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HomeMy WebLinkAboutContinental Ranch Inc; 2003-12-09;.." I. , AGREEMENT FOR THE ACQUISITION, CONSTRUCTION AND FINANCING OF CERTAIN PUBLIC IMPROVEMENTS ASSESSMENT DISTRICT NO. 96-1 (RANCH 0 CARR ILLO) THIS AGREEMENT is made and entered into this 9 th day of DECEMBER ,1996, by and between the CITY OF CARLSBAD, a public agency of the State of California (hereinafter referred to as "City"), and CONTINENTAL RANCH, INC. (hereinafter referred to as "Property Owner"). WHEREAS, the City is considering the formation of a special assessment district under 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 construction of certain public improvements, together with appurtenances and appurtenant work within the jurisdictional limits of said City, said special assessment district known and designated as ASSESSMENT DISTRICT NO. 96-1 (RANCHO CARRILLO) (hereinafter referred to as the "Assessment District"); and, WHEREAS, Section 66462 of the Government Code of the State of California ("Subdivision Map Act") expressly authorizes financing and completion of public improvements under an appropriate special assessment act, and Section 101 02 of the Streets and Highways Code ("Municipal Improvement Act of 191 3'7 expressly authorizes the acquisition of any improvements authorized to be constructed under said law; and, WHEREAS, Property Owner, in order to proceed in a timely way with its development, desires to construct and has constructed certain public works of improvement that are proposed to be included with the works of improvement for the Assessment District, namely, the improvements as set forth and described in the attached, referenced and incorporated Exhibit "A; and, WHEREAS, the City and Property Owner are in agreement that the determined eligible works of improvement may be included within the Assessment District financing at prices determined by said City to be reasonable; and, WHEREAS, it is the intent of this Agreement to provide that Property Owner shall, upon a successful confirmation of assessment and sale of bonds for the Assessment District, be paid for the works of improvement which are integral and a part of the Assessment District, at the prices as determined by the City Engineer; and, WHEREAS, the properties within the boundaries of the Assessment District will be assessed only for those portions of the works of improvement that benefit the properties within the boundaries of the Assessment District, and this Agreement will only cover those portions of said works of improvement; and, WHEREAS, 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; and, WHEREAS, Property Owner shall be the owner of and retain title to all of the works of improvement constructed pursuant to this Agreement until such time as the City, acting pursuant to the provisions of the "Municipal Improvement Act of 191 3, shall acquire such works of improvement. Upon such transfer, such improvements shall become the property of the public agency and/or regulated utility authorized to provide the service to the Assessment District; and, 1 WHEREAS, the City has no objection to purchasing the improvements from said Property Owner, and Property owner is desirous that the City purchase said improvements, and at this time said improvements are owned by Property Owner; and, WHEREAS, if the work is not being constructed in a timely manner, the City may, at its option, proceed and install authorized facilities pursuant to applicable public contract laws, with payment to be made from bond proceeds. Upon exercising this option, the work being constructed shall automatically be deleted from this Agreement. NOW, THEREFORE, IT IS MUTUALLY AGREED between the respective parties as follows: SECTION 1. SECTION 2. SECTION 3. SECTION 4. SECTION 5. SECTION 6. That the above recitals are all true and correct. The City has no financial obligation to construct the improvements, and all expense for said improvements, including all incidentals thereto, shall be bome by owners of property within the Assessment District. That said City does intend to proceed with the adoption of a Resolution of Intention and the formation of a special Assessment District for the improvements above described, however, the City reserves the right to determine the timing of such actions or any subsequent sale of the bonds for those facilities which are eligible for final funding. That the City agrees to acquire and finance through the use of special assessment proceedings, and Property Owner agrees to convey all completed improvements to the City, those improvements being all as set forth in the previously referenced Exhibit "A. 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. Property Owner shall be responsible for the maintenance and shall maintain said improvements in a satisfactory condition prior to any final transfer and acceptance. No acquisition money shall be paid for any discrete component comprising a portion of an improvement until such discrete component to be acquired has been irrevocably offered for dedication by the Property Owner free and clear of all liens, claims and encumbrances. The final payment for an improvement to be acquired shall not be paid unless such improvement has been irrevocably offered for dedication by the Property Owner and accepted by the City Council free and clear of all liens, claims and encumbrances. Property Owner does hereby indemnify the City against all liens, claims or encumbrances relating to any improvement to be acquired hereunder. The final facilities and actual prices to be paid for said improvements are those that the City believes to be integral and reasonable and to confer special benefit on properties within the Assessment District. The estimated prices for the improvements and incidental expenses are set forth in the attached, referenced and incorporated Exhibit "B". Final prices shall be based upon unit prices and quantities as determined by the City to be reasonable, and no other costs and expenses shall be allowed unless expressly authorized by the legislative body of the City; however, final payment for the work shall not exceed the maximum amount for construction as set forth in the Engineer's "Report" as confirmed by the City Council. 2 .. .. Further limitations to the amount of assessment debt shall be the following: SECTION 7. SECTION 8. SEC SEC 'ION 9. 'ION 10. SECTION 11. 1. The total public lien on any property of all outstanding special assessments and Mello-Roos special tax obligations will not exceed 1/3 of the appraised value. 2. The annual installment for any public special assessment and/or Mello-Roos taxes will not exceed .8% of the estimated purchase price of the property. The Finance Director of the City will make determinations as to the above prior to any final confirmation of the assessment. The estimated quantities set forth in the previously referenced Exhibit "8" shall be revised to reflect the actual quantities of works of improvement actually constructed at prices as determined by the City. Any final determination shall be made by the City as to the prices and quantities to be paid. The Property Owner shall provide all substantiating documentation and certifications of authenticity as requested by the City in the determination of either the quantities of work constructed or the prices to be paid for such improvements. The costs of acquisition shall also include the necessary engineering and related incidental expenses, including, but not limited to, the preparation of plans, specifications, bidding and all related documentation. Said final costs and expenses are to be determined upon the completion of the works of improvement and certified by the City. The cost for said works of improvement shall be spread in accordance with the benefits received, as determined by the City Engineer in consultation with the Assessment Engineer for the Assessment District. All plans and specifications shall be submitted by the Property Owner, and all improvements shall be bid and constructed in full compliance with all applicable local rules and regulations as established and approved by the City Engineer. Property Owner agrees to keep records and to allow the City to review said records for all bids and contracts let for any of the improvements. City shall have the right to inspect all works of improvement at any time during construction. At any time that the work is not progressing within a reasonable time limit as determined by the City Engineer, the City may provide written notice to the Property Owner. In the event that Property Owner does not cause progress to be made on the work to the satisfaction of the City within 60 days afterreceipt of such notice, this Agreement can be terminated by ten (1 0) days' written notice. Following termination, upon satisfaction of the other provisions of this Agreement relating to payment for improvements or discrete components thereof, the Property Owner shall be paid for any component of the improvements set forth on Exhibit "C" hereto which it has completed prior to the termination. Upon termination, the City may proceed to advertise and bid the balance of any improvements or components thereof that have not been completed by Property Owner, and the City will have no further obligation to pay Property Owner under this Agreement with respect to the improvements or components so bid by the City. 3 SECTION 12. Upon execution of this Agreement and completion of the improvements, the City shall have the right to use said improvements as determined necessary and integral for the works of improvement within the Assessment District. SECTION 13. The acquisition monies, upon the sale of bonds, shall be distributed pursuant to written instructions executed by the Property Owner herein and any mortgagee or beneficiary under any mortgage or deed of trust where proceeds of a loan were utilized to assist in financing any portion of the improvements. Cash distribution will be made upon execution of the appropriate written instructions, and in the absence of written instructions, the purchase price for the improvements shall be paid to the Property Owner and any mortgagee or beneficiary of a deed of trust as their interests may appear (Streets and Highways Code Section 1031 1.5). SECTION 14. The City agrees that, prior to the final completion and acceptance of an improvement listed in Exhibit "A, it will make payments to the Property Owner for certain discrete components of the improvements as set forth in Exhibit "C" hereto. The payment to be made to the Property Owner with respect to each discrete component listed in Exhibit "C" shall be determined in accordance with the procedures set forth in Section 6 of this Agreement as certified by the City Engineer and shall not exceed the maximum amounts set forth in Exhibit "C". A reasonable amount of money due under this Agreemeqt, not to exceed 10% of the cost of the improvement or discrete component thereof being paid for, may be withheld to cover final possible corrections or adjustments in the work. The final payment with respect to an improvement shall be made within 30 days of the City Council's acceptance of the improvement. SECTION 15. This Agreement is contingent upon the confirmation of assessments and successful sale of bonds, and it shall be null and void if said bonds are not sold within a three (3) year period following the date of this Agreement, or any mutually agreed extension; however, this time can be extended by request of the Property Owner and concurrence of the legislative body. Any sale of bonds shall be based upon recommendations of City staff and authorized consultants retained for the purposes of assisting and establishing terms and conditions for the sale of bonds. SECTION 16. Property Owner hereby agrees to provide written notice to any potential purchasers of lots in a form satisfactory to City so advising the potential owner of the fact of the proposed or confirmed Assessment District, with said document being executed by the potential owner during escrow procedures. Such notice shall be provided to the potential owner a reasonable time before the potential owner becomes contractually committed to purchase the lot so that the potential owner may knowingly consider the impact of the assessment in the decision to purchase the lot. A copy of all such notices executed by actual purchasers shall be sent to the City. SECTION 17. Property Owner agrees to and shall assume the defense of, indemnify and hold harmless the City, its officers and agents, from any action, damages, claims or losses of any type resulting from this Agreement, including without limitation the design, engineering, construction bidding, award of the contract and construction of the improvements. 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 improvements and/or any contractual relationships between Property Owner and contractor and/or subcontractors. 4 .. SECTION 18. This Agreement is binding upon heirs, assigns, and successors-in-interest. SECTION 19. This Agreement, by its execution, amends and supersedes any terms and conditions that may be inconsistent in any previous agreement, including any subdivision improvement agreement, relating to the construction, installation or financing of said improvements. SECTION 20. The prevailing patty in any litigation relating to, interpreting or enforcing this Agreement, shall be entitled to reasonable attorney's fees as determined by the Court. SECTION 21. This Agreement and the construction of the improvements shall be subject to all local laws and ordinances relating to the requirement of improvement agreements, land division, improvement security or other applicable development requirements. SECTION 22. The term "City" shall mean the City Council, unless otherwise stated herein in this Agreement. EXECUTED by and between the parties hereto on the day and year first hereinabove written. "CITY" ATTTEST: CITY OF CARLSBAD STATE OF CALIFORNIA CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA "PROPERTY OWNER" CONTINENTAL RANCH, INC. 5 .. - - .. CALIFORNIA ALLPURPOSE ACKNOWLEDGMENT County of [ P/,O , I Name@) of Signer@) personally appeared 1] V 4 0 A, L DT;u cg 0 personally known to me - OR -$&proved to me on the basis of satisfactory evidence to be the person(+ whose name(* islare subscribed to the within instrument and acknowledged to me that he/she/tkepexecuted the same in his/ker/theicauthorized capacity@), and that by hisMthtirsignature(e) on the instrument the person(@, or the entity upon behalf of which the persow) acted, executed the instrument. S my hand and official seal. W OPTlONA L Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Signer@) Other Than Named Above: eq /IZ&..q?? Capacity(ies) Claimed by Signer(s) Signer's Name: 0 Individual Corporate Officer Title(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact I I Signer's Name: 0 Individual 0 Corporate Officer litle(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact r Top of thL Trustee 0 Guardian or Conservator 0 Other: irnb here I I I Signer Is Representing: Reorder: Call Toll-Free 1-800-876-6827 0 1994 National Notary Association 8236 Remmet Ave., P.O. Box 71 84 * Cancga Park, CA 91309-7164 Prod. No. 5907 EXHIBIT “A” THE FACILITIES Description Melrose Avenue: Between Palomar Airport Road and the existing northern termination of Melrose Avenue Palomar Airport Road: Approximately 1000’ east and 700’ west of the intersection of Melrose Avenue Relocation of Vallecitos Water District Sewer Mains: Approximately 2,900’ of 12” and 24“ Force Main Riparian Mitigation: Creation of approximately 11 acres of riparian area Grading, storm drainage facilities, water mains, sewer mains, reclaimed water mains, pressure reducing station, curbs, gutters, sidewalks, medians, road base and pavement, striping and signs, and landscaping of medians, parkways, and adjacent slopes. Improvements necessary for the construction of left-turn pockets, acceleration lane, deceleration lane, and median break. Includes subgrade preparation, sawcut and remove existing pavement, curbs, gutters, median island landscape and hardscape, road base and pavement, striping and signs, and traffic control. Improvements necessary for the relocation of two existing force mains required due to the grading work for Melrose Avenue. Includes grading within future Poinsettia Lane which is necessary to relocate the mains, trenching, force mains, and temporary high line piping. The creation and preservation of riparian habitat areas due to the impacts to existing riparian habitat caused by the grading for Melrose Avenue. Includes grading, planting, offsite easement acquisition, maintenance, and monitoring. .* , Grading 724,730 Vallecitos Sewer Mains 409,231 Subtotal Construction Costs EXHIBIT "B" $1,133,961 PRELIMINARY COST ESTIMATE ASSESSMENT DISTRICT NO. 96-1 (RANCHO CARRILLO) Grading 199,500 Landscape Installation 285,200 Maintenance 62,500 Monitoring 29,500 Offsite Easement Acquisition 400,000 Subtotal Construction Costs 1. CONSTRUCTION COSTS $976,700 Relocation of Vallecitos Water Contingency at 15% Engineering, Management, Inspection, Permits, Staking, Assessment Engineering, Bond Counsel, Appraisal, Grading Vallecitos Sewer Mains 2,046,602 District ._ Financial, & Printhg at 20% Total Incidental Costs 2,720,803 $4,775,405 I Subtotal Construction Costs I-..- -. I---... -..- .---I..-- ,- ,", ~ 920,097 Capitalized Interest (8%) 1,473,554 Sewer Mains 724,730 409,231 $1,133,961 Total Financina Costs $4.235.593 II. INCIDENTAL COSTS 111. FINANCING COSTS Bond Reserve (1 0%) Rnnd nincnt tnt and lnnrianrsr f5%\ I 1,841,942 I I -. * .. Grading Slope Landscaping and Imgation Storm Drain Water CMWD Sewer. Subtotal Construction Costs - - - EXHIBIT “C” DISCRETE ACQUISITION COMPONENTS ASSESSMENT DISTRICT NO. 96-1 (RANCHO CARRILLO) 3,372,760 2,032,330 1,650,203 762,884 58,015 $7,876,192 1. COMPONENT #1 Street improvements 2,914,726 Parkway Landscaping and irrigation 126,644 Median Landscape and Irrigation 96,300 Median Stamped Concrete 342,100 Subtotal Construction Costs $1 , 133,961 $3,479,770 Grading 724,730 , Vallecitos Sewer Mains 586,622 Subtotal Construction Costs $1,311,352 Grading Landscape Installation Maintenance Monitoring Offsite Easement Acquisition Subtotal Construction Costs ~~ ~ ~ IV. COMPONENT #4 199,500 285,200 62,500 29,500 400,000 $976,700 Note: Incidental Costs have not been shown above, but would be included with each component. *Payment for Component #3 following acceptance for maintenance by the Vallecitos Water District.