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HomeMy WebLinkAboutCT 96-04; Keystone La Costa LLC; 2014-0153676; Pay Fair Share Refund Rancho Santa Fe Rd Agreementi 10 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Cleric CITY OF CARLSBAD 1200 Carisbad Viiiage Drive Carisbad, CA 92008 DOCtt 2014-0153G7G llllllllllllllllll IIIIIIIIIIIIIIIIIII APR 17, 2014 4:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg. Jr.. COUNTY RECORDER FEES: 42.00 PAGES: Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND GARY S. COPSON, AS TRUSTEE OF THE GARY S. COPSON FAMILY TRUST, AND DULY AUTHORIZED LIQUIDATOR OF KEYSTONE COMMUNITIES LLC, AND THE SUCCESSOR IN INTEREST OF KEYSTONE LA COSTA, LLC, A DISSOLVED 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 Carisbad ("City") and Keystone La Costa, LLC, a California Limited Liability Company 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, Keystone La Costa, LLC had three members identified as Keystone Communities, LLC (95% ownership interest), Gary S. Copson (2.5% ownership interest) and Ross Felber (2.5% ownership interest); and WHEREAS, Keystone La Costa, LLC dissolved and distributed its assets to Keystone Communities, LLC who, as successor-in-interest, had the authority to enter into agreements to wind up Keystone La Costa, LLC; and WHEREAS, Keystone Communities, LLC has dissolved and pursuant to the agreement for Dissolution and Winding Up of Keystone Communities, LLC, Gary S. Copson, Trustee ofthe Gary S. Copson Family Trust U/D/T 3/29/00, was appointed as sole liquidator and given exclusive rights and responsibilities for winding up the affairs of Keystone Communities, LLC; and 10 2-25-14 Page 1 WHEREAS, for purposes ofthis agreement, Keystone Communities, LLC owns the entire subject property (referred to as "Property Owner") that is the subject matter of the above-reference Fair Share Agreement; and WHEREAS, Gary S. Copson, Trustee and duly appointed liquidator of Keystone Communities, LLC has the sole authority to act and enter into this agreement pursuant to his duties of winding up the affairs of Keystone Communities, LLC; 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 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 ofthe surplus project funds priorto 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 2-25-14 „ , Page 2 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 March 7^^^, 2000 the Property Owner entered into a Fair Share Agreement (Doc. #2000-0183266), which may have been amended from time to time, as part of its development project known/identified as Carisbad Tract Map 96-04 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 ofthe 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 fonnula 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 $64,600 (hereinafter "Refund Due") within thirty days of the 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% 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. 2-25-14 „ , ——— Page 3 5.a. On or about June 19*^, 2002 Keystone La Costa, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State ofthe State of California (Doc # 199912610088). According to the Keystone La Costa, LLC Operating Agreement (dated on or about May 11**^, 1999), Keystone La Costa, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Keystone La Costa, LLC: Gary S. Copson 2.5% Ross Felber 2.5% Keystone Communities, LLC 95% 100% According to the Keystone Communities, LLC Amended and Restated Operating Agreement (dated on or about January 1®*, 1999), Keystone Communities, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Keystone Communities, LLC: Gary S. Copson 50% Ross Felber 50% 100% According to the Keystone Communities, LLC First Amendment to Amended and Restated Operating Agreement (dated on or about August 14*'', 2001), Keystone Communities, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Keystone Communities, LLC: Gary S. Copson, a unmarried man 50% Ross Felber, a married man 50% 100% (Remainder of Page Intentionally Left Blank) 2-25-14 „ , -— Page 4 According to the Keystone Communities, LLC Second Amendment to Amended and Restated Operating Agreement (dated on or about October 31®', 2001), Keystone Communities, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Gary S. Copson, Trustee ofthe Keystone Communities, LLC: Gary S. Copson Family Trust U/D/T 50% 3/29/00 Ross Felber, a married man 50% 100% On or about February 1®', 2005 Keystone Communities, LLC filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of California (Doc # 199701010035). According to the Keystone Communities, LLC Limited Liability Company Agreement for Dissolution and Winding up of Keystone Communities, LLC (dated on or about October 21®', 2002), Gary S. Copson, Trustee ofthe Gary S. Copson Family Trust U/D/T 3/29/00, shall be the liquidator and shall have the exclusive rights and responsibilities for winding up the business of Keystone Communities, LLC. Accordingly, the Keystone Communities, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Gary S. Copson, Trustee ofthe Keystone Communities, LLC: Gary S. Copson Family Trust U/D/T 100% 3/29/00 100% Accordingly, City will disburse Property Owner Refund Due based on member percentage interests as follows: Member's Name Refund Due Gary S. Copson, Trustee of the Gary S. Copson Family Trust U/D/T 3/29/00 as liquidator of Keystone Communities. LLC $64.600.00 Total Property Owner Refund Due $64,600.00 6. Upon completion of the project improvements and the recording of the applicabie Notice of Completion for the final phase of the improvements and the 2-25-14 , Page 5 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 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. 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 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 6 PROPERTY in Gary S. Copson, Trustee of the Gary S. Copson Familv Trust U/D/T 3/29/00 (e-mail address) (print name/title) (sign here) CITY OF CARLSBAD, a municipal corporation of the State of Califocnia By: City Manager ATTEST: 5ARBA City Clerl (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. BREWER, City Attorney By: Assistant City Attorney 2-25-14 Page? CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § ii89 State of California County of ^A>M'TII>I£^^O On OS HAg^rt 20«y before me, Date —OR J to 3c (c Here Insert Name and Title of ttie Officer personally appeared Name(s) of Signer(s) DAVID W. FIENE t Commission # 2011287 C Notary Public - California 1 -mrr^ San Diego County - 'IS^ My Comm. Expires Mar 11, 20171 who proved to me on the basis of satisfactory evidence to be the person^*) whose nameO^ is/a»e subscribed to the within instrument and acknowledged to me that he/sfee/tt»e.y executed the same in his/h^t/tbftir authorized capacity(ies), and that by his/hsr/tljejr signature^) on the instrument the person(^, or the entity upon behaif 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. Place Notary Seal Above Signature: OPTIONAL Signature of Notary Public 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 — Tltle(s): • Individual • Partner — • Limited • General • Attorney In Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of tfiumb Iiere Signer Is Representing:. Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUIVIBPRINT OF SIGNER Top of tfiumb here © 2010 National Notary Association • NationalNolary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO ) On £> y /yifiAc// J*'^, ^0tt, before me, ^fi^io tJ /-/gA/g a Notary Public, personally appeared GARY S. COPSON, who proved to me on the basis of satisfactory evidence to be the person(:8;) whose name(?() is/ape subscribed to the within instrument and acknowledged to me that he/sliie/tbtey executed the same in his/ber/ttfeir authorized capacity(iefe), and that by his/h^fr/th^ signatures^*) on the instrument the persons(^), or the entity upon behalf of which the persons(^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State ofCalifornia that the foregoing is true and correct. WITNESS my hand and official seal. [SEAL] Notary Public '" DAVID W. FIENE \ Commission # 2011287 | Notary Public - California z San Diego County My r.nmm. Expires Mar 11, 2017 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Q.'-eQQ } On K^r-. II^^H before me, h-^C iaTf^]Uj^^J^^ P^i-'C personally appeared M^ryn O^^Z?).s>^,.) LETICIA TREVINO REYES [ COMM. #1994847 z Notary PuMic • California r San Dtego County -r My Comm. Expires Oct. 21,2016 \ Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the persony^a) whose namej/elf isl^ subscribed to the within instrument and acknowledged to me that jae/she^ljeyexecuted the same inJsis/her/Jhetr authorized capacityjpes); and that by tHS/her/ttJersignatureisTon the instrument the person(^ or the entity upon behalf of which the personp8)^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 /!!&l/C*^/\AiMK) AsJ^v^ ' SlgtiSlure of Notary Pubte A OPTIONAL 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. Deschp^m ot Attached Document Title or Type of Kjeyment:. Document Date: Number of Pages:. Signer(s) Other Than Named Above^ Capacity(ies) Claimed by Signer(s) Signer's Name:. • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or ConservatQP • Other:. RIGHT TriUMBPRir-IT OF SIGNER Top of thumb fiere ifs Name: :liyidual • Cor^lx^e Officer — Title(s): • Partner-N? Limited • General • Attorney in 1 • Trustee • Guardian or Conserve • Other:. RIGHTTHUMBPRINT OF SIGN'FR ©2007NationalNotaryAs!ocialion«9350DeSotoA«e.,P.O.Bai(2402'Ctialsi«)rth,CA 91313-2402 •www.NatlonalNotary.org ltem#5907 Reorder. Call Toll-Free 1-800876