HomeMy WebLinkAboutAcacia Investors LLC; 2007-07-02;AGREEMENT BETWEEN CITY AND APPLICANT
FOR PAYMENT OF REAL ESTATE ADVISORY SERVICES
THIS AGREEMENT is made this ^ **- day of ^W .2007.
between the CITY OF CARLSBAD, a municipal corporation of the State of California,
hereinafter referred to as CITY, and Acacia Investors, LLC hereinafter referred to as
"APPLICANT".
RECITALS
WHEREAS, the APPLICANT has filed with the CITY a request for
approval of a proposed project identified as Bridges at Aviara (CT 05-11) requiring a
Financial Feasibility Study; and
WHEREAS, CITY requires the professional services of a consultant
experienced in analyzing the financial feasibility of residential and mixed-use projects;
and
WHEREAS, APPLICANT in order to ensure the expeditious processing of
said Financial Feasibility Study desires to pay to CITY the amount necessary to hire a
CONSULTANT.
NOW, THEREFORE, in consideration of the covenants and conditions, it
is agreed as follows:
1. The CITY will engage the firm of Keyser Marston Associates
hereinafter referred to as "CONTRACTOR" to perform the necessary work in the
preparation of the Financial Feasibility Study for that area more particularly depicted
upon a site map attached as Attachment 1 and made a part of this agreement.
2. It is understood that the CONTRACTOR services shall conform to
the Proposal attached as Attachment 2 and made a part of this agreement, and may
1 Applicant Agreement - Financial Feasibility Study
require:
a) Field exploration;
b) Weekly communication with the City staff;
c) Written reports; and
d) Such other work necessary to properly evaluate the financial
feasibility of the project.
3. It is understood that the CITY will direct the CONTRACTOR to
complete the Financial Feasibility Study at the earliest feasible time.
4. The APPLICANT shall pay to the CITY the actual cost of the
CONTRACTOR 's services. Such cost shall be based on the costs set forth in
Attachment 3. The APPLICANT has advanced the sum of $30,000 as payment on
account for the actual cost of the CONTRACTOR'S services. In the event it appears, as
the work progresses, that said sum will not be sufficient to cover the actual cost, the
CITY will notify the APPLICANT of the difference between the amount deposited and
the new estimated cost. CITY will ensure, to the extent feasible, that no further work
will be performed by the CONTRACTOR incurring an obligation beyond the amount
advanced without an appropriate amendment to this Agreement. If the actual cost of
preparing the study is less than the APPLICANT'S advance, any surplus will be
refunded to APPLICANT by CITY.
5. It is understood that the CONTRACTOR shall be an independent
contractor of the CITY and CITY shall not be liable for any negligent acts or omissions
of the CONTRACTOR. The CONTRACTOR will meet with the CITY and APPLICANT
to discuss the Project, gather background data on development costs, sales prices,
comparable projects, proposed services, proposed homeowner association (HOA) dues
2 Applicant Agreement - Financial Feasibility Study
and fees, and review site plans and other documents as related to the Project. The
APPLICANT agrees to permit the CONTRACTOR to enter upon his property and to
perform all work thereon as the CONTRACTOR deems necessary to complete the
Financial Feasibility Study. It is agreed that the APPLICANT will not interfere with the
CONTRACTOR in the performance of such work or attempt to influence such
CONTRACTOR during the course of his investigation and report.
6. The City shall not be required to defend any third party claims and
suits challenging any action taken by the City with regard to any procedure or
substantive aspect of the City's review of the project. If the City, in its sole and absolute
discretion defends such action or proceeding, the Applicant shall be responsible and
reimburse the City for whatever legal fees and costs, in their entirety, may be incurred
by the City in defense of such action or proceeding. The City shall have the absolute
right to retain such legal counsel as the City deems necessary and appropriate.
Applicant shall reimburse the City for any award of court costs or attorney fees made
against City in favor of any third party challenging either the sufficiency the of Financial
Feasibility Study. This obligation survives until all legal proceedings have been
concluded and continues even if the City's approval is not validated.
Applicant Agreement - Financial Feasibility Study
IN WITNESS WHEREOF, the parties hereto have executed this agreement on
the day and year first above written.
Executed by APPLICANT this A - day of "SjuAf _ , 20*7.
CITY OF CARLSBAD, a municipal
corporation of the State of California
APPLICANT:
Acacia Investors, LLC.
City Manager or Mayor(Name of Aplicant)
By:
EM. WOOD} City Clerk(print name here/title)
By;
(sign here)
(print name here/title)
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the officers)
signing to bind the corporation.)
(if signed by an individual partner, the partnership must attach a statement of partnership
authorizing the partner to execute this instrument).
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:
Assistant City Attorney
Applicant Agreement - Financial Feasibility Study
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
Notary Public, personally appeared
known to me - Of [ j pravcd4o-me-t
before me,
, JXJ personally
to be the person(s) whose
namej£) jskeK- subscribed to the within instrument and acknowledged to me that
executed the same in his/hecteeir authorized capacity^e^, and that by his/betf&e» signature's)"
on the instrument the person(s), or the entity upon behalf of which the person^ acted, executed
the instrument.
WITNESS my hand and official seal.
U
ire of Notary)
JUDITH M. GLASGOW \
CommlMlon # \ 737530 t
Notary Public - California |
San Di«go County -
MyComm. Explm Apr 8.2011 \
Attachment 1
NOT TO SCALE
SITEMAP
Bridges at Aviara
CT 05-11
Attachment 2
KEYSER MARSTON ASSOCIATES
ADVISORS IN PUBLIC/PRIVATE REAL ESTATE DEVELOPMENT
ADVISOBSW: May 24, 2007
RZAlESTATI!
REDEVEIOPMENT
AFFORDABLE HOUSING
ONOMIC omuMUHi Ms Sandra Holder
SAN FRANCISCO Director, Economic Development and Real Estate
City of Carlsbad
1 635 Faraday Avenue
Carl8bad- CA 92008
CAIV,L°E HOIUS" Re: Proposal for Real Estate Advisory Services
KATHLEEN H. HEAD
Dear Sandy:
GUGOAYD.SOO-HOO
SAN CMEGO Kevser Mansion Associates, Inc. (KMA) is pleased to submit this proposal to the City of
GERALD M.TRIMDU Carlsbad (City) for real estate advisory services related to a financial feasibility analysis
PAUL c. MAURA anc) (.QjQtQd services for the proposed Bridges at Polnsettia Project (Project). KMA has
considerable experience analyzing the financial feasibility of residential and mixed-use
projects and In negotiations with developers. For further information, please visit KMA's
website at www.keysermarston.com.
This letter contains KMA's proposed work program, schedule, and budget for this
assignment.
Scope of Services
As KMA understands it, the developer, Arlen Capital and Acada Investors, LLC
(Developer), have assembled 60 acres of land in the City with the intent to plan and entitle
20 acres of this property for a high-end master-planned senior citizen residential
development The balance of the site will remain as a habitat preserve. Backbone
infrastructure improvements In the form of an extension of Poinsettia Lane involving a
bridge structure, are required in order for the residential project to proceed. Funding for
construction of these backbone infrastructure Improvements is to be provided from two
sources, 1) the City's Bridge and Thoroughfare District No. 2 and 2} the Developer. In the
event that there is a shortfall in funding with these two sources, the Developer will be
expected to fund the shortfall. Therefore, it is necessary for a financial feasibility analysis
1660 HOTEL CIRCLE NORTH, SUITE 716 > SAN DIEGO. CALIFORNIA 92108 > PHONE: 619 718 9500 X FAX; 619 718 9508
07085ndh
WWW.KEY5EHMARSTON.COM 99900.0004)03
Ms. Sandra Holder May 24, 2007
dty of Carlsbad Page 2
to be completed in order to determine if the economic value of the Project can support all
development costs including the backbone infrastructure. For this assignment, KMA
proposes to meet with the City and the Developer to discuss the proposed project costs,
services to be provided at the Project, proposed sales prices of the housing units,
comparable projects, and required backbone infrastructure improvements. KMA's scope
of services is summarized as follows:
1. Task 1 - Orientation and Data Gathering
KMA will meet with the City and the Developer to discuss the Project, gather background
data on development costs, sales prices, comparable projects, proposed services,
proposed homeowner association (HOA) dues and fees, and review site plans and other
documents related to the Project.
2. Task 2 - Comparable Projects Research
KMA will undertake a comparable projects search in order to document appropriate
development costs, HOA dues and other fees, sales prices of housing units, and other
appropriate Information related to the Project. KMA will document the results of the
research In a series of matrices and tables for easy reference by the City and the
Developer.
3. Task $ - Financial Feasibility Analyses
KMA will prepare an independent financial feasibility analysis of the proposed Project in
order to determine the pricing of housing units and the required HOA and other fees
proposed to be charged in order to support all Project development costs and the
Developer's portion of the backbone infrastructure costs. Utilizing data provided by the
Developer and the City, KMA will set up the development costs and project revenues
relying on data from the Developer and the City, industry standard development costs and
sales revenues, and data gathered from the comparable projects research. The intent of
the feasibility analysis, among other things, is to solve for residential density given
industry standard development costs and market supportable sales prices and other
sources of revenue.
OTOBSndh
99600.000.003
Ms. Sandra Holder May 24,2007
City of Carlsbad Page 3
Meetings
KMA has budgeted a total of five (5) meetings for these services. The proposed meetings
will be with the City, the Developer and the City, and the Developer combined. Additional
meetings will be considered additional services.
Additional Services
KMA will provide additional services to the City and Developer as requested. Additional
services could Include assistance in negotiations and documentation of a transaction with
the developer; fiscal impact and economic benefit analyses; retention of a cost estimating
subconsultant; and presentations and attendance at meetings of City Boards, City
Council, and community groups.
Report Format
KMA will present its conclusions in an executive summary-style memorandum with
supporting technical tables and matrices. The report will outline KMA's research findings,
feasibility analysis, and conclusions.
Budget and Schedule
KMA proposes to undertake this assignment and complete the services on a time-and-
materials basis pursuant to KMA's standard public sector billing rate schedule (Page 3
Consultant Services Agreement attached to this proposal). The total budget for all
services outlined will not exceed $30,000 without approval of the City. This is not a fixed
fee proposal. For budgeting purposes the breakdown by task is as follows:
Taskt: Orientation and Data Gathering $ 5,000
Task 2: Comparable Projects Research $ 8,000
Task 3: Financial Feasibility Analysis $16,000
Administrative support $ 1,000
Additional Services Time-and-Materials
Management and Schedule
Gerald M. Trimble, Managing Principal of KMA's San Diego Office, will manage all
services and perform all client and developer contacts. Michael Wong, Manager in KMA's
OTOeSndh
99900.000.003
Ms. Sandra Holder May 24, 2007
City of Carlsbad Page 4
San Diego office, will also work on this assignment. KMA will deliver a draft report to the
City within thirty (30) days of receiving all requested data from the City and the Developer.
KMA will plan to meet with the City and the Developer following delivery of the draft to
discuss the findings and conclusions. After receiving comments from all parties, KMA will
finalize the feasibility report within to weeks of receiving comments from the City and the
Developer.
We look forward to the opportunity to work with you on this important assignment.
Sincerely,
KEYSER MARSTON ASSOCIATES, INC.
Managing Principal
attachment
07085ndh
99900.000.003
DATE:
TO:
FROM:
SUBJECT:
HowesWeiler& Associates
LAND USE PLANNING AND CONSULTATION
TRANSMITTAL LETTER
August 28, 2007
Michelle Masterson
Mike Howes
Bridges at Aviara - Ability to Sign Contract
RECEIVED
AUG 19 2007
CITY OF CARLSBAD
PLANNING DEPT
Accompanying this transmittal is a letter and documentation confirming that Don Augustine has
the ability to sign a contract and legally bind Arlen Capital Investors a Manager of Acacia
Investors LLC. Hopefully this provides the information that you need. If you need any
additional information please feel free to contact me.
760.929.2288 Fax. 760.929.2287 5927 Balfour Court. Suite 202. Carlsbad. CA 92008
RLEN CAPITAL
August 27, 2007
Michelle Masterson
Senior Management Analyst
City of Carlsbad - Planning Department
1635 Faraday Avenue
Carlsbad, CA 92008
Re: The Bridges at Aviara
Dear Michelle:
Arlen Capital Investors ("Arlen"), a Manager of Acacia Investors, LLC ("Acacia"), executed on
behalf of Acacia the contract to cover costs of the Keyser Marston Study and several weeks ago
sent the City of Carlsbad ("City") a check in the amount of $30,000.
Acacia is the owner of the approximate 60 acres of land located in the City, which entitlements
are being processed under the name of The Bridges at Aviara.
Arlen, in its Operating Agreement, provides for two (2) Managers who are Don Augustine and
Lynn T. Wells. Section 6.2 provides that "each Manager, acting alone, shall have final
authority with respect to the business, operations and policies of the company and shall have the
right to act and bind the company." In addition, attached to this letter are the formation
documents for both Arlen (CA certified) and Acacia (CA & Delaware).
ACACIA INVESTORS, LLC,
A Delaware limited liability company,
By: Arlen Capital, LLC,
A California limited liability company,
Its: Manager
By:
Don Augustine, Man;
DA:jg
Enclosures
1650 HOTEL CIRCLE NORTH, SUITE 200 SAN DIEGO, CALIFORNIA 92108 TELEPHONE (619) 686-2002 FACSIMILE (619) 686-2056
AECOIUHNO SE4JUZSTTO BY AND
WHEN RECORDED MAIL TO:
SPACE ABOfVETHlS LINE «>« RKCOHDSR'8 USX
SACRAMENTO
/, KILL JONES, Secretary of State of California, hereby certify!
That the annexed transcript of._.. u p*$e(s) was prepared by
and in this office from the record on/He, of which it purports to be a copy,
and that it is full, true and correct.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great
Seal of the State of California
Secretary of State
S«r. STATE «WMW-U1A <R«
f 00/200 • d St-689SS0T £NbWddOH NOSdIQ 966T-t?S-Nl"ir
STATE OF CALIFORNIA
ACTING SECRETARY OF STATE
TONY MILLER
LIMITED LIABILITY COMPANY
ARTICLES OF ORGANIZATION
P -Iitftructfwa before cwapkiiflg tlw fonn,
Thb dttttount fa presented for filing pewwjrt to Seetli»rations CwJ*.
1. Liniitcd liabiliQ'coopaoy
<M *» m
Arlen Capital Advisors,. LLC
z. Latest «te on wMcn ac uwaa iwbwty company & K> <KSKMV«
Deceiver 31, 2046
3. The poipc&e of the limited UaSUIiy company is w engage in any l*wftdactor wiivijy 2bc which A limited
«asji«By may be organized under die Beveriy-Xfflea Limtoid UaWJiy Company A«.
•4. I«wz2ictwi« ctflititia] AJ^otforsonricc ofpfowaaMcli^
Duo Augustine ^^
( X J «l tedividwal naJding ia Cmlifoma, ?xwee4 »Iwm 5.
£ ] a corporniBji wfaidi has fikd a oatifiate punuaut to Section 150$ of fta California CflrporaJloas
Code. Skip lisa S and proceed to Item 6.
5- If d» t«i»^l »|f«n» for «rvleg nf procftt-t fa an individual, tntef A hminm '«f TatittenHal
SireawWress: 1420 Kettnar Blvd., Suite 300
: San Diego State: CALIFORNIA Zip Coda: 92101
6. The Hailed liability tornpaiff will be swaged by :
I ] cncmaoagw t 3 more than one manager IX ] limited fiabUlw cWBpasjy g^mhgrT
7. If ofecrnatsenJ^ lobe indwl^ in Particles of m^»niza^onanaca one or m^
N&rabcrofpat«satliud»d, if ay: one (1)
£. It-Is hereby decUr*3 that 1 am the pciscn vbo
evcuttd ibis iaonniMU, «4ikJb e^cwvtico is
aqr act and deed.
lUta M. Silverman
Type or prtsi tame of ttpzdnr
June ISXtote;
101996172013
FILED; REGIS7RN/ART1CLES OF .
AT SACRAMENTO, CA ON dUN.20,1996
SECRETARY' OF STATE OF CALIFORNIA
t?00/£00 'Sf 689SS0 1C NdWddOH NOBdID
'I1 *> t>, " -
SECRETARY OF STATE
CERTIFICATE OF GOOD STANDING
CALIFORNIA LIMITED LIABILITY COMPANY
I, KEVIN SHELLEY, Secretary of State of the State of California, hereby certify:
That on the 20th day of June, 1996, ARLEN CAPITAL, LLC, became
recognized under the laws of the State of California by filing its Articles of Organization
in this office; and
That according to the records of this office, the said limited liability company is
authorized to exercise all its powers, rights and privileges and is in good legal standing
in the State of California; and
That no information is available in this office on the financial condition of this
limited liability company.
IN WITNESS WHEREOF, I execute this
certificate and affix the Great Seal
of the State of California this day
of October 3, 2003.
KEVIN SHELLEY
Secretary of State
ch
NP-24 A (REV. 1-03)
PAGE 1
r/i.<? first State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF FORMATION OF "ACACIATREE INVESTORS,
LLC", FILED IN THIS OFFICE ON THE SEVENTH DAY OF JUNE, A.D.
2005, AT 1:59 O'CLOCK P.M.
3981497 9100
050474573
H?rric; Srrtth vVrdso1", $icre;ar< o* 1'u.ieAUTHENTICATION: 3932503.
DATE: 06-07-05
. __ <iC.$r--F. 2-'"5
CflPITPL LLP - l3W2i53S543<l MD.88?
STATE 0/DILAWAKE
LIMTTFJD UAJB1UTY COMPANY
CERTIFICATE ^/FORMATION
« First: The name of the limited liability company Is • Acaciatrce lavmore.
ii « Second; lie address of fa registered office in the State of Delaware is 27 \l
_Cepr.ag/.iUf ._&<>«£, Suite 40Q. in tbe City of WjUajngton .
name of its Registered agent at suet address is Corporation Service
Coapaoy "_
Third: (Use this paragraph only if the company is to have & specific effective date of
dissolution- "He latest date on which the limited liability company is to dissolve is
Fourth: (Insert any olb« manors the members determine to include herein.)
In Witness Whereof, tUe trndersigucH have executed iHa Certificate uf FomatjoE this
day of.. y<*~ff 20
By. /^v
Avthohzed P
Name: Pon
Typed 01 Printed
State ofSecretary of State
Division of texp0*9.^.^.***Ds.iive.rscf «.'« *W 06/07/2005rnODOlis PM 06/07/2005
Sm'050474573 - 3981487 FILE
State of California
Secretary of State
CERTIFICATE OF REGISTRATION
I, BRUCE McPHERSON, Secretary of State of the State of California, hereby
certify:
That on the 6th day of July, 2005, ACACIATREE INVESTORS, LLC, complied
with the requirements of California law in effect on that date for the purpose of
registering to transact intrastate business in the State of California; and further purports
to be a limited liability company organized and existing under the laws of the State of
Delaware as ACACIATREE INVESTORS, LLC and that as of said date said limited
liability company became and now is duly registered and authorized to transact
intrastate business in the State of California, subject, however, to any licensing
requirements otherwise imposed by the laws of this State.
IN WITNESS WHEREOF, I execute
this certificate and affix the Great Seal
of the State of California this day of
July 27, 2005.
BRUCE McPHERSON
Secretary of State
ts
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