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HomeMy WebLinkAboutSDP 99-07; Bell, Hunt, Alleyway and Simis; 2009-0462372; Petition & Waiver\\ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008 DGC# 2009-0462372 AUG18, 2009 11:37 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 39.00 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 Village, 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, 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 6-15-09 Pagel 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 of the Notice of Completion for the final phase of improvements; 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 begin releasing a portion of the surplus project funds prior to completing all applicable improvements; and WHEREAS, the City will maintain appropriate funds to ensure that all estimated future project expenses and buffer for unanticipated expenses are funded; and 6-15-09 Page 2 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 of the 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 27th, 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. Notwithstanding, the City Engineer and City Finance 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 $10,250 per EDU. The new EDU fee contribution is $7,400 per EDU. City shall refund $2,850 per EDU, to the Property Owner (hereinafter "Refund") which represents the difference between the initial EDU rate of $10,250 per EDU and the new EDU rate of $7,400 per EDU. 5. City will pay Property Owner $117,420 (hereinafter "Refund Due") within thirty days of the date this Refund Agreement is signed by the City of Carlsbad. 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 June 30, 2008 based on what each Property Owner contributed in prepayment fees divided by the total amount of prepayment fees contributed. Excess Revenues as of June 30, 2008 are Available Revenues less the sum of project costs plus estimated future project expenses plus a buffer (calculated at 100% of the 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. 6-15-09 Page 3 5.a. On or about October 26th, 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 Howard F. Hunt 100% Accordingly, City will disburse Property Owner Refund Due based on member percentage interests as follows: Member's Name Refund Due Cynthia A. Bell $58,710.00 Richard Alleway $14,677.50 Richard Simis $14,677.50 Bovkin-Hunt. LLC c/o Howard F. Hunt $29.355.00 Total Property Owner Refund Due $117,420.00 6. Upon completion of the project improvements and the recording of the applicable Notice of Completion for the final phase of the improvements, an accounting will be completed and the Finance 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. 6-15-09 Page 4 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. 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 of this Agreement. (Remainder of Page Intentionally Left Blank) 6-15-09 — PageS PROPERTY OWNER *By: CITY OF CARLSBAD, a municipal corporation of the State of California Cynthia A. Bell cabdevelop@cox. net Jenlail address) LISA HILDABRAND City Manager *Bv: /cy^~ /; BoykirvHunt, LLC cft/Howard Hunt Bmifabs@aol.co LORRAINE City Cle 0 / Richard Alleway ralleway@simacgc.com mail address) *By: Simis rsimis@simacgc.com (email address) Proper notary acknowledgment of execution by each Properly Owner or Successor-in-lnterest 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: RONALD , City Attorney Assistant City Attorney 6-15-09 Page 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On Date personally appeared . t4e> t ^CfoMaui t IX-P<JLC. Here Insert Name and Title of the OfficgQ Name(s) of Signer(s) IENNEKESUWITO Commission #1697272 Notaty Public - California Orange County My Comm. Expires Oct 4, jniy r 3ct4,2010P who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ate-subscribed to the within instrument and acknowledged to me that Jje/she/they executed the same in bis/her/tbeir authorized capacity(ies), and Jhat byjiis/her/tbetr signature(s) on the instrument 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 California that the foregoing paragraph is true and correct. Place Notary Seal Above WITNESS my hand apd official seal. Signature Signature of Notary Public 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. Description of Attached Document Title or Type of Document: Document Date: £>-( Trc* . Number of Pages:. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) n •^tr ' Signer's Name:. [^-Individual D Corporate Officer —Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing:. RIGHTTHUMBPRINT I OF SIGNER Top of thumb here ©2007 National Notary Association• 9350 De Soto Ave., P.O.Box 2402'Chatsworth,CA 91313-2402-www.NationalNotary.org Item #5907 Reorder:CallToll-Free 1-800-876-6827 STATE OF COUNTY OF C^ C/$>*/? // ) )ss On the " day of _ in and for __, 2009, before me, a notary public state, personally appeared , known to me to be the person and acknowledged to me thatwho executed the within they executed the same for the purposes therein stated. Witness my hand and notarial seal subscribed and affixed in said County and State, the day and year first above written. ssion Expires: ANDREW GIVEANS Notary Public, State of Florida Commissions DD 553322 My comm. expires May 17, 2010 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On KIMBERLYA.MAYLEN Commftskm * 1814999 Notary PuMte - CaHfomia San Dfego County £ My Comm. Expiry Stp 26.^201? t Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person^) whose namel^s) is/&*e subscribed to the within instrument and acknowledged to me that he/sTfethey executed the same in his/hWtheu: authorized capacity(ie*!5), and that by his/Pte*#heir signature^on the instrument the person^, 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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature 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. Description of Attached Document Title or Type of Document: Document Date: LO " 1 ^. Number of Pages:Ce. Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) f ner's Name: Vf y Individual D Corporate Officer —Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Names D Individual D Corporate Officer — D Partner — D Limited D D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On i£CjQ_ before me 1C ivvNTg-y ly A . Name and Title of the (Officer KIMBERLYA.MAYLEN Commission # 1814999 Notary PuWte • CaWonUa SM Dfrflo County Comm. farti« Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person^), whose namefc) is/afe subscribed to the within instrument and acknowledged to me that he/ube/tfrey executed the same in his/bentrreir authorized capacity^), and that by his/bet^ieir signature^on the instrument the person^ or the entity upon behalf 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. Signature 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. 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: ^ Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: .Individual D Cbqjorate Officer — Title(s): D Partner^n Limited D General D Attorney in Fa£ D Trustee D Guardian or Conservator D Other: Signer Is Representing:. RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toil-Free 1 -800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of <_Xxn <A}\€XX( On 6'12 Date personally appeared before me,txA and Titfe'Here Insert Name and Titfe'of the Officer Name(s) of Signer(s) SHEILA RENAE COWAN Commfcslon # 1848471 Notary Pubfic-CaflfwnU Sin Otogo County i Conrni. Expires MiylO.2013 who proved to me on the basis of satisfactory evidence to be the person^) whose name(5)(f§)&Fe subscribed to the within instrument and acknowledged to me that -he^fi|/Jriey executed the same in hta^fiejytheTr authorized capacities), and that by <=H^fier5(t.heir signature(s) on the instrument the person^, or the entity upon behalf of which the person(8f 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 - SignatuWof 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: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827