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HomeMy WebLinkAboutLa Terraza Associates LP; 1996-01-31;, . ” ’ FACILITY FEE PLEDGE AGREEMENT This Facility Fee Pledge Agreement (this "Agreement") is entered into as of this 31 day of January, 1996 by and among La Terraza Associates, a Caxfornia Limited Partnership (the "Partnershipll), BRIDGE Housing Corporation, a California nonprofit public benefit corporation ("BRIDGE1'), and the City of Carlsbad, a municipal corporation (the "City") with reference to the following facts: RECITALS A. The Partnership is developing three hundred and forty four (344) units of affordable housing located in Carlsbad, California (the wDevelopment"). B. BRIDGE is the managing general partner of the Partnership. C. The Partnership is required to pay a facility fee to the City for the right to obtain water for the Development (the "Facility Fee"). D. The Carlsbad Municipal Water District (the llDistrictll) sets the rate structure for water fees. Under the current rate structure the Facility Fee will equal Eight Hundred Thirty Thousand Four Hundred Dollars ($830,400). E. The District is currently under going a review of the rate structure for water fees. Under a proposed revised rate structure, the Facility Fee could be reduced by as much as Five Hundred Sixty Eight Thousand Dollars ($568,000). F. In recognition of the District's rate restructuring effort and the potential savings for the Development, the City has allowed the Partnership to defer payment of the Facility Fee until the Development is ready to be occupied as evidenced by the issuance of a certificate of occupancy by the City for all structures. G. The Partnership has deposited Four Hundred Twenty Seven Thousand Two Hundred Dollars ($427,200) with the City as a deposit on the future payment of the Facility Fee, which deposit is being held by the City, and shall remain with the City, until the Payment Date, as defined below, at which time the Partnership may apply this amount against any amount due to the City for payment of the Facility Fee (the IfDeposit Amour&IV). 1443cs950 OWW96 1 * L H. The balance of the Facility Fee in the amount of Four Hundred Three Thousand Two Hundred Dollars ($403,200) has been deferred until the Payment Date (the "Deferred Fee"). If a new rate structure which reduces the Facility Fee is put into place before the Deferred Fee is due, the Partnership will only be required to pay the reduced amount. I. The Development is composed of nineteen (19) residential buildings, two (2) recreational buildings, and one (1) maintenance building,all of which require a certificate of occupancy J. Because of the multiple certificates of occupancy required for the Development, it is unclear when the payment of the Facility Fee is required. K. Pursuant to the terms of this Agreement, the parties wish to clarify any ambiguity regarding the timing for payment of the Facility Fee, including any requirement to pay the Deferred Fee. L. Pursuant to the terms of this Agreement, BRIDGE is pledging to the City that BRIDGE will insure the payment the Deferred Fee to the City in the event that the Partnership fails to pay the Deferred Fee if and when due. NOW THEREFORE, IN CONSIDERATION of the covenants in this Agreement and other good and valuable consideration the receipt of which is hereby acknowledged, the parties agree as follows: 1. TIME OF PAYMENT. Payment of the Facility Fee, including the Deferred Fee, if any, shall be due upon the issuance by the City of the final certificate of occupancy for the Development but no later than December 31, 1996 (the "Payment Date"). The final certificate of occupancy shall be the certificate of occupancy issued by the City for a building, whether residential or recreational, in the Development after all other residential and recreational buildings in the Development have received a certificate of occupancy. 2. PAYMENT OF FACILITY FEE. The Partnership pledges to the City that the Partnership shall pay the Facility Fee by first applying the Deposit Amount to the outstanding amount of the Facility Fee and then, if necessary, paying the Deferred Fee in the maximum amount of amount of Four Hundred Three Thousand Two Hundred Dollars ($403,200) on the Payment Date. If the District has revised its rate structure for water fees resulting in a reduction in the Facility Fee, the Partnership shall be required to pay only the amount required by the District's new rate 1443csPSO 01/25/% 2 . . structure and any unused portion of the Deposit Amount shall be promptly refunded to the Partnership by the City. In the event that the Partnership fails to make the Deferred Fee payments required by this Section 2, BRIDGE, upon ten (10) days written notice by the City, shall pay to the City the amounts due from the Partnership. 3. NOTICES. All written notices and demands of any kind which either party may be required or may desire to serve on the other in connection with this Agreement may be served in writing and by certified mail or by personal delivery with a return receipt. Any such notice or demand so served by certified mail shall be deposited in the United States mail with postage thereon fully prepaid and addressed to the party to be served as follows: The Partnership: La Terraza Associates, a California Limited Partnership 1 Hawthorne Street, Sufte 400 San Francisco, CA 94105 BRIDGE: BRIDGE Housing Corporation 1 Hawthorne Street, Suite 400 San Francisco, CA 94105 City: City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008-1989 Service of any such notice or demand so made by mail shall be deemed complete on the day of actual delivery as shown by the addressee's receipt or at the expiration of the third day after the date of mailing, whichever is earlier in time. Either party to this Agreement may, from time to time, by notice in writing served upon the other as set forth above, designate a different address to which all such notices and demands are thereafter to be addressed. 4. AMENDMENT. Any amendments to this Agreement must be in writing and shall be effective only upon the execution of the amendment by all parties to this Agreement. 5. HEADINGS. The titles and headings of the various sections of this Agreement are intended solely for means of reference and are not intended to modify, explain, or place any construction on any of the provisions of this Agreement. 1443Cs.PSO 01/25/96 3 , . ” 6. SEVERABILITY. If any of the provisions of this Agreement or their application to any persons or circumstances shall, to any extent, be invalid or unenforceable, neither the remainder of this Agreement, nor the application of such provisions or provision to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall be affected thereby, and every provision to this Agreement shall be valid and enforceable to the fullest extent permitted by law. 7. ATTORNEYS' FEES. In the event of any action between the parties to this Agreement to enforce any of the provisions of this Agreement or any right of any party, the unsuccessful party to such action agrees to pay to the successful party or parties all costs and expenses, including reasonable attorneys' fees, incurred by the successful party, all of which may be included in and as part of the judgment rendered in such action. 8. ENTIRE AGREEMENT. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to the terms that are included in this Agreement and may not be contradicted by evidence of any prior or contemporaneous agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that, absent fraud or intentional misrepresentation, no extrinsic evidence whatsoever may be introduced in any judicial proceedings, if any, involving this Agreement. No provisions of this Agreement may be amended or added to except by an agreement in writing signed by the parties to this Agreement or their respective successors in interest. 9. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 10. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties. 1443cxPSO 01/2S/96 4 IN WITNESS WHEREOF, the parties have executed this Agreement on the date set forth above. Partnership: La Terraza Associates, a California Limited Partnership By: BRIDGE HOUSING Corp., its mana2inq general partner By 'h&e& : Its: \,/I’ 6 \A OS\ rJ‘CWj-- By: /h@fw 4&P- Its: UrLH Pl/k;l /A f’ City: City By: ATTEST: QL& ? ALETHA L. RAUTENKRANZ, \ City Clerk BRIDGE: BRIDGE Housing Corporation, a California nonprofit,public benefit corporatiorl.. By: Its: Its: . /C-e ‘+i~ s i-d -Q JL r 5, - (Proper notarial acknowledgment of execution of DEVELOPER-OWNER must be attached.) (President otvice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: 1443csPSO 01/25/96 * CALIFORNIA ~~~=mmposE ACKNOWLEDGMENT No. 5907 State of Ca Whmi c\ County of Ri\/\c;x;a / On A i2 .\44b before me, &&%‘I~~ @I .~‘.(A ?I&$& . NAME, TITLE OF 6FFICER - E.G., “JANE l c 7 DATE OE, NOTARY PUBLIC personally appeared &XfO \ &L!?LU&Z &A & ‘&U%%VI M . .&hVlSdVl , NAME(S) OF SIGNER(S) personally known to me - OR - 0 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 ac- knowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their JOANNA J. ON I cm.- if Notory PubtiC - CdfonriO 2 SAN FRANCIXO COUNN 1 Comrn. Expires SEP 5.1996 l’t signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF AlTACHED DOCUMENT 0 INDIVIDUAL q CORPORATE OFFICER l;t\lwfJ- TITLE OR TY& 0~ DOCUMENT @! PARTNER(S) 0 LIMITED &I GENERAL 0 5 ATTORNEY-IN-FACT NUMBER OF PAGES 0 TRUSTEE(S) 0 GUARDIAN/CONSERVATOR 0 OTHER: IlSMu DATE OF DOCUMENT SIGNER IS REPRESENTING: Q1993 NATIONAL NOTARY ASSOCIATION l 8236 Remmet Ave., P.O. Box 7184 l Canoga Park, CA 91309-7184