Loading...
HomeMy WebLinkAboutLake Calavera Hills Associates; 2001-04-18;AGREEMENT THIS AGREEMENT is made as of April 18,2001, by and between CYPRESS VALLEY, LLC, a California limited liability company (“Buyer”) and LAKE CALAVERA HILLS ASSOCIATES, a California limited partnership (“Seller”). RECITALS A Buyer is the owner of certain real property (“Buyer’s Property”) more particularly described in Exhibit A attached hereto and incorporated herein by this reference. B. The Property was once owned by Seller and is located within the City of Carlsbad (“City”) Lake Calavera Hills Master Plan (MP-150 (G)) (the “Master Plan”). In connection with Seller’s development of the lands included within the Master Plan, Seller and the City entered in to that certain agreement (the “City Agreement”) dated January 20, 1982 which is attached hereto as Exhibit B and incorporated herein by this reference. - c. Pursuant to the City Agreement, the City granted to Seller a credit in the amount of $2,866,778.00 (the “Fee Credit”) which could be drawn upon by Seller to pay sewer connection fees for development on the lands located within the area covered by the Master Plan Buyer has previously acquired from Seller a portion of the Fee Credit. Buyer now desires to acquire from Seller, and Seller desires to sell and transfer to Buyer, an additional portion of the Fee Credit so that Buyer and its successors can apply same to pay sewer connection fees for development within the Master Plan area. NOW, THEREFORE, for valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 1. Seller represents that said City Agreement grants credit to Seller for sewer connection and service in the amount of $2,866,778.00 (the “Fee Credit”). Seller further represents that the remaining Fee Credits that Seller currently owns and holds are not less than $980,786.00 of Fee Credits, and that Seller owns and holds such remaining Fee Credits free and clear of claims and interests of third parties, and that Seller has the right, power, title and authority to sell and transfer same to Buyer on the terms set forth below. Each person executing this Agreement represents and warrants to Buyer that such person has the full power and authority to execute this Agreement on behalf of Seller, and that Seller has the right, power, title and authority to sell and transfer the Fee Credits to Buyer on the terms set forth below. 2. Subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell and transfer to Buyer, a portion of the Fee Credit in the amount of $42,437.01 (“Buyer’s Fee Credit”). Buyer will pay to Seller an amount less than the face value of Buyer’s Fee Credit. The total purchase price to be paid by Buyer to Seller for Buyer’s Fee Credit shall be the sum of $38,193.31. The $42,437.01 Buyer’s Fee Credit / SEWERAGMverZb represents the sewer connection fees owed to the City by Buyer for sewer capacity with respect to the build-out of Village Q and Village T. 3. The method of payment of the purchase price shall be cash payable within thirty days of the later to occur of(i) approval by the City and the Carlsbad Municipal Water District of the assignment of Buyer’s Fee Credit to Buyer, and (ii) Buyer’s receipt from the City of evidence reasonably satisfactory to Buyer that Buyer’s Fee Credit will be honored by the City and the Carlsbad Municipal Water District with respect to Buyer’s Property. Prior to the payment of the purchase price by Buyer, Seller shall deliver to Buyer (i) Seller’s executed Assignment of Rights in the form of Exhibit C attached hereto and incorporated herein by this reference, and (ii) evidence reasonably satisfactory to Buyer that Seller has the power and authority to sell and transfer Buyer’s Fee Credits to Buyer, that the persons signing this Agreement have the power and authority to bind Seller hereto, and that Buyer’s Fee Credits are free and clear of liens and claims of third parties (which evidence shall include, without limitation, a UCC search conducted within five (5) business days prior to the closing showing that no liens or financing statements have been filed with respect to the Fee Credit). Buyer may terminate this Agreement and Buyer’s obligations hereunder if the conditions set forth in this paragraph 3 are not fully satisfied within sixty (60) days of the date of this Agreement. 4. All rights of entitlement granted to Seller in the City Agreement with the City of Carlsbad shall inure to Buyer as they might become an operative factor or a necessary requirement of development of the lands and property of Buyer. 5. It is understood that Seller’s obligations under the City Agreement remain the obligations of Seller and not Buyer, and that the City’s consent to this agreement is required 1 under the City’s agreement with Seller. It is understood that Buyer is a direct beneficiary of the agreement between Seller and the City with respect to development by Buyer of Buyer’s Property. 6. In no way is this Agreement to limit Buyer from acquiring additional sewer connections and service from the City or from transferring all or any portion of Buyer’s Fee Credits to any other person or entity with respect to any property located within the Master Plan area. 7. Seller agrees that the City Agreement shall not be amended, terminated or rescinded without the prior written consent of Buyer, which consent shall not be arbitrarily withheld. 8. Any and all notices or other matters required or permitted by this agreement to be served on, given to or delivered to either party hereto, Seller or Buyer, by the other party to this agreement shall be in writing and shall be deemed duly served, given or delivered when personally delivered to the party to whom it is addressed or to an executive officer of such party or, in lieu of such personal service, when deposited in the United States mail, postage prepaid, addressed to Seller at 2614 Ocean Blvd., Corona De1 Mar, California I SEWERAGMver2b 92625, or to Buyer at 2727 Hoover Avenue, National City, CA 91950. Either party may change its address for the purpose of this section of the agreement by giving written notice of such change to the other party in the manner provided in this section. 9. In the event of the commencement of any action or suit by a party hereto against the other party arising out of or in connection with this agreement, then, in that event, the prevailing party shall be entitled to recover of and from the other party all costs and expenses of suit, including reasonable attorneys’ fees. 10. This agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. 11. Buyer and Seller agree to execute all such other documents and instruments as may be required in order to consummate the purpose and sale herein contemplated. 12. This Agreement contains the entire agreement between the parties hereto, and no addition or modification of any term or provision shall be effective unless set forth in writing, signed by both parties. 13. provision hereto. Time is of the essence of each and every term, condition, obligation and 14. This Agreement may be executed simultaneously in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written at San Diego County, California. LAKE CALAVER HILLS ASSOCIATES, a CYPRESS VALLEY, LLC, a California California limited partnership limited liability company By: By: McMillin Companies LLC, a Delaware Its: limited liability company, Its Managing By: Its: SEWERAGMverZb 3 ASSIGNMENT OF RIGHTS For value received, the undersigned Lake Calavera Hills Associates, a California partnership, hereby assigns to Cypress Valley, LLC, a California limited liability company, sewer connection fee credits (the “Transferred Fee Credits”) in the amount of $42,437.01 The Transferred Fee Credits, together with additional fee credits, were originally granted to Lake Calavera Hills Associates by the City of Carlsbad pursuant to that certain agreement dated January 20, 1982 by and between Lake Calavera Hills Associates and the City of Carlsbad, California (the “City Agreement”), a copy of which is attached as Exhibit A to this Assignment. This Assignment is conditional on and not effective for any purpose until approved by the City of Carlsbad, as provided in Section 10 of the City Agreement. Ln addition, the payment by Cypress Valley, LLC of the consideration for this Assignment is a condition precedent to its validity, and until paid, despite City approval, this Assignment shall have no legal force or effect. Lake Calavera Hills Associates represents that this Assignment does not violate any of the terms and conditions of the City Agreement. This Assignment shall bind the heirs, executors, administrators, assigns and successors in interest of the parties. In any litigation or arbitration regarding this Assignment, or any right or duty arising from it, the prevailing party shall be entitled to reasonable attorneys’ fees. Dated: .v.r Assignment accepted: LAKE CALAVERA HILLS ASSOCIATES, a California liqited partnership By: Name: Title: CYPRESS VALLEY, LLC By: ;y illin Corzranaging Partner Name: &iGiw ~/vi/L;uf Title: rf!fl By: Name: Title:. . Assignment of Rights CONSENT The City of Carlsbad (“City”) hereby consents to the attached Assignment by Lake Calavera Hills Associates to Cypress Valley, LLC. Transferred Fee Credits in the amount of $42,437.01 may be applied by Cypress Valley, LLC, and its successors, from time to time, to sewer fees for any development on property within the Lake Calavera Hills Master Plan (MP- 150(G)), until such Transferred Fee Credits are totally used by Cypress Valley, LLC, and its successors. Upon delivery to the City of a copy of a receipt signed by Lake Calavera Hills Associates acknowledging receipt of the full payment due Lake Calavera Hills Associates under the attached Assignment, the City will actually transfer said credits to the account of Cypress Valley, LLC. This Consent is hereby given this day of ,200l. CITY OF CARLSBAD, a municipal corporation APPROVED AS TO FORM: Assignment of Rights