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HomeMy WebLinkAboutCT 90-03; DuVivier, Charles and Kathryn; 2014-0253326; Pay Fair Share Refund Rancho Santa Fe Rd AgreementDOC ill 2014-025332G lliiiii 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 DIE60 COUNTY RECORDER'S OFFICE Erriesl J. Dronenburg, Jr., COUNTY RECORDER FEES: 43.00 PAGES: 10 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND CHARLES DUVIVIER AND KATHRYN DUVIVIER, SUCCESSORS IN INTEREST OF UNIT 1 OF TENATIVE TRACK MAP CT 90-03 AND UNIT 1 OF CARLSBAD TRACK NUMBER 90-03 [FINAL MAP NUMBER 14134] 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 Carisbad ("City") and Daniel T. Shelley, a married man as his sole and separate property, owned Unit 1 of Tentative Track Map CT 90-03 ("Shelley Property - Unit 1") 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 fomially 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 ofthe habitat monitoring period; and WHEREAS, City Council believes it would be equitable to the Property Owners, including Daniel T. Shelley, 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 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 determining fair share obligation; and WHEREAS, prior to February 27, 2001, Rancho Mesa Verde, LLC a California Limited Liability Corporation was formed by Charles DuVivier and Kathryn DuVivier equally and each of them were the managing partners of Rancho Mesa Verde, LLC; and WHEREAS, on or about February 27, 2001 Daniel T. Shelley sold or othenwise conveyed Unit 1 of Tentative Tract Map CT 90-03 to Rancho Mesa Verde, LLC a California Limited Liability Corporation [Grant Deed: Doc. No. 2001-0111268 on file in the San Diego County Recorder's Office]; and WHEREAS, on or about December 21, 2004 Rancho Mesa Verde, LLC was dissolved and distributed its Shelley Property - Unit 1 asset to Charies DuVivier and Kathryn DuVivier as successors-in-interest to Rancho Mesa Verde, LLC; and WHEREAS, Charies DuVivier and Kathryn DuVivier as successors-in- interest each own an undivided interest in Shelley Property - Unit 1 and collectively they own the entire Shelley Property - Unit 1 ; and WHEREAS, the City of Carlsbad, in a letter dated August 6, 2004, acknowledged that Daniel T. Shelley was entitied to certain excess revenues, if they arise, pursuant to the Fair Share Agreement, including excess revenues in the Shelley Property - Unit 1; and 2-25-14 „ , Page 2 WHEREAS, Daniel T. Shelley passed away on February 21, 2009; and WHEREAS, Agda B. Shelley, Daniel T. Shelley's wife, is the executor of the Daniel T. Shelley estate; and WHEREAS, Agda B. Shelley assigned her right to any reimbursement of excess revenues in the Shelley Property - Unit 1 to Charies DuVivier and Kathryn DuVivier; and WHEREAS, Charies DuVivier and Kathryn DuVivier voluntarily enters into this agreement to obtain a partial refund of fees (hereinafter "Refund Agreement") paid pursuant to Daniel T. Shelley's Fair Share Agreement; and NOW, THEREFORE, in consideration ofthe above recitals and the mutual covenants contained herein. City and Charies DuVivier and Kathryn DuVivier agree as follows: 1. The above recitals are incorporated by this reference as though fully set forth herein. 2. On or about December 19, 2000 Charies DuVivier and Kathryn DuVivier's predecessor-in-interest, Daniel T. Shelley, entered into a Fair Share Agreement (Doc. # 2001-0050065), which may have been amended from time to time, as part of its development project known/identified as Unit 1 of Tentative Tract Map CT 90-03 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 jointly to Charies DuVivier and Kathryn DuVivier, as successor's-in-interest, 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 Charles DuVivier and Kathryn DuVivier (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 Charies DuVivier and Kathryn DuVivier $55,250 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by 2-25-14 „ , — —_ Page 3 the City of Carisbad. 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% 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. 5.a. On or about February 27, 2001 Daniel T. Shelley sold or othenwise conveyed Unit 1 of Tentative Tract Map CT 90-03 to Rancho Mesa Verde, LLC a California Limited Liability Corporation (Document # 2001-0111268). On or about December 21, 2004 Rancho Mesa Verde, LLC filed a Limited Liability Company Certificate of Dissolution with the Secretary of State of the State of California (Doc. # 200102610038). According to the Rancho Mesa Verde, LLC Operating Agreement (dated on or about January 23, 2001), Rancho Mesa Verde, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Rancho Mesa Verde, LLC: Charles DuVivier 50% Kathryn DuVivier 50% 100% Daniel T. Shelley is entitled to certain excess revenues in Shelley Property - Unit 1, if they arise, pursuant to the Fair Share Agreement. On February 21, 2009 Daniel T. Shelley passed away. On or about August 16, 2009 Agda B. Shelley was appointed Executor of the Daniel T. Shelley estate and is entitled to certain excess revenues in Shelley Property - Unit 1, if they arise, pursuant to the Fair Share Agreement. On or about May 3, 2010 Agda B. Shelley executed an Assignment of Excess Revenues for Shelley Property - Unit 1 [Tentative Tract Map CT 90-03] assigning all of Daniel T. Shelley's rights to any excess revenues in Shelley Property - Unit 1 under the Fair Share Agreement (Doc. # 2001-0050065) to Charles DuVivier and Kathryn DuVivier. 2-25-14 „ ^ — Page 4 Accordingly, as to Shelley Property - Unit 1, City will disburse Agda B. Shelley's Refund Due as executor of the Daniel T. Shelly estate to Charies DuVivier and Kathryn DuVivier based on member percentage interests as follows: Successor in Interest's Name Refund Due Charles DuVivier $27,625.00 Kathryn DuVivier $27.625.00 Total Refund Due Charies DuVivier and 250 00 Kathryn DuVivier 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 Daniel T. Shelley's Fair Share Agreement, as modified by the Agda B. Shelley Assignment of Excess Revenues to Charies DuVivier and Kathryn DuVivier and taking into account any Refund Due amounts that Charies DuVivier and Kathryn DuVivier may have accepted before the recordation ofthe Notice of Completion. 7. Charies DuVivier and Kathryn DuVivier agrees to the methodology used in Paragraph 5 above for detennining the Refund Due to Property Owner. 8. Charies DuVivier and Kathryn DuVivier 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. Charies DuVivier and Kathryn DuVivier 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. Charies DuVivier and Kathryn DuVivier 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 Charies DuVivier and Kathryn DuVivier or enforcing any term and/or condition of this Agreement that is caused by any negligence, recklessness, or willful misconduct of the Charies DuVivier and Kathryn DuVivier, employees, agents or anyone directly or indirectiy representing Charies DuVivier and Kathryn DuVivier 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 Charies DuVivier and Kathryn DuVivier or Charies DuVivier and Kathryn DuVivier's agent. 2-25-14 „ - — Page 5 11. All other provisions of the Daniel T. Shelley 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 their own behalf each represent and warrant that they have the legal power, right and actual authority to bind the party on whose behalf they are signing to the terms and conditions of this Agreement. (Remainder of Page Intentionally Left Blank) 2-25-14 „ ^ — Page 6 (sign here) Charies DuVivier (print name/title) (email address) sign here) The Estate of Daniel T. Shelley Estate of Daniel T. Shelley CITY OF CARLSBAD, a municipal corporation of the State of California City Manager Kathryn DuVivier (print name/titie) (email address) SEE ATTACHED ACKNOWLEDGMENT kRA ENGLESC City Clerk Proper notary acknowledgment of execution by each property owner. Successor-in-interest to property owner, or Executor of an estate 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. BRE Attorney ^ssistanrtrCityAttorney 2-25-14 Page? 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