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HomeMy WebLinkAboutAD 88-01; Aviara-9; 90-590737; Assessment District Related Document2344 SPECIAL ASSESSMENT DISTRICT PASS-THROUGH AUTHORIZATION AGREEMENT THIS AGREEMENT entered into this 3 day of July , 1990 by and between the City of Carlsbad, a municipal corporation ("City"), and *V1ara-9 ("Developer"). WHEREAS Developer or its predecessor in interest has petitioned the City Council of the City to initiate proceedings for the formation of a special assessment district pursuant to the terms and provisions of the "Municipal Improvement Act of 1913", being Division 12 of the Streets and Highways Code of the State of California, said special assessment district known and designated as ASSESSMENT DISTRICT NO. 88-1 (ALGA ROAD) (hereinafter referred to as the "Assessment District"); and, WHEREAS, the City has received the petition of Developer or its predecessor in interest and has initiated proceedings for the formation of the Assessment District; and, WHEREAS, the City has adopted policies relating to the utilization of Assessment District financing which require Developer to extinguish the lien on any parcel created as a result of the confirmation of the Assessment District prior to the close of escrow on the sale of such parcel to a residential home buyer unless Developer shall have provided full disclosure of the existence of the assessment lien, the amount thereof, the annual assessment installments, the duration of the assessment lien and such other information as may be required by the City, and has provided the residential home buyer with the option to (a) take title subject to the applicable Assessment District special assessment against their parcel, or (b) require the special assessment obligation to be discharged prior to the close of such escrow; and, WHEREAS, the parties hereto have entered into this Pass-Through Authorization Agreement to establish the terms and conditions which must be satisfied by Developer should it desire to allow residential home buyers to take title subject to the assessment obligation established for any parcel or parcels within the Assessment District. NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: SECTION 1. The above recitals are all true and correct SECTION 2. Developer does own property proposed to be subject to assessment obligations within the boundaries of the Assessment District. Developer's property is described and set forth in the attached, referenced and incorporated Exhibit "A. SECTION 3. The escrow for the sale to any residential home buyer of any lot or parcel, including condominium unit, within the Assessment District shall not close or title to such parcel be otherwise conveyed to such residential home buyer without first causing the assessment lien created as a result of the confirmation of the Assessment District, if any, on such parcel to be extinguished except as provided for herein below. An assessment lien on a parcel within the Assessment District proposed to be sold to a residential home buyer need not be extinguished prior to the close of the escrow for the sale or other conveyance to such residential home buyer if the following preconditions are satisfied. 2345 I SECTION 4. SECTION 5. SECTION 6. A. Developer shall have given the residential home buyer a copy of the Notice of Assessment, the form of which is attached hereto as Exhibit "B" and incorporated herein by this reference, which shall have been duly executed by the residential home buyer or buyers. B. Developer and the residential home buyer shall have entered into a "Property Owner Special Assessment District Option Agreement (Supplement to Escrow Instructions)" (the "Option Agreement"), the form of which is attached hereto as Exhibit "C" and incorporated herein by this reference, and such Option Agreement shall have been deposited into the escrow for the sale of such parcel. Such Option Agreement shall have been executed prior to the close of escrow by the Finance Director, or his designee. Developer shall incorporate the amount of assessment discharge information into the advertised sales price of the home and clearly disclose the pass-through option in any sales literature. Sales literature for this purpose shall not be deemed to include media advertising, billboards, signs or other like advertisements. This obligation shall be binding on all heirs, assigns or successors-in-interest of the parties hereto, and the City shall cause a copy of this Agreement to be recorded in the Office of the County Recorder upon its execution. Developer shall indemnify and hold harmless the City of Carlsbad from any claims arising out of developeis failure to adequately perform under the provisions of this Agreement . IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 3 _. dayof July ,1990. City of Carlsbad State of California ATTEST: City of Carlsbad State of California "DEE LOP E R" AVIARA-9, I~c. a California corporation 2346 x STATE OF CALIFORNIA day of , in the year personally known to me (or proved to me on the basis of satisfactory evidence) to be the President, and personally known to me (or proved to me on the basis of satisfactory evidence) to be Secretary of the corporation that executed the within Instrument, and acknowledged to me that such corporation executed the within instru- ment pursuant to its by-lfws or a resolution of its board of directors. z c pc 2 4. Yt4 cu L I! r 0 0 4.4 2 Signature dv A. Martin - F 2467 R 11 182 STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. P OFFICIAL SEAL WENDY A. MARTIN NOTARY PUBLIC - CALIFORNIA PRINCIPAL OFFICE IN SAN DIEGO CGUNTY I My Commission Exp. July 29, 1991 (This area for official notarial seal) On October 17, 1990 , before me the undersigned, a Notary Public in and for said State, personnally appeared Rautenkranz , known to me to be the City Clerk of the City of Carlsbad, a Municipal Corporation of the State oi California, known to me to be the person who executed the within instrument on behalf of said Municipal Corporation, and acknowledged to me that such City of Carlsbad, California, executed the same. Aletha L. I WITNESS my hand the the official seal. 234 7 56,O;SV ADMCKZ 06/27/1990 (MA) Exhibit A LEGAL DESCRIPTION (P.A. 9) Being all of lots 6 through and including 9 of City of Carlsbad Tract 85-35, Phase I-Unit A, in the City of Carlsbad, County of San Diego, State of California, according to Map thereof No. 12409, filed in the office of the County Recorder of San Diego County, June 29, 1989 as File No. 89-345850. P & D TECHNOLOGIES DALE A. DAVIS LS 5894 License Expire Date 12/31/92 234 9 Exhibit B NOTICE OF ASSESSMENT THE PROPERN WHICH BUYERS ARE PROPOSING TO PURCHASE IS SUBJECT TO A SIGNIFICANT ASSESSMENT WHICH IS IN ADOITION TO THE REGULAR PROPERTY TAXES THIS ASSESSMENT WILL AFFECT THE AMOUNT WHICH BUYERS WILL BE REQUIRE0 TO PAY IN THE PURCHASE OF BUYERS PROPERTY. YOU ARE URGED TO READ THIS NOTICE VERY CAREFULLY IN ORDER TO UNDERSTAND THE ASSESSMENT AGAINST THE PROPERTY. The City of Carlsbad ('City') has formed a special assessment district pursuant to the provisions of the 'Municipal Improvement Act of 191 3' to finance the acquisition or construction of certain public works of improvement which will benefit the properties within the assessment district. This assessment is known and designated as ASSESSMENT DISTRICT NO. 88- 1 (ALGA ROAD) (the 'Assessment District'). The public improvements to be financed through the Assessment District include portions of Alga Road and Poinsettia Lane, including related grading and earth work, construction of water, sewer, drainage and reclaimed water facilities, curb, gutter, sidewalk, street paving, the installation of street lights and median landscaping. ASSESSMENT The home or parcel which Buyers are proposing to purchase (the 'Property') is located within the boundaries of the Assessment District. The Crty has determined that the Property will receive a direct and special benefii from the public works of improvement to be financed through the Assessment District. therefore, the City has levied an assessment against the Property in the total amount of $ . The assessment against the Property is secured by a lien much like a home loan is secured by a deed of trust. If you complete the purchase of the Property and assume the assessment against the Property, you will be solely responsible for the payment of the assessment. TRe assessment shall be collected in semi- annual installments which will be included in the property tax bill for the Property. These assessment installments will be collected for a period of years. FAILURE TO PAY Should you fail to pay an assessment installment when due, the City may be required to initiate judicial foreclosure proceedings against the Property in order to recover any delinquent assessment installments and the penalties which may be imposed for such a delinquency. In the event that the City is able to obtain a favorable court ruling in such foreclosure proceedings, the Property would be subject to foreclosure sale. You, as Buyer, are not required to assume the assessment against the Property. Seller is required to provide you with the option to either (a) assume the assessment obligation against the Property or (b) prepay the assessment prior to the close of escrow for the sale of the Property to you. You will have the ability to exercise this option through a 'Property Buyer Special Assessment Option Agreement (Supplement to Escrow Instruction)' (the''0ption Agreement'), a form of which is attached to this Notice. Should you have any questions regarding either this Notice, or the Option Agreement, you may feel free to call the Finance Director of the City of Carlsbad at the following telephone number: (61 9) 434-2867. 2350 PLEASE INSURE THAT YOU HAVE THOROUGHLY READ AND UNDERSTAND BOTH THIS NOTICE AND THE OPTION AGREEMENT APPLICABLE TO THE PROPERN. THE OPTION THAT YOU CHOOSE WILL AFFECT THE PAYMENTS WHICH YOU WILL BE MAKING IN THE PURCHASE OF THE PROPERTY. RECEIPT AND ACKNOWLEDGMENT By signing this Notice, Buyers acknowledge that: 1. The Property that Buyers are purchasing is located within the boundaries of the Assessment District and is subject to a significant assessment against the Propeny. 2. Buyers have had an opportunity to read and review this Notice, and have received a coy of this Notice prior to opening escrow for the purchase of the Property, or, if received after the opening of such escrow, with sufficient time for Buyers to make any reasonable inquiries that Buyers deem necessary regarding the assessment against the Property prior to the close of escrow. 3. If Buyers assume the assessment against the Property, they will be solely responsible for the payment of such assessment and Seller shall have no liability for such payment. Further Buyers agree to the amount and purpose of the assessment on the Property and that Buyers forever waive any right d complaint or protest to the City pertaining to the nature, extent, duration and amount of the assessment against the Property. DATE: DATE: 2351 Exhibit C I TO PROPERn BUYER: PLEASE READ THIS OPTION AGREEMENT CAREFULLY AND BE SURE SELECTING AN OPTION. THE OPTION YOU CHOOSE WILL AFFECT YOUR PAYMENTS ON THE HOME YOU ARE PURCHASING. YOU THOROUGHLY UNDERSTAND THE OPTIONS BEING PROVIDED TO YOU BEFORE PROPERTY BUYER ASSESSMENT OPTION AGREEMENT (SUPPLEMENT TO ESCROW INSTRUCTIONS) RE: CITY OF CARLSBAD (ALGA ROAD) ASSESSMENT DISTRICT NO. 88-1 ESCROW COMPANY: NAME OF BUYER: ESCROW NUMBER: ESCROW OFFICER: The escrow instructions relating to the sale and purchase of the following described property are supplemented by the following as set forth herein. 1. PROPERTY: Buyers are purchasing a certain piece of property (the 'Property') within the City of Carlsbad, California, generally described as follows: 2. 3. SPECIAL ASSESSMENT DISTRICT The City d Carlsbad ('City') has formed a special assessment district pursuant to the provisions of the 'Municipal Improvement Act of 1913', to finance certain of the mapr infrastructure improvements to sewe benefited properties, including the Property which is subject to this escrow. This assessment district is known and designated as ASSESSMENT DISTRICT NO. 88-1 (ALGA ROAD). City and Seller have entered into an agreement which provides that Buyers shall have the option to either (a) assume the special assessment obligation upon the close of this escrow or (b) discharge the special assessment obligation prior to the close of this escrow. . If Byer agrees to assume Total amount of the assessment on the Property is S the assessment against the Property, Byer will be required to pay semi-annual assessment installments for a period ol __ years. These assessment Installments will be incorporated into the property tax bill for the property. Attached to this Agreement as Exhibit 'A' is a schedule of the semi-annual assessment installments which Buyer would be required to pay if Buyer chooses to assume the assessment obligation. 2352 - IT IS IMPORTANT TO NOTE THAT IF THE BUYER FAILS TO PAY AN ASSESSMENT INSTALLMENT WHEN DUE, THE CITY MAY BE REQUIRED TO INITIATE JUDICIAL FORECLOSURE PROCEEDINGS AGAINST THE BUYER TO RECOVER ANY DELINQUENT ASSESSMENT INSTALLMENT AN0 ANY PENALTIES ON THE DELINQUENT INSTALLMENT CITY WILL BE REQUIRED TO INITIATE SUCH FORECLOSURE PROCEEOINGS NO UTER THAN THE NOVEMBER 1ST FOLLOWING THE DATE OF THE DELINQUENCY. If Buyer does not desire to assume the assessment obligation, it must be extinguished prior to the close of this escrow. The obligation may be extinguished by the deposit of $ into this escrow or by increasing the mortgage by such amount and directing the escrow otficer to pay such amount to the Clty to extinguish obligation at or prior to the time of the close of this escrow. Your bank may allow an increase in your loan, but this is your responsibility to determine. 4. Buyer hereby exercises the following option: OPTION 1: Buyer wishes to assume the special assessment obligation applicable to the Property and pay the assessment installments semi-annually as they appear on the property tax bill for the Property. To select and exercise Option No. 1, Buyer must sign on the space provided below: DATE: DATE: DATE: OPTION 2: Buyer wishes to have the special assessment obligation for the Property discharged and paid off In full now. Buyer will deposit additional cash into the escrow to enable the assessment obligation to be discharged, or will arrange with the lender for any required increase in the loan. To select and exercise Option No. 2, Buyer must sign on the space provided below: DATE: DATE: DATE: 2353 5. Buyer acknowledges that if Buyer chooses to assume the assessment obligation for the Propeny that the City of Carlsbad shall consider that Buyer fully understands the nature and extent of Buyer's obligations to make the payment of the assessment installments. Buyer agrees to the amount and purpose of the assessment on the Property and Buyer forever waives any right of complaint or protest to the City pertaining to the nature, extent, duration and amount of the assessment against the Property. 6. Escrow Officer is hereby directed to deliver an executed copy of this Option Agreement to the Finance Department of the Ccty of Carlsbad for execution prior to the close of this escrow. DATED: BUYER BUYER DATED: SELLER DATED: ESCROW OFFICER CITY ACKNOWLEDGMENT RECEIVED AND ACKNOWLEDGED THIS DAY OF , 1990 FINANCE DIRECTOR, CllY OF CARLSBAD BY