HomeMy WebLinkAboutSammis Properties; 1988-08-15;’ .’
, AGREEMENT .‘
AN AGREEMENT BETWEEN THE CITY OF CARLSBAD AND SAMMIS PROPERTIES REGARDING THE ACQUISITION OF PROPERTY FOR PARK PURPOSES AS REQUIRED FOR SUBDIVISION CT 85-14 AND MP-175.
This Agreement is made this /* day of &.A , 19 88 by and
between the City of Carlsbad, California, a municipal corporation (hereinafter
called "City") and Sammis Properties (hereinafter called "Subdivider").
RECITALS
A. Developer is required as a condition of Resolution No. 8764 of the
City Council of the City of Carlsbad, approving a Master Plan Parks Agreement
between the City of Carlsbad and Sammis Properties to dedicate and provide
certain property to wit:
B. The acquisition of ten acres of property as an off-site park is
essential to provide needed public facilities for the subdivision and to
mitigate the public facilities burdens created by the subdivision.
C. It is necessary that Subdivider secure said property in accordance
with the Growth Management Plan and Public Facility and Service Performance
Standards of the City of Carlsbad.
D. Subdivider has been unable to acquire by a negotiated purchase the
required property for park purposes for the subdivision, and requests that the
City assist in the acquisition by exercise of the City's power of eminent
domain.
E. City desires to acquire an additional 20 acres of park land.
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NOW, THEREFORE, in consideration of the mutual covenants contained herein
and of the recitals, it is mutually agreed by and between the parties as
follows:
1. City hereby exercises its rights under Paragraph 10 to assume
primary responsibility for the subject litigation and to prosecute it to comple-
tion. City will hire an appraiser, attorney and other professional services as
may be necessary to prosecute the action to completion. It is understood by
both parties that whenever in this agreement it says "Subdivider shall retain"
a consultant or attorney, that the City has agreed to perform these services.
2. Subdivider and City agree to pursue a joint condemnation. Subdivi-
der agrees to pay its pro rata share of all costs based on its requirement to
dedicate 10 acres. City's pro rata share will be based on the balance of land
to be acquired which is estimated to be 20 acres more or less. Subdivider will
pay the same percent of the land acquisition costs as the ten acres is of the
total land area acquired. For example, Subdivider 10 acres, City 10 acres
equals a 50% - 50% cost split; Subdivider 10 acres, City 20 acres equals 33.33%
- 66.67% cost split, etc.
3. Subdivider shall deposit with City the sum of $25,000 cash
immediately upon signing of this agreement to be used to pay for consultant
services. Said cash shall be fully credited toward Subdivider's obligation to
acquire the ten acres. Subdivider shall furnish a letter of credit in a form
acceptable to City upon completion of the appraisal and prior to an offer being
made for the property. Said letter of credit shall be sufficient to cover the
full amount of Subdivider's obligation to acquire ten acres of park land includ-
ing purchase price, appraisal, title report, attorney fees and any other incid-
ental costs or consultant fees as may be required in the prosecution of the
acquisition.
4. Subdivider agrees to retain on behalf of the City of Carlsbad a
qualified attorney or attorneys to prepare and file on behalf of the City all
documents, pleadings and processing necessary to acquire the required property
through an action in eminent domain. Said attorney or attorneys will either be
associated with the City Attorney in the eminent domain proceeding or will
independently pursue the eminent domain action on behalf of the City, as the
City in its discretion determines. The attorney or attorneys shall be approved
by the City Attorney and Subdivider agrees not to replace the attorney or
attorneys without the City Attorney's consent. The City Attorney's approval or
consent shall not be unreasonably withheld.
5. Subdivider agrees to bear its pro rata share of all expenses, costs,
fees, and charges, including attorneys, engineers, appraisers or other profes-
sional services fees incurred or charged in connection with the acquisition of
the property interest and the preparation and prosecution of eminent domain
proceeding, and City shall assume no responsibility for said amounts.
6. It is understood and agreed that even though the City is party
plaintiff, it shall assume no financial responsibility for Subdivider's pro rata
share in said eminent domain action and that as further proceedings are
required, outside counsel shall assume primary responsibility and direction of
any actions subject to any necessary approvals of the City. The City agrees to
cooperate and assist in commencing and prosecuting said condemnation action in
an expeditious manner for the purpose of completing same as soon as reasonably
possible in accordance with applicable laws.
7. Subdivider shall retain any appraiser, engineer or other expert
witness, as mutually agreed upon by Subdivider and City, to provide any neces-
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sary appraisal, engineering or other information in a form suitable for use in
connection with said condemnation proceedings.
8. Subdivider shall pay its pro rata share of all amounts, plus
interest, as required as a result of any judgement or settlement in payment for
property to be acquired. City shall assume no responsibility for said payments.
9. The parties hereby agree that they may, at the sole discretion of
City, seek an order of immediate possession for the real property necessary for
the improvements and facilities and related easements and comply with the legal
procedure necessary therefor. The subdivider shall be responsible for the
deposit of its pro rata share of funds, posting of security, or payment of any
cost associated with the order of immediate possession.
10. City retains the right to assume primary responsibility for the
subject litigation at any time and to prosecute it to completion with all costs,
including attorney fees, to be borne by the Subdivider.
11. It is understood that prior to initiation of any eminent domain
proceedings, it will be necessary for the City in its sole discretion to adopt
a resolution on necessity for the acquisition of the property and to make the
necessary findings required by law. City agrees to use due diligence in pro-
cessing the matter to hearing before the City Council. Subdivider agrees that
any failure by the City to use due diligence to proceed in a timely manner,
shall not cause an invalidation of any condition of the tentative map or relieve
the Subdivider of any obligation hereunder.
12. City agrees that upon the acceptance by City of a letter of credit
in a form approved by City for the full amount of all costs of the acquisition
of ten acres, and notwithstanding Paragraphs 1 and 7 of the B.L.E.P. Master Plan
Parks Agreement, the acquisition and dedication of the ten acres shall be deemed
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to have occurred and occupancy of building in Phase I of B.L.E.P. may be
approved. No final maps, however, may be approved for Phases II or III until
actual acquisition of the park has been accomplished and City becomes the owner.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
DATED: p-//-8r
-0VED AS TO FORM:
ATTEST:
STATE OF CALIFORNIA
COUNTY OF 044 Dkc,o 1 S.S.
On this the 2 1 sT day of.~~~~%$z$lg~ before me,
the undersigned, a Notary Public in and for said County and State,
personally appeared
1 CTvaCd c ~yM~v\i5 -, personally
known to me or proved to me on the basis of satisfactory evidence to be
the President, and -
, personally
known to me or proved to me on the basis of satisfactory evidence to be
Secretary of the corporation that executed the within
instrument on behalf of the corporation therein named, and acknow-
ledged to me that such corporation executed the within instrument
pursuant to its by-laws or a resolution of its board of directors.
Signature -QbNGL@ u)!Awl
CITY OF CARLSBAD A Municipal Corporation pf
SAMMIS PROPERTIES
SAFECO TITLE INSURANCE
FOR NOTARY SEAL OR STAMP
A~:OI!ID, ERTIRCA’T, OF B’GSUMHE - (‘d/+ ‘SSUE;;;:;DODIYY)
PRODUCER
CORROON & BLACK THIS CERTIFICATE IS ISSUED AS A MATTE/R OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND,
1615 Murray Canyon Road EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
Suite 800
San Diego, CA 92018 COMPANIES AFFORDING COVERAGE
CODE SUB-CODE
COMPANY LETTER A Great American Insurance Company
COMPANY
INSURED LETTER 0 .- . . r-.--y ,,*,T.,, I’-;:“: l-,__- ; ,, -,
Sammis Properties 1 ". i i 35 L i : ,‘:y ! : I : . j ‘-:’ :
COMPANY :ti: ‘. ; i ; ,,L __. i I..) I,
2650 Camino De1 Rio North LETTER c :
Suite 100
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COMPANY j ! :’ i! ‘I 1.. ‘- San Diego, CA 92108 LETTER D / p,:,
2 19% $ ;/
I ‘.‘: ! . l.:j,i, /( c :,. .<). ,a., >..,i. ,-., . j j : ) ..: : i i .I*’ i
COMPANY ; L i ,I<.’ ., c’ :-, ,’ i-.i.--
E . . , ,,.?.<. ;.‘;,J,.“: ;.:,,: /_ ‘ , , 1. ‘2 i
LETTER
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT Oi3 OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
30
.TR TYPE OF INSURANCE POLICY NUMBER
GENERAL LIABILITY
AX COMMERCIAL GENERAL LIABILITY PAC 8980164-00
CLAIMS MADE x OCCUR.
OWNER’S R CONTRACTOR’S PROT.
AUTOMOBILE LIABILITY
ANY AUTO
ALL OWNED AUTOS
SCHEDULED AUTOS
HIRED AUTOS
NON-OWNED AUTOS
GARAGE LIABILITY
EXCESS LIABILITY
OTHER THAN UMBRELLA FORM
WORKER’S COMPENSATION
AND
EMPLOYERS’ LIABILITY
OTHER
POLICY EFFECTIVE POLICY EXPIRATION
DATE (MM/DD/YY) DATE (MMIDDIYY) ALL LIMITS IN THOUSANDS
3-2-90 7-l-90
GENERAL AGGREGATE 52,000
PRODUCTS-COMP/OPS AGGREGATE $1 ,000
PERSONAL & ADVERTISING INJURY $1 ,000
EACHOCCURRENCE $1,000
FIRE DAMAGE (Any one fire) $ 50
MEDICAL EXPENSE (Any one person) 5 5
COMBINED
SINGLE $ LIMIT
BODILY
INJURY $ (Per person)
BODILY
INJURY $ (Par accident)
PROPERTY 5 DAMAGE
EACH AGGREGATE
OCCURRENCE
5 $
STATUTORY
5 (EACH ACCIDENT)
5 (DISEASE-POLICY LIMIT)
5 (DISEASE-EACH EMPLOYE
DESCRIPTION OF OPERATlONS/LOCATlONS/VEHlCLESlRESTRlCTlONS/SPEClAL ITEMS Certificate Holder is hereby included as an Addition Insured as respects
location no. 30 - Batiquitos Lagoon - Educational Park.
CERTtFtCATE HOLDER CANCELLA-ftUN
City of Carlsbad
1200 Elm Street Carlsbad, CA 92008
SHOULD ANY OF THE ABOVE DESCRISED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO
MAIL30 - DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE
LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR
Attn: Bob German
Risk Manager
ACURD 25-S (3188)
LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
Jill Powell
@ACORD CURPORATIQN f3ilt
Bank of America
Trade Finance Services 1263
August 2, 1988
Mr. Ron Ball Assistant City Attorney City of Carlsbad 1200 Elm Avenue Carlsbad, California 92008-1989
RE: City of Carlsbad Standby Letter of Credit
Sammis Properties, a California Corporation
Dear Mr. Ball:
The following is a summary of the statements made during our discussion
July 28, 1988 by phone with the City Attorney of the City of Carlsbad:
Bank of America National Trust and Savings Association ("Bank") as a national banking institution is authorized to issue standby letters of credit. The Bank issues its standby letters of credit subject to the Uniform Customs and Practice for Documentary Credits, 1983 Revision, International Chamber of Commerce, Paris, France, Publication No. 400 ("ICC No. 400"). Letters of credit, by their nature, are separate transactions from the sales or other contracts on which they may be based and banks are in no way concerned with or bound by such contracts even if any reference whatsoever to such contracts is included in the credit (ICC No. 400, Article 3); in letters of credit transactions, all parties
concerned deal in documents and not in services or other performances to
which the documents may relate (ICC No. 400, Article 4); a beneficary can
in no case avail himself of the contractual relationships existing between the applicant for the letter of credit and the letter of credit
issuing bank (ICC No. 400, Article 6); an irrevocable standby letter of
credit constitutes a definite undertaking of the issuing bank to pay
amounts drawn thereunder , provided that the drawing is timely made and the required and stipulated documents are presented, are conforming and that all terms and conditions of the letter of credit are complied with (ICC No. 400, Article 10).
any questions, please give me a call.
Assistant Cashier (619) 230-6254
Bank of America National Trust and Savings Association 450 B Street, 10th Floor San Diego, California 92101
%
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:Ifl f Bank of America Trade Finance Serivce #1263 450 B Street, 1OTH F&r San Diego, Ca 92101
DATE : 08/U2/88
BENEFICIARY: APPLICANT:
City of Carl&ad 1200 Elm Avenue Carl&ad, California 92008 Attn: City Manager
Sds Properties, A California Corporation 2650 CAMINO De1 Rio North Suite 100 San Diego, Ca 92008-1989
REFERENCE: Irrevocable Letter: of Credit No. LASB-250717 EXPIRY DATE: 07/29/89
Gentleman:
The purpose of this letter of credit is to secure the parks obligation of the Batiquitos Lagoon Educational Park Master Plan as adopted by Ordinance No. 9778. It further meets the conditions of Resolution No. 8217 which approved a 129 unity Tentative TKaCt Map (Ct 85-14) and Planned Unit Development (PUD-90).
This letter of credit additionally satisfies the conditions of the Batiquitos Lagoon Educational Park Master Plan PaKkS Agreement as approved by the adoption of Resolution No. 8764 adopted August 19, 1986.
This Letter of Credit shall be amended to incorporate an agreement to be entered into between the City of Carl&ad, a municipal corporation of the State of California, hereinafter referred to as RCity'l, and Sannnis Properties, a California Corporation, hereinafter referred to as "Principal". Said agreement requires the Principal to provide for the acquisition and/or development of 10 acres of park land located in the southwest quadrant of the City and associated costs with the city's actions necessary to acquire said property as defined in the future agreement.
As required by and/or to allo the acquisitio agreement, the account of Pri hundred sevent by drafts at s
City's k
therefor
It is a conditi hereof may be r written notice work progresses of the City of Code. All drafts
,t,bY the principal credit-in
e amount of a required Standards zrnment
Bank of AmericaNT & SA 450 B Street, 10th Floor San Diegol Ca 92101 RE: IRREVOCABL LFfiER OF CREDIT NO. LAS&-250717 Smis Properties, A CalifoKnia Covporation
To be continued on page 2.
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1313 11-85
m * Bank of America
NON-NEGOTIABLE COPY-ADVISING BANK
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f ;:
i
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t ’ ‘,. ’ .’ _. . */- d,,- . .,c _ i ” I
AUiHORlZED COUNtERSIGNATURE AUTHORIZED SIGNATURE -
PROVISIONS APPLICABLE TO THIS CREDIT: This credit is subject to the Uniform Customs and Practice for Documentary Credits, 1983 revision, International Chamber of Commerce Publication No. 400.
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1313 11-85
- .
<‘f h Bankof America Trade Finance Serivce #1263 450 B Street, lOTJ5 Floor San Diego, Ca 92101 I-7
Page 2 of 2 our Ref. DASB-250717
We expressly agree with you that all drafts drawn under and in compliance with the terms of this letter of credit shall meet with due honor upon prsentation at this office on or before the expiration date.
This letter of credit shall be deemed autmtically extended without amendment for one year from the present and annually thereafter unless at least sixty (60) days prior to any such date bank shall notify City Clerk, by registered letter, that bank elects not to renew for such additional one year. In any event, this guarantee letter of credit shall expire exactly one year after City's approval of improvements described in the agreement, +*************a********************"*****
PROVISIONS APPLICABLE TO THIS CREDD?~Tt#r&t&@$i@Jbject to the Uniform Customs and Practice for Documentary Credits, 1983 revision, International Chamber of Commerce Publication No. 400.
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1313 11-85
m R Bank of America
NON-NEGOTIABLE COPY-ADVISING BANK
AUTHORIZED COUNTERSIGNATURE AUTHORIZED SIGNATURE
PROVISIONS APPLICABLE TO THIS CREDIT: This credit is subject to the Uniform Customs and Practice for Documentary Credits, 1983 revision, International Chamber of Commerce Publication No. 400.
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1313 11-85
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Bank of America Place: TRADE FINAd%! SERVICES #1263 Cable Address: BankAmerica
450 B STREET, 1OTH FLOOR SAN DIEGO, CA 92101
D
AMENDMENT TO OUR IRREVOCABtE APiwGANT
LETTER OF CREDIT NO. S?MMISPRC@ERTIES,ACALIFORNIA
LASS250717 CORPORATION
2650 CAMfNO DEL RIO NORTH, SUITE 100
DATE OF ISSUE: NUVEMBER 116, 1988 SAN DIEGO, CA 92008-1989
DVlSlffi BANK REFERENCE NO.: BENEFICWIY
CITY OF CARLSBAD
1200 ELM ATIENUE CARLSBAD, CA 92008-1989 ATIN: CITY MANAGER
I ---
This is amendment number #1 and is to be considered as part of the above mentioned
letter of credit and must be attached thereto.
At the request of the applicant we advise you that the above mentioned letter of credit has been amended as follows:
1. PARAGRAPH 3 OFTHELEZTEROFCREDIT ISHEREBYAMENDEDTOREADASFOLLCMS IN ITS ENTIRETY:
"THIS LETTER OF CREDIT ALSO SATISFIES THE CONDITIONS OF THE AGREEMENT BEZWEENTHE CITY OF CARLSBADAND SAMMISPROPERTIESR%%RDINGTHE ACQUISITION OF PROPERTY FOR PARE PURPOSES AS REQUIRED FOR SUBDIVISION CT-8514 AND MP-175 ("AGREEMENT") AS APPROVED BY THE ADOPTIWi OF RESOLUTI~
NO. 88-292 ADOPTED AUGUST 9, 1988. SAIDAGREEMENTREQUIRESTBEPRINCIPAL TO PROVIDE FOR THE ACQUISITION AND/OR DEVELOPMENT OF 10 ACRES OF PARE LAND LOCATED IN THE SOUTHWESTQUADRAWTOFTHECITYANI)ASSOCIATEDCO~SWITH THE CITY'S ACTIONS NECESSARY TO ACQUIRE SAID PROPERTY AS DEFINED IN THE
AGREEMENT. ” ****************************************
ALL OTHER TERMS AND CONDITIONS OF THE LETTER OF CREDIT ED.
buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1312 6-66
AMENDMENT TO OUR IRREVOCABLE
LETTER OF CREDIT NO. ~~~~~~
DATE OF ISSUE: 3.6, p.
JDVISING BANK REFERENCE NO.
Bank of America Place:
NON-NEGOTIABLE COPY-ADVISING BANK
#I$63 Cable Address: BankAmerica
BENEFICIARY
This is amendment number
letter of credit and must be attached thereto
and is to be considered as part of the above mentioned
At the request of the applicant we advise you that the above mentioned letter of credit has been amended as follows:
1s ce a! Ea.
The above mentioned letter of credit is subject to the Uniform Customs and Practice for Documentary Credits, 1983 revision, International Chamber of Commerce Publication No. 400.
This document consists
of
2
signed page(s)
AUTHORIZED COUNTERSIGNATURE AUTHORIZED SIGNATURE
Please examine this instrument carefully. If you are unable to comply with the terms or conditions, please communicate with your buyer to arrange for an amendment. This procedure will facilitate prompt handling when documents are presented.
FX-1312 6-86 CLASSIFICATION-CONFIDENTIAL