HomeMy WebLinkAbout2014-02-25; City Council; 21511; Refund Agreement Partial Refund Fees Rancho Santa Fe Road ProjectCITY OF CARLSBAD - AGENDA BILL
AB# 21,511 REFUND AGREENIENT AND PARTIAL
REFUND OF PREPAYMENT FEES IN THE
RANCHO SANTA FE ROAD PROJECT
DEPT. HEAD ^
MTG. 2/25/14
REFUND AGREENIENT AND PARTIAL
REFUND OF PREPAYMENT FEES IN THE
RANCHO SANTA FE ROAD PROJECT
CITY ATTY. ^c::^*^
DEPT. FIN
REFUND AGREENIENT AND PARTIAL
REFUND OF PREPAYMENT FEES IN THE
RANCHO SANTA FE ROAD PROJECT CITY MGR. Kf\
RECOMMENDED ACTION:
Adopt Resolution No. 2014-030 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 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 have financed 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 (informally
the project was 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
allowed 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 agreed with these findings as they relate to this project.
DEPARTMENT CONTACT: Roxanne Muhlmeister 760-602-2417 roxanne.muhlmeister(a)carlsbadca.qov
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC •
DENIED CONTINUED TO DATE UNKNOWN •
CONTINUED • RETURNED TO STAFF •
WITHDF^WN • OTHER-SEE MINUTES •
AMENDED •
Page 2
Since late 1993, 16 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 following five major road
improvements: Olivenhain Road from Amargosa Drive to El Camino Real, Rancho Santa Fe
Road from Olivenhain Road south into Encinitas, the intersection of Rancho Santa Fe Road
and Olivenhain Road, Rancho Santa Fe Road Phase I from La Costa Avenue to San Elijo
Road and, Rancho Santa Fe Road Phase li from San Elijo Road to Melrose Drive.
The prepayment fees are now 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. Two years still
remain on the required five year monitoring and maintenance period.
FISCAL IMPACT:
Funding the roadway projects in the RSF Rd Project area had 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 originally agreed to the
following fair share funding matrix based on an Equivalent Dwelling Units (EDUs) by product
classification methodology:
PROniirTftl ASfSFiltATIM' -
Single Family - Detaciied Units 1.0 EDU $10,250
Single Family - Attached Units 0.80 EDU $8,200
Multi-Family Units 0.60 EDU $6,150
Churches 4.0 EDU per Acre $41,000 per Acre
Commercial/Industrial and Other 10.0 EDU 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 ali applicable improvements and the recordation of the Notice of Completion for
the final phase of improvements and the completion of the habitat monitoring period.
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. The first partial refund was
approved by Council on June 23, 2009 (AB 19,866, Resolution No. 2009-154) and
$10,166,549 was subsequently returned to the property owners (refund of $2,850 per EDU)
and new Fair Share Agreements were signed by all owners following the new funding matrix
as follows:
Pages
PRODUCT CLASSIFICATION EQUIVALENT DWaUNG i^iTS^ > FAIR SHARE AMOUNT .
Single Family - Detached Units 1.0 EDU $7,400
Single Family - Attached Units 0.80 EDU $5,920
Multi-Family Units 0.60 EDU $4,440
Churches 4.0 EDU per Acre $29,600 per Acre
Commercial/Industrial and Other 10.0 EDU per Acre $74,000 per Acre
To date 16 of the 18 property owners in the RSF Road Project area have paid their fair share
obligation. All project improvements have been completed and only the required habitat
monitoring period remains. The majority of the remaining cash balance in the project fund
can now be released to the 16 property owners. Once the monitoring period is complete and
the remaining two property owners have paid their obligation, a final accounting of the project
will be completed and the remaining cash balance in the project will be released to all 18
property owners.
Finance staff is now recommending an additional partial refund of $2,125 per EDU to all
property owners with Fair Share Agreements which will total $8,595,009. The information
below outlines the refund calculation methodology and is based on data as of January 31,
2014:
Cun^ent cash balance in project fund
Amount due from developer for city constructed
wildlife crossing. This amount will be deducted from
the refund amount due for that particular developer
Available Balance
$8,745,999
449.010
9.195.009
Less: Estimated Future Expenses
Available Balance for Partial Refund
Total EDU Contribution
Partial Refund per EDW)
($600,000)
$8,595,009
4,044.71
$2,125
Total Partial Refund(2) $8,595,009
Available Balance
Less: Partial Refund
Remaining Fund Balance
$9,195,009
(8.595.009)
$600,000
(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 nfiultiplying the "Partial Refund per
EDU" by the "Total EDU Contribution".
As the information above indicates, refunding $2,125 per EDU will result in refunding
$8,595,009 of the current surplus balance. This refund amount leaves $600,000 available to
Page 4
the on-site and off-site wetland mitigation, monitoring, and maintenance. This amount also
includes funds for future staff time, miscellaneous expenditures, and a buffer for un-
anticipated expenditures. Additionally, for the two future developers left to pay their
obligations into the project fund, 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:
PRODUCT OASS^Kl^jinrat^d^ EQlflVALENT DWELLINSIWrS^
Single Family - Detached Units 1.0 EDU $5,275
Single Family - Attached Units 0.80 EDU $4,220
Multi-Family Units 0.60 EDU $3,165
Churches 4.0 EDU per Acre $21,100 per Acre
Commercial/Industrial and Other 10.0 EDU per Acre $52,750 per Acre
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 the habitat monitoring period for this project is
not yet completed. Once the monitoring period is completed in two years, 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. 2014-030 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. 2014-030
2 A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING
^ THE REFUND AGREEMENT AND AUTHORIZING A
PARTIAL REFUND OF PREPAYMENT FEES TO THE
PARTIES LISTED IN EXHIBIT 2 4
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WHEREAS, the City Council of the City of Carlsbad, California, has required the
funding of Rancho Santa Fe Road and Olivenhain Road ("Project") be guaranteed prior
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
proposals during the period from the present to the formation date of CFD No. 2; and
WHEREAS, CFD No. 2 has not yet been fonnally created; and
WHEREAS, until CFD No. 2 is fomially created, the Project is called the Rancho
Santa Fe Road ("RSF Rd") Project; and
WHEREAS, the Council found that the guarantee provisions related to the
Project could be met through an interim financing program using an agreement between
2-j 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
WHEREAS, the property owners listed in Exhibit 2 have prepaid their fair share
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of the costs associated with the Project pursuant to the Fair Share Agreements; and
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Exhibit 1
1 WHEREAS, surplus Project funds currently exist in part because the city secured
2 federal funds for the Project not anticipated in the original funding matrix; 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 owner's
g who paid their fair share into the RSF Rd Project to release a portion of the surplus
10 Project funds prior to the completion of the habitat monitoring period; and
11 WHEREAS, the City will maintain appropriate funds to ensure that all estimated
12 future Project expenses and a buffer for unanticipated expenses are funded; and
WHEREAS, the property owners listed in Exhibit 2 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; and
WHEREAS, the City Council has previously approved Fair Share Agreements
with the property owners listed in Exhibit 2 allowing for the prepayment of fees to be
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assessed under the RSF Rd Project as an acceptable form of interim financing for the
20 Rancho Santa Fe Road Projects; and
21 WHEREAS, the approval of the Refund Agreement will not affect the City's ability
22 to finance the needed improvements on/along Rancho Santa Fe Road; and
23 NOW, THEREFORE. IT IS HEREBY RESOLVED AS FOLLOWS
1. That the above recitals are all true and correct.
2. That the Refund Agreement, Exhibit 4 attached hereto, is hereby
approved.
3. That the individual pro-rata refunds listed in Exhibit 3, attached
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Exhibit 1
hereto, to the individual property owners listed in Exhibit 2, attached hereto,
are hereby approved upon completion of the Refund Agreement by the
applicable individual property owner.
4. That the City Manager is hereby authorized to sign the Refund
Agreement with each applicable individual property owner.
5. That the Administrative Services Director is authorized to transfer up
to $20,000 from the Rancho Santa Fe Road Project Fund to the General
Fund to cover the estimated staff time associated with the preparation of the
partial refund calculated at the applicable average fully-burdened hourly rate
by position.
6. That the Administrative Services Director is authorized to appropriate
$8,595,009 to the Rancho Santa Fe Road Project Fund for the Rancho
Santa Fe Road partial refund.
7. That the City Clerk is hereby authorized and directed to record each
applicable and fully executed property owner's Refund Agreement with the
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 25th day of February 2014. by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Blackburn.
None.
ABSENT: None.
MATT^HALL, Mayor
ATTEST:
B^<\Rf;ARA ENGLESON, pty Clerk
Exhibit 2
ELIGIBLE PARTY LIST
PROPem OmBR OF RECORD : ,
Califomia Pacific Homes (CT 85-9)
Califomia Pacific Homes
38 Executive Park, Suite 200
Irvine, CA 92614
Centex - Sonata/Tien-a Santa (CT 90-4)
Centex Homes
2 Technology
Irvine, CA 92618
Centex - Santa Fe Trails/Rice Property (CT 85-10)
Centex Homes
2 Technology
In/ine. CA 92618
Centex - Rancho Verde (CT 89-18)
Centex Homes
2 Technology
In/ine. CA 92618
Greystone Homes - Park View West (CT 85-15)
Lennar Homes
25 Enterprise
Aliso Vieio, CA 92656
An-oyo La Costa - Units 1 & 2 (CT 88-03)
Real Estate Collateral Management Company
C/O Mon-ow Development
119 North El Camino Real
Suite EPMB109
Encinitas, CA 92024-5397
Southwest/An-oyo (CT 88-03)
Real Estate Collateral Management Company
C/O Mon'ow Development
119 North El Camino Real
Suite EPMB 109
Encinitas, CA 92024-5397
Meadowlands (CT 85-19)
Dart)y Creek/Carlsbad. LLC
Jenna Group. Inc.. Member
3101 Villa Way
Newport Beach. CA 92663
Keystone La Costa (CT 96-04)
Gary S. Copson. Trustee of the Gary S. Copson
Family Trust U/D/T 3/29/00
As liquidator of Keystone Communities. LLC
1010 University Ave, Suite 372
San Diego, CA 92103
LB/L Concordia (CT 98-02)
50%: Concordia Communities, LLC
1959 Palomar Oaks Way. Suite 150
Carlsbad, CA 92011
50%: LB/Lakeside Capital Partners, LLC
3500 West Olive Ave., Suite 650
Burbank.CA 91505
Shelley - Unit 1 (CT 90-03)
50%: Kathryn DuVivier and 50%: Charles DuVivier
P.O. Box 230638
Encinitas. CA 92023-0638
Exhibit 2
ELIGIBLE PARTY LIST (CONTINUED)
Shelley-Unit 2 (CT 90-03)
Agda B. Shelley
Executor of the Estate of Daniel T. Shelley
P.O. Box 7294
Rancho Santa Fe. CA 92067
Shelley-Unit 3(CT 90-03)
Agda B. Shelley
Executor of the Estate of Daniel T. Shelley
P.O. 60x7294
Rancho Santa Fe. CA 92067
Continental-Unit 4 (CT 90-03)
Continental Residential, Inc.
C/O DR Horton
1021 Costa Pacifica Way. #2107
Oceanside. CA 92054
50%: Cynthia Bell
19Castellina Drive
Newport Beach, CA 92657
25%: Boykin-Hunt, LLC
C/O Howard F. Hunt
3514-A Montlimar Plaza Drive
Mobile, AL 36609
Rancho La Costa Village (SDP 99-07) 12.5%: Richard Alleway
C/O Simac Construction
2067 Wineridge Place. Suite A
Escondido. CA 92029
12.5%: Richard Simis
C/O Simac Construction
2067 Wineridge Place, Suite A
Escondido. CA 92029
La Costa Oaks (CT 02-02.02-03,02-04,02-05)
Real Estate Collateral Management Company
C/O Mon'ow Development
119 North El Camino Real
Suite EPMB 109
Encinitas. CA 92024-5397
La Costa Ridge (CT 99-04)
Real Estate Collateral Management Company
C/O Mon'ow Development
119 North El Camino Real
Suite EPMB 109
Encinitas. CA 92024-5397
La Costa Ridge (CT 99-04; Lot 223)
La Costa Ridge 2.6 (c/o D.R. Horton)
5790 Fleet Street. Suite 210
Carlsbad. CA 92008
Exhibit 2
ELIGIBLE PARTY LIST (CONTINUED)
PROJECT NAME .
LDS/Church of Jesus Christ (CUP 01-04)
The Church of Jesus Christ of Latter Day Saints
4th Floor. West Wing, COB
50 East North Temple Street
Salt Lake City. Utah 84150
Los Coches Village (MS 02-08)
Los Coches Village. LLC (c/o CW. Clark Inc.)
4180 La Jolla Village Drive. Suite 405
La Jolla. CA 92037
La Costa Town Square (CT 01-09,08-03)
Property Development Centers, LLC
5918Stoneridge Mall Road
Pleasanton. CA 94588-3229
La Costa Town Square Residential (CT 12-05)
Taylor Momson
8105 Irvine Center Dr.. Suite 1450
Irvine. CA 92616-4200
Fair Oaks Valley (CT 02-17)
CWV La Costa 49
C/O Califomia West Communities
5927 Priestly Dr., Suite 110
Carisbad, CA 92008
AMOUNT OF PARTIAL REFUND BY DEVELOPMENT
AGREEMENT
DATE PROJECTNAME '^1$ EOU^.8 EDU® 0.6
^HMHAC.
^§10.0
CHURCH
EDU @ 4.0
TOTAL
EDU
REFUND
PER EDU
TOTAL
REFUND
9/28/1993 California Pacific Homes (CT 85-9) 102 102 $2,125 $216,750
3/1/1994 Centex - Sonata/Tlerra Santa (CT 90-4) 111 111 $2,125 235,875
8/8/1995 Centex - Santa Fe Trails/Rice Property (CT 85-10) 189 189 $2,125 401,625
8/8/1995 Centex - Rancho Verde (CT 89-18) 171 171 $2,125 363,375
3/19/1996 Greystone Homes - Park View West (CT 85-15) 131 131 $2,125 278,375
2/1/1997 Arroyo La Costa - Units 1 & 2 (CT 88-03) 455 455 $2,125 966,875
8/24/1998 Southwest/Arroyo (CT 88-03) 618 618 $2,125 1,313.250
12/16/1997 Meadowlands (CT 85-19) 112 112 $2,125 238,000
3/14/2000 Keystone La Costa (CT 96-04) 28 4 30.40 $2,125 64,600
3/28/2000 LB/L Concordia (CT 98-02) 28 28 $2,125 59,500
1/9/2001 Shelley - Unit 1 (CT 90-03) 26 26 $2,125 55,250
1/9/2001 Shelley-Unit 2 (CT 90-03)* 46 46 $2,125 97.750
1/10/2001 Shelley-Unit 3 (CT 90-03)* 109 109 $2,125 231,625
1/10/2001 Continental-Unit 4 (CT 90-03)* 63 63 $2,125 133.875
12/4/2001 Rancho La Costa Village (SDP 99-07) 0 4.120 41.20 $2,125 87,550
2/5/2002 La Costa Oaks (CT 02-02,02-03,02-04,02-05) 820 168 920.80 $2,125 1,956.700
2/5/2002 La Costa Ridge (CT 99-04) 263 263 $2,125 558.875
8/3/2007 La Costa Ridge (CT 99-04; Lot 223) 53 53 $2,125 112,625
2/27/2003 LDS/Church of Jesus Christ (CUP 01-04) 0 5.78 23.12 $2,125 49.130
4/19/2005 Los Coches Village 0 7.469 74.69 $2,125 158.716
1/16/2013 La Costa Town Square (CT 01-09 & CT 08-03) 63 33.350 396.50 $2,125 842,563
10/2/2013 La Costa Town Square Residential (CT 12-05) 32 32.00 $2,125 68.000
12/3/2013 Fair Oaks Valley (CT 02-17) 49 49.00 $2,125 104.125
TOTAL PARTIAL REFUND 3,469 4 0 168 44.94 5.78 4.044.71 8,595,009
*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.
m
&
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 fomially 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
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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 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 fomiula 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 $ (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
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1^,
Exhibit 4
construction of the 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 of the 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
determining the Refund Due to Property Owner.
8. Property Owner acknowledges and affimris 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 of the 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 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)
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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
'By:
(sign here)
(print name/title)
CITY OF CARLSBAD, a
municipal corporation of the State
of California
By:
City Manager
ATTEST:
(e-mail address)
^By:
(sign here)
BARBARA ENGLESON
City Clerk
(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:
CELIAA. BREWER, City Attorney
By:
Assistant City Attorney
2-10-14 Page 4
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