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HomeMy WebLinkAboutCT 90-03; Shelley, Daniel and Agda; 2014-0153679; Pay Fair Share Refund Rancho Santa Fe Rd Agreement1^ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOCtt 2014-0153G79 iiiiiiiiiiiiiiiiiiiii APR 17, 2014 4:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES. 36.00 PAGES: 8 iiiiiiMiiiiiiiiiin Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND AGDA B. SHELLEY, AS EXECUTOR OF THE DANIEL T. SHELLEY ESTATE, AND THE SUCCESSOR IN INTEREST OF CONTINENTAL RESIDENTIAL, INC., A CALIFORNIA CORPORATION 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 Continental Residential, Inc., a California Corporation 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, Continental Residential, Inc. assigned its right to any reimbursement of excess revenues for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 to Daniel T. Shelley, a married man as his sole and separate property (hereinafter "Property Owner"); and WHEREAS, Property Owner 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 (hereinafter "Executor of Property Owner"); 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 2-25-14 Page 1 WHEREAS, funds received from Property Owner's predecessor-in- interest. Continental Residential, Inc., 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 WHEREAS, Executor of 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 by and through the Executor of Property Owner agree as follows: 1. The above recitals are incorporated by this reference as though fully set forth herein. 2-25-14 „ , —-—— Page 2 2. On or about January 24*^, 2001 the Property Owner's predecessor-in- interest, Continental Residential, Inc., entered into a Fair Share Agreement (Doc. #2001-0123814), which may have been amended from time to time, as part of its development project known/identified as 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 to Property Owner based on the fomnula 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 $329,375 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by the City of Carlsbad. 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. 5.a. On or about January 24*^, 2000 Continental Residential, Inc. and Daniel T. Shelley executed a Third Amendment to Option Agreement and Escrow Instructions ("Third Amendment"). Pursuant to Section 10 ofthe Third Amendment Continental Residential assigned the right to receive any refunds under the Fair Share Agreement (Doc #2001- 0123814) for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 to Daniel T. Shelley, a married man as his sole and separate property. 2-25-14 „ , —— Page 3 Furthermore, on or about January 3^^\ 2003, Continental Residential, Inc. executed an Assignment of Excess Revenues for Unit 2 and Unit 3 of Tentative Tract Map CT 90-03 assigning Continental Residential Inc.'s rights to any excess revenues to Daniel T. Shelley, a married man as his sole and separate property. On February 21®*, 2009, Daniel T. Shelley passed away. On or about August 16*, 2009, Agda B. Shelley was appointed Executor ofthe Daniel T. Shelley estate. Accordingly, City will disburse Property Owner Refund Due to the Executor of Property Owner as follows: Successor in Interest's Name Refund Due Agda B. Shelley as Executor of the Estate of Daniel T. Shelley - Unit 2 $97,750.00 Agda B. Shelley as Executor of the Estate of Daniel T. Shellev - Unit 3 $231.625.00 Total Property Owner Refund Due $329,375.00 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. 7. Executor of Property Owner agrees to the methodology used in Paragraph 5 above for determining the Refund Due to Property Owner. 8. Executor of Property Owner acknowledges and affimns 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. Executor of 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. Executor of 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 2-25-14 „ ^ — Page 4 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 5 PROPERTY OWNER /^SdCL. B. Sh^i{'<j£tj2iiukrrUi-*~a-. ^By: Kfj^dCj (sigiV-here) Agja B. Shelley as Executor of the Daniel T. Shelley Estate (print name/title) (e-mail address) ^By: (sign here) CITY OF CARLSBAD, a municipal corporation of the State ofCalifornia By City Manager ATTEST: JARBAR 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. 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: CELIA A. C)ty Attorney ty Attorney 2-25-14 Page 6 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT Stateof Califomia County of f3^ft^ Ol^^ On_3,^^Lk^eforeme, r>PPl 1 ^P^^n<r=3 - ^r^^ ^^^^ , i J (Here insert name and title of the officer) ^ ) personally appeared who proved to me on the basis of satisfactory evidence tobe the person^) whose name^$^^e subscribed to the within instrument and acknowledged to me that he^^they executed the same in his^^eir authorized capacity(ipsT, and that by his/J^^eir signature^/) on the instrument the person0, or the entity upon behalf of which tiie person^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State ofCalifornia that the foregoing paragraph is true and correct. WITNESi hand and official seal Signature of Notary Public (Notary Seal) 1 OFFICIAL SEAL APRIL BARCENAS NOTARY PUBLIC-CALIFORNlAg COMM. NO. 2052678 ^ SAN DIEGO COUNTY MY COMM. EXP. DEC 20,2017 J DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached docuinent continued) Number of Pages Document Date ADDITIONAL OPTIONAL INFORMATION INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of Califomia. In such instances, any altemative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in Califomia (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form ifrequired. (Additional information) CAPAprfr CLAIMED BY THE SIGNER • Individual • Corporate Ofificer (Title) • Partner(s) • Attomey-in-Fact • Trustee(s) • Other State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. Date of notarization must be the date that the signer<s) personally appeared which must also be the same date the acknowledgment is completed. The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). Print the name(s) of document signers) who personally appear at the time of notarization. hidicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/Aey;- is /ase) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. Signature of the notary public must match the signature on file with the office of the county clerk. •> Additional infonnation is not required but could help to ensure this acknowledgment is not misused or attached to a different document. • Indicate title or type of attached document, number of pages and date. <• hidicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, uidicate the title (i.e. CEO, CFO, Secretary). Securely attach this document to the signed document State of California County of Sa.r\ D> fig^o CAUFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT On Ap^'i cii^^ before me, C i a> TC-i Ui fjQ AM^'^ , T (here insert name andTitle OT the officer) personally appeared KcM\i^\fii\ P>. Qoglsc^ who proved to me on the basis of satisfactory evidence to be the personjis^^hose name^s^s/^f^subscribed to the within instrument and acknowledged to me that JaeTshe/^bey executed the same in jM^er/tiieir authorized capacityj;ie§l, and that byJats^er/ttjetr signaturej;sron the instrument the personj;8^; or the entity upon behalf of which the person^sfacted, 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 ti^xya . -tx^^^Cn fit LETICIA TREVINO REYES I COMM. #1994847 i Notary PuWic • California » San Diego Counl My Comm. Expires Oct. "^1,20I6[ (Seal) OPTIONAL INFORMATION ATtlHQugh the information in this section is not required by law, it could prevent fraudulent removal and reaPKichment of this acknbwledgment to an unauthorized document and may prove useful to persons relying on the attap^^ document. JCopyright 2007-2012 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.