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
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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
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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
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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.
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—-—— 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.
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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
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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)
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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
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CERTIFICATE OF ACKNOWLEDGMENT
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i J (Here insert name and title of the officer) ^ )
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which tiie person^ acted, executed the instrument.
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