HomeMy WebLinkAboutCarlsbad Ranch Company; 1996-01-15;.-. . , .
AGREEMENT FOR THE ACQUISlTlON, CONSTRUCTlON AND
FINANCING OF CERTAIN PUBLIC IMPROVEMENTS
ASSESSMENT DISTRICT NO. 95-l
(CARLSBAD RANCH)
1996
THIS AGREEMENT is made and entered into this 15th JANUARY day of W, by and between the CITY OF CARLSBAO, a public agency of the State of California (hereinaft& referred to as “City”), andCarlsbad Ranch Corrpany , (hereinafter referred to as “Property Owner).
WHEREAS, the City is considering the formation of a special assessment district under the terms and
conditions of the “Municipal Improvement Act of 1913”, being Oivision 12 of the Streets and Highways
Code of the State of California, for the construction of certain public improvements, together with
appurtenances and appurtenant work within the jurisdictional limits of said City, said special assessment
district known and designated as ASSESSMENT DISTRICT NO. 95-l (CARLSBAO RANCH) (hereinafter
referred to as the “Assessment District”); and,
WHEREAS, Section 66462 of the Government Code of the State of California (“Subdivision Map Act”)
expressly authorires financing and completion of public improvements under an appropriate special
assessment act, and Section 10102 of the Streets and Highways Code (‘Municipal Improvement Act of
1913”) expressly authorites the acquisition of any improvements authorized to be constructed under said
law; and,
WHEREAS, Property Owner, in order to proceed in a timely way with its development, desires to
construct and has constructed certain public works of improvement that are proposed to be included with
the works of improvement for the Assessment District, namely, the improvements as set forth and
described in the attached, referenced and incorporated Exhibit “A”; and,
WHEREAS, the City and Property Owner are in agreement that the determined eligible works of
improvement may be included within the Assessment District financing at prices determined by said City
to be reasonable; and,
WHEREAS, it is the intent of this Agreement to provide that Property Owner shall, upon a successful
confirmation of assessment and sale of bonds for the Assessment District, be paid for the works of
improvement which are integral and a part of the Assessment District, at the prices as determined by the
City Engineer; and,
WHEREAS, the properties within the boundaries of the Assessment District will be assessed only for
those portions of the works of improvement that benefit the properties within the boundaries of the
Assessment District, and this Agreement will only cover those portions of said works of improvement;
and,
.
WHEREAS, in performing under this Agreement, it is mutually understood that Property owner is acting
as an independent contractor and not an agent of the City, and City shall have no responsibility for
payment to any contractor, subcontractor or supplier of the Property Owner; and,
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WHEREAS, Property Owner shall be the owner of and retain title to all of the works of improvement
constructed pursuant to this Agreement until such time as the City, acting pursuant to the provisions of
the “Municipal Improvement Act of 1913”, shall acquire such works of improveme.lt. Upon such transfer,
such improvements shall become the property of the public agency and/or regulated utility authorized to
provide the service to the Assessment District; and,
WHEREAS, the City has no objection to purchasing the improvements from said Property Owner, and
Property owner is desirous that the City purchase said improvements, and at this time said improvements
are owned by Property Owner; and,
WHEREAS, if the work is not being constructed in a timely manner, the Cjty may, at its option, proceed
and install authorized facilities pursuant to applicable public contract laws, with payment to be made from
bond proceeds. Upon exercising this option, the work being constructed shall automatically be deleted
from this Agreement; and,
WHEREAS, Property Owner hereby further agrees to indemnify and hold harmless the city of any
challenge involving the validity or enforceability of this Agreement and Property Owner further agrees to
defend or provide the monies in advances for any defense as it relates to a challenge to this Agreement;
and,
.
WHEREAS, City may, at its option, terminate this Agreement at any time if any legal challenge is filed
relating to the validity or enforceability of this Agreement for this Assessment District.
NOW. THEREFORE, IT IS MUTUALLY AGREED between the respective parties as follows:
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
That the above recitals are all true and correct.
The City has no financial obligation to construct the improvements, and all expense for
said improvements, including all incidentals thereto, shall be borne by owners of property
within the Assessment District.
That said City does intend to proceed with the adoption of a Resolution of Intention and
the formation of a special Assessment District for the improvements above described,
however, the City reserves the right to determine those facilities which are eligible for final
funding.
That the City agrees to acquire and finance through the use of special- assessment
proceedings, and Property Owner agrees to convey all completed improvements to the
City, those improvements being all as set forth in the previously referenced Exhibit “AH.
Property Owner agrees to post with the City the required bonds to guarantee the
performance of the work and payment of all labor and materials, said bonds to be in the
amounts as determined by the City.
Property Owner shall be responsible for the maintenance and shall maintain said
improvements in a satisfactory condition prior to any final transfer and acceptance.
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SECTION 5.
SECTION 6.
SECTION 7.
SECTION 8.
SECTION 9.
SECTION 10.
SECTION 11.
No acquisition money shall be paid for any discrete component comprising a portion of
an improvement until such discrete component to be acquired has been irrevocably
offered for dedication by the Property Owner f:ee and Clear of all liens, claims and
encumbrances. The final payment for an improvement to be acquired shall not be paid
unless such improvement has been irrevocably offered for dedication by the Property
Owner and accepted by the City Council free and dear of all liens, claims and
encumbrances. Property Owner does hereby indemnify the City against all liens, claims
or encumbrances relating to any improvement to be acquired hereunder.
The final facilities and actual prices to be paid for said improvements are those that the
City believes to be integral and reasonable and to confer special benefit on properties
within the Assessment District.
The estimated prices for the improvements and incidental expenses are set forth in the
attached, referenced and incorporated Exhibit “B”. Final prices shall be based upon unit
prices and quantities as determined by the City to be reasonable, and no other costs and
expenses shall be allowed unless expressly authorized by the legislative body of the City;
however, final payment for the work shall not exceed the maximum amount for
construction as set forth in the Engineer’s “Report” as confirmed by the City Council. The
Property Owner shall provide all substantiating documentation and certifications of
authenticity as requested by the City in the determination of either the quantities of work
constructed or the prices to be paid for such improvements.
.
The estimated quantities set forth in the previously referenced Exhibit ‘B” shall be revised
to reflect the actual quantities of works of improvement actually constructed at prices as
determined by the City. Any final determination shall be made by the City as to the
prices and quantities to be paid. . .
The costs of acquisition shall also include the necessary engineering and related
incidental expenses, including, but not limited to, the preparation of pians, specifications,
bidding and all related documentation. Said final costs and expenses are to be
determined upon the completion of the works of improvement and certified by the City.
The cost for said works of improvement shall be spread in accordance with the benefits
received, as determined by the Assessment Engineer for the Assessment District.
All plans and specifications shall be submitted by the Property Owner, and all
improvements shall be bid and constructed in full compliance with all applicable local
rules and regulations as established and approved by the City Engineer. Property Owner
agrees to keep records and to allow the City to review said records for all bids and
contracts let for any of the improvements. City shall have the right to inspect all works
of improvement at any time during construction.
.
At any time that the work is not progressing within a reasonable time limit as determined
by the City Engineer, the City may provide written notice to.the Property Owner. In the
event that Property Owner does not cause progress to be made on the work to the
satisfaction of the City within 60 days afterreceipt of such notice, this Agreement can be
terminated by ten (10) days’ written notice. Following termination, upon satisfaction of
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the other provisions of this Agreement relating to payment for improvements or discrete
components thereof, the Property Owner shall be paid for any component of the
improvements set forth on Exhibit “C” hereto which it has completed prior to the
termination. Upon termination, the City may proceed to advertise and bid the balance of
any improvements or components thereof that have not been completed by Property
Owner, and the City will have no further obligation to pay Property Owner under this
Agreement with respect to the improvements or components so bid by,the City.
SECTION 12. Upon execution of ‘this Agreement and completion of the improvements, the City shall
have the right to use said improvements as determined necessary and integral for the
works of improvement within the Assessment District.
SECTION 13. The acquisition monies, upon the sale of bonds, shall be distributed pursuant to written
instructions executed by the Property Owner herein and any mortgagee or beneficiary
under any mortgage or deed of trust where proceeds of a loan were utilized to assist in
financing any portion of the improvements. Cash distribution will be made upon
execution of the appropriate written instructions, and in the absence of written
instructions, the purchase price for the improvements shall be paid to the Property Owner
and any mortgagee or beneficiary of a deed of trust as their interests may appear
(Streets and Highways Code Section 10311.5).
SECTION 14. The City agrees that, prior to the final completion and acceptance of an improvement
listed in Exhibit “A”, it will make payments to the Property Owner for certain discrete
components of the improvements as set forth in Exhibit ‘C” hereto. The payment to be
made to the Property Owner with respect to each discrete component listed in Exhibit “C”
shall be determined in accordance with the procedures set forth in Section 6 of this
Agreement as certified by the City Engineer and shall not exceed the maximum amounoS
set forth in Exhibit “C”. A reasonable amount of money due under this Agreement, not
to exceed 10% of the cost of the improvement or discrete component thereof being paid
for, may be withheld to cover final possible corrections or adjustments in the work. The
final payment with respect to an improvement shall be made within 30 days of the City
Council’s acceptance of the improvement.
SECTION 15. This Agreement is contingent upon the confirmation of assessments and successful sale
of bonds, and it shall be null and void if said bonds are not sold within a three (3) year
period following the date of this Agreement, or any mutually agreed extension; however,
this time can be extended by request of the Property Owner and concurrence of the
legislative body. Any sale of bonds shall be based upon recommendations of authorized .
consultants retained for the purposes of assisting and establishing terms and conditions
,for the sale of bonds.
SECTION 16. Property Owner hereby agrees to provide written notice to any potential purchasers of
lots in a form satisfactory to City so advising the potential owner of the fact of the
proposed or confirmed Assessment District, with said document being executed by the
potential owner. Such notice shall be provided to the potential owner a reasonable time
before the potential owner becomes contractually committed to purchase the lot so that
the potential owner may knowingly consider the impact of the assessment in the decision
to purchase the lot. A copy of all such notices executed by actual purchasers shall be
sent to the City.
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SECTION 17.
SECTION 18. This Agreement is binding upon heirs, assigns, and successors-in-interest.
SECTION 19. This Agreement, by its execution, amends and supersedes any terms and conditions that
may be inconsistent in any previous agreement, including any subdivision improvement
agreement, relating to the construction, installation or financing of said improvements.
SECTION 20.
SECTION 21.
Property Owner agrees to and shall assume the defense of, indemnify and hold harmless
the City, its officers and agents, from any action, damages, claims or losses of any type
resulting from this Agreement, including without limitation the design, engineering,
construction bidding, award of the contract anC; construction of the improvements. No
provision as contained herein shall in any way limit the extent of the responsibility of said
Property Owner for payment of damages resulting from the construction of the
improvements and/or any contractual relationships between Property Owner and
contractor and/or subcontractors.
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The prevailing party in any litigation relating to, interpreting or enforcing this Agreement,
shall be entitled to reasonable attorney’s fees as determined by the Court.
This Agreement and the construction of the improvements shall be subject to all local
laws and ordinances relating to the requirement of improvement agreements, land
division, improvement security or other applicable development requirements. .
EXECUTED by and bet%veen the parties hereto on the day and year first hereinabove written.
“CITY”
CITY OF CARLSBAD
STATE OF CAUFORNIA
ATTEST:
CITY CLERK
CITY OF CARLSBAD
STATE OF CALIFORNIA
“PROPERTY OWNER” CARLSBAD RANCH CclwANY, L.P. A California limited partnership
By: CARLTAS CWPANY, a California ltited partnership Its General Partner
5 By:
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: :, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of PIGi II,’ mi
County of s&l Jkrqo
before me,
Name and iWe of Officer (e.g., =lane Doe. Notary Public”)
personally appeared (‘/@-I 5 mfm @ ctilds , Name(s) of Siiner(s)
FT ersonally known to me -8R 17 z to be the per.son(zt&
whose name(e)@are subscribed to the within instrument
and acknowledged to me that @st&#q-executed the
same i@hWtheirauthorized capacityfies), and that by
(@&Mhek signature(e) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
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 fom, to another document.
Description of Attached Document
Title or Type of Document: 4 c&&&n A-ij3k -/!5s &If 7)&~Lc No. 75-l f Gin
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer’s Name:
Cl Individual
0 Corporate Officer
Title(s):
cl Partner - 0 Limited 0 General
0 Attorney-in-Fact
Cl Trustee
0 Guardian or Conservator
q Other:
Signer Is Representing:
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Signer’s Name:
0 Individual
0 Corporate Officer
Title(s):
II Partner - 0 Limited 0 General
q Attorney-in-Fact
0 Trustee
El Guardian or Conservator
Cl Other:
Signer Is Representing:
0 1994 National Notary Association - 6236 Remmet Ave., P.O. Box 7184 - Cancga Park, CA 91309-7164 Prod. NO. 5907 Reorder: Call Toll-Free 1-600-876-6627