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HomeMy WebLinkAboutSDP 99-07; Rancho La Costa LLC and Pacific La Costa Village; 2014-0153677; Pay Fair Share Refund Rancho Santa Fe Rd AgreementRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DOCtt 2014-0153677 lillllillllllllllilll^ APR 17, 2014 4:21 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE EmestJ. Dronenburg, Jr., COUNTY RECORDER FEES: 45.00 PAGES: 11 Space Above This Line for Recorder's Use AGREEMENT BETWEEN CITY OF CARLSBAD AND THE SUCCESSORS IN INTEREST OF RANCHO LA COSTA VILLAGE, 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 Carlsbad ("City") and Rancho La Costa Viiiage, LLC, a California Limited Liability Company (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, Pacific La Costa Village, LLC was a California Limited Liability Company that owned a Fifty Percent (50%) interest in Rancho La Costa Village, LLC; and WHEREAS, Pacific La Costa Village, LLC has dissolved and distributed its assets to successors-in-interest; and WHEREAS, Rancho La Costa Village, LLC has dissolved and distributed its assets to successors-in-interest; and WHEREAS, Pacific La Costa Village, LLC successors-in-interest are Boykin-Hunt, LLC, a California Limited Liability Company, Richard Simis, and Richard Alleway; and 2-25-14 Page 1 WHEREAS, Rancho La Costa Village, LLC successor-in-interest is Cynthia Bell; and WHEREAS, the successors-in-interest each own a percentage of the subject property and collectively they own the entire subject property (collectively referred to as "Property Owner") that is the subject matter of the above- referenced Fair Share Agreement; and WHEREAS, Cynthia Bell owns Fifty Percent (50%), Boykin-Hunt, LLC owns Twenty-Five Percent (25%), Richard Simis owns Twelve and one-half Percent (12.5%) and Richard Alleway owns Twelve and one-half Percent (12.5%); 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 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 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 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 2-25-14 „ , PageZ WHEREAS, the City, from time to time, has amended the Equivalent Dwelling Units (EDU) rate and method for determining 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 November 27"^, 2001 the Property Owner entered into a Fair Share Agreement (Doc. #2002-0096321), which may have been amended from time to time, as part of its development project known/identified as Site Development Plan SDP 99-07 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 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 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 $87,550 (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 2-25-14 „ „ Page 3 construction of the Improvements as defined in the Property Owner's Fair Share Agreement. 5.a. On or about October 26'^, 2005 Rancho La Costa Village, LLC and Pacific La Costa, LLC each filed a Limited Liability Company Certificate of Cancellation with the Secretary of State of the State of California (Doc # 200013610010 and Doc # 200013610012). According to Rancho La Costa Village, LLC Operating Agreement(s) (dated on or about May 10, 2000), Rancho La Costa Village, LLC member percentage interests are as follows: Percentage Entity Member's Name Interest Rancho La Costa Village, LLC: Cynthia A. Bell 50% Pacific La Costa Village, LLC 50% 100% According to Pacific La Costa Village, LLC Operating Agreement(s) (dated on or about May 10, 2000), Pacific La Costa Village, LLC member percentage interests are as follows: Pacific La Costa Village, LLC: Richard Alleway 25% Richard Simis 25% Boykin-Hunt, LLC c/o ^QQ^^ Howard F. Hunt ° '0 100% Accordingly, City will disburse Property Owner Refund Due based on member percentage interests as follows: Member's Name Refund Due Cynthia A. Bell $43,775.00 Richard Alleway $10,943.75 Richard Simis $10,943.75 Bovkin-Hunt. LLC c/o Howard F. Hunt $21.887.50 Total Property Owner Refund Due $87,550.00 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 2-25-14 „ , Page 4 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 5 t\an<iho Ltx(?6)'if«.C/.llcL^ LL<1-. ^ PROPERTY OWNER^*'T.;^^|^'J?[^^ CITY OF CARLSBAD, a municipal // / A ' corporation of the State of California *By: /UfTb^cd^ iL ZX<^ / Cynthia A. Bell /-^ ^ ayA/r/H/h g tS^Lu 4SS^P,jrt^^ city Mana^ (email address) Bv: .<3Jf/33/// Boykin-Hunt, LLC c/oH6ward Hunt ATTEST (enr^c^^)/ BARBARA/5NGLES0N City Clerk Richard Alleway ^ A"//exj3) Q>y YM<=^A O <^ d^L^y^jo^J^tGjJ: ATTACHED (email'address) ^ OOM ACKNOWLEDGMENT PLEASE SEE ATTACHED rS>lfV\l^737Z^AmMt^.a^ls4 CALIFORNIA CERTIFICATE (email address) •ytiifiy Proper notary acknowledgment of execution by each Property Owner or Successor-in-interest to Property Owner 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. BREWER, City Attorney By: 'Assistant City Attorney 2-25-14 „ ^ —— Page 6 ACKNOWLEDGMENT state of Cali^^ia County of. On before me (insertname and title oflhe offieacj ' i personally appeared _ who proved to me on the b¥sisJbf satisfactory ev'\A€a6e to be the person(ig) whose name(^) is/are subscribed to the within instrument and acknowledged to me that te/she/they executed the same in -te/her/tteir authorized capacity(i^, and that by h^er/ttioir signatureCar) on the instrument the person(^0, or the entity upon behalf of which the person(^7 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws ofthe State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. PHILLIP PALAZUELOS P Commission # 1982306 t Notary Public - California 1 Orange County 5 My Comm. Expires Jun 17,2016 L 1 > u w w^T'vw^'T^'^rww^ DESCRIPTION OF THE ATTACHED DOCUMENT 4 (Tide or description of attaclied document) (Title or description of attached document contiTiued) Number of Pages \Q Doci.iment Date 2.\7J^^\'^ (Additional infoimation) STATE OF ALABAMA COUNTY OF MOBILE I, the undersigned Notary Public in and for said County in said State, hereby certify that _ ^>)z\^ L- l^ov^Uiv^ as VNKxaMrxucSi^ of Boykin Hunt, LLC, and whose name is signed to the foregoing conveyance and who is known to me, acknowledged before me on this day that, being informed of the contents of the instrument, he/she executed the same voluntarily and with authority as ^^YN^Ja>w»ft^•j^ of Boykin Hunt, LLC on behalf of Boykin Himt, LLC on the day the same bears date. Given under my hand and seal this the day of ^y\As.-£KAxJ?i 2014. Notary [AFFIX NOTARIAL SEAL] Commission Expires: ^^ft!^'^^^^^ July 15,2017 Bonded Thru Notary Public Underwriters ary piblic • CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 State of California County of On Dafe personally appeared before me. Here Insert Name and Title of the Officer Name(s) of Signer(s) COMM #2028532 -j ^NOTARY PUBLIC.CALIFORNIAI J^^'^^^N DIEGO COUNTY ^ Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(^ whose name(3f is/are subscribed to the within instrument and acknowledged to me that he/ahe/they executed the same in his/hSrTfFTeir authorized capacity(ie§), and that by his/hei7itieir signature(^ on the instrument the personjl^, or the entity upon behalf of which the person(s) tfcted, executed the instrument. 1 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: Signaiure of Notary Public OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Number of Pages: Signer(s) Other Than Named Above: Document Date: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer Is Representing: © 2013 National Notary Association • www.NationalNotary.org • 1 -800-US NOTARY (1 -800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of San Diego On March 10, 2014 personally appeared Richard Alleway before me, Nancy L. Rogers, Notary Public (insert name and title of the officer) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instalment the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 1 ^^j^.^ L) NANCY L. ROGERS CommiMion # 2010M3 Notary PuMic - CaNfornia San Oitgo County * My Comm. EKplrit Mar 9.20171 State of California County of .Snr\ D'.e^o CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT before me, />(L-Ba'a'l?W;vDj^ye^^AJoi<^'7 public (here insert nar/e and title ofthe officer) personally appeared /<tf^ryn 6. DodScn who proved to me on the basis of satisfactory evidence to be the personj^ whose namej^is/^ subscribed to the within instrument and acl<nowledged to me that J^/she/1,be7 executed the same in ^WsTTier/tiwiT authorized capacity^iesTand that by jjis/her/tlaeiT signaturej^on the instrument the persori(*)ror the entity upon behalf of which the persori^sf 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. WITNESS my hand and official seal. Signature^^^f tLria . -Wj7tO jhy^ LETICIA TREVINO REYES I COMM. #1994847 i Notary Public • Califomia 1 San Dttgo County -t My Comm. Expires Od. 21.2016 [ (Seal) OPTIONAL INFORMATION > Copyright 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