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HomeMy WebLinkAbout; LB/Lakeside Capital Partners LLC; 2014-0260597; Pay Fair Share Refund Rancho Santa Fe Rd AgreementDOC lllllllllll 2014-02G0597 lllliillllliilllllillllH RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Ifjn City Clerk / l\ CITY OF CARLSBAD jm) 1200 Carlsbad Village Drive Carlsbad, CA 92008 JUN 23, 2014 4:59 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE ErneslJ. Dronenburg, Jr., COUNTY RECORDER FEES: 43.00 PAGES: 10 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND THE SUCCESSORS IN INTEREST OF LB/L-CONCORDIA CARLSBAD-28, LLC, A DISSOLVED 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 FACILITIES DISTRICT NO. 2 WHEREAS, the City of Carlsbad ("City") and LB/L-Concordia Carlsbad-28, 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, LB/L-Concordia Carlsbad-28,LLC has dissolved and distributed its assets to successors-in-interest; and WHEREAS, LB/L-Concordia Carlsbad-28,LLC successor-in-interest is LB/L Concordia Master, LLC; and WHEREAS, LB/L Concordia Master, LLC was a Delaware Limited Liability Company that owned a One-Hundred Percent (100%) interest in LB/L Concordia Carlsbad-28,LLC; and WHEREAS, LB/L Concordia Master, LLC has dissolved and distributed its assets to successors-in-interest; and 2-25-14 Page 1 WHEREAS, LB/L Concordia Master, LLC successors-in-interest are LB/Lakeside Capital Partners, LLC, a Delaware Limited Liability Company, and Concordia Communities, LLC, a Delaware Limited Liability Company; and WHEREAS, LB/Lakeside Capital Partners, LLC owns a Fifty Percent (50%) interest in the subject property and Concordia Communities, LLC owns a Fifty Percent interest in the subject property, collectively they own the entire subject property (collectively referred to as "Property Owner") that is the subject matter of the above-referenced Fair Share Agreement; 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 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 2-25-14 p3,,2 WHEREAS, Property Owner voluntarily enters into this agreement to obtain a partial refund of fees (hereinafter "Refund Agreemenf) 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 March 21^', 2000 the Property Owner entered into a Fair Share Agreement (Doc. #2000-0201033), which may have been amended from time to time, as part of its development project known/identified as Carlsbad Tract Map 98-02 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 $59,500 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by the City of Carisbad. 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 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% 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. .2:25^4 p3g,3 5.a. On or about January 28*, 2005 LB/L-Concordia Carlsbad-28, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of Delaware (Doc # 040945400). On or about January 15' , 2009 LB/L-Concordia Master, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of Delaware (Doc # 081205616). According to the LB/L-Concordia Carlsbad-28, LLC Amended and Restated Operating Agreement (dated on or about September 29*, 1999), LB/L- Concordia Carlsbad-28, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest LB/L-Concordia Carlsbad-28, LLC: LB/L-Concordia Master, LLC 100% 100% According to the LB/L-Concordia Master, LLC Limited Liability Company Dissolution Agreement (dated on or about December 22"^, 2008), LB/L- Concordia Master, LLC member percentage interests are as follows: Percentage Entitv Member's Name Interest I r^i, ^ »;i * 11/- LB/Lakeside Capital ^no/ LB/L-Concordia Master, LLC: Partners LLC Concordia Communities, LLC 50% 100% Accordingly, City will disburse Property Owner Refund Due based on member percentage interests as follows: Member's Name Refund Due LB/Lakeside Capital Partners, LLC $29,750.00 Concordia Communities. LLC $29.750.00 Total Property Owner Refund Due $59,500.00 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. 2-25-14 „ . Page 4 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 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 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. 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) 2-25-1^ Pages PROPERTY OWNER CITY OF CARLSBAD, a municipal corporation of the State of California LB/Lg|keside C^al Partners, LLC Marsha Jennings , AuthofizedQjgnatory (pnnt name/title) rh[Ajr)n\n^Q- )/y^A ^.'Jg^p-b^l .Cor^ ^ V-mail address) \ *By:_ LB/Lakeside Capital Partners, LLC (print name/title) By City Manager [EST: (email address) Concordia Communities, LLC Tie/tiflc (print name/title) (email address) ^By:_^^^^^ Concordia Communities, LLC (print name/title) (email address) Proper notary acknowledgment of execution by each Property Owner or Successor-in-interest to Property Owner 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: , City Attorney See attached acknowledgment ity^ttorney~ 02-25-14 Page 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of LQS } On K-AQU 1. ^Dl^ before me, C^gshoy 9>a>^V'''r>\ - AJoVarxi V^ W\C I Date ' Here Insert Name and Title of the Officer j personally appeared KAo.K^K ^Tg.Q «n ^ NameCs) of S f StgneT^s) S SASHA SARTINI COMM. #1975017 NOTARY PUBLIC • CALIFORNIA LOS ANGELES COUNTY Commission Expires MAY 8,2016 who proved to me on the basis of satisfactory evidence to be the personj^sf whose namej^is/^ subscribed to the within instrument and acknowledped to me that Jp^she/tls^y executed the samp in hi^er/JKeir authorized capacity(i^, and that byjji^er/tpeir signaturej^on the instrument the person^g), or the entity upon behalf of which the person^afacted, 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. Place Notary Seal Above WITNESS my ^nd and official seal^^ jj Signature yf.^J.^ NA^S^T ^—^ ^ KSignature of NotarfPublic^ ' 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:. • Individual • • • • Corporate Officer — Title(s): Partner — • Limited • General Attorney in Fact Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego 0„ MAY 2 2 2014 before me, Walter E. Pueschel, a Notary Public personaUy «pp.s.r.H D <g W C/>/^ e£^W (PoQ who proved to me on the basis of satisfactory evidence to be the person(fO whose name(^) is/aro-subscribed to the within instrument and acknowledged to me that he/sbe^tiiey executed the same in his/he»/t*eir authorized capacity(ie8>- and that by his/hoc^lheir signature(«) on the instrument the person(s) , or the entity upon S^alf of which the person(») 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. WITNESS my hand and seal. Signature: Signature of Notary I WALTER E. PUESCHEL Commission # 1981874 Notary Public - California i % ^^iig^ D>*90 County g 4 ""^Sm^ MyComm. Expires Jul 9, 2016 L Place Notary Seal Above ACKNOWLEDGMENT State of California County of On before me, e basis of satisfactory evidence to be the per David Rosenbaum - Notary Public (insert name and title of the officer) personally appeared . . , - - - , who proved to me on the basis of satisfactory evidence to be the person(«) whose name(a) is/«fe subscribed to the within instrument and acknowledged to me that he/«bWtt»ey executed the same in his/h©f#»tr authorized capacity(4e*), and that by his/bwWwif signature(^ on the instrument the person(>), or the entity upon behalf of which the person(«) 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. Signature 1 DAVID ROSENBAUM COMM. #1997152 z Notary Public • California g San Diego County -j My Comrn. Expires Nov. 4> 2&16 ^ (Seal) State of California County of Pl-^£p CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On TS^rve II, ^ON before me, AtfeoTTtu'iAD RLi^j f^Uc , ' (here insert nam* and mle ofthe officer) personally appeared j^fZ^FS/ir^ ^.(^tid^^'n ^ who proved to me on the basis of satisfactory evidence to be the persoii(s^hose name^sfis^ subscribed to the within instrument and acknowledged to me that J>e/she/y>e5? executed the same in jj+sTher/th^r authorized capacityj^ie?), and that by >ts7tier/;Mr signatur^on the instrument the personiaf, or the entity upon behalf of which the persor^^sTacted, 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 LETICIA TREVINO REYES [ COMM. #1994847 i Notary Public • Califomia g San Diago County My Comm. 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