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HomeMy WebLinkAbout1984-06-19; City Council; 7799; Leucadia Sewer Service AgreementCIT. OF CARLSBAD - AGENDk BILL 4B#- rllTG. 6/19/84 CM IEPT. LEUCADIA SEWER SERVICE AGREEMENT HUNT PROPERTIES DEPT. HD. CITY Ally* CITY MOR.= RECOMMENDED ACTION: That council by minute action receive and file copy of agreement between LCWD and Hunt Properties and direct City Clerk to notify LCWD that city has no objection to agreement. BACKGROUND: Hunt Properties has negotiated an agreement with LCWD which provides that Leucadia will supply sewer service to property in Green Valley (south of La Costa Avenue and west of El Camino Real ). Hunt agrees to pay an annexation fee of $1365 per acre plus sewer connection fees (currently $1500 per EDU). sewer service when needed Hunt has the option to request service from Carlsbad. If desired by City, LCWD will lease excess capacity in the district sewer lines upon detachment. In the event LCWD is unable to provide The agreement is conditioned upon the successful annexation to Carlsbad and approval of development permi ts. FISCAL IMPACT: If Carlsbad provided sewer service to Green Valley the sewer connection charge for 2500 EDU would be $2,500,000. Under this agreement Hunt will pay LCWD: Annex Fee $ 400,000 (293 ac) Connection Fee 3,750,000 (2500 EDU) Administration Fee 20,000 $4,170,000 Plus interest at 11.15% Carlsbad incurs no cost as a result of this agreement. EXHI BITS: 1. Letter of May 11, 1984 from LCWD to Hunt Properties 3. Agreement between LCWD and Hunt Properties, Inc. I t EXHIBIT A - I LEUCADIA COUNTY WATER DISTRICT Enc’I~sed are tm originit7 executed agreements for the anrrexatfon of the 6reen Valley property into the Leucadfa County Mater Dfstriet. Please return one orf- gfnal tmxted by the Hunts. Thls agreement 1s the result af my hwrs of dtscussfon AS you know. The Board of Dtrecturs me satlsfted uith the prwf- s3ons and are conffdent they tmcftt bath Hunt Propertfes and the Dfstrict. It Is our understanding .~v app’lfcattan for wntxatfon has been formrded to lffa. k further unberstand the Hunts wl’il sign thc agreement U~OH reccfpt and prior ta the LWCO publlc hear7ng. The Board wfT1 not owse the annexatfon of the Green Valley property to the City of GarTsbad for IPunicipal swvfces other than swr ussumfng: I) the documents have been executed by the ttunts; and 2) the Cfty goes on retard tn support of the agreelaent. 4~ Ye apprectate pur tine and effort and look forward to a pleasant reliltlanshfp In tk parr to cam. Yaws very truly, Lafs E. Hurrphteys President, Board Qf Ofrectors c %I .. EXHIBIT B -? AGREEMENT FOR ANNEXATION OF CERTAIN PROPERTY AND FOR PROVISION OF SEWER SERVICE TEERETO TO THE LEUCADIA COUNTY WATER DISTRICT WHEREAS, N. B. HUNT and W. H. HUNT, Individuals, are the owners of that certain real property ("the Property") described on Exhibit A attached hereto and incorporated herein by this reference: and WHEREAS, N. B. HUNT and W. H. HUNT, by and through their representative HUNT PROPERTIES, INC. dba H.P.I. Development, Co., ("HUNT") desire to develop the Property, and in conjunction therewith will require the provision of sewer service to the Property: and WHEREAS, the LEUCADIA COUNTY WATER DISTRICT ("LCWD") is a duly constituted special district operating under the California Water District law for the purpose of providing sewer service and is capable of providing service to the Property: and WHEREAS, the Property presently lies within an unincorporated area of the County not within any designated sewer district: and WHEREAS, HUNT would like to annex the property described on Exhibit A as "The Initial Annexation Area" to LCWD as soon as possible and some or all of the remaining property described on said Exhibit A as "Potential Subsequent Annexation Area" at a later date; -1- c '2 .. NOW, THEREFORE, the parties hereto agree as follows: 1. ANNEXATION a) Initial Annexation Area. If not already filed as of the date of execution of this Agreement, HUNT shall file with the San Diego Local Agency Formation Commission (LAFCO), as soon as possible, an application to annex "The Initial Annexation Area," as shown on Exhibit A hereto, to LCWD. b) Subsequent Annexation. Upon the subsequent annexation to LCWD of some or all of the Property described on Exhibit A hereto as "Potential Subsequent Annexation Area," said areas shall be subject to all of the terms and conditions of this Agreement. Annexation fees on any such subsequently annexed area shall be paid to LCWD in an amount per acre as prescribed by the Ordinances of LCWD in effect at the time of completion of the subsequent annexation. Payment of such fees may, at the request of HUNT, be deferred on the same terms and conditions as specified herein for The Initial Annexation Area except that the provisions of Paragraph 2(a) and (b) shall be read to apply to the subsequent annexation area independently of The Initial Annexation Area and the time for payment as prescribed in Paragraph 2(a) shall run from the date of completion of the subsequent annexation. Interest on any subsequent annexation shall accrue from the date of completion of the subsequent annexation. For the purposes of this Agreement, completion of an annexation shall be deemed to have occurred when the filings required by Government Code 556453 are completed. -2- .' . 2. PAYMENT OF ANNEXATION FEE a) Amount and Due Date. HUNT agrees that a LAFCO condition of approval of its annexations to LCWD shall be the payment of an annexation fee to LCWD as prescribed herein. For the annexation of the Initial Annexation Area, fees shall be paid based upon the actual number of acres annexed multiplied by the current per acre fee of $1,365.00 as prescribed by the Ordinances of LCWD. Said fee is to be paid in annual payments of principal and interest over twenty-five (25) years as provided in the schedule attached hereto and incorporated herein by this reference as Exhibit C, provided, however, that any remaining principal owed and such interest as may be due at the time shall be paid within thirty days of HUNT obtaining "Development Approval" for The Initial Annexation Area. For the purposes of this Agreement, "Development Approval" shall be defined as the earlier of: i) issuance of final discretionary approval of the first phase of development of The Initial Annexation Area by State, Federal and local agencies with discretionary jurisdiction over the property and project, including issuance of the first Coastal Commission permit and acceptance thereof by Hunt; or, ii) issuance of final discretionary approval of the first phase of development of The Initial Annexation Area by State, Federal and local agencies with discretionary jurisdiction over the property and project, acceptance thereof by HUNT, and exclusion of The Initial Annexation Area from Coastal Corn i ss ion perm it requirements i or - - 3- .. iii) the sale or transfer by HUNT of some or all of the property annexed, except that trust deeds transferred for the purpose of financing, deeds given in lieu of foreclosure, foreclosure deeds, or the conveyance of easements shall not be deemed to be a sale or transfer by HUNT within the terms of this Subparagraph 2(a)(iii). In the event of a sale or transfer of a portion of the property which has been annexed, annexation fees shall be paid on the portion sold or transferred on a per acre basis in conformance with the per acre annexation fee in effect at the time the property was annexed. HUNT or its agent shall provide written notice to LCWD of any sale or transfer within the meaning of this subparagraph 2(a)(iii) within thirty (30) days following recording of the sale or transfer. b) Interest. The total amount due shall bear interest from the date annexation is complete at the rate of 11.15% per annum until paid in full. Principal and interest shall be paid annually in arrears as provided on Exhibit C hereto. Any payment made shall be credited first to interest and then to principal, except as provided in Paragraph 3 herein. The entire balance of principal and interest shall be due and payable within thirty (30) days of the earlier to occur of the conditions of Subparagraphs 2(a)(i) through (iii); provided, however, that in the event of a sale or transfer of a portion of the annexed property principal and interest shall be due and payable on the portion sold or transferred pursuant to Subparagraph 2(a) (iii) above. The entire sum may be prepaid at any time by HUNT without penalty. -4- c) Security. Payment of all deferred annexation fees and interest shall be secured within thirty (30) days of completion of the annexation by bond, letter of credit, cash deposit, lien contract, or other security acceptable to LCWD. HUNT shall have the right to substitute security at any time with the consent of LCWD and LCWD will give its consent provided that the substituted security will reasonably protect its security interest. 3. PAYMENT OF ADMINISTRATIVE EXPENSES As to The Initial Annexation, HUNT will pay any and all reasonable processing fees, environmental impact report fees or other similar administrative fees incurred by LCWD incident to The Initial Annexation and related proceedings not to exceed a total of $20,000, including administrative expenses incurred prior to execution of this Agreement. If the annexation of The Initial Annexation Area is completed by March 1, 1985, then the interest portion of the first annual payment pursuant to subparagraph 2(b) herein shall be deemed to .include payment in full of such administrative expenses, and no separate payment of such administrative expenses need be made, provided that payment to the extent of the administrative expenses to LCWD is made on or before April 1, 1985. If the annexation of The Initial Annexation Area is not completed by March 1, 1985, then HUNT shall reimburse LCWD for such administrative expenses by P.pril 1, 1985. HUNT shall receive a credit against interest due under Paragraph 2( b) hereof for any administrative expenses paid pursuant to this Paragraph. -5- Payment of administrative expenses for subsequent annexations shall be consistent with the concepts of this Paragraph. 4. SERVICE AVAILABILITY LCWD to Provide Service; Detachment. Upon successful completion of the annexation proceedings, provided that a) HUNT is in compliance with all procedural requirements of LCWD's ordinances, has paid all required fees, has properly filed all necessary applications, and is not in .breach of this Agreement, LCWD agrees to provide sewer service at a capacity consistent with Development Approvals. b) Consent to Detachment If LCWD Unable To Provide Service. In the event of LCWD's failure or refusal for any reason to provide sewer service when required by HUNTS at a capacity consistent with Development Approvals for the property annexed, LCWD agrees that HUNT shall have the right to detach the Property or any portion thereof to the extent LCWD is unable or unwilling to service it from LCWD and seek service elsewhere. Without limiting other circumstances under which the right to detach would arise, HUNT shall be entitled to detach in the event that: 1) LCWD fails for any reason to issue a letter of sewer availability within 20 days of a timely written request by HUNT; 2) LCWD fails for any reason to isSue a final map letter of availability within 20 days of a timely written request by HUNT; or 3) LCWD fails for any reason to issue sewer connection permits to HUNT upon timely tender of the appropriate connection fees. LCWD will cooperate in good faith in any such detachment Proceedings initiated by HUNT, and will not oppose in any forum -6- I. .. the detachment or the provision of sewer service to the Property by any other entity. c) Consent to Detachment If No Development Approval Within Seven Years. LCWD consents that HUNT shall also have the right to detach in the event that HUNT has been unable to obtain Development Approval as defined in Subparagraphs 2( a) ( i) or (ii) herein by the end of the seventh (7th) year following completion of the annexation. Said right to detach shall continue throughout the balance of the twenty five year payment period established in paragraph 2(a) hereof so long as HUNT is unable to obtain Development Approval. In the event that Development Approval is denied or approved but subsequently revoked, or amended and the amendment is not accepted by HUNT, on a portion of the annexed property, LCWD consents that HUNT shall have the right to detach any such portion as provided herein. d) - LCWD to Lease Facilities If Detachrent Undertaken. In the event that some or all of the annexed property is detached from LCWD in accordance with this Agreement and not re-annexed, LCWD agrees to lease its transmission facilities to the City of Carlsbad or other sewer provider for the purpose of transmitting sewage from the Property to appropriate treatment facilities. The terms of any such lease shall be reasonable and subject to negotiation and mutual agreement of the parties thereto, and LCWD agrees that it will negotiate any such agreement reasonably and in good faith SO as to facilitate the provision of sewer service to the Property at the time said detachment is und e r taken . J -7- L-4 e) Consent to Service While Detachment Pendins. If detachment proceedings as authorized by this Agreement are initiated by HUNT, LCWD hereby consents to the provision of sewer service to the detaching property by the City of Carlsbad or other sewer service provider as of the date such proceedings are in i ti a ted . f) Warranty of Authority to Enter into Contract and to Provide Service. LCWD represents and warrants that it has the requisite legal authority to enter into the terms and conditions of this Agreement and that it will have the necessary legal authority to service the Property upon completion of the annexation proceedings. 9) HUNT Not to Detach If Service Available. Provided that LCWD is ready, willing and able to provide sewer service as specified in Paragraph 4(a) hereof, HUNT agrees that HUNT will not initiate, cause to be initiated, or support any attempt to detach any of the Property from LCWD for the purpose of receiving sewer service from the City of Carlsbad except as provided in Paragraphs 4(b) and (c). h) Re-Annexation to LCWD. If some or all of the Property is detached from LCWD due to HUNT'S inability to obtain Development Approval as provided in Subparagraph 4( b) or (c) above, and if HUNT subsequently obtains Development Approval as defined in Subparagraphs 2(a)(i) or (ii) for the detached property, then HUNT shall first attempt to re-annex the detached property to LCWD prior to seeking sewer service from another entity or entities. -8- .. A 5. REFUND In the event that detachment of all or a portion of the property is completed in accordance with Paragraphs 4(b) or (c) above, LCWD shall refund the principal portion of any annexation fees paid in the same proportion as the number of acres detached bears to the total number of acres annexed. LCWD shall retain all interest paid or due and unpaid at the time of such refund. In addition, LCWD shall retain so much of principal as is necessary to offset the actual cost of any facilities installed exclusively to service the Property, as described in Exhibit B attached hereto and incorporated herein by reference: provided, however, LCWD shall not retain principal to offset the actual cost of the facilities described on Exhibit B if detachment is completed due to the failure or refusal of LCWD for any reason to provide sewer service as provided in Subparagraph 4(b) above. 6. ASSIGNMENT This agreement and the rights and obligations of the parties may not be assigned without the prior written consent of the other party, except a5 to successors in title to HUNT through foreclosure. In such event, HUNT shall disclose this Agreement to the successor and the provisions of this Agreement shall be binding on any such successor. 7. AGREEMENT CONDXTIONED UPON LAFCO APPROVAL OF ANNEXATION The rights, duties and obligations of the parties under this Agreement are exprzssly conditioned upon completion of the annexation of The Initial Annexation Area to LCWD for sewer -9- service and to the City of Carlsbad for other municipal services and upon Carlsbad's concurrence in the City annexation, except that HUNT'S obligation to reimburse LCWD for administrative expenses as provided in Paragraph 3 hereof shall remain in force in any event. 8. ENTIRE AGREEMENT This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior negotiations, agreements, or representations regarding the subject matter hereof. No amendment to this Agreement shall be effective unless executed in writing by the parties. 9. ENFORCEMENT; ATTORNEYS' FEES In the event that administrative or Court proceedings are necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, administrative expenses, and investigative fees in addition to costs. I, _. , 10. INTERPRETATION The language in all parts of this Agreement shall be construed in accordance with the laws of the State of California. LEUCADIA COUNTY WATER DISTRICT By : Lois Humphreys President By : Joan Geiselhart Se c r e tar y/Ma nag e r I Execution of this Agreement was authorized by Resolution No. - duly adopted by the Board of Directors of LCWD on N. B. Hunt W. H. Hunt STATE OF TEXAS COUNTY OF On , before me, the undersigned, a Notary Public in and for said State, personally appeared N. B. Hunt, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same. WITNESS my hand and official seal. Notary Public STATE OF TEXAS COUNTY OF On , before me, the undersigned, a Notary Public in and for Said State, personally appeared W. H. Hunt, known to me to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same. WITNESS my hand and official seal. Notary Public /3 -11- -_ .. ,- EXHIBIT B A. Flow up to .809 mgd. Parallel sewer shown on the attached diagram labelled "Future Parallel Sewer." HUNT is responsible for the actual cost of the new line. B. Flow qreater than .809 mqd. It is the understanding of the parties that the facility listed on this Exhibit B under the preceding Paragraph A is the only additional off-site facility required to service the Property at a development level up to ,809 million gallons per day (mgd) of flow. In the event that Development Approvals for a greater flow are obtained, HUNT shall pay its proportionate share of the cost of any additional or upgraded facilities, if any, required to service the Property. -1- EXHIBIT B tx c 1200 ELM AVENUE CARLSBAD, CA 920081988 OWce of the Clry cjerk June 20, 1984 Lois Humphreys, President Board of Directors Leucadia County Water District P.O. Box 2397 Leucadia, CA 92024 Re: Leucadia Sewer Service Agreement - Hunt Properties The agreement between the Leucadia County Water District and Hunt Properties was considered by the Carlsbad City Council at their meeting of June 19, 1984. Per your request, this letter is to inform you that the City has no objection to the agreement. ALETHA L2hf7k44- L. RAUTENKRANZ City Clerk ALR:krk TELEPHONE @le) 438-5535 cc: Robert Inlow, Hunt Properties