HomeMy WebLinkAbout; Taylor Morrison of California LLC; 2014-0253324; Pay Fair Share Refund Rancho Santa Fe Rd Agreementtt 2014-0253324
lilllillllllllllll DOC
lllllllllllllllllllllllllllllllilll 11
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
JUN 18, 2014 3:39 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 34.00
PAGES:
Space Above This Line for Recorder's Use
AGREEMENT BETWEEN CITY OF CARLSBAD
AND TAYLOR MORRISON OF CAUFORNIA, LLC,
A CALIFORNIA 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 Taylor Morrison of California,
LLC, a California Limited Liability Company (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
Carisbad 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
2-25-14 Page 1
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, 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 August 8'^, 2013 the Property Owner entered into a Fair
Share Agreement (Doc. #2013-0598457), which may have been amended from
time to time, as part of its development project known/identified as La Costa
Town Square-Residential (CT 12-05) 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 ofthe 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
2-25-14 „ ,
— Page 2
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 $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 $68,000 (hereinafter "Refund Due") within
thirty days ofthe 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% 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
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 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
2-25-14 „ _
-— Pages
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)
2-25-14 „ ^
— Page 4
Taylor Morrison of
California, LLC
PROPERTY OWNER CITY OF CARLSBAD, a
municipal corporation of the State
(sign here) By:
City Manager
(print name/title)
(e-mail adcires:
o^Vvomson, UJ/V^ ATTEST:
BARBARA ENflBLESON
City Clerk
(sign here)
(print name/title)
(e-mail addre§§l^
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 A.
Ssistant City Attorney
2-25-14 „ _
—-—— Page 5
ACKNOWLEDGMENT
State of California
County of Orange
On April1,2014 before me, B. Tate, Notary Public
(insert name and title of the officer)
personally appeared Philip S. Bodem and Marta Flores
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 California that the foregoing
paragraph is true and correct. -.
B. TATE I
WITNESS my hand and official seal.
Signature.
Commission No. 1998083
^'1 NOTARY PUBLIC-CALIFORNIA
SAN BERNARDINO COUNTY
My Comm £»«*•» NOVEMKR12.2018
(Seal)
State of California
County of ^Qtn Di
) CALIFORNIA ALL-PURPOSE
) CERTIFICATE OF ACKNOWLEDGMENT
On Hay rPl, ^O/M before me, f.^-^^C^cTJrtju.^ii RSij/es . AJojt^ry AxbJ/r
r (here insert name and title ofthe offirer)
personally appeared iKn'^ryr^ 3- OcdiyZ
who proved to me on the basis of satisfactory evidence to be the person^lat whose nameisTis/are'subscribed to
the within instrument and acknowledged to me that >e7she/il*ey executed the same in tu«/her/il*eTr
authorized capacity_^ies), and that by>is/her/jl>eir signatureisfon the instrument the personj^, or the entity
upon behalf of which the personjiafacted, 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 ^^^:fyz^j/a^^MiiMi IZJLXA^
TETICIA f REVINO REYES I
COMM. #1994847 ^ Notary Public. California 2
San Diego County 2
My Comm. Baiires Oct. 21.20161
(Seal)
• OPTIONAL INFORMATION
) Copyright 2007-201 2 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 of this form.