HomeMy WebLinkAbout2003-01-21; City Council; 17051; Acquisition Agreement Alga Norte Community ParkCITY OF CARLSBAD -- AGENDA BILL
\B# 17,051 TITLE :
MTG. 1-21-03 APPROVE ACQUISITION AGREEMENT
DEPT.RECREATION FOR ALGA NORTE COMMUNITY PARK
RECOMMENDED ACTION :
It is recommended the City Council ADOPT RESOLUTION NO. 2003-024 , approving an
acquisition agreement for Alga Norte Community Park.
ITEM EXPLANATION :
On December IO, 1996, the City Council adopted Resolution No. 96-425 approving the “1996
Parks Agreement” with Real Estate Collateral Management Company, hereafter “RECM,”
regarding the City’s future acquisition of 32.9 acres of park land for the purposes of developing
Alga Norte Community Park. From 1996 to the present, RECM has processed various
entitlements and maps to develop the Villages of La Costa residential communities. As a part of
the agreement, RECM executed an Irrevocable Offer of Dedication designating property for the
future City park.
As the Villages of La Costa project progressed, the City Council on August 7, 2001 by motion
directed staff to initiate actions to work with RECM and implement the 1996 Parks Agreement
and conclude the park land acquisition. Attached as Exhibit 2 is the finalized “Agreement of
Purchase and Sale and Joint Escrow Instructions” for the City’s acquisition of the Alga Norte
Community Park site.
The final configuration of the site totals 32.1 1 acres. The following is a description of the
transaction calculations:
(a) VOL park land requirement: 15.891 acres
(b) Existing park land credit: 6.831 acres
(c) Park land requirement balance: 9.06 acres
(d) Total park site: 32.1 1 acres
(e) Park land requirement balance: 9.06 acres
(f) City acquisition: 23.05 acres
(9) City acquisition: 23.05 acres
(h) Purchase price per acre: $1 75,000 per acre
(i) Total purchase price: $4,033,750
In addition to the acquisition of the park site, staff and RECM have negotiated to have RECM
clear, install extensive erosion control landscaping, and fence the entire 32.1 1 acre park site on
behalf of the City at the same time RECM initiates similar activities for the balance of its
subdivision construction. RECM holds all requisite Federal, Stare, and local agency permits and
entitlements for the entire VOL project. These permits include the 32.1 1 acre park site as well.
RECM will begin these activities in the near future and, as described within the attached
agreement and escrow instructions, turn over to the City a completely cleared, fenced, and
secure site.
I
FISCAL IMPACT:
The City Council has previously appropriated $4,800,000 of Park-in-Lieu funds in the current
Capital Improvement Program budget to complete this park land acquisition. As described
above, the purchase price of the land is $4,033,750 and the negotiated site clearing and fencing
operation is $130,000 for a total cost of $4,163,750. These funds will be deposited at the end of
escrow with the transaction being completed in mid-February.
Staff recommends the City Council approve the acquisition agreement with RECM for the City’s
development of Alga Norte Community Park.
EXHIBITS:
1. Resolution No. 2003-024 approving an acquisition agreement for Alga Norte
Community Park.
2. Acquisition agreement.
i
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
RESOLUTION NO. 2003-024
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING AN ACQUISITION
AGREEMENT FOR ALGA NORTE COMMUNITY PARK
WHEREAS, the City Council of the City of Carlsbad, California, did previously adopt
Resolution No., 96-425 on December 10, 1996 approving the “1996 Parks Agreement” regarding the
future acquisition of park land for the City’s future development of Alga Norte Community Park, and
WHEREAS, the City Council did on August 7, 2001 by motion direct City staff to work with the
property owner to complete the acquisition of said park land, and
WHEREAS, an acquisition agreement has been negotiated between the parties to complete said
acquisition, and
WHEREAS, the City Council did previously appropriate funds for said acquisition in the
Carlsbad Capital Improvement Program budget; and
WHEREAS, the City Council does hereby find it necessary, desirable, and in the public interest
to proceed with the acquisition of park land for the development of Alga Norte Community Park..
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
1.
2.
Ill
Ill
Ill
Ill
Ill
Ill
That the above recitations are true and correct.
That an acquisition agreement entitled “Agreement of Purchase and Sale and Joint Escrow
Instructions” regarding park land for the City’s future development of Alga Norte Community
Park is hereby approved and the Mayor is authorized to execute all related documents and
instructions therein.
3
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
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the
215t day of January , 2003 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall and Packard.
NOES: None.
ATTEST
, /L E M. WOOD, City clerk
Page 2 of 2 of Resolution No. 2003-024
-2-
(SEAL)
4
EXHIBIT 2
'AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
(Alga Norte Park)
BY AND BETWEEN
REAL ESTATE COLLATERAL MANAGEMENT COMPANY,
a Delaware corporation
AS SELLER
AND
CITY OF CARLSBAD,
a California municipal corporation
AS BUYER
RELATING TO
ALGA NORTE PARK
in Carlsbad, California
Alga Norte Park
Purchase Agreement
27817-5/1740437.8 01/13/03
J
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
(Alga Norte Park)
THIS AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of January 67, 2003, by and
between REAL ESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware
corporation ("Seller") and CITY OF CARLSBAD, a California municipal corporation ( "Buyer").
Buyer and Seller agree as follows:
1. Definitions: For the purposes of this Agreement, the following terms will be defined as
follows:
(a) "Actual Knowledge of Seller": Actual Knowledge of Seller means and is
limited to the actual knowledge of Mr. Fred Arbuckle as President of Morrow Development, Inc.,
without having conducted any independent inquiry or inspection.
(b) "Buyer's Improvements": Shall mean all park and other improvements to the
Property to be made by Buyer.
(c) "Cash": The term "Cash" shall mean (i) currency of the United States of
America, (ii) cashierls check(s) currently dated and payable to Escrow Holder or Seller, as required
under this Agreement, drawn and paid through a California banking institution, tendered to Escrow
Agent or Seller, as required under this Agreement at least one additional Business Day before hnds
are required to be available in Escrow or (iii) an amount credited by wire transfer into Escrow
Agent's or Seller's bank account as required under this Agreement.
(d) "Closing Date": The Closing Date is on or before February 14, 2003
pursuant to Section 4.1 of this Agreement.
(e) "Closing" and "Close of Escrow": Closing and Close of Escrow are terms
used interchangeably in this Agreement. The Closing or the Close of Escrow will be deemed to have
occurred when the deed is recorded in the official records of the county in which the Property is
located.
(f) "Effective Date": The Effective Date is the date of City Council approval.
Alga Norte Park
Purchase Agreement
27817-5/1740437.8 1 01/13/03
(g) "Environmental Report@)": The Environmental Report(s) means that
certain Phase I report prepared by Alliance Environmental Services and dated February 17, 1995
covering the Property as well as other real estate.
(h) "Escrow": Shall have the meaning given thereto in Section 4 hereof.
(i) "Escrow Holder": The Escrow Holder is Chicago Title Insurance Company,
925 B Street, San Diego, California 92101, Attn: Lori Brandt, Escrow Officer.
(j) "Exhibits": Exhibits means the following, each of which is attached hereto
and incorporated herein by this reference:
Exhibit A - Legal Description of Property
Exhibit B - Plat of Property
Exhibit C - Form of Grant Deed
Exhibit D - FIWTA Affidavit
Exhibit E - Escrow General Provisions
(k) "FIRPTA Certificate": Shall have the meaning given thereto in
Section 6.l(b) hereof.
(1) "Grant Deed": Shall have the meaning given thereto in
Section 6.l(a) hereof.
(m) "Hazardous Substance:" Shall have the meaning given thereto in
Section 20 hereof.
(n) "La Costa Greens": Shall mean the portion of the master-planned
community commonly referred to as Villages of La Costa which includes the Property.
(0) "Notices": will be sent as follows to:
Seller:
Real Estate Collateral Management Company
c/o Morrow Development, Inc.
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Attn: Mr. Fred Arbuckle
Telephone: (760) 929-2701 Ext.105
Telecopy: (760) 929-2705
Alga Norte Park
Purchase Agreement
27817-511740437.8
with a copy to:
2 01/13/03
Luce, Forward, Hamilton & Scripps LLP
1 1988 El Camino Real, Suite 200
San Diego, CA 92 I30
Attn: Ronald W. Rouse, Esq.
Telephone: (858) 720-6326
Telecopy: (858) 523-4307
Buyer:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: City Manager
Telephone: (760) 434-282 1
Telecopy: (760) 720-9461
with a copy to:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: City Attorney
Telephone: (760) 434-2891
Telecopy: (760) 434-8367
Escrow Holder:
Chicago Title Insurance Company
925 B Street
San Diego, CA 92101
Attn: Lori Brandt
Telephone: (6 19) 544-6254
Telecopy: (6 19) 544-6229
(p) "Opening of Escrow": Shall have the meaning given thereto in Section 4
hereof.
(4) "Permitted Exceptions": Shall have the meaning given thereto in Section 7
hereof.
(r) "Property": That certain real property located in the City of Carlsbad,
County of San Diego, State of California and commonly known as Alga Norte Park in the Villages
of La Costa Master Plan, and more particularly described in Exhibit A attached hereto consisting
of 32.11 acres.
Alga Norte Park
Purchase Agreement
218 17-511 740437.8 3 01/13/03
(s) "Purchase Price-Land Component": The Purchase Price-Land Component
for that portion of the Property, consisting of 23.05 acres, being sold to Buyer pursuant to the 1996
Parks Agreement is Four Million Thirty-Three Thousand Seven Hundred Fifty Dollars
($4,033,750.00) (computed pursuant to Section 3.2 below).
(t) "Title Company": The Title Company is Chicago Title Insurance Company,
925 B Street, San Diego, California 92101, Attn: Ken Cyr, Title Officer.
(u) "Title Policy": Shall have the meaning given thereto in Section 12 hereof.
(v) "Total Purchase Price": Shall mean the Purchase Price-Land Component
plus the Vegetation Clearing Work Amount as defined below.
(w) "Vegetation Clearing Work": Shall mean that clearing work more
particularly described as Exhibit "F" to be contracted by Seller and substantially completed prior to
Close of Escrow.
(x) "Vegetation Clearing Work Amount": Shall mean the total construction
costs incurred by Seller for the Vegetation Clearing Work as set forth in Section 19 below.
2. Purchase and Sale: Upon and subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell to Buyer and Buyer agrees to buy from Seller the Property more
particularly described in Exhibit A attached hereto, together with all easements, entitlements (to the
extent transferable) and appurtenances thereto. In consideration of Seller's sale of the Property to
Buyer, Buyer will (a) pay to Seller the Total Purchase Price at the Closing, and (b) perform all of
Buyer's other obligations hereunder, which will include the various indemnities set forth herein
whether or not the Closing occurs hereunder.
3. Total Purchase Price: The Total Purchase Price will be paid as follows:
3.1 Deuosit. Concurrently with the opening of Escrow, Buyer shall deposit $100,000 (the
"Deposit") into Escrow which amount shall be immediately released to Seller without further
instruction.
3.2 Purchase Price- Land Comuonent Comuutation. This Agreement implements the
provisions of the 1996 Parks Agreement dated as of December 12,1996 by and between Seller and
Buyer regarding the future conveyance and purchase of the Property for public park purposes. Under
the 1996 Parks Agreement, Seller has available certain "Excess Parkland Credits"from prior parkland
dedications that are applicable to partially satisfy the City's Quimby Act contribution requirement
for the Villages of La Costa project in accordance with the City's Growth Management Program and
implementing Ordinances. The parties agree that the "Existing Parkland Credits" currently available
to Seller under the 1996 Parks Agreement is 6.83 1 acres; the the projected "Parkland Requirement"
Alga Norte Park
Purchase Agreement
278 17-511 740437.8 4 01/13/03
for the anticipated buildout of the Villages of La Costa is 15.891 acres. After applying the Existing
Parkland Credits to the Parkland Requirement, leaves a remaining estimated Parkland Requirement
of 9.06 acres being satisfied in its entirety by transfer of the same amount of acreage within the
Property at no cost to Buyer under this Agreement. Pursuant to the 1996 Parks Agreement, the
Buyer is to pay Seller for the remaining 23.05 acres of the Property in the amount of $175,000 per
acre, for the Purchase Price-Land Component of $4,033,750.00.
3.3 Vegetation Clearing Work Amount. Pursuant to Section 19 below, the Vegetation
Clearing Work Amount payable as part of the Total Purchase Price at Closing is $130,000.00.
3.4 Cash Balance. No later than such time as is required by Escrow Holder in order for
the Closing to occur by the Closing Date, Buyer will deposit into the Escrow the balance of the Total
Purchase Price in cash, by confirmed wire transfer of finds, or by certified or cashier's check
collectible in same day funds.
4. Escrow: Within 3 days after the execution of this Agreement, Buyer and Seller will open
an escrow (the "Escrow") with the Escrow Holder by delivering to Escrow Holder three
(3) executed copies of this Agreement (the "Opening of Escrow"). Escrow Agent shall execute
the Consent of Escrow Agent attached hereto and return one (1) hlly executed original of this
Agreement and the Consent of Escrow Agent to each of Seller and Buyer. The purchase and sale
of the Property will be completed through the Escrow. Escrow Holder's general provisions
("General Provisions") are attached hereto as Exhibit E and incorporated herein to the extent not
inconsistent with the provisions of this Agreement. Buyer and Seller agree to execute any additional
instructions reasonably required by the Escrow Holder. If there is a conflict between the General
Provisions or any printed escrow instructions and this Agreement, the terms of this Agreement will
govern.
4.1 ClosinP Date. This Closing shall occur on or before February 14,2003.
5. Termination; Cancellation Fees and Expenses: In the event that the Closing does not
occur at the time and in the manner provided in this Agreement because of the default of one of the
parties, the non-defaulting party has the right to cancel the Escrow by written notice to the defaulting
party and to the Escrow Holder. All costs of cancellation, if any, will be paid by the defaulting party.
6. Deliveries to Escrow Holder:
6.1 Bv Seller. On or prior to the Closing Date, Seller will deliver or cause to be delivered
to Escrow Holder the following items:
Alga Norte Park
Purchase Agreement
27817-5/1740437.8 5 01/13/03
(a) A Grant Deed ("Grant Deed"), substantially in the form attached to this
Agreement as Exhibit C, duly executed and acknowledged by Seller and in recordable form,
conveying the Property to Buyer.
(b) A Transferor's Certificate of Non-Foreign Status substantially in the form
attached to this Agreement as Exhibit D ("FIRPTA Certificate") properly executed by Seller.
(c) A properly executed California Form 590 or other evidence sufficient to
establish that Buyer is not required to withhold any portion of the Purchase Price pursuant to
Sections 18662(e) and 18668 of the California Revenue and Taxation Code.
6.2 BY Buyer. On or prior to the Closing Date, Buyer will deliver or cause to be delivered
to Escrow Holder the following items:
(a) The balance of the Purchase Price in accordance with Section 3.2.
(b) The amount due Seller, if any, after the prorations are computed in accordance
with Section 14.
(c) Such corporate resolutions, certificates of good standing and/or other
.association, corporate or partnership documents relating to Buyer as are reasonably required i
connection with this transaction.
(d) A fully executed recordable Notice of Rejection of Irrevocable Offer of
Dedication ("Rejection Notice") sufficient to reject and terminate that certain "Irrevocable Offer to
Dedicate Real Property for Alga Norte Park" recorded 7 as
Document No. in the Official Records of San Diego County.
(e) Upon execution of this Agreement, the Vegetation Clearing Amount in the
amount determined pursuant to Section 19.
6.3 BY Buyer and Seller. Buyer and Seller will each deposit such other instruments
consistent with this Agreement as are reasonably required by Escrow Holder or otherwise required
to close Escrow. In addition Seller and Buyer hereby designate Escrow Holder as the "Reporting
Person" for the transaction pursuant to Section 6045(e) of the Internal Revenue Code.
7. Condition of Title: At the Close of Escrow, fee simple title to the Property will be conveyed
to Buyer by Seller by Grant Deed, subject only to the following matters ("Permitted Exceptions"):
(a) a lien for real property taxes and assessments not then delinquent;
Alga Norte Park
Purchase Agreement
2781 7-511 740437.8 6 01/13/03
(b) those additional items or matters approved or deemed approved by Buyer, or
to be recorded, in accordance with this Agreement;
(c) matters affecting the condition of title to the Property created by or with the
written consent of Buyer;
(d) any matters which would be shown by a survey of the Property or by inquiry
of persons in possession of the Property; and
(e) the reservations contained in the Grant Deed.
The parties agree that (i) except as specifically provided in the Grant Deed, Seller makes no express
or implied warranties regarding the condition of title to the Property, and (ii) Buyer shall rely on the
Title Policy for protection against any title defects.
8. Conditions to the Close of Escrow:
8.1 Conditions Precedent to Buverk Obligations. The following conditions must be
satisfied not later than the Closing Date or such other period of time as may be specified below:
8.1.1 Title. Seller will hrnish or cause to be furnished to Buyer, as soon as
available, a preliminary "proformal' title report for the Property prepared by the Title Company
together with copies of the documents described in such report. Buyer will have 10 days after
receipt of the preliminary report within which to examine the preliminary report and the documents
and to notify Seller in writing of any exceptions which Buyer disapproves or other objections to title.
If Buyer fails to notify Seller of any exceptions which Buyer disapproves or other objections to title,
title will be deemed accepted. If Buyer timely notifies Seller of specific disapproved exceptions or
other objections to title within such 10 day period, Seller will have 10 days after receipt of Buyer's
notification of any disapproved exceptions or other objections to title in which to advise Buyer that:
(i) Seller will cause the disapproved exceptions or other objections to title
to be removed or remedied or obtain appropriate endorsements to the Title Policy on or before the
Closing Date;
(ii) Seller will not cause the disapproved exceptions or other objections
to title to be removed or remedied or cause appropriate endorsements to the Title Policy to be issued;
or
(iii) if Seller does not notify Buyer of its election within the 10 day period,
Seller will be deemed to have elected to not cause the disapproved exceptions to be removed.
Alga Norte Park
Purchase Agreement
27817-Y1740437.8 7 01/13/03
If Seller elects to not cause the disapproved exceptions or other objections to title to
be removed or remedied or cause appropriate endorsement to the title Policy to be issued, Buyer will
have 10 days to elect, as its sole remedy, to:
(i) proceed with the purchases and acquire the Property subject to the
disapproved exceptions and other objections to title without reduction in the Purchase Price; or
(ii) cancel the Escrow and this Agreement by written notice to Seller and
Escrow Holder, in which case the cancellation costs, if any, will be equally borne by Seller and
Buyer.
If Buyer does not give Seller notice of its election within 10 days, Buyer will be
deemed to have elected to proceed with this transaction.
If Seller commits to remove any disapproved exception to title or remedy any other
objection to title and fails to do so by the Closing Date, Seller will be in default under this
Agreement and Buyer may, at Buyer's election, terminate this Agreement and pursue its remedies
as set forth in Section 24.
8.1.2 Inspections and Studies. By execution of this Agreement, Buyer approves the
results of any and all inspections, investigations, tests and studies as Buyer may have elected to make
regarding the feasibility of Buyer's Improvements and the suitability of the Property for Buyer's
intended purposes. Buyer will pay for all such inspections, tests and studies. In the event this
Agreement is terminated prior to Closing, Buyer will promptly give copies of all inspections,
investigations, tests or studies to Seller.
8.1.3 Representations. Warranties and Covenants of Seller. Seller will have duly
performed each and every agreement to be performed by Seller hereunder and, subject to the
provisions of Sections 9.1 and 9.4, Seller's express representations and warranties set forth in this
Agreement will be true and correct as of the Closing Date.
8.1.4 Seller's Deliveries. Seller will have delivered the items described in
Section 6.1.
8.1.5 Title Insurance. As of the Close of Escrow, the Title Company will issue or
have committed to issue to Buyer the Title Policy described in Section 12.
8.1.6 Substantial Completion of Vegetation Clearing Work. Seller shall have
caused the substantial completion of the Vegetation Clearing Work on the Property. For purposes
hereof'hbstantial completion'' shall mean that time when all contractors performing the Vegetation
Clearing Work have finished their respective work in accordance with applicable plans and
Alga Norte Park
Purchase Agreement
218 17-5l1740437.8 8 01/13/03
specifications except for minor pickup or punch list work, as certified by Seller in reliance on its
project engineer and biological consultant.
The conditions set forth in this Section 8.1 are solely for the benefit of Buyer and may be
waived only by Buyer. At all times Buyer has the right to waive any condition. Such waiver or
waivers must be in writing to Seller. Provided however, Buyer's actual Closing shall be deemed
waiver of any conditions precedent.
8.2 Conditions Precedent to Seller's Obligations. The Close of Escrow and Seller's
obligations with respect to this transaction are subject to the following conditions precedent:
(a) Buyer's delivery to Escrow Holder on or before the Closing Date, of the Purchase Price and the
other items described in Section 6.2, (b) Buyer having duly performed each and every obligation to
be performed by Buyer hereunder, and (c) Buyer's representations, warranties and covenants set forth
in this Agreement, continuing to be true and correct as of the Closing Date. The conditions set forth
in this Section 8.2 are solely for the benefit of Seller and may be waived only by Seller, with such
waiver to be in writing to Buyer.
9. Matters Approved by Buyer: Buyer has completed its investigations and studies and
approves the following matters:
(a) the physical condition of the Property, including without limitation:
(i) soil, seismic (including whether or not the Property is situated in a
Special Study Zone as designated under the Alquist-Priolo Special Earthquake Studies Zone Act,
which may subject construction or development of the Property to the findings of an acceptable
geologic report), hydrological, geological and topographical conditions,
(ii) the availability of adequate utilities and public access,
(iii) the status and nature of any existing or proposed assessment districts
and the amount of any assessment liability,
(iv) the character and amount of any fee or charge which may be imposed
in connection with the development of the Property,
(v) whether or not the Property is located in a Special Flood Hazard Area,
(vi) the status ofthe Property with respect to hazardous and toxic materials,
(vii) all matters disclosed by the Environmental Report(s), and
Alga Norte Park Purchase Agreement
27817-Y1740437.8 9 01/13/03
(viii) compliance of the Property with all applicable laws, including
Environmental Laws (defined below).
(b) applicable laws, government ordinances, code rules and regulations ("Laws")
and evidence of compliance therewith, including without limitation zoning and building regulations;
(c) all title restrictions applicable to the Property;
(d) all licenses, permits, subdivision maps and conditions, improvement
agreements, bonds, and any and all other governmental approvals andor authorizations relating to
the Property and/or Buyer's Improvements including, but not limited to all the Villages of La Costa
Master Plan and associated entitlements, Regional Water Quality Control Board permits and
authorizations, the US Army Corps of Engineers 404 Permit, the "City of Carlsbad/Fieldstone/La
Costa Associates Habitat Conservation PladOn-Going Multi-Species Plan and associated USFWS
and CDFG agreements and authorizations;
(e) agreements, contracts, documents, instruments, reports, surveys, books and
records relating to the Property and/or Buyer's Improvements;
(f) confirmation that the Buyer's Improvements comply with all Laws and any
other requirements necessary for Buyer's intended use of the Property; and
(8) any and all other matters concerning the current and future use, feasibility or
value, or governmental permissions or entitlements pertaining to the Property and Buyer's
Improvements, or any other matter or circumstance relevant to Buyer in its discretion concerning the
Property and Buyer's intended use of the Property.
10. Property " As-Is":
10.1 NO SIDE AGREEMENTS OR REPRESENTATIONS: AS-IS PURCHASE.
EXCEPT FOR COMPLETION OF THE VEGETATION CLEARING WORK PRIOR TO CLOSE
WITH ALL ITS FAULTS, INCLUDING WITHOUT LIMITATION, ANY FAULTS AND
CONDITIONS SPECIFICALLY REFERENCED IN THIS AGREEMENT. NO PERSON ACTING
ON BEHALF OF SELLER IS AUTHORIZED TO MAKE, AND BY EXECUTION HEREOF,
BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY PROVIDED
IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHEREXPRESS ORIMPLIED, ORALORWRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO:
OF ESCROW, BUYER AGREES THATBUYER WILL ACCEPTTHEPROPERTY, AS-IS AND
Alga Norte Park
Purchase Agreement
27817-511140437.8 10 01/13/03
(I) THE VALUE OF THE PROPERTY;
(11) THE INCOME TO BE DERIVED FROM THE PROPERTY;
(III) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING
WITHOUT LIMITATION ANY DEVELOPMENT OF THE PROPERTY AND/OR THE
OPERATION OF PUBLIC PARK AND ANCILLARY PUBLIC USES ON THE PROPERTY;
(IV) THE HABITABLLITY, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY;
(V) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR
OF THE PROPERTY;
(VI) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY,
INCLUDING WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY;
(VII) EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN SECTION
17.3 BELOW, THE COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS, RULES,
ORDINANCES ORREGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
OR BODY (INCLUDING WITHOUT LIMITATION ANY REGULATIONS GOVERNING
BUYER'S PROPOSED USE OF THE PROPERTY);
(VIII) THE MANNER, CONDITION OR QUALITY OF THE CONSTRUCTION
OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY;
(IX) COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS,
INCLUDING BUT NOT LIMITED TO, THE ENDANGERED SPECIES ACT, TITLE 111 OF THE
AMERICANS WITH DISABILITIES ACT OF 1990 OR ANY OTHER LAW, RULE OR
REGULATION GOVERNING ACCESS BY DISABLED PERSONS, CALIFORNIA HEALTH &
SAFETY CODE, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL
RESOURCE CONSERVATION AND RECOVERY ACT, THE US. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261 , THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS
AMENDED, THE RESOURCES CONSERVATION AND RECOVERY ACT OF 1976, THE
CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS MATERIALS
TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS
PROMULGATED UNDER ANY OF THE FOREGOING;
Alga Norte Park
Purchase Agreement
2781 7-5f1740437.8 11 01/13/03
(X) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON,
UNDER, OR ADJACENT TO THE PROPERTY;
(XI) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY STUDIES,
REPORTS OR INVESTIGATIONS, INCLUDING ANY INFORMATIONAL MATERIALS
PROVIDED BY SELLER WHICH WERE PREPARED BY THIRD PARTIES;
(XII) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR
SPECIFICATIONS FOR THE PROPERTY, INCLUDINGANYPWS AND SPECIFICATIONS
THAT MAY HAVE BEEN OR MAY BE PROVIDED TO BUYER;
(XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR
FUTURE APPLICABLE ZONING OR BUILDING REQUIREMENTS;
(XIV) DEFICIENCY OF ANY UNDERSHORING;
(XV) DEFICIENCY OF ANY DRAINAGE;
(XVI) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE
LOCATED 'ON OR NEAR AN EARTHQUAKE FAULT LINE OR LOCATED IN AN
ALQUIST-PRIOLO SPECIAL STUDY ZONE;
(XVII) THE EXISTENCE OF LAND USE, ZONING OR BUILDING
ENTITLEMENTS AFFECTING THE PROPERTY; OR
(XVIII) WITH RESPECT TO ANY OTHER MATTER CONCERNING THE
PROPERTY EXCEPT AS MAY BE OTHERWISE EXPRESSLY STATED HEREIN,
INCLUDING ANY AND ALL SUCH MATTERS REFERENCED, DISCUSSED OR DISCLOSED
IN ANY DOCUMENTS DELIVERED BY SELLER TO BUYER, IN ANY PUBLIC RECORDS
OF ANY GOVERNMENTAL AGENCY OR ENTITY OR UTILITY COMPANY, OR IN ANY
OTHER DOCUMENTS AVAILABLE TO BUYER.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY, BUYER IS RELYING SOLELY ON ITS
OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH INFORMATION AND
DOCUMENTATION, AND NOT ON ANY INFORMATION PROVIDED BY SELLER. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION MADE
AVAILABLE TO BUYER OR PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF
SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION
OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS
Alga Norte Park
Purchase Agreement
27a17-511740437.8 12 01/13/03
TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION EXCEPT AS MAY
OTHERWISE BE PROVIDED HEREIN. EXCEPT AS OTHERWISE EXPRESSLY STATED IN
SECTIONS 16, 17 AND 20.2 BELOW, SELLER IS NOT LIABLE OR BOUND IN ANY
MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR
INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION THEREOF,
FURNISHED BY ANY OF THE FOREGOING ENTITIES AND INDIVIDUALS OR ANY
OTHER INDIVIDUAL OR ENTITY. BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH THE EXCEPTION OF
THE VEGETATION CLEARING WORK, THE SALE OF THE PROPERTY AS PROVIDED FOR
THAT SELLER HAS NO OBLIGATIONS TO MAKE REPAIRS, REPLACEMENTS OR
IMPROVEMENTS EXCEPT AS MAY OTHERWISE BE EXPRESSLY STATED HEREIN.
HEREIN IS MADE ON AN "AS-IS" CONDITION AND BASIS WITH ALL FAULTS, AND
10.2 RELEASE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT,
BUYER AND ANYONE CLAIMING BY, THROUGH OR UNDER BUYER HEREBY FULLY
AND IRREVOCABLY RELEASES SELLER AND EACH OF ITS MANAGERS, EMPLOYEES,
MEMBERS, OFFICERS, DIRECTORS, REPRESENTATIVES, AGENTS, (INCLUDING,
WITHOUT LIMITATION7 MORROW), SERVANTS, ATTORNEYS, AFFILIATES, PARENT
COMPANIES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS, AND ALLPERSONS, FIRMS,
CORPORATIONS AND ORGANIZATIONS ACTING ON THEIR BEHALF, FROM ANY AND
ALL CLAIMS THAT IT MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER
OR ANY OF ITS MANAGERS, EMPLOYEES, MEMBERS, OFFICERS, DIRECTORS,
REPRESENTATIVES, AGENTS, (INCLUDING WITHOUT LIMITATION, MORROW),
SUCCESSORS AND ASSIGNS, AND ALL PERSONS, FIRMS, CORPORATIONS AND
ORGANIZATIONS ACTING ON THEIR BEHALF FOR ANY COSTS, LOSS, LIABILITY,
DAMAGE, EXPENSES, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR
RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS OR OTHER
CONDITIONS, LATENT OR OTHERWISE, GEOTECHNICAL AND SEISMIC, AFFECTING
THE PROPERTY OR ANY PORTION THEREOF INCLUDING, WITHOUT LIMITATION,
ENVIRONMENTAL MATTERS WHICH WERE:
SERVANTS, ATTORNEYS, AFFILIATES, PA'RENT COMPANIES, SUBSIDIARIES,
(i) DESCRIBED OR REFERRED TO IN THE ENVIRONMENTAL
REPORT(S) OR IN ANY ENVIRONMENTAL AUDIT OBTAINED BY BUYER; OR
(ii) REASONABLY DISCOVERABLE BY PRUDENT
INVESTIGATION AT ANY TIME PRIOR TO CLOSING; OR
(iii) OTHERWISE DISCLOSED BY SELLER TO BUYER OR
DISCOVERED BY BUYER AT ANY TIME PRIOR TO THE CLOSING.
Alga None Park
Purchase Agreement
27817-511740437.8 13 01/13/03
THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE OR
WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY
BUYER, WOULD MATERIALLY AFFECT BUYER'S RELEASE TO SELLER. LBUYER
SPECIFICALLY WAIVES THE PROVISION OF CALIFORNIA CIVIL CODE SECTION 1542,
WHICH PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR EXPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED THE SETTLEMENT WITH THE
DEBTOR.
IT IS UNDERSTOOD AND AGREED THAT THE PURCHASE PRICE HAS BEEN
ADJUSTED BY PRIOR NEGOTIATIONS TO REFLECT THAT ALL OF THE PROPERTY IS
SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE FOREGOING. IT IS
NOT CONTEMPLATED THAT THE PURCHASE PRICE WILL BE INCREASED IF COSTS TO
BUYER ASSOCIATED WITHTHE PROPERTY PROVETO BELESS THAN EXPECTEDNOR
WILL THE PURCHASE PRICE BE REDUCED IF THE BUYER'S PLAN FOR THE PROPERTY
LEADS TO HIGHER COST PROJECTIONS. THE SOLE REMEDY OF THE BUYER WILL BE
TO TERMINAT ENT AS PROVIDED HEREIN PRIOR TO THE END OF THE
DUE DILIGENC
Seller's initials ..........
10.3 Survival. The provisions of this Section 10 shall survive the Close of Escrow. :
.......... .......... .... .......... ..........
........... .. .......... .......... .......... .......... .......... 1 1. Buyer's Improvements:
...
1 1.1 Suecific Conditions for Buver's Improvements. All of Buyer' s Improvements shall
be subject to the specific conditions set forth below.
11.1.1 All Buyer's Improvements shall be undertaken at Buyer's sole cost and
expense. To the extent that Buyer's Improvements, or any portion thereof, requires the issuance of
a permit or authorization from any governmental agency, Buyer or Buyer's contractor shall, at
Buyer's sole cost and expense, apply for and obtain such permit or authorization.
11.1.2 Buyer shall not commence construction on the Property of any Buyer's
Improvements prior to Close of Escrow.
Alga Norte Park
Purchase Agreement
27817-5l1740437.8 14 01/13/03
12. Title Insurance: At the Close of Escrow, the Title Company will issue to Buyer a Standard
Coverage Owner's Policy (1990) (e.g., CLTA) with coverage in an amount equal to the Purchase
Price showing title to the Property vested in Buyer subject only to the Permitted Exceptions and the
standard printed exceptions and conditions in the policy of title insurance ("Title Policy"). If Buyer
elects to obtain any additional endorsements or an extended coverage policy, the additional premium
and costs of survey for the extended coverage policy and the cost of any endorsements will be at
Buyer's sole cost and expense; however, Buyer's election to obtain an extended coverage policy will
not delay the Closing and Buyer's inability to obtain an extended coverage policy or any such
endorsements will not be deemed to be a failure of any condition to or otherwise delay Closing.
13. Costs and Expenses:
Seller will pay:
(a) ?4 of usual escrow fees and costs;
(b) all documentary transfer taxes if any; and
(c) Seller's share of prorations set forth in Section 14 below
Buyer will pay:
(a) !4 of usual escrow fees and costs;
(b) all document recording charges;
(c) the entire cost of the Title Policy and any extended coverage title policy, the
cost of any required survey and, the cost of any endorsements required by Buyer; and
(d) Buyer's share of prorations set forth in Section 14 below.
Except as otherwise provided herein, Buyer and Seller will each pay all their own legal and
professional fees and fees of other consultants incurred by Buyer and Seller, respectively. All other
normal costs and expenses will be allocated between Buyer and Seller in accordance with the
customary practice in the county in which the Property is located.
14. Prorations:
14.1 Taxes and Assessments. All non-delinquent real estate taxes and assessments on the
Property will be prorated as of the Close of Escrow based on the actual current tax bill on an acreage
basis. If the Close of Escrow takes place before the real estate taxes are fixed for the tax year in
which the Close of Escrow occurs, the apportionment of real estate taxes will be made on the basis
Alga Norte Park
Purchase Agreement
278 17-5J1740437.8 15 01/13/03
of the real estate taxes for the immediately preceding tax year applied to the latest assessed valuation.
All delinquent taxes and all delinquent assessments, if any, on the Property will be paid at the Close
of Escrow from hnds accruing to Seller. All supplemental taxes billed after the Close of Escrow
for periods prior to the Close of Escrow will be paid promptly by Seller. Any tax refimds received
by Buyer which are allocable to the period prior to Closing will be paid by Buyer to Seller.
14.2 Method of Proration. All prorations will be made as of the date of Close of Escrow
based on a 365-day year or a 30-day month, as'applicable.
15. Disbursements and Other Actions by Escrow Holder: At the Close of Escrow, Escrow
Holder will promptly undertake all of the following:
15.1 Funds. Disburse all funds deposited with Escrow Holder by Buyer in payment of the
Purchase Price for the Property as follows:
(a) deliver to Seller the Balance of the Purchase Price, less the amount of all
items, costs and prorations chargeable to the account of Seller; and
(b) disburse the remaining balance of the funds deposited by Buyer to Buyer less - amounts chargeable to Buyer.
15.2 Recording. Cause the following documents to be recorded, in the order set forth
below, with the County Recorder and obtain conformed copies thereof for distribution to Buyer and
Seller.
15.2.1 Rejection Notice; and
15.2.2 Grant Deed (with documentary transfer tax information to be affixed after
recording);
15.3 Title Policy. Direct the Title Company to issue the Title Policy to Buyer.
15.4 Deliverv of Documents to Buver or Seller. Deliver to Buyer the FIRPTA Certificate
and any other documents (or copies thereof) deposited into Escrow by Seller. Deliver to Seller any
other documents (or copies thereof) deposited into Escrow by Buyer.
16. Joint Representations and Warranties: In addition to any express agreements of the
parties contained herein, the following constitute representations and warranties of the parties each
to the other:
16.1 Authority. Each party has the legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate this transaction.
Alga Node Park
Purchase Agreement
278 17-Yl740437.8 16 01/13/03
16.2 Actions. All requisite action (corporate, municipal, trust, partnership or otherwise)
has been taken by each party in connection with the entering into of this Agreement, the instruments
referenced herein, and the consummation of this transaction. No further consent of any partner,
shareholder, member, creditor, investor, judicial or administrative body, governmental authority or
other party is required.
16.3 Due Execution. The individuals executing this Agreement and the instruments
referenced herein on behalf of each party and the partners, officers or trustees of each party, if any,
have the legal power, right, and actual authority to bind each party to the terms and conditions of
those documents.
16.4 Valid and Binding. This Agreement and all other documents required to close this
transaction are and will be valid, legally binding obligations of and enforceable against each party
in accordance with their terms, subject only to applicable bankruptcy, insolvency, reorganization,
moratorium laws or similar laws or equitable principles affecting or limiting the rights of contracting
parties generally.
17. Seller's Warranties and Representations: Seller makes the following representations,
covenants and warranties and acknowledges that Buyer will rely on such representations, covenants
and warranties in acquiring the Property, each of which will survive the Closing for a period of 3
years; provided that any claims must be made in writing to Seller within the a 4 year period
following the Closing.
17.1 Contracts. Seller has not entered into any lease or other agreement for possession
with any person or entity (except Buyer) pursuant to which such person or entity has any current or
future right or interest to occupy, possess or use all or any portion of the Property following Close
of Escrow except as set forth in the Permitted Exceptions.
17.2 Non-Foreim Entity. Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code.
17.3 No Action or Proceedings Affecting the Prouertv. Seller has no actual knowledge of
any lawsuit, action, administrative proceeding or similar enforcement action threatened or pending
that affects the Property.
18. Condemnation and Destruction:
1 8.1 Eminent Domain or Taking. Ifproceedings under a power of eminent domain relating
to the Property or any part thereof are commenced prior to Close of Escrow by a third party agency
having such authority, Seller will promptly inform Buyer in writing.
Alga Norte Park
Purchase Agreement
278 1741 740437.8 17 01/13/03
(a) If such proceedings involve the taking of title to all or a material interest in
the Property, Buyer may elect to terminate this Agreement by notice in writing sent within 10 days
of Seller's written notice to Buyer, in which case the Deposit less Buyer's one-half share of
cancellation costs, will be returned to Buyer, and neither party will have any further obligation to or
rights against the other except any rights or obligations of either party which are expressly stated to
survive termination of this Agreement.
(b) If the proceedings do not involve the taking of title to all or a material interest
in the Property, or if Buyer does not elect to terminate this Agreement, this transaction will be
consummated as described herein and any award or settlement payable with respect to such
proceeding will be paid or assigned to Buyer upon Close of Escrow.
(c) If this sale is not consummated for any reason, any condemnation award or
settlement will belong to Seller.
(d) For purposes of this Section 18.1, l'materiall' is deemed to be any taking
where the acreage lost to park uses is estimated to be more than ten percent (10%) of the Property
or otherwise materially interfere with development of the Property for park purposes.
18.2 Damage or Destruction. Prior to the Close of Escrow the risk of loss or damage by
earthquake, flood, landslide, fire or other casualty shall be borne and assumed by Seller, except any
risk of loss or damage to the Vegetation Clearing Work shall be borne by and assumed by Buyer.
19. Vegetation Clearing: The Property is the public park portion of the Seller's larger master
planned community known as La Costa Greens. Seller is undertaking the vegetation removal of the
remaining development portion of La Costa Greens pursuant to Federal and State "incidental take
permits". Buyer has requested Seller to concurrently remove the vegetation on the Property at the
same time Seller removes it for the balance of La Costa Greens. The vegetation clearing and
stabilization work (the "Vegetation Clearing Work") Buyer is requesting be completed on the
Property is more particularly described on Exhibit "F" hereto and incorporated herein by this
reference. Seller and Buyer have agreed that the total construction costs for the Vegetation Clearing
Work to be completed by Seller's contractors is $130,000.00 (the "vegetation Clearing Work
Amount"). Seller will cause the Vegetation Clearing Work on the Property to be substantially
completed prior to Close of Escrow, provided Buyer issues the necessary clearing/grading permits
and authorizations for the La Cosa Greens, and separately, at Buyer's sole expense, the necessary
clearinggrading permits for the Property, both by January 27,2003. Seller makes no warranties or
representations regarding the adequacy of the specifications or performance of the Vegetation
Clearing Work, but shall at Closing assign to Buyer any and all contracts, warranties and rights with
respect to the contractors and contracts under which the Vegetation Clearing Work on the Property
will be undertaken. Seller shall be responsible for payment to the contractors in accordance with
their contracts for the Vegetation Clearing Work whether completed before or after the Closing.
While the Vegetation Clearing Work Amount is believed to be the fixed cost for the Vegetation
Alga Norte Park
Purchase Agreement
27817-5/1740437.8 18 01/13/03
Clearing Work based on "not to exceed fixed price'' contracts based on existing plans and
specifications, the parties recognize that unforseen conditions or circumstances, and/or scope ofwork
changes, may be encountered or necessary increasing such costs. The parties shall promptly meet
and confer in good faith to adjust the Vegetation Clearing Work Amount as equitably necessary to
fully reimburse Seller for its total actual costs of the Vegetation Clearing Work. In the event of any
such increase, Buyer shall deposit the increased amount prior to the Close of Escrow and the
Vegetation Clearing Work Amount and the Total Purchase Price shall be increased accordingly. At
the Close of Escrow, RECM is released from any further responsibility or liability for the
maintenance or repair of the Vegetation Clearing Work or compliance with any water quality or
stormwater discharge responsibilities of any kind regarding the Property; all such duties and
responsibilities are assumed by the Buyer, except for any remaining pickup or punch list work.
Buyer hereby authorizes the contractor(s) to enter the Property following Close of Escrow to
complete its Vegetation Clearing Work.
20. Hazardous Substances:
20.1 Definitions. For the purposes of this Agreement, the following terms have the
following meanings:
(a) "Environmental Law" means any law, statute, ordinance or regulation
pertaining to health, industrial hygiene or the environment including, without limitation CERCLA
(Comprehensive Environmental Response, Compensation and Liability Act of 1980) and RCRA
(Resources Conservation and Recovery Act of 1976).
(b) "Hazardous Substance" means any substance, material or waste which is
or becomes designated, classified or regulated as being "toxic" or "hazardous" or a "pollutant"
or which is or becomes similarly designated, classified or regulated, under any Environmental Law,
including asbestos, petroleum and petroleum products.
(c) "Environmental Audit" means an environmental audit, review or testing of
the Property performed by Buyer or any third party or consultant engaged by Buyer to conduct such
study.
20.2 Seller's Representations and Warranties:
Seller has obtained the Environmental Report(s) for the Property and has furnished
a copy to Buyer. As of the date of this Agreement, to the Actual Knowledge of Seller and except
as referred to in the Environmental Report(s):
(a) since the date of Seller's acquisition ofthe Property, no Hazardous Substances
are now or have been used or stored on or within any portion of the Property by Seller except those
Alga Norte Park
Purchase Agreement
27817-Y1740437.8 19 01/13/03
substances which are or have been used or stored on the Property in the normal course of use and
construction operation of the Property and in compliance with all applicable Environmental Laws;
(b) since the date of Seller's acquisition of the Property, there are and have been
no federal, state or local enforcement, clean-up, removal, remedial or other governmental or
regulatory actions instituted or completed affecting the Property; and
(c) no claims have been made by any third party against Seller relating to any
Hazardous Substances on or within the Property.
20.3 Notices Regarding Hazardous Substances. Except as disclosed in the Environmental
Report, from the Effective Date through the Closing Date, Seller will promptly notify Buyer if to the
Actual Knowledge of Seller there may be any Hazardous Substance on the Property, or in the soil,
groundwater or soil vapor on or under the Property, or that Seller or the Property may be subject to
any threatened or pending investigation by any governmental agency under any law, regulation or
ordinance pertaining to any Hazardous Substance.
20.4 Environmental Release. Nothing in Section 20 is meant to diminish any party's rights
or obligations under any federal, state or local law pertaining to or concerning Hazardous
Substances; provided however, Seller will not be liable to Buyer and Buyer hereby releases Seller
from any and all liability to Buyer under any such law, for any claims attributable to any
environmental condition which:
(i) was described or referred to in the Environmental Report(s) or in any
Environmental Audit obtained by Buyer; or
(ii) was reasonably discoverable by prudent investigation during the Due
Diligence Period; or
(iii) was otherwise disclosed by Seller to Buyer or discovered by Buyer at
any time prior to the Closing.
The provisions of this Section 20.4 will survive the Close of Escrow.
21. 1996 Parks Agreement: This Agreement is intended as further implementation of that
certain 1996 Parks Agreement dated December 12,1996 by and between Seller and Buyer regarding
conveyance and dedication of the Property for Alga Norte Park purposes and is intended to satisfy
completely all Seller's (and successor owner's) obligations regarding Alga Norte Park and park-in-
lieu contributions for the Villages of La Costa along with application of the Existing Parkland
Credits (as defined in the 1996 Parks Agreement) for such buildout in accordance with "Villages of
La Costa Existing Parkland Credit Notice" provisions of the 1996 Parks Agreement. Seller and
Buyer, agree and acknowledge, that as of Close of Escrow, following payment of the Purchase Price,
Alga Norte Park
Purchase Agreement
278 17-5/1740437.8 20 01/13/03
Seller shall have 15.891 acres of Existing Parkland Credits on account in connection with the
buildout of the Villages of La Costa and elsewhere in the Southeast Quadrant. Any remaining
Parkland Credits not allocated to buildout of the Villages of La Costa shall be transferable by Seller,
or its successor or assign, to any other property or development within the Southeast Quadrant of the
City and useable by such property or other project for satisfaction of its parks requirement on a full
credit for acreage basis.
22. Right of First Refusal if Sold for Private Development: Buyer is acquiring the Property
and it shall be used for public park or other public purposes, which use is a material element in
establishing the Purchase Price. For a period of twenty years from the Closing Date, Seller shall
have a right of first refksal, but not the duty, to repurchase any portion of the Property that Buyer
determines to offer for sale for private development. In the event Buyer has received a bona fide
offer to purchase all or a portion of the Property, and has taken all governmental actions required to
accept said offer, City shall provide complete copies of the offer to Seller in writing, who shall
thereafter have thirty (30) days to elect in writing to accept said offer on the same terms and
conditions conditionally acceptable to Buyer, in which event Buyer and Seller shall promptly enter
into a purchase agreement on the same terms and conditions.
23. Notices: All notices or other communications required or permitted hereunder must be in
writing, and must be personally delivered (including by means of professional messenger service)
or sent by overnight courier, or sent by registered or certified mail, postage prepaid, return receipt
requested to the addresses set forth in Section 1. All notices sent by mail will be deemed received
2 days after the date of mailing and all notices sent by other means permitted herein shall be deemed
received on the date delivered.
24. No Commission: Seller represents and warrants to Buyer, and Buyer represents and warrants
to Seller, that no broker or finder has been engaged by them, respectively in connection with any of
the transactions contemplated by this Agreement, or to its knowledge is in any way connected with
any of such transactions. Buyer will indemnify, save harmless and defend Seller from any liability,
cost, or expense arising out of or connected with any claim for any commission or compensation
made by any person or entity claiming to have been retained or contacted by Buyer in connection
with this transaction. Seller will indemnify, save harmless and defend Buyer from any liability, cost,
or expense arising out of or connected with any claim for any commission or compensation made
by any person or entity claiming to have been retained or contacted by Seller in connection with this
transaction. This indemnity provision will survive the Closing or any earlier termination of this
Agreement.
25. Entry: Buyer and Buyer's representatives, agents and designees will have the right, at
reasonable times and upon reasonable notice to Seller, (which notice must describe the scope of the
planned testing and investigations) to enter upon the Property, in connection with Buyer's proposed
purchase of the Property. However, Buyer agrees that:
Alga Norte Park
Purchase Agreement
27817-Y1740437.8 21 01/13/03
(a) all tests and investigations will be at Buyer's sole cost and expense;
(b) the persons or entities performing such tests and investigations will be
properly licensed and qualified and Buyer will have obtained all appropriate permits therefor,
including, but not limited to, USFWS andor CDFG authorizations and provided copies to Seller;
(c) Seller will have the right of approval (which will not be unreasonably
withheld or delayed) of any proposed physical testing or drilling;
(d) Buyer will advise Seller in advance ofthe dates of all tests and investigations
and will schedule all tests and investigations during normal business hours whenever feasible unless
otherwise requested by Seller;
(e) Seller will have the right to have a representative of Seller accompany Buyer
and Buyer's representatives, agents or designees while they are on the Property;
(f) any entry by Buyer, its representative, agents or designees will not interfere
with Seller's use of the Property nor with any grading or other construction activities thereon;
(g) Buyer will indemnify, defend and hold Seller harmless for, from and against
any and all claims, damages, costs, liabilities and losses (including, but not limited to, mechanics'
liens, water quality, environmental, endangered species and protected habitat claims) arising out of
any entry or actions by Buyer or its agents, designees or representatives; and
(h) Buyer will restore the Property at Buyer's sole cost and expense if this
transaction does not close. Until restoration is complete, Buyer will take all steps necessary to
ensure that any conditions on the Property created by Buyer's testing will not interfere with the
normal operation of the Property or create any dangerous, unhealthy, unsightly or noisy conditions
on the Property.
In addition, prior to any entry involvingphysical testing, drilling or other physical disturbance, Buyer
will obtain, maintain and provide Seller, or shall cause any consultant, contractor or other person
entering the Property to obtain, maintain and provide Seller, with original certificates of insurance
demonstrating comprehensive general liability insurance in the amount of at least $1,000,000.00
combined, single limit coverage and an original or certified copy of the endorsement, naming Seller
and Morrow as additional insureds and with coverages reasonably satisfactory to Seller and worker's
compensation as required by law. The foregoing indemnity provision will survive the Closing or any
earlier termination of this Agreement.
26. Legal and Equitable Enforcementofthis Agreement: Buyer and Seller shall have all legal
and equitable remedies available on law or equity to enforce the provisions of this Agreement in
accordance with its terms.
Alga Norte Park
Purchase Agreement
278 17-511 740437.8 22 01/13/03
27. Assignment: Buyer will not assign this Agreement without obtaining Seller's prior written
consent, which consent may be withheld by Seller in its sole and absolute discretion for any reason
whatsoever. Any attempted assignment without Seller's prior written consent will, at Seller's option,
be voidable and constitute a material breach of this Agreement. If Seller consents to an assignment,
the assignment will not be effective against Seller until Buyer delivers to Seller a hlly executed copy
of the assignment instrument, which instrument must be satisfactory to Seller in both form and
substance and pursuant to which the assignee assumes and agrees to perform for the benefit of Seller
the obligations of Buyer under this Agreement, and pursuant to which the assignee makes the
warranties and representations required of Buyer under this Agreement and such other
representations and warranties as Seller may reasonably require. Any such assignment will not
release Buyer from any of its obligations under this Agreement.
28. Further Covenants: The following further covenants shall survive Close ofEscrow herein:
28.1 Assignment of Plans and ReDorts. If Escrow fails to close for any reason, then all
materials or documents delivered by Seller to Buyer shall be delivered to Seller by Buyer within ten
(10) days.
28.2 Additional Easements and Dedications. Buyer acknowledges that the present location
of easements, rights-of-way for utilities and other public improvements required to service the
Property as well as other portions of La Costa Greens may not have been determined as of the
Effective Date and that prior to or upon the Close of Escrow. It may be necessary for Seller to
dedicate and/or convey certain additional easements, rights-of-way to governmental agencies, or
other entities that service La. Costa Greens and, in addition, easements that reasonably may be
required by any utility company or any governmental agencies to service property adjacent to the
Property including, but not limited to, an interim water service "topline" needed during development
of La Costa Greens until permanent water services are provided. Ifpossible, such easements, rights-
of-way and/or dedications shall be located within the boundaries of existing easement areas or future
streets within the Property. If any such easements are conveyed prior to the Close of Escrow, Escrow
Agent shall notiQ Buyer thereof by causing the Title Company to issue a Supplemental Report at
Seller's expense; provided, however, in no event shall Buyer be entitled to terminate this Agreement
as a result of the conveyance of such easements unless such easements materially and adversely
interfere with Buyer's intended public park use of the Property and Seller elects not to cure such
disapproval to Buyer's reasonable satisfaction. If any such easements are required to be conveyed
subsequent to the Close of Escrow, Buyer shall, if requested by Seller, dedicate and/or convey such
easements, at Seller's cost, to the requesting party or governmental agency, but Buyer shall not
charge for such easement so long as it does not interfere with Buyer's use of the Property.
28.3 Future Grading Rights. Seller and Buyer acknowledge that it may be necessary to
obtain easements or rights of entry to the Property in connection with future development of the
Villages of La Costa, including but not limited to, grading, slope and other improvements for
Alga Norte Park
Purchase Agreement
27817-511740437.8 23 01/13/03
Poinsettia Lane and Alicante Road (north) bordering the Property, utility easements, slopes and other
ancillary improvements (collectively "Access Rights"). Seller, or its successors and assigns, shall
have the right to obtain necessary temporary Access Rights on the Property at no additional cost,
expense or charge by Buyer, as may be reasonably necessary to timely (i) complete the grading and
construction of Poinsettia Lane and Alicante Road (north) in accordance with the plans approved by
the City and (ii) complete the buildout of the Villages of La Costa so long as such other Access
Rights do not interfere with Buyer's use of the Property.
28.4 Reimbursement. Should Buyer, either prior to or subsequent to the Close of Escrow,
receive any credit, rebate, reimbursement or reduction in amounts otherwise payable by Buyer as a
result of any real estate taxes, special taxes, special assessments, fees, deposits or charges previously
paid by Seller or as a result of any work performed or obligation previously paid by Seller, such
amounts shall be due and payable by Buyer to Seller within sixty (60) days after receipt of such
amounts by Buyer. In the event any such amounts due under this Section are not paid to Seller,
Buyer covenants and agrees that it will cooperate with Seller and complete any applications and an
assignment of rights to receive credits required in order for Seller to obtain reimbursement of such
amounts. The rights and obligations set forth in this Section shall be mutual and shall be deemed
to run in favor of Buyer in the event Seller should receive any credit, rebate, reimbursement or
reduction in amounts otherwise payable by Seller that are attributable to Buyer following Close of
Escrow. All taxes, credits, rebates, reimbursements, fees or other amounts described in this
Section 28.4 shall be collectively referred to as the "Reimbursable Fees."
29. Miscellaneous:
29.1 Countemarts. This Agreement may be executed in counterparts.
29.2 Partial Invalidity. If any term or provision of this Agreement will be deemed to be
invalid or unenforceable to any extent, the remainder of this Agreement will not be affected thereby,
and each remaining term and provision of this Agreement will be valid and be enforced to the hllest
extent permitted by law.
29.3 Possession of the ProDerty. Seller will deliver possession of the Property to Buyer
upon the Close of Escrow.
29.4 Waivers. No waiver of any breach of any covenant or provision contained herein will
be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or
provision contained herein. No extension of time for performance of any obligation or act will be
deemed an extension of the time for performance of any other obligation or act except those of the
waiving party, which will be extended by a period of time equal to the period of the delay.
29.5 Successors and Assigns. This Agreement is binding upon and inures to the benefit
of the permitted successors and assigns of the parties hereto.
Alga Norte Park
Purchase Agreement
27817-511740437.8 24 01/13/03
29.6 Entire Arrreement. This Agreement (including all Exhibits attached hereto)
constitutes the entire contract between the parties hereto with respect to the subject matter hereof and
may not be modified except by an instrument in writing signed by the party to be charged.
29.7 Time of Essence. Seller and Buyer hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition, obligation and provision hereof.
29.8 Construction. This Agreement has been prepared by Seller and its professional
advisors and reviewed by Buyer and its professional advisers. Seller and Buyer and their respective
advisors believe that this Agreement is the product of all of their efforts, that it expresses their
agreement and that it should not be interpreted in favor of or against either Buyer or Seller. The
parties fbrther agree that this Agreement will be construed to effectuate the normal and reasonable
expectations of a sophisticated Seller and Buyer.
29.9 Governing Law. The parties hereto expressly agree that this Agreement will be
governed by, interpreted under, and construed and enforced in accordance with the laws of the State
in which the Property is located.
29.10 Assignment bv Seller. Seller may, at any time, assign or otherwise transfer its rights
and obligations under this Agreement.
29.11 No Partnership or Joint Venture. Seller and Buyer shall not, by virtue of this
Agreement, in any way or for any reason be deemed to have become a partner of the other in the
conduct of its business or otherwise, or a joint venturer. In addition, by virtue of this Agreement,
there shall not be deemed to have occurred a merger of any joint enterprise between Buyer and
Seller.
29.12 CooDeration. Buyer and Seller acknowledge that it may be necessary to execute
documents other than those specifically referred to herein in order to complete the acquisition of the
Property. Both Buyer and Seller hereby agree to cooperate with each other by executing such other
documents or taking such other action as may be reasonably necessary to complete this transaction
in accordance with the intent of the parties as evidenced in this Agreement, including modifylng or
agreeing to modifications proposed by Seller of any Exhibits attached hereto.
Alga Norte Park
Purchase Agreement
27811-511740437.8 25 01113103
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year hereinabove written.
"SELLER"
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
Name: David A. Watts Title: Mayor
Title: Vice President
APPRO*D AS TO FORM:
Ronald R. Ball, City Attorney
By:
Alga Norte Park
Purchase Agreement
27817-5l1740437.8 26 01/13/03
SECRETARY’S CERTIFICATE OF
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
THE UNDERSIGNED, the Secretary of Ked Estate Collateral Management
Company, a Delawarc corporation (the “Corporation”), does hereby certify that the
following is a true and correct copy of the resolutions adopted by the unanimous written
consent of the Board of Directors of the Corporation on Decembcr 12,2001 and the same
are in full force and etkt as of the date hereof:
RESOLVED, that the Corporation is hereby authorized to enter into all
agreements, indentures, mortgages, deeds, convcyances, liccnses, permits, transfers,
contracts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts,
&davits, bonds in an aggregate ainount of up to One Hundred and Thirty Million
Dollars (S130,000,000), undcrtakings, proxies and other instruments or documents
required or deemed necessary by an Authorized Officer to be delivercd in connection
with the development of the property owned by the Corporation and the project known as
thee Villages of La Costa.
FURTHER RESOLVED, that the President or any Vice President of the
Corporation (the “Authorizcd Officers”) are hereby authorized and directed to execute
and deliver on behalf of the Corporation any documents and instruments ncccssary or
appropriate to effectuate and to perform such other acts as may be deemed necessary and
proper to effectuate the intent and purposes of the foregoing resolution.
FURTHER RESOLVED, the Corporation does hereby ratify and confkrn all
actions that have been taken in conjunch wilh the furegoing resolutions as of the dote
hereof.
PJ WITNESS WHEREOF, T have hereto set my hand on this 14b day of
December, 200 1.
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
CERTIFICATE OF INCUMBENCY
\
I, L. S. Mattenson, the Secretary of Real Estate Collateral Management Company,
a Delaware corporation, certify that the persons named below are officers of this
,corporation, holding the offices set forth opposite their names, . and that their
appointments have not been cancelled as of the date hereof,
L. c. mug President
. D. A. Watts Vice President '
T.P. Shanley * Vice President
Dated; December 14,2001
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby agrees to (i) accept the foregoing Agreement, (ii) be
escrow agent under said Agreement and (iii) be bound by said Agreement in the performance of its
duties as escrow agent; provided, however, the undersigned shall have no obligations, liability or
responsibility under (i) this Consent or otherwise unless and until said Agreement, hlly signed by
the parties, has been delivered to the undersigned or (ii) any amendment to said Agreement unless
and until the same shall be accepted by the undersigned in writing.
DATED: (the "Opening of the Escrow")
("Escrow Agent")
Alga Norte Park
Purchase Agreement
27817-Y1740437.8 01/13/03
EXHIBIT ‘&A’’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ,. . . , . . . . . . . . . . . . . . . . . LEGAL DESCFUPTION ALGA NORTE PARK
.”~~ . . . . . . . . .
Lot 5 ofTract 99-03, Villages ofLa Costa - La Costa Greens, inthe City of Carlsbad, .:.:-:-:.:.:-:.:-:
County of San Diego, State of California, according to the map thereof No, filcd in the office of the County Recorder of San Diego County on January - ,200’3.
....... .. . . . . . . . . .
..... ....
Initial
Initial
EXHIBIT ''B"
PLAT ALGA NORTE PARK
2
EXHLBIT C
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Attention:
MAIL TAX STATEMENTS TO:
Same as above
(No Filing Fee - Government)
APN (Above Space For Recorder's Use Only) ~~ ~~
CORPORATION GRANT DEED
In accordance with Section 1 1932 of the California Revenue and Taxation Code, Grantor has
declared the amount of transfer tax which is due by a separate statement which is not being recorded
with this Grant Deed.
For a valuable consideration, receipt of which is hereby acknowledged, REAL ESTATE
COLLATERAL MANAGEMENT COMPANY, a Delaware corporation, hereby grants to CITY OF
CARLSBAD, a California municipal corporation, the real property in the City of Carlsbad, County
of San Diego, State of California, and more particularly described in Exhibit A attached hereto and
made a part hereof ("Property") as delineated on the Plat Map attached hereto as Exhibit B.
This conveyance is subject to non-delinquent taxes and general, special and supplemental
assessments and all bonds, and all covenants, conditions, restrictions, easements, licenses,
reservations, rights, rights-of-way and other matters of record and off-record affecting the Property,
including without limitation matters which could be ascertained by an inspection or survey of the
Property. Grantor disclaims any and all express or implied warranties regarding the Property other
than the implied warranty stated in Subsection 1 of Section 11 13 of the California Civil Code.
RESERVING UNTO GRANTOR, its successors and assigns together with the right to grant
and transfer all or a portion of the same, a non-exclusive easement on, under, over, through and
across the Property for the purpose of (a) constructing all public or other improvements required in
Alga Norte Park
Purchase Agreement
27817-511740437.8
EXHLBIT C
01/13/03
connection with the Villages of La Costa, Tentative Tract Map No. CT 99-03, (b) constructing
common area and master homeowners association improvements, and (c) completing any
improvements or performing any maintenance required to be performed or completed by Grantor or
Grantee in connection with development adjacent to the Property.
DATED: ,2003
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
Alga Norte Park
Purchase Agreement
278 17-5f 1740437.8
Name: David A. Watts
Title: Vice President
EXHBIT C
c
01/13/03
LEGAL DESCRUTION ALGA NORTE PARK
Lot 5 of Tract 9943, Villages of La Costa - La Costa Greens, in the City of Carlsbad, County of San Diego, State of California, according to the map thereof No, filcd in the office of the County Recorder of San Diego County on January - ,200’3.
Initial
Initial
EXHIBIT "B"
PLAT ALGA NORTE PARK
2
ACKNOWLEDGMENT
STATE OF )
COUNTY OF 1 ) ss.
On , before me , personally appeared
, personally known to me (or 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 acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their 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.
Notary Public in and for said
County and State
Alga Norte Park
Purchase Agreement
21817-5/1140431.8
[SEAL]
01/13/03
Document No. Date Recorded
STATEMENT OF TAX DUE AND REQUEST THAT TAX DECLARATION
NOT BE MADE A PART OF THE PERMANENT RECORD
IN THE OFFICE OF THE COUNTY RECORDER
(Pursuant to Section 1 1932 R&T Code)
To: Registrar-Recorder
County of San Diego
Request is hereby made in accordance with the provisions of the Documentary Transfer Tax Act that
the amount of tax due not be shown on the original document which names:
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
(as grantor)
and
CITY OF CARLSBAD, a California municipal corporation
(as grantee)
Property described in the accompanying document is located in
( ) unincorporated area or ( X ) City of Carlsbad
The amount of tax due on the accompanying document is $
Computed on full value of property conveyed, or
Computed on full value less liens and encumbrances remaining at time of sale.
Signature of Declarant or Agent
Firm Name
Alga Norte Park
Purchase Agreement
27817-511740437.8 01/13/03
EXHIBIT D
Seller's FIRPTA Affidavit
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property
interest must withhold tax if the transferor is a foreign person. To inform the transferee that
withholding of tax is not required upon the disposition of a U.S. real property interest by Real Estate
Collateral Management Company, a Delaware corporation ("Transferor"), the undersigned hereby
certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership, foreign trust and foreign
estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. Transferor's US. employer identification number is ; and
3. Transferor's office address is
Transferor understands that this certification may be disclosed to the Internal Revenue
Service by transferee and that any false statement contained herein could be punished by fine,
imprisonment or both.
Under penalties of perjury I declare that I have examined this certification and to the best of
my knowledge and belief it is true, correct and complete, and I further declare that I have authority
to sign the document on behalf of the Transferor.
REAL ESTATE COLLATERAL
MANAGEMENT COMPANY, a Delaware
corporation
By:
Name: David A. Watts
Title: Vice President
Alga Norte Park
Purchase Agreement
27817-511740437.8 EXHIBIT D 01/13/03
EXHIBIT E
ESCROW GENERAL PROVISIONS
[To Be Attached]
Alga Norte Park
Purchase Agreement
27817-5i1740437.8 EXHIBIT E 01/13/03
VEGETATION CLEARING WORK
(1) Clear, remove and dispose o&ite all existing vegetation of any kind
within the mtire property boundary as described within the Purchase Agreement. This
activity shall mdude a complete “top-grading” of the property of the top 6” of the
existing soil and removal and offsite disposal of all vegetation, trash, car bodies, dumped
materials of any kind, surplus piping or hardware, etc., discovered or produced by this
clearing operation.
(2) Install a fence and/or bnrrier system consisting of mctal stakes or wooden
posts approximately 3’ in height, around the entire boundary of the property, together
with an orange silt fence material between each vertical post around the entire boundary
of the proper@ AfFx the barrier material to each vertical post. Install two standard
industrial grrtdc fencdgate openings within this fence system, one at the north end and
one at the south end of the property facing east generally adjacent the hture construction
of Alicaute Road. Representatives of the City and RECM will meet, discuss and work
together to best site these gate openings. The City will provide the chains and locks to
these gate openings.
(3) Following completion of the cIearing operation, RECM’s contractors shall
undertake and complete the erosion controI plan across the entire site descri3ed in the
attached “Landscape” specifications attached hereto, consisting of pages F-2 to F-6. This
plan includes a combination of an appIication of hydroseed materials and fiber rolls
where required.
(4) The City will designate a representative to coordinate, inspect and promptly accept this work on behalf ofthe City.
LANDSCAPING
2.4 HYDROSEED MATEUS
A. Water - water must be free of impurities, excess chlorine and salts. The use of
filters, as an extra cost, may be required when directed. General precautions
should be obsenred when drawing water fiom sources other than imgation main
line.
B. Sceds - all seed used should be clearly labeled showing type of seed, test date,
name of supplier and percentage of the following: pure seed, crop seed, inert
matter, weed seed, noxiou. weeds and total germination content. All commerciai
process or packaged material shall be delivered to the site in thcir original
unopmd containers bearing the manufacturer’s guaranteed analysis.
C. Fertilizer - the fertilizer shall be in pellet& or granular form and shall comply
with the chemical analysis specified (see notes below for bidding purposes).
Fertilizer shall be thoroughly mixed and incorporated into the hydrosced mix.
D, Native Hydroseed Mix (total 34 pounds per acre):
Scientific Name (Common Name) Min Purity/Germ
Deinandra fmckulate (Fwcieled tarplant) 1 OD5
Eriophylium confertifrum (Golden Yarrow) 30160 ficlrrcholzia califbrnlca (California Poppy) 98/75
Gnapthalium culifornkum (California Everlasting) 1 O/zs
GutierrQia califomica (Matchweed) 20/10
Lasthenia cali$ornica (Goldfield) 50160
Lotus scoparius (Deerweed) 90160 Lupinus bicolor (Miniature Lupine) 98180
Nasselapulchra (Purple Needlegrass) 70160
SisyrinchSum bellurn (Blueeyed Orass) 95/75
Vuhia micrustachys 90180 TOTAL
IbdAcre
4
3
2
2
2
2
4
5
3
2
5
34 -
Hydroseed Slurw Component: Total lbdacre:
3,600 lbdac at 2:l slope
4,000 Ibdac at 1:l slQe
0 Mechanically Bonded Fiber Matrix 3,000 lbdac at 4:l to 3:l slope
Comercial fertilizer: 16-20-0 or 16-6-8 plus iron 300 lbdacre
0 Gypsum 800 Ibdacre
Sulh (soil) 200 Ibdacre
9 Iron (chelated) 3 gallons/acre Note: Fertilizer, gypsum, dfur, and iron sulfate rates of application arc for
bidding puqmses only, Find rates of application shall be based in written soil
analysis recommendations fiom approved laboratory, supplied by Contractor and
.approved by the landscape architect,
F-2
2.5 FIBER ROLLS
A. Fiber rolls will be composed of biodegradable straw fibers stuffed in a
photodegradable open weave netting. B. Fiber rolls shall be manufactured hm rice straw and be wrapped in tubulm-type
plastic netting.
C. The plastic netting shall have a shad thickness of 0.03 inch, n knot thickness of
0.055, and a weight of 0.35 ounce per foot (each plus or minus 10%). Plastic
netting shall be made of 85% high-density polyethylene, 14% ethyl vinyl acetate,
dl % color for UV inhibition- D, Fiber rolls shall bo ninc inches in diameter (plus or minus one inch), twenty-five feet long (plus or minus 0.5 feet), and weigh approximately 36 pounds (plus or
minus 10%).
E. Fiber rolls shall be manufactured by California Straw Works, or approved equal, F. Contractor must supply a sample of product if not manufactured by California
Straw Works for review as part of submittal prior to ordering and installation.
G. Stakes shall be fir or pine, and shall be a minimum of oneinch (I") x oneinch
(1") x twenty-four inches (24") in length.
Part Three - Execution
3.6 HYDROSEED APPLICATION OF SEED "XES
A. lnmection of conditions: Before proceeding with any work, the Hydroseeding
Contractor shall carefidly check planting area conditions and shall immediately
inform RECM of any discrepancies between the drawings and actual conditions. No work shall be done on any area where there are such discrepancies or where
conditions are unsuitable fbr successful plant material establishment uti1
RECM's representative has given approval.
B. Ouality of work. a competently trained individual or hydroseeding company in
accordance with the best standards and practices related to the profession shall
pe&m the hydroseeding work.
C. Soil preparation for hydroseeding:
1. The hydroseeded area shall be presoaked with water to a depth of three (3)
inches, fbrty-eight (48) hours prior to the hydroseeding installation.
2. Allow planting area soil dace to dry out for one (1) day only prior to the
hydroseeding application. Care must be taken to not allow the soil s-T.face to
be super saturated with water prior to the hydroseeding installation. At the
same time the soil dace should not be bone dry. There should be some
residual moi&e within the first % inch of the soil swfbce,
1. SiricUy comply with mm~cturer's installation instructions and
2, Equipment: mixing shall be pdormed in a tank with a built-in continuous
D. Application:
recommendations.
agitation and recirculation system of sufficient operating capacity to produce a
F-3
homogenous slurry of fiber, fertilizer and water in the designated unit
proportions, and a discharge system which will apply the sluny to the areas to
the treated, at a continuous and unifim rate.
3. Preparation: the slurry preparation shdl take place at the site of work and shall
begin by adding water to the tank when the engine is at half throttle. When the
water level has reached the heights of the agitator shaft, good circulation shdl
be established, and at this time the seed shall be added. Fertilizer shall then be
addsd
4. Add 30 to 50 pounds of Mechanically Bonded Fiber Matrix material per 100
gallons of water when hydroseeding; cob loading rates with equipment
rnanllfem
hydromulch machine for more than four (4) hours. If slurry cmmponenets are
left for more than four (4) hours in the machine, the slurry will be rejected and
disposed ofiite by Contractor at his expense.
5. Time limit: the hydromulching slurry components are not to be left in the
6. Application:
a First step: the operatar shall spray the area with a uniform visible
coat of the required seed, fertilizer and organic amendments, along
with 500 Ibdacre of cellulose fiber os a visual pidc. AppIy &om
opposing directions to soil surface, redwing the “shadow effect” and assming complete soil surface coverage. The seed and
fertilizer shall be applied in a downward drilling motion via a fan
stream node. The spray operation must be so directed that thc
first spray application containing the seed and fextilker will also
penetrate the soil surfiice as to drill and mix the compoaents into
the soil, thus ensuring maximum impregnation and coverage. Do not exceed maximum slopc length of 100 fcct when slope gradients
are steeper than four to one (4: I).
E. Protection: hydroseeded areas shall be protected against hot traffic and other use
immediately after hydroseeding is completed by placing manufactured orange silt
fence.
slurry from being sprayed onto any adjacent property, etc. Any slurry sprayed
onto these areas shall be cleaned off at the Contractor’s expense. F. H~droseed area maintenance (this is not to be confused with the general landscape
maintenance requirements):
1, Hydroseed area maintenance shall be the responsibility of the Landscape
i
E. Clean up: special care is to be exercised by the Contractor to prevent any of the
Contractor,
0. Ouaranlee and Replacement:
1 - The Contractor will guarantee that a minimum of 80% gexmination of
hydroseed will be attained prior to the beginning of the maintenance period.
The Contractor will guarantcc that a minimum of 70% coverage of permanent
vegetation will be attained at the end of the 90-day maintenance period. The
Contractor shall reseed any planting failure during this period.
F-4
2. Seeds used for replacement shall be of the same kind and quantity ratio as
specified in the seed formula. They shall be furnished, applied and fertilized
as specified.
3.10 INSTALLATION OF FIBER ROLLS
k Erosion controllsedhent control fiber rolls shall be installed on all slope areas
with gradients of 4 1 or steeper fiom top of slope area to toe of slope area
B, Fiber rolls shall be installed at the fillowing vertical spacing:
1:l slopes = 10 feet apart
2:l slopes = 20 feet apart
3:1 slopes = 30 feet apart
4:I slopes = 40 feet apart
installed approximately parallel to the slope contour,
C. Fiber rolls shall be joined tightly together to form a single linear roll that is
D. Fiber rolls shall be installed before installation of hydroseed application.
E. Fmows shall bc wnsbucted at B slight angle to the slope contour to a depth of
two (2) inches to five (5) inches, and at a sufficient width to hold the fiber rolls.
Soil from excavating the fiurow can be placed on the uphill, or flow sidc, of the
furrow to be used during installation.
lowest point of disturbance- No daylight shall be seen under the fiber rolls. Pack
soil hm trenching the fimow against the fiber rolls on the uphill side.
G. Individual fiber rolls shall be placed with adjacent ends butted firmly to each
other to create a continuous linear roll.
H. Fiber rolls shall be staked with 24-inch wood stakes at four (4) feet on center, and
five (5) inches from the end of each individual roll. Stakes shall bc driven
through the middle of the fiber roll, leaving two (2) to three (3) inches of the stake
protruding above the fiber roll. A heavy sediment load might pick up the fiber
roll and pull it off the.stakes if they are driven down too low.
F. Fiber rolls shall be installed in the fiurows, with the est row installed at the
F-5