Coches Village, LLC (c/o C.W. Clark Inc.)
4180 La Jolla Village Drive, Suite 405
La Jolla.CA 92037
*These projects were paid for through credits for work done. The reimbursement agreements were approved 2/20/01 via
AB 16,067; Res. No. 2001-52.
AMOUNT OF PARTIAL REFUND BY DEVELOPMENT
AGREEMENT
DATE
9/28/1993
3/1/1994
8/8/1995
8/8/1995
3/19/1996
2/1/1997
8/24/1998
12/16/1997
3/14/2000
3/28/2000
1/9/2001
1/9/2001
1/10/2001
1/10/2001
12/4/2001
2/5/2002
2/5/2002
8/3/2007
2/27/2003
4/19/2005
; - V " PROJECT NAMiJ;^^»'<;: ;|"
California Pacific Homes (CT 85-9)
Centex - Sonata/Tierra Santa (CT 90-4)
Centex - Santa Fe frails/Rice Property (CT 85-10)
Centex - Rancho Verde (CT 89-18)
Greystone Homes - Park View West (CT 85-15)
Arroyo La Costa - Units 1 & 2 (CT 88-03)
Southwest/Arroyo (CT 88-03)
Meadowlands(CT85-19)
Keystone La Costa (CT 96-04)
LB/L Concordia (CT 98-02)
Shelley- Unit 1 (CT 90-03)
Shelley -Unit 2 (CT 90-03)*
Shelley -Unit 3 (CT 90-03)*
Continental - Unit 4 (CT 90-03)*
Rancho La Costa Village (SDP 99-07)
La Costa Oaks (CT 02-02, 02-03, 02-04, 02-05)
La Costa Ridge (CT 99-04)
La Costa Ridge (CT 99-04; Lot 223)
LDS/Church of Jesus Christ (CUP 01-04)
Los Coches Village
SUBTOTAL
TOTAL PARTIAL REFUND
-•-.-'.^FbX'fe-'
EDU@1.0
102
111
189
171
131
455
618
112
28
28
26
46
109
63
0
820
263
53
0
0
3,325
MUNlf
EDU@0.6
4
4
vCONDO r
EEtiJiatf
0
MUtWAM
EDUf-0.6
168
168
COMM.AC.
EDU @ 10.0
4.12
7.47
11.59
5HURCH
EDU @ 4.0
5.78
5.78
?TOTAL
EDU
102
111
189
171
131
455
618.._
30.40
28
26
46
109
63
41.20
920.80
263
53
23.12
74.69
3,567.21
3,567.21
REFUND
PER EDU
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
$2,850
TOTAL
REFUND
$290,700
316,350
538,650
487,350
373,350
1,296,750
1,761,300
319,200
86,640
79,800
74,100
131,100
310,650
179,550
117,420
2,624,280
749,550
151,050
65,892
212,867
10,166,549
10,166,549
*These projects were paid for through credits for work done. The reimbursement agreements were approved 2/20/01 via AB 16,067; Res. No. 2001-52.
mx
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Exhibit 4
AGREEMENT BETWEEN CITY OF CARLSBAD
AND [insert name of property owner] 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 [insert name of property
owner] (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
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
6-15-09 Pagel
Exhibit 4
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 [insert date of fair share cost agreement] the Property
Owner entered into a Fair Share Agreement, which may have been amended
from time to time, as part of its development project known/identified as [insert
name of developer's project] 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 $ (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.
6-15-09™- - Page 2
Exhibit 4
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
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.
(Remainder of Page Intentionally Left Blank)
6-15-09 - Page 3 li
Exhibit 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 to the terms and
conditions of this Agreement.
PROPERTY OWNER CITY OF CARLSBAD, a
municipal corporation of the State
of California
*By:
(sign here) By:_
City Manager
(print name/title)
ATTEST:
(e-mail address)
"By: LORRAINE M. WOOD
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:
RONALD R. BALL, City Attorney
By:
Assistant City Attorney
6-15-09 „ APage 4