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HomeMy WebLinkAbout1990-01-16; City Council; 10455; Alga Road AD 88-01” x . . 0 9 0 % % . . 3 4 d 5 8 CIT”’ OF CARLSBAD - AGEND -,BILL ALGA ROAD ASSESSMENT DISTRICT NO. 88-1 RECOMMENDED ACTION: Council adopt Resolution No. 9 0 - 10 for the Alga Road Assessment District and adopt Resolutron No. 9 making findings o;the/~~;~~~.i authorizing execution of Special Assessment District Acquisition/Financing Agreement. I ITEM EXT’LANATION: At its December 6, 1988 meeting the City Council accepted a Policy 33 Committee recommendation authorizing staff to initiate proceedings for 1913/1915 Act Assessment District for Alga Road and a portion of Poinsettia Lane. Since that time, Hillman Properties have subdivided and entered into mortgage relationships on several of its properties. The actions presented would accept the revised petition including the updated ownership interest and approves an Acquisition and Financing Agreement which allows Hilhnan to construct improvements prior to District formation. The Acquisition/Financing Agreement anticipates that Hillman Properties will grade and construct all water, sewer, drainage and reclaimed water facilities and certain segments of roadway prior to District formation and the sale of bonds. Roadway portions included in acquisition are base improvements extending from the most easterly terminus of Alga Road to its intersection with the extension of Batiquitos Lane. Base improvements include curb gutter, sidewalk, median curbing and base asphalt paving. Remaining surface improvements, including median landscaping, street lights, finish paving and striping would be completed by City contract in conjunction with District formation. The Policy 33 Committee has reviewed and approved the proposed acquisition for the following reasons: . Grading and drainage could not practically be segregated from other elements of development grading. . Construction of underground City facilities need to be coordinated with franchise utilities not included in the Assessment District. . Early roadway construction facilitates access to the new Alga Road School. . The acquisition approach will accelerate overall roadway completion by several months. The Acquisition/Financing Agreement provides: . That the City construction contract may be awarded prior to bond sale with adequate posting of funds by developer. . That property owner provide notice to any new purchasers of lots in such form as approved by City of the existence of the District. - PAGE TWO OF AB# 10, ys5 , . Prevents the sale of new homes within the District prior to District confirmation. . Property owner agrees in Section 15 “prior to any division of land resulting in fewer assessable units than proposed, to pay cash to the City so that the individual confirmed assessment amounts will not be increased on new assessment lots or parcels.” District Schedule 1. Bid Public Work 2. Complete Acquisition Construction 3. Award Public Contract 4. District Resolution of Intention 5. District Confirmation Hearing 6. Delivery of Bond Proceeds February 1990 March 1990 March 1990 March 1990 Mid April 1990 June 1990 FISCAL IIWAC’k The total district is estimated to cost $21,2OO,OOO. All costs of formation and staff processing will be included within the District to be paid from the proceeds of bonds. EXHIBlTS: 1. 2. 3. 4. 5. 6. 7. Location Map. Policy 33 Minutes Resolution No. 4 0 - 1 0 making findings on petition. Petition. Certificate of Sufficiency of Petition. Resolution No.? 0 - \ \ approving Acquisition/Financing Agreement. Acquisition/Financing Agreement. - Exhibit A. - l-HE PROPERTY f ASSESSMENT DISTRICT BOUNDARY (typical) I 214-170-61 I I ’ 21S-O4tHS / 21S-WCb14 t--1 21S-o~16 k ~~~&,~,,uu,,,~~ 4 t \ --1 \ J (PART) I 21~111-01 a--- -\ n’sm “‘-03 (PART) I Batiquitos Lagoon 1 I _-------------- I c-a J--------m I ------------& c--------w- - Bill P&D Technologies 401 WEST A STREET SURE 2500 SAN DIEGO. CALFOFtMA 92101 Tekqhone: (6 19) 232-4466 Legend: EXISTINQ ROAD llllll1lllllllllllllllllllllllll PROPOSED PROJECT NOT TO SCALE - - DECISION: DECISION: MINUTES POLICY 33 PROJECT REVIEW COMMITTEE Thursday, September 7, 1989 lo:30 a.m. - 12:02 p.m. City Manager’s Conference Room Attendees : City Engineer Finance Director Utilities & Maintenance Director Planning Director Community Development Director City Assessment Engineer Norm Neste, NBS/Lowry Galen Peterson, NBS/Lowry Steve Hassett, NBS/Lowry ALGA ROAD ASSESSMENT DISTRICT CITY ENCR: Hillman will finish grading in about one month and City will acquire it. Coordination of utilities has been a problem. Best solution appears to be to put all utilities in the acquisition portion, however, the franchi;e utilities (gas, electric, telephone and cable TV) will not be included in the assessments. Water, sewer and reclaimed water will be acquired and included in assessments. Also, to provide early access to Batiquitos Drive, Alga Road curb and gutter, base all paving except final lift from El Camino Real to Batiquitos Drive will be done by Hillman and included in the acquisition acceptable to the Committee? The Committee approved an acquisition drainage, utilities and a portion of the outlined above. portion. b this concept district for road grading, street improvements as CITY ENCR: We considered two bid alternatives for landscaping behind the sidewalk : one, erosion control as required by the City and another, more extensive landscaping plan as desired by Hillman. We would have Hillman put in the landscaping and pay them the smaller amount for the cost of erosion control. Mat Brown said that we could not do that, however. Alternatives are 1. to pay the contractor to do the extensive landscaping and have Hillman reimburse the City or 2. leave both out of district and have Hillman do landscaping at their expense. The Committee was in favor of leaving landscaping/erosion control behind the sidewalk out of the district and having Hillman do this work. CITY ENCR: Hillman wants to start construction before the public hearing and they would post a letter of credit before the award of contract. -2- DECISION: FINANCE DIR: They must use our standard letter of credit form. The Committee approved an early construction start with a letter of credit posted using the City’s form. The Committee further agreed that there must not be any close of escrows on house sales prior to confirmation of the district. GALEN: Presented an overview of the assessment spread and handed out a report. The method of spread is based on average daily trips. Poinsettia Lane is spread to the four adjacent property owners and to Aviara. Alga Road is spread to Aviara only. CALEN: Said if number of actual houses built is less than proposed then the developer must pay sufficient cash to the City so that the individual assessments will not increase. If the number of houses or commercial increase, a “change of work” procedure must be done to equalize the assessments. DECISION: The Committee approved requiring Hillman to pay cash if necessary to keep individual assessments from going up and to include enough for the bond payoff penalty and an administration fee and to include this requirement in the acquisition agreement. ACTION: GALEN GALEN: Said he will call Mat Brown and have the above items included in the acquisition agreement. FINANCE DIR: Said he wanted to be sure that we get sufficient fees to handle administration of the district. ACTION: GALEN GALEN: Said he would include in the Engineer’s Report a fee to do the annual billings for the district. CANNON ROAD ASSESSMENT DISTRICT CITY ENGR: Without the City Manager and City Attorney here, we won’t elaborate now. Galen’s report on spread alternatives will be sent out to the Committee for review. Respectfully submitted, RICHARD H. ALLEN, JR. City Assessment Engineer RHA : pm cc: City Manager City Attorney Larry Clemens, Hillman Properties Mat Brown, Browrt J$ Dive0 1 2 RESOLUTION NO. 9 0 - 10 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, MAKING FINDINGS ON PETITION. 3 4 WHEREAS, the City Council of the City of Carlsbad, California, has now been presented b 5 certain property owners an updated and executed Petition requesting the construction of certa’ 4 6 public improvements, together with appurtenances and appurtenant work in connection therewith 7 said improvements to be constructed pursuant to the terms and provisions of the “Municipa i 8 II Improvement Act of 1913”, being Division 12 of the Streets and Highway Code of the State o 9 California, in a special assessment district known and designated as ASSESSMENT DISTRICT NO. 10 11 12 88-1 (Alga Road) (hereinafter referred to as the “Assessment District”); and, 13 14 15 16 17 18 19 WHEREAS, it is now reported that said Petition contains the signatures of interested parties and property owners as authorized, and the Petition now meets the requirements of Division 4 of the Streets and Highways Code of the State of California. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: SECTION 1. That the above recitals are all true and correct. SECTION 2. That it is hereby found that said Petition has been signed by owners owning lane constituting more than sixty percent (60%) of alI assessable land within the boundaries of the proposed Assessment District. 20 21 SECTION 3. That said Petition shall be filed with the transcript of these proceedings and sh remain open to public inspection. 22 23 SECTION 4. That said Petition meets the requirements of Section 2804 of Division 4 of th Streets and Highways Code of the State of California, and further proceedings and limitation 24 25 under the provisions of the “Special Assessment Investigation, Limitation and Majority Protest AC 26 of 1931” shall not be applicable to these proceedings. 27 SECTION 5. This legislative body hereby further finds and determines, based on writte 28 evidence submitted, that the total estimate amount of the proposed assessments wi.U not excee .- \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 seventy-five percent (75%) of the estimated fair market value of the land proposed to be assessed after the proposed public improvements shall have been constructed. SECTION 6. That it is hereby further determined and found that said Petition has been signed by not only the property owners, as specified in Section 2804 of the Streets and Highways Code, but also any mortgagee or beneficiary under any such existing mortgage or deed of trust, as required by Section 2804.2 of the Streets and Highways Code of the State of California. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held 1 on the 16th day of January, 1990 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamau? and Larson NOES: None ABSENT: None ATTEST: LZL &g&i&&m ALETHA L. RAUTENKRANZ, City Clerk 1 (SEAL) TO: CITY COUNCIL CITY OF CARLSBAD PETITION AND WAIVER FOR SPECIAL ASSESSMENT PROCEEDINGS 1. We, the undersigned, are the property owners of land shown on the map attached as Exhibit “A” and made a part of this document. 2. We petition you to undertake special assessment proceedings for the following described public improvements: The construction and installation of certain street improvements, including grading, paving, curbs and gutters, sewer, water, drainage, street lights and utility installation and undergrounding, together with appurtenances and acquisition where necessary, to serve the properties within the boundaries of ASSESSMENT DISTRICT NO. 88-l (ALGA ROAD). For particulars, reference is made to Exhibit "B" attached hereto and so incorporated. 3. We understand: A. THAT the cost of the improvements will be charged to the land which bene- fits from the improvements, including our land; B. THAT the cost of engineering, legal and other incidental expenses will be included in the project cost; C. THAT each property owner may pay his assessment either in cash without interest or in installments with interest over a period of years. D. THAT property with an assessment lien is subject to foreclosure in cases of delinquency and non-payment. 4. We consent to other appurtenant work and acquisition that is, in the opinion of the legislative body, necessary to properly effectuate said improvements, and we hereby expressly waive the proceedings required and all limitations under the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931", being Division 4 of the Streets and Highways Code of the State of California. . 5. We'agree to dedicate all required rights-of-way or easements necessary for the works of improvement, all dedications to be accomplished before the ordering of the improvements. 6. We request the initiation of proceedings for the conversion of existing over- head electrical and communication facilities to underground locations, _A -- pursuant to Chapter 20, Part 3, Division 7 of the Streets and Highways Code of 2 the State of California. THE UNDERSIGNED HEREBY CERTIFY UNDER PENALTY OF PERJURY THAT THEY ARE THE OWNERS OF RECORD OF THE PROPERTY AS SET FORTH HEREIN. NAME OF PROPERTY DATE OF OWNER AND STREET LEGAL DESCRIPTION OR SIGNING ADDRESS COUNTY TAX PARCEL NO. SIGNATURE Aviara Land Associates, Limited Partnership, A Deleware Limited Partnership 2011 Palomar Airport Road Suite 206 Carlsbad, CA 92009 (619)931-1190 Fax (619)931-7950 215-070-05 215-040-02 215-040-15 215-080-02 (Part) 215-051-10 215-040-16 214-170-51 216-150-06 (Part> 216-111-01 (Part) 216-11 l-03 (Part) D.L. CLEMENS VICE PRESIDENT/ GENERAL MANAGER See Attached It is hereby further stated that the property within the boundaries of the Assessment District at this time is subject to existing mortgages or deeds of trust. THE UNDERSIGNED hereby state, as mortgagees or beneficiaries unde any existing deeds of trust, that they acknowledge and join in signature in the Petition for the above-referenced . Assessment Disrict. For further particulars as to any mortgagees or benficiaries under any deeds of trust, reference is made to the title report, a copy of which is attached hereto. DATE OF SIGNING NAME OF LENDER SIGNATURE /$ -3/-- 6y First Interstate Bank 5000 Birch Street 7s I Suite 2200 Newport Beach, CA 92660 . (714)253-4280 FILED IN THE OFFICE OF THE CITY CLERK THIS 1 ztC DAY OF -14dtiA~ q 1790* Y-l+-= Said Petition represents 85.3 % of the assessable area, as shown on the attachment map. dll.xLMay CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA CAT. NO. NN00737 TO 1945 CA (7-82) (Corporation) STATE OF CALIFORNIA *TKoRcoYPANY COUNTY OF ORANGE s!L On October 31, 1989 t before me, the undersigned, a Notary Public in and for said State, personally appeared _ TOTI Strobe1 board of direc (This area for official notarial sell) . Applicant: Aviara Land Associates Limited Partnership a Delaware Limited Partnership ny, General Partner I - D.L. Clemens Vice President -eve1 fient Company, General Partner BY:++ISlA/V D.L. Clemens Vice President , General Partner . STATE OF CALIFORNIA I I COUNTY OF San Diego i ss. I On December 12. 1989 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President and John R. Hartung personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. official seal. . ,%c&Qd NOTARY PUBLIC (Seal) STATE OF CALIFORNIA COUNTY OF San Diego I ; ss: I On December 12. 1989 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President, and John R. Hartung;, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (Seal) I NOTARY PUBLIC Exhibit A THE PROPERTY ASSESSMENT DISTRICT BOUNDARY ~typlcgl l-LTPARK S’TE 2i6+0-16 -- \ --la ‘8 I 214-17D-61 I I -‘& - - c_ 1 ’ 21-16 I f SCHOOL SITE 216-16006 \ (PART] 8 \ (PARn 216-111-01 L 216-11 l-03 (PART) 1 I . Batlquitoa Lagoon 1 I i9 I ----v---m- - - - - -;..-------- = A@ /= ------em--‘ I I ---==r---A -w-- . . -E :. &iii P&D Tech~ologles 401 WEST A t3n3fErsurei600 SAN OIEGO, CAUFORNU 02101 Telephone: (6 10) 232-4466 1 Lt3giild: d EXISTING ROAD III~~~~III~~~IIIIIUIIU PROPOSED PROJECT NOT TO SCALE’ . . - EXHIBIT B GENERAL DESCRIPTION OF WORK ASSESSMENT DISTRICT 88-l (ALGA ROAD) The General Description of Work to be completed by this Assessment District consists of grading and street improvements along (1) Alga Road from its current terminus just west of El Camino Real northwesterly about 10,000 linear feet to Poinsettia Lane; and (2) Poinsettia Lane from its current terminus east of I-5, easterly about 1,900 linear feet to Alga Road. PHASE I (Improvements to be Acquired) The improvements to be acquired are located within the rights-of-way and easements for Alga Road and Poinsettia Lane and include grading, installation of storm drainage facilities and underground utilities. Also included are street improvements from Mimosa Drive westerly to Batiquitos Drive. The incidental expenses for this work include the cost of right-of-way, engineering, bonding and fees. The grading and storm drain facilities work to be acquired is shown on the City of Carlsbad “Plans for the Improvement ad Grading of Alga Road and Poinsettia Lane, Approved for Grading and Storm Drain Only” drawing number 286-95 and the “Plans for the Improvement and Grading of Alga Road and Poinsettia Lane”, drawing number 286-98. This work was competitively bid among selected construction companies qualified to perform the work. The underground utilities to be acquired are the portions of the sanitary sewer, potable water and reclaimed water system within the rights-of-way of Alga Road and Poinsettia Lane. All of this work was done to line and grade as shown on the “Plans for the Improvement and Grading of Alga Road and Poinsettia Lane” drawing number 286-98. Temporary highlines were built to provide continuous water and irrigation service during construction and are included in this acquisition. Underground franchise utilities (electric, gas, telephone and cable television) have been installed, but are not a part of this acquisition. Street improvements have been constructed full width from Mimosa Drive westerly approximately three thousand feet to Batiquitos Drive. This work consists of the construction of concrete curb, gutter, sidewalk and handicap ramps, conduits, streetlights, striping and asphalt concrete paving except for the top two inches of fine course paving. All of this work was done to line and grade as shown on the “Plans for the Improvement and Grading of Alga Road and Poinsettia Lane”, drawing number 286-98. The cost for right-of-way acquisition including the expense of real estate ap- praisals, negotiations, title insurance and acquisition offers, are included in the incidental expenses. The fees for plan checking and processing, improvement and grading plan checking, and inspection paid to the City of Carlsbad and other public l . . - agencies, feasibility studies, assessment engineering, bond counsel. environmental assessments, soils engineering, construction surveying, grading studies, structural engineering, design engineering, and bonds for grading, erosion control and im- provements, have also been listed as incidental expenses. PHASE II (Improvements to be Constructed) The improvements to be constructed are the street improvements and landscaping necessary to complete the acquired improvements of Alga Road and Ponsettia Lane to City of Carlsbad engineering standards. The incidental expenses to this work include the cost of engineering, bonding and fees. The work to be constructed is shown on the City of Carlsbad, “Public Works Plans for th Improvements of Alga Raod and Poinsettia Lane”. This work will be open to the public for competitive bidding. The street improvements to be constructed include all remaining surface improvements; curbs, gutters, sidewalks, handicap ramps, paving, survey monu- ments, street lights, continuous wood barricades, traffic control striping and intersection signals, and guard rails. The landscaping to be installed is for the medians in Poinsettia Lane and Alga Road and for the parkway and side slope erosion control for Poinsettia Lane. The incidental expenses are for the cost of engineering permits, plan checking and processing, design engineering, performance and materials bonding, assessment engineering, soils engineering, bond counsel and bond underwriter. . CERTIFICATE OF SUFFICIENCY OF PETITION STATE OF CALIFORNIA COUNTY OF SAN DIEGO CITY OF CARLSBAD The undersigned hereby CERTIFIES as follows: That I am the authorized representative of NBS/LOWRY, the duly appointed ASSESSMENT ENGINEER of the CITY OF CARLSBAD, CALIFORNIA. That on the 29” day of Bfi?f%$?? , 1989, I reviewed a Petition and Waiver for the formation of an Assessment District for certain public works of improvement, together with appurtenances, appurtenant work and acquisition, where necessary, in a special assessment district known and designated as ASSESSMENT DISTRICT NO. 88-1 (ALGA ROAD) (hereinafter referred to as the "Assessment District"), a copy of which is on file in the office of the City Clerk. That I caused said Petition and Waiver to be examined and my examination revealed that said Petition and Waiver has been signed by property owners representing more than sixty (60%) percent of the assessable area of lands within the boundaries of the proposed Assessment District, all as prescribed by Section 2804 of the Streets and Highways Code of the State of California ("Special Assessment Investigation, Limitation and Majority Protest Act of 1931"). eighty-five and three That said Petition and Waiver did represent $enthS Der cent ( 85.3 %i) percent of the assessable area of property within the boundaries of the Assessment District. That said Petition and Waiver meets the requirements of Section 2804 of the Streets and Highways Code of the State of California. That written evidence has been submitted indicating that the total estimated amount of the4 proposed assessment will not exceed seventy-five percent (75%) of the estimated fair market value of the lands proposed to be assessed after the proposed public improvements have been constructed as required by Section 2804.1 of said Streets and Highways Code. Inasmuch as the improvements contemplated are to be subdivision conditioned improve- ments, said examination also revealed that the Petition and Waiver has been signed also by all mortgagees or beneficiaries under any existing mortgages or deeds of ' trust as required, and proof of ownership and names of mortgagees or beneficiaries, if applicable, is attached hereto. Executed this ZTP day of , 1989, at Carlsbad, California. CITY OF CARLSBAD STATE OF CALIFORNIA * ACQUISITION/FINANCING AGREEMENT THIS AGREEMENT is made and entered into this /9* day of /YD -by and between the CITY OF CARLSBAD a public agency of df Californik (hereinafter referred to as "City") and Aviara Land Associates (hereinafter referred to as "Property Owner"). This Agreement and improvements shall be subject to all local laws and ordinances applicable to improvement agreements, land division, improvement security or other development requirements. WHEREAS, the City is considering the formation of a special assessment district pursuant to the terms and conditions of the "Municipal Improvement Act of 1913", being Division 12 of the Streets and Highways Code of the State of California, for the acquisition and/or construction of certain public facilities, together with appurtenances and appurtenant work within the jurisdictional limits of said City, said district at this time to be known as the ASSESSMENT DISTRICT NO. 88-1 (ALGA ROAD) (hereinafter referred to as the "District"); and, WHEREAS, the "Subdivision Map Act", at Section 66462 of the Government Code of the State of California, expressly authorizes financing and completion of public improvements under the provisions of the "Municipal Improvement Act of 1913", and further authorizes the purchase of any facilities authorized to be financed under said statute; and, WHEREAS, Property Owner, in order to proceed in a timely way with its development, desires to construct and/or has commenced construction of certain public facilities that are to be included with the authorized facilities for the District, namely, the facilities as set forth and described in the attached, referenced and incorporated Exhibit "A" (the "Facilities"); and, WHEREAS, the City and Property Owner are in agreement that the Facilities within the District shall be included within the District and shall be acquired by the City at prices determined to be reasonable, said costs being detailed, set forth and described in the attached, referenced and incorporated Exhibit "B"; and, WHEREAS, it is the intent of this Agreement to provide that Property Owner shall, upon a successful sale of bonds for the District, be paid for the Facilities, which are integral and a part of the District, at the prices as determined herein; and, WHEREAS, City and Property Owner are further in agreement that certain of the works of improvement shall be authorized for bidding, with contracts to be awarded by the city I prior to the sale of bonds and receipt of proceeds therefrom. In order to allow said construction to go forward, Property Owner does agree to deposit monies and/or an appropriate instrument of credit to fully guarantee the payment of said works of improvement prior to the delivery of bonds and Property Owner shall be reimbursed and/or the credit instrument released upon bond proceeds being available to the City. The works of improvement to be bid and awarded prior to the receipt of money from the sale of bonds are those as set forth in the attached, referenced and incorporated Exhibit "C", and the cost estimate for these specific items is as set forth in the attached, referenced and incorporated Exhibit "D". NOW, THEREFORE, IT IS MUTUALLY AGREED between the respective parties as follows: SECTION 1. SECTION 2. SECTION 3. SECTION 4. SECTION 5. SECTION 6. SECTION 7. SECTION 8. That the above recitals are all true and correct. ACQUISITION That the City agrees to purchase and finance the Facilities through the issuance of bonds, and Property Owner agrees to convey all completed Facilities to the City, those Facilities being all as set forth in the previously referenced Exhibit "A". Prior to acceptance thereof and the transfer of ownerships to the City, 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, and the above bonds that are the same bonds that would be required by the City to guarantee subdivision and/or development performance. Property Owner shall further be responsible for the maintenance of the Facilities and shall maintain said Facilities in a condition satisfac- tory to the City Engineer until final acceptance and transfer to the City. Property Owner shall further post any appropriate maintenance bond, as required by the City. All plans and specifications shall be prepared by the Property Owner at the Property Owner's expense, subject to City approval, and the costs of acquisition shall include costs for said plans, specifications, bidding, environmental review and all related documentation. Said final costs and expenses are to be determined and certified by the City. The City has no financial obligation to construct the Facilities to be acquired, and all expenses for the construction of the Facilities, including all costs incidental thereto, shall be borne by Property Owner. The Facilities acquired and upon transfer shall be free and clear of all liens, claims and encumbrances which are not approved by City, and Property Owner does hereby indemnify the City against any liens, claims or encumbrances relating to said acquired Facilities. Property Owner shall be the owner of and retain title to all of the Facilities constructed pursuant to this Agreement until such time as the City shall acquire such Facilities. Upon such transfer, such Facilities shall become the property of the City or other public agency and/or regulated utility authorized to provide the service to the District. Upon execution of this Agreement and completion and satisfactory inspec- tion of the Facilities, the City shall have the right to use said Facilities prior to transfer of ownership of the Facilities; provided that such use shall not in any way constitute a waiver by the City of the Property Owner's obligation under this Agreement and/or any applicable performance or payment bonds. 2 . ’ CONSTRUCTION - SECTION 9. Property Owner does agree to deliver monies and/or an appropriate instrument of credit to the Finance Director prior to the award of any construction contract to allow the works of improvement as set forth in the previously referenced Exhibit "C" to be awarded by the City prior to the issuance and sale of bonds and receipt of proceeds therefrom. Said security shall be in an amount equal to 125% of the Engineer‘s estimate of the costs of construction as set forth in the previously referenced Exhibit "D". Said security instrument shall be subject to the final approval of Bond Counsel and the City Attorney, and shall allow for immediate availability of monies to the City in order to make timely payments to the contractor for completed portions of the work. SECTION 10. The monies deposited and/or security to guarantee payment shall be released to Property Owner upon the receipt of proceeds from the sale and delivery of bonds; otherwise, said monies and security shall remain in full possession of the City for purposes of making payments to the contractor for the works of improvement as completed. Any monies expended to pay for the costs of construction shall be subject to reimbursement upon the sale of bonds. GENNRAL SECTION 11. The City does intend to proceed with the formation proceedings and adoption of necessary resolutions to authorize the issuance of bonds in order to provide the money to pay for the designated Facilities. SECTION 12. Any monies received upon the sale of bonds shall be paid for completed portions of the Facilities and any payment shall be made pursuant to written instructions by the Property Owner and any mortgagee or benefi- ciary of any mortgage or deed of trust on any lands owned by Property Owner within the proposed District where the improvements are being financed in whole or in part from the proceeds of a loan secured by a mortgage or deed of trust. SECTION 13. This Agreement is contingent upon the confirmation of the special assessments and successful sale of bonds, and it shall be null and void if no portion of the authorized bonds are sold within a three (3) year period following the date of this Agreement. SECTION 14. Property Owner hereby agrees to provide notice to any new purchasers of lots in such form as may be approved by City of the existence of the District and authorization for the levy of special assessments, and the Property Owner shall provide City with copies of all such notices executed by the new owners. SECTION 15. Property Owner hereby further agrees prior to any division of land resulting in fewer assessable units then proposed, to pay cash to the City so that the individual confirmed assessment amounts will not be increased on new assessment lots or parcels. An Agreement between City and Property Owner will be executed, setting forth the terms and condi- tions for the payment to reduce assessments prior to any final public hearing on the formation of the special Assessment District. 3 SECTION 16. No final home, building or lot sales shall be completed until the Assessment District proceeding5 have been concluded, with the assess- ments being finally confirmed by the City Council. SECTION 17. 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. SECTION 18. Property Owner further agrees to and shall assume the defense of, indem- nify and hold harmless the City, its officers and agents, from any action, damages, claims or losses of any type resulting from this Agreement, including the design, engineering and construction of the facilities. 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 Facilities and/or any contractual relationships between Property Owner and contractor and/or _ subcontractors. SECTION 19. City may, at it5 option, terminate this Agreement at any time if any legal challenge is filed relating to the validity or enforceability of this Agreement for these proceedings. SECTION 20. This Agreement is binding upon heirs, assigns, and successors-in- interest of the City and/or Property Owner. SECTION 21. This Agreement, by its execution, amends and supercedes any terms and conditions that may be inconsistent in any previous agreement, includ- ing any subdivision improvement agreement, relating to the construc- tion, installation or financing of said Facilities. SECTION 22. The prevailing party in any litigation relating to, interpreting or enforcing this Agreement, shall be entitled to reasonable attorney'5 fees as determined by the Court. EXECUTED by and between the parties hereto on the day and year first hereinabove written. ATTEST: CITY CLERK 1 CITY OF CARLSBAD STATE OF CALIFORNIA CITY OF CARLSBAD STATE OF CALIFORNIA "PROPERTY OWNER" By: - SEE ATTACHED - . Applicant: Aviara Land Associates Limited Partnership a Delaware Limited Partnership Aviara Land C any, General Partner D.L. Clemw v Vice President ent Company, General Partner D.L. Clemens Vice President Jqn R. Hartung Vi& President ‘\ l&public Develophent Company, General Partner -., \ “i ,, \ /‘ \ ‘\ ‘l, By: ~ ._ ‘& -4 .,\c\ _ .” Job% R. Hartung \ \ Vice President 2 C - . . ’ . STATE OF CALIFORNIA COUNTY OF San Diego 1 ; ss. I On December 12. 1989 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President and John R. Hartung personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (Seal) --T&J2&S NOTARY PUBLIC STATE OF CALIFORNIA COUNTY OF San Diego I ; ss: I On December 12. 1989 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President, and John R. Hartung, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the Vice President of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (Seal) . I . . ’ 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 ia 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 9 0 - 11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING EXECUTION OF SPECIAL ASSESSMENT DISTRICT ACOUISITION/FINANCING AGREEMENT. WHEREAS, the City Council of the City of Carlsbad, California, is considering the formatic of a special assessment district under the terms and provisions of the “Municipal Improvement A of 1913”, being Division 12 of the Streets and Highways Code of the State of California, for construction of certain public works of improvement in a special assessment district, sai assessment district known and designated as ASSESSMENT DISTRICT NO. 88-1 (Alga Roa (hereinafter referred to as the “Assessment District”); and, WHEREAS, the purpose of the formation of the Assessment District is for the construction the certain public improvements; and, WHEREAS, the Streets and Highways Code of the State of California, specifically “Municipal Improvement Act of 1913”, expressly authorizes the acquisition of any improvemen that are authorized to be constructed under said law, and the property owner, in order to procee in a timely way with his development, desires to construct and/or cause the construction of cert works of improvement prior to the adoption of the Resolution of Intention; and, WHEREAS, property owner and City are also in agreement that certain of the public facilitie may be bid and awarded prior to the issuance and delivery of the bonds, so long as prope owner deposits monies and/or a security instrument satisfactory to the City to guarantee payment of any costs and expenses relating to said construction of improvements; and, WHEREAS, at this time there has been submitted to this City Council for review and approva an Acquisition/Financing Agreement setting forth certain terms and conditions, as well as estimate prices and quantities of work to be installed and financed pursuant to the above-reference Agreement. /// 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. That the above recitals are all true and correct. . SECTION 2. That the Acquisition/Financing Agreement, as submitted for the referent Assessment District, is hereby approved, and execution is authorized to be made by the Mayor a City Clerk. SECTION 3. That a copy of said Agreement shall be kept on file with the City Clerk a remain for public inspection. SECTION 4. That the Resolution of Intention for the above referenced proceedings sh not be adopted until all improvements to be acquired have been installed and are acceptable place. SECTION 5. That final prices to be paid for said improvements shall be prices determined by the City to be reasonable, to represent the actual costs and expenses for 1 installed works of improvement, including all appropriate incidental expenses. SECTION 6. No award of any public works construction contract shall be made by 1 City until satisfactory guarantees for payment of the works of improvement have been preseni by property owner and approved by the City Attorney and Bond Counsel. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council b on the 16th day of January, 1990 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larso NOES: None ABSENT: None ATTEST: . . . . ’ /I ? EXHIBIT A ESTIMATE OF IMPROVEMENTS TO BE ACQUIRED The improvements to be acquired are located within the rights-of-way'and easements for Alga Road and Poinsettia Lane and include grading, installation of storm drainage facili- ties, and underground utilities. The street improvements to be acquired for Alga Road are only from Mimosa Drive westerly to Batiquitos Drive. The incidental expenses for this work include the cost of right-of-way, engineering, bonding and fees. Financing costs have been determined for bond discount and bond reserve. The work to be acquired is shown on the City of Carlsbad "Plans for the Improvement and Grading of Alga Road and Poinsettia Lane, Approved for Grading and Storm Drain Only" drawing number 286-95 and the "Plans for the Improvement and Grading of Alga Road and Poinsettia Lane," drawing number 286-9B. This work was competitively bid among selected construction companies qualified to perform the work. The grading work was begun in 1988 and completed in October of 1989. This work consisted of clearing, excavation, embankment, compaction, buttressing, relocation of utilities and installation of subdrains, crib walls and retaining walls. All grading was constructed as shown on the plans drawing number 286-98 to finish sub-grade and has been certified by the engineer. A6845.027:9/29/89 Page 1 t Ic - . * . , I The storm drain system was installed according to the plans . . drawing number 286-9S, including construction change number one. The work consisted of installing reinforced concrete pipe, headwalls, cleanouts, curb inlets, catch basins, concrete lined ditches, concrete lined channels and rip rap. Temporary desilt basins silt fences were constructed and gravel bags placed for erosion control measures. The underground utilities to be acquired are the portions of the sanitary sewer, potable water and reclaimed water system within the rights-of-way of Alga Road and Poinsettia Lane. Temporary highlines were built to provide continuous water and irrigation service during construction. Underground franchise utilities (electric, gas, telephone and cable television) have been installed, but are not a part of this acquisition. The work for the sanitary sewer consisted of the construction of sewer main, concrete anchors and access holes. For potable water, the work consisted of the installation of temporary hi-line, water main, valves, blow-off assemblies, air-release valves, air and vacuum valves, fire hydrants and water services. The work for the reclaimed water consisted of the construction of reclaimed water main, valves, blow-off assemblies, air-release valves, air and vacuum valves and water services. All of this work was done to line and grade as shown on the "Plans for the Improvement and Grading of Alga Road and Poinsettia Lane'" drawing number 286-9B. A6845.027:9/29/89 Page 2 , - % * r . I . Street improvements have been constructed full width from I Mimosa Drive westerly approximately three thousand feet to Batiquitos Drive. This work consists of the construction of concrete curb, gutter, sidewalk and handicap ramps;conduits, street lights, striping and asphalt concrete paving except for the top two inches of fine course paving. All of this work was done to line and grade as shown on the "Plans for the Improvement and Grading of Alga Road and Poinsettia Lane", drawing number 286-9B. The cost for right-of-way includes the expenses for real estate appraisals, negotiations, title insurance and acquisi- tion offers. The fees for permits, plan checking and proces- sing, improvement and grading elan checking, and inspection paid to the City of Carlsbad and other public agencies have been listed as incidental expenses. Also included are the costs for feasibility studies, archeological analysis, assessment engineering, bond counsel, administration, environ- mental assessments, soils engineering, construction survey- ing 8 grading studies, structural engineering and design engineering. Bonds were required for grading, erosion control and improvements and these costs were included. i Items and functions completely within the right-of-way of Alga Road and Poinsettia Lane were one hundred percent (100%) , eligible for reimbursement. Each item and function was analyzed and the eligibility for reimbursement was prorated A68-o15.027:9/29/89 Page 3 in proportion to the extent that the item or function was within the easements or rights-of-way. The grading work was taken as a vertical projection of the right-of-way through phase one of the Aviara project. Of the total grading work sixty-seven percent (67%) was within the prisim for Alga Road. This ratio was then applied to determine the vendors eligibility for reimbursement. Similar prorations were determined as follows: For surface improvements eighty-six (86%) 'percent of the items or functions were eligible for items and functions that were for the Aviara project five (5%) percent reimbursement. reimbursement. For entire area of the was eligible for The detailed analysis for the construction costs and inciden- tal expenses is on file with the City Engineer of the City of Carlsbad. lawls.o27:9/29/89 Page 4 1 . . . . * c /-- -4 PLAT TO ACCOMPANY EXHIBIT A LOCATION OF IMPROVEMENTS TO BE ACQUIRED ASSESSMENT DISTRICT 88-1 (ALGA ROAD) -0 ASSESSMENT DISTRICT BOUNDARY rl I P&D Technologies 401 WEST A STREET 8uTE 2600 SAN DIEGO. CALIFORWU 92101 Telephone: (6 19) 232-4466 -- -- ~IUIIIIIIIIIIIII WADING. STORM DRAIN. AND UNDERQROUND UTILITY IMPROVEMENTS \ TO BE ACOUIRED . . . . . . . . SURFACE IMPROVEMENTS TO BE ACQUIRED D NOT’ TO SCALE -. 5 I I -1 -. I .) ‘? a 3 2 --I -’ I) 3 .-I -2 3 J ‘\ .d DEC.:EI”IE:ER 6 , l’W3 EXHIBIT “6” CITY OF CARLSCAD GS:=_;ES:3MENT D 1 STF; I CT NI:I . EK+ 1 t ALGA RDAD i NES/LljWRY EST 1 MATED C:~j!sT!s ljF I MFROVEMENTS TO EE ACQUIRED A. CONSTRUCTION Ci3STS 1. 3 L. .-I 3 . 4. 5. :: a-, 0. 190’ Ii: 12. 1 . 3 WATER REFLtKEMENT SYSTEM (TAEATA! FrJINSETTIG a- INCH HIGH LINE CRIB WALL FRELIMINGRY ROADWAY FILLS GRCSDING & STORM DRAIN INSTALLbTION RECLAIMED WATER SLDF’E ST&EL I ZAT I ljN & EROS I ON OjNTRtjL CLEAR I NG r. TREE REMOVAL 1 STREET I MFROVEMENTS SEWER WCITER ( CMWD 1 SOILS ENGINEERING SCREEN WALL EST I MATED CI~ST!S -o------------c--- ------o----------- 5 , 5’2(:, :30 , 8’37 20.2 , 016 l,:>tjl,8.55 2,215,::.5.5 E.&y,311 20’3) 117 65,375 1 > WE,, 5.51 73 ) 344 1 , (397,88:3 84,024 + ;2 , :>f.t] TOTAL CONSTRUCTION COSTS B . I NC I DENTAL EXFENSES 1. 2. *T 3. :: F -1. 7. 6,931,051 RIGHT-OF-WAY LI .-I 93’2,822 PERMIT, PLAN CHECK & INSPECTION FEES 618, 604 EijND:S 211 ,3*zpl ENGINEERING 612,727 CD&TRlJCT I ON STAKING 140,287 VTILITY RELDCCITIDN & TRANSMISSION Efi!XMEf’,lT CRij!=;S I h/G 1 :>E , tjgg, MI SCELLANEDUS EXPENSES ( REPRODUCT I ON I ‘zy, 133 o--------------e- TOTAL INCIDENTAL EXPENSES 4,68:3 I mj2 ------------------ SlJBTrJTAL 11 ) c74, cc33 EDND D I :33jUNT ( 3% j 60ND RESERVE r. 10% :I CAFITALIZED INTEREST (6%:) 954,747 -0---------------0 o--------------0-0 TOTAL CrJST OF I MFROVEMENTS TO BE ACQUIRED 14,412,448 THE DETAILED C~OST’=; FOR THE I MFR’:‘VEMEr~TS TIj BE ACBVI RED F1RE ON FILE WITH THE CITY ENGINEER OF THE CITY OF CGRLSEAD . EXHIBIT C ESTIMATE OF PUBLIC WORKS IMPROVEMENTS TO BE CONSTRUCTED The improvements to be constructed are the street improve- ments and landscaping necessary to complete the acquired improvements of Alga Road and Poinsettia Lane to City of Carlsbad engineering standards. The incidental expenses to this work include the cost of engineering, bonding and fees. Financing costs have been determined for bond discount and bond reserve. The work to be constructed is 'shown on the City of Carlsbad, "Public Works Plans for the Improvement of Alga Road and Poinsettia Lane." This work will be open to the public for competitive bidding. The street improvements to be constructed are concrete curbs, gutters, sidewalks, driveways, handicap ramps, inlet depres- sions and median flares; asphalt concrete curbs, spillways and paving; survey monuments; street lights; continuous wood barricades; traffic control striping and intersection sig- nals; and guard rails. The landscaping and irrigation to be installed is for the medians in Poinsettia Lane and Alga Road and for the parkway and side slope erosion control for Poinsettia Lane. The incidental expenses are for the cost of engineering permits, plan checking and processing, design engineering, &8-015.027:9/29/89 Page 1 -4 r . c *- c landscape architecture, performance and materials bonding, w assessment engineering, soils engineering, bond counsel and bond underwriter. The detailed analysis for the construction costs and incidental expenses is on file with the City Engineer of the City of Carlsbad. Page 2 t c I I- - PLAT TO ACCOMPANYEXHIBIT C . a LOCATION OF PUBLIC WORKS IMPROVEMENTS TO BE CONSTRUCTED ASSESSMENT DISTRICT884 (ALGA ROAD) / ASSESSMENT DISTRICT BOUNDARY s, --- L w- /;;;- --a wIIIIIIIII 1111111111111111111 / ,/ /*&.&* )C O’ //Ill \\I\ 2,’ 8 I If?- r-1 ,y \ ! LEQEND mmmmm STREET IMPROVEMENTS AND LANDSCAPING 401 WEST A STREET SumE 2600 SAN DIEGO, CAUFORHA 92101 Telephone: (6 19) 232-4466 -\ STREET IMPROVEMENTS ARE PARTIALLY COMPLETED FOR THIS AREA (SEE EXHIBIT A) NOT TO SCALE DECEME:ER 6, 1’389 EXHIEIT “D” CITY OF CARLSEAD /J!~!:;E:~:~MENT D I!sTRI CT NIP . GE- 1 (I ALGiA ROAD 1 c .’ ,, ,’ . ; .” .-’ r ri -\ -1 > ‘> ) ‘J .-I 3 3 .I cl 3 J 3 3 3 J .‘! ‘..‘/ .d’ EST I MATED C1j:sT!3 OF IMPROVEMENTS TO E:E CONSTRUCTIljN -_- - EST I MATED CI:KST!; ------------------ -mm--------------- A. CDNSTRUCTIijN Cij!3!3 1. STREET I MFRWJEMENTS *-I , :S?t:, , [x23 2. MED I PIN LANDSCAP I NG .;,419,7:3, 3 *A . SISILS ENGINEERING 50, tj<,(? TOTAL CONSTWJCT ION CrJSTS ------------------ 4,8.5’3,776 E . I NC I DENTAL EXFENSES 1. PERMIT, PLAN CHECK f INSFECTIDN FEES 21C,:‘=ll’I: 2. EONDS 9.5, :2:zfj 3. ENGINEERING 1%,701 4 . CONSTRUCT I ON STW I NG 101,761 S. \JTILITY RELOCC\TIDN 12 ) 5’3:s ------e-e--------- TOTAL INCIDENTAL EXPENSES 612,707 ------------------ WETOTFIL .5,472,48:‘; EI:IND D 1 !XxjtJNT r. 3% :, 202 , 6:S.S BOND FiESERVE ( 10X 1 67.5,61.5 CAPITALIZED INTEREST (6%) 40.5, :x,g ------------------ ------------------ TOTAL CijST OF IMPROVEMENTS TO BE CONSTRUCTED 6,7.56,1.52 . THE DETAILED CONSTfiUCTION COSTS ARE ON FILE WITH THE CITY ENGINEER OF THE CITY OF CARL:=;EAD .