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HomeMy WebLinkAboutCT 85-19; Darby Creek Carlsbad LLC; 2014-0127214; Pay Fair Share Refund Rancho Santa Fe Rd AgreementDOCtt 2014-01 27214 RECORDING REQUESTED BY AND WHEN RECORDED IVIAILTO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 iiiiiiliiilllllllillllilllii APR 01, 2014 4:01 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE EmesU. Dronenburg, Jr., COUNTY RECORDER FEES: 3300 PAGES; 7 Space Above This Line fbr Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND DARBY CREEK/CARLSBAD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, JENNA GROUP, INC.,MEMBER 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 Darby Creek/Carisbad, LLC, a California Limited Liability Company, Jenna Group, Inc., Member (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 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 fundina matrix was designed; and WHEREAS, the City is not required to refund surplus project funds until completion of all applicable improvements and the recordation ofthe 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 ofthe surplus project funds prior to 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 detemnining 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 December 30'^ 1997 the Property Owner entered into a Fair Share Agreement (Doc. #1998-0001809). which may have been amended from time to time, as part of its development project known/identified as Tentative Tract Map 85-19 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 monitonng period. Notwithstanding, the City Engineer and City Administrative Services Director have determined the total cost required to complete the outstanding public improvements and has detennined that excess revenues exist within the RSF Rd Project account. As a result, the City has decided to refund a 2-25-14 — PageZ 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 $238,000 (hereinafter "Refund Due") within thirty days ofthe date this Refund Agreement is signed by the City of Carlsbad. The amount ofthe Refund Due has been detemiined by multiplying the proportional share ("Proportional Share") by the total amount of excess revenues ("Excess Revenues"). Proportional Share was detemiined 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 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 ofthe 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 ofthe Notice of Completion. 7. Property Owner agrees to the methodology used in Paragraph 5 above for detemiining the Refund Due to Property Owner. 8. Property Owner acknowledges and affinns 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 2-25-14 — — Page 3 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 ofthis Agreement. (Remainder of Page Intentionally Left Blank) 2-25-14 ~~ —— Page 4 PROPERTY OWNER Darby Creek/Carlsbad LLC By: Jeima Group, Inc. - Meniber *Bv: N^-l r\Q6JCmvJp dfeien hefe) John T. Newcomb, President CITY OF CARLSBAD, a municipal corporation ofthe State ofCaliiQaiia City Manager (print name/title) newcombl001@aoLcom (e-mail address) Darby Creek/Carlsbad LLC gw. By: Jenna Group, Inc. - Member ATTEST: jign here) John T. Newcomb, Secretary BARBARA City Cleric (print nameMIe) — newcombl001@aoLcom (e-mair aaoress; 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 firom eadi ofthe following two groups. ""Group A. \ Chairman, President, or Vice-President ""Group B. Secretary, Assistant Secretary, 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 Aftomey 2-25-14 Pages CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On before me, ^YAI^ VAK/"Bu«tgJ . fJtTAto- "PuacKL « D»<e Here Insert Namb and Trtle of the Officer personally appeared^ '^^'^'^ T- Mgu/gpWFv Name(s) Signer{s) NN RYAN VAN BUREN I COMM. #1922392 o NOTABV PUBUC - CALIFORNIA -( COUNTV OF ORANGE I My Conrn. ExpirM FebciMry IS. 2015 V\^\rw WW W WV who proved to me on the basis of satisfactory evidence to be the person(^ whose name^gf is/«H« subscribed to the within instmment and acknowledged to me that he/aho/thoy executed the same in his/horAhoir authorized capacity^iee), and that by his/horAhoir signaturei«f on the instrument the person^B^ or the entity upon behalf of which the personj^gf 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 handaod official seal. Place Notary Seal Alxive Signature: OPTIONAL — 50} Notary Public r 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: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top ot thumb here Signer Is Representing:. Signer's Name: • Corporate Officer — Tltle(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OFSIGNER Top of ttiumb tiere © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 State of California County of .3arv Ci'.-epp CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On HOT. AOj^ before me, h "^'^^^Q I ^'t"!^ ^X.y€7^ . Ji,lojQr\/ Aub/. C , ^nd'tifle'"'*^- .,«;--^ (here insert name and tifle ofthe officer) personally appeared /=^'Hir-yr> 3. QtggtsOin who proved to me on the basis of satisfactory evidence to be the person^whose name^is/^ subscribed to the within instrument and acknowledged to me that >e/she/jiwy executed the same in j»fs/her/tt»etr authorized capacity^jies), and that by i>i57Tier/t]>etrsignaturej;sft)n the instrument the personis)^ 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 ^^XjO^t^ c^^^-iW LETtCIA TREVlitO REYES i COMM. #1994847 i Notary PiMic • Califomia g San Diego CounW My Comm. Bipires Oct. 21^ 2016 [ (Seal) OPTIONAL INFORMATION AlthctbiQh the information in this section is not required by law, it could prevent fraudulent removal and reattachment ofthis acknowl^eigment to an unauthorized document and may prove useful to persons relying on the attached docurp^^rff. Description ofAttached Document The preceding Certificate ofAtkQowledgment is attached to a document titled/for the purpose of containing The signer(s) capacity or authority is/are as n Individual(s) 1^ Attorney-in-Fact I I Corporate Officer(s) n Guardian/Conservator CH Partner-Limited/General CH Tru5tee(s) • Other: ) Copyright 2007-201 2 Notary Rotary, Inc. PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved, Part Number 101772, Please contact your Authorizecl Reseller to purchase copies of this form.