HomeMy WebLinkAboutAviara Land Associates; 1990-01-19;.
ACQUISITION/FINANCING AGREEMENT
THIS AGREEMENT is made and entered into this /9* day of /7m
-by and between the CITY OF CARLSBAD a public agency of bf Californii
(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. 80-l (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. That the above recitals are all true and correct.
ACQUISITION
SECTION 2. 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.
SECTION 3. 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.
SECTION 4. 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.
SECTION 5. 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.
SECTION 6. 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.
SECTION 7. 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.
SECTION 8. 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.
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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.
GENERAL
SECTION 11. The City does intend to proceed with the formation proceedings and
adoption of necessary resolutions to authorise 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 authorisation 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.
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SECTION 16. No final home, building or lot sales shall be completed until the
Assessment District proceedings 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 its 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's fees as determined by the Court.
EXECUTED by and between the parties hereto on the day and year first hereinabove
written.
ATTEST:
CITY CLERK I 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
I D.L. Clemw ”
Vice President
Vice President
, General Partner
mpany, 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.
WITNESS my hand and official seal.
(Seal)
NOTARY PUBLIC
STATE OF CALIFORNIA
COUNTY OF San Diego
I f 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.
‘caJii.keQQ
NOTARY PUBLIC
.
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 286-9s 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 286-9s to finish sub-grade and has been
certified by the engineer.
AfxM.m.o27:9/29/89 Page 1
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 I 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.
A6&Ol5.027:9/29/89 Page 2
Street improvements have been constructed
Mimosa Drive westerly approximately three
full width from
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 pmlan 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 f 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
A&015.027:9/29/89 Page 3
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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.
A6a5.027:9/29/89 Page 4
PLAT TO ACCOMPANY EXHIBIT A
LOCATION OF IMPROVEMENTS TO BE ACQUIRED
ASSESSMENT DISTRICT 88-1 (ALGA ROAD)
/ ASSESSMENT DISTRICT BOUNDARY
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LEGEND
/ ’ I~~UII~IIII~IIIII GRADIN(J, STORM DRAIN, AND
UNDERQROUND UTILITY IMPROVEMENTS
P&D Technologies
TO BE ACQUIRED
401 WEST A STREET su(TE 2500 SAN DIEGO, CALIFORNIA 92101 . . . . . . . . SURFACE IMPROVEMENTS TO BE ACQUIRED
Tulaphona: (6 10) 232-4486 NOT TO SCALE L .~ /
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DECEMGER % , 1989 EXHIBIT “6”
CITY OF CARLSE:AD A!Z!XS!sMENT D ISTR I CT NI:I . I$- 1
t ALGA ROAD j
EST I MATED &!STS I:IF
I MPROVEMENTS TO BE ACQU I RED
EST I MATED CIXTS ---------------a-- ------------------
A . CC)NSTRWCT I ON CDSTS
1. .:I L. .-I
s:
5.
;:
5 10.
11 .
12.
13.
WATEfir RiEPLACEMENT SYSTEM (TAEATA) pijIN!XTTIA 8- INCH HIGH LINE
CXIG WALL PRELIMINARY ROADWAY FILLS
GRAD I NG & STCIRM DRA I N I NSTALLAT I ON RECLAIMED WATER SLOPE ST&IL I ZAT I ON & ERIjS I ON CfiNTlWL
CLEARING (TREE REMDVAL) STREET IMPROVEMENTS SEWER
WATER CCMWD) SOILS ENGINEERING
SCREEN WALL
E., 3’30 30 ) 897 2tj2,r)lE.
1 t :>fjl ,8.5.5
2,‘11.5,:3.5!5 Cfj9,311 209; 117
6.5 ) 37.5 l,tj2%,5.51
79,344 1 ,(337,88:3 84,024 62 ) 3650 ------------------
TOTAL CONSTRUCT I ON COSTS 6,991,081
6. INCIDENTAL EXPENSES
1. RIGHT-OF-WAY 2. PERMIT, PLAN CHECK & INSF’ECTION FEES
3 . ~I:IND!S
4. ENGINEERING 5 . CONSTRUCT I ON STAK I NG
6. YTILITY RELOCATIISN & TRANSMISSION EA\SEMENT CRI:I!SS I NG
7 . M ISCELLANEO\JS EXPENSES ( REPRODIJCT ION j
TOTAL INCIDENTAL EXPENSES
.-a cJ32 r 822 LI 518,Gto4
211 ,3’28
612,727 140 ‘ 287
-----------------
SiBTOTAL 11 ,674,08:3
Ez:rND DI :XOtJNT ( 3% ) .-I -7 d- .dL , .J ‘713
BOND RESERVE C 10% :) 1,441,24.5
CAPITALIZED INTEF(‘EST (6%) 864,747 ------------------ -0a------------m-w
TOTAL COST OF IMF’FKIVEMENT!~ TO BE ACQlJIRED 14,412,44:3
THE DETAILED COSTS FOR THE I MFROVEMENTS TO EE ACQUIRED ARE ON FILE WITH THE CITY ENGINEER OF THE CITY OF CARLSBAD.
.
_-
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
s
landscape architecture, performance and materials bonding,
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.
A6&ol!Lo27:9/29/89 Page 2
PLAT TO ACCOMPANYEXHIBIT C
LOCATION OF PUBLIC WORKS IMPROVEMENTS
TO BE CONSTRUCTED
ASSESSMENT DlSTRlCT88-1 (ALGA ROAD)
f----1
/ASSESSMENT DISTRICT BOUNDARY I I
LEGEND
’ IIIIIII~IIIIIIIIII STREET IMPROVEMENTS AND LANDSCAPING
P&D Technologies
401 WEST A STREET StJm 2500
SAN DIEGO, CALIFORHA 92101
-\ STREET IMPROVEMENTS ARE
PARTIALLY COMPLETED FOR
‘d THIS AREA (SEE EXHIBIT A)
NOT TO SCALE Telephone: (6 19) 232-4466 /
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DECEMEER E, 1’383 EXHIBIT “D”
CITY )jF CARLSBAD A:3XS:~MENT D I!Yl-F\: 1 CT Nlj . ES- 1
C ALGA ROAD 1
EST I MATED Cij!X!S ijF
IMPROVEMENTS TrJ EE CONSTRUCTION -- -
A . CONSTRUCT IljN COSTS
1. STREET I MFROVEMENTS 2. MEDIAN LANDSCAFING -, .;I . SOILS ENGINEERING
TOTAL CONSTRUCT I ON COSTS
E. INCIDENTAL EXFENSES
1. FERMIT J PLAN CHECK 2.1 INSPECTION FEES 2 . EONDS
3. ENGINEERING 4 . CDNSTRVCT I IjN .CTAt:: I NG S. UTILITY RELOCATION
TljTAL INCIDENTAL EXPENSES
SlJETOTAL
EOND D I SCOtJNT ( 3% )
EljND RESERVE C 10% 1
CAPITALIZED INTEREST (6%)
TOTAL COST ljF IMPROVEMENTS TO BE CONSTRUCTED
EST 1 MATED CI:I:~T!~
---------m------w- ------------------
56 J ot:‘o
------a-----------
4,%9,776
e _
1 g 1 :;;y
101,701
12 ’ $35
--e---w-----------
612,707
------------------
5’472,483
57.5 J 61.5 .4Q5 ’ :st-;y ---------------a-- -a--------------a-
6,7.5~‘1.52
THE DETAILED CONSTRtiCT ION COSTS ARE ON FILE WITH THE CITY ENGINEER OF THE CITY OF CARLSBAD .
January 22, 1990
Hillman Properties West, Ind.
2011 Palomar Airport Rd., 8206
Carlsbad, CA 92009
Attn: D.L. Clemens
Re: Special Assessment District Acquisition/Financing Agreement
Alga Road Assessment District
The Carlsbad City Council, at its meeting of January 16, 1990,
adopted Resolution Nos. 90-10 and 90-11 regarding the revised
Petition for the Alga Road Assessment District and approving
the Special Assessment District/Financing Agreement.
Enclosed for your records is a fully executed original agreement.
Also enclosed are copies of Resolution Nos. 90-11 and 90-12.
Encs.
1200 Carlsbad Village Drive l Carlsbad, California 92008 - (619) 434-2808