Res 85-103RESOLUTION N0. 85-103
A RESOLUTION OF ~{E CITY COUNCIL
OF THE CITY OF POWAY, CALTFORNIA,
CF POWAY, LTD., FOR THE
/~/~JISITION OF C~TAIN PUBLIC IMP~S
BY THE SOUTH POWAY CfI~3NITY FA/2ILITIES
DISTRICT NO. 1
WH~qPJ~, the Poway C~.~,unity Facilities District No. 1 desires to purchase,
and CF Poway, Ltd., desires to construct and sell certain completed public
improvements within the territorial limits of the Paguay Redevelopment Project
Area and the South Poway C~,,~,unity Facilities District No. 1; and
WHerEAS, such purchase by the District is authorized by Government Oode
Section 53313.5; and
WHEREAS, the ~quisition Agreement attached hereto has ~-cn negotiated by
staff and is fair and equitable to the District and to CF Poway, Ltd.; and
~%IEREAS, the public improvements which are the subject of the Acquisition
Agrc~e. nt are tangible property with an estimated useful life of five y~rs or
longer; and
WH]~qEAS, said public improvements are necessary to n~et increased demands
placed upon the local agency as the result of development occurring within the
District.
NOW, THEREFORE, the City Council does hereby RESOLVE, DST~MINE, A/~ ORDt~,
as follows:
Section 1. That the attached ~quisition Agreement between CF Poway,
Ltd., and the South Poway C~,,~unity Facilities District No. 1 be and hereby is,
approved.
Section 2. That the Mayor is hereby authorized and directed to execute
said Acquisition Agreement on behalf of the South Poway (kmmunity Facilities
District No. 1.
Section 3. That the Mayor and the City Manager are hereby authorized and
directed to execute and deliver any and all further documents and to do any and
all further acts to carry out the terms of said Acquisition Agrc~--n~nt.
PASSIm, ADOPTED AbD APPROVED, by the City ~o~ncil of the City of Poway,
California,1985. at an ad~urned regular n~^~ting ~e°~ thls 19th day of December,
Carl R. Kruse, Mayor
Ste~en M. Eckis, City Attorney
ACQUI S ITION AGREEMENT
BETWEEN
SOUTH POWAY COMMUNITY FACILITIES DISTRICT NO. 1
AND
C F POWAY, LTD.
ACQUISITION AGREEMENT
THIS AGREEMENT is made and entered into this ~o day
of ~/?~,~¥.,.~ , 19 ~, by and between the SOUTH
POWAY COMMUNITY FACILITIES DISTRICT NO. 1, a governmental
entity established pursuant to the Mello-Roos Communities
Facilities Act of 1982, as amended (Government Code Section
53311, et seq.,, hereinafter respectively, the "District" and
the "Act"), and CF POWAY, LTD., a California Limited
Partnership (hereinafter "Property Owner"), which is, or will
become, at or about the execution date hereof, the owner of
that real property which comprises all of the property within
the territorial limits of the District.
RECITALS
A. The City of Poway (hereinafter "City") has formed a
Community Facilities District pursuant to Section 53311, et
seq., for the purchase of certain public improvements, together
with appurtenances and related facilities within the
jurisdictional limits of the City of Poway, such Community
Facilities District known and designated as "South Poway
Community Facilities District No. 1". Section 55315.5
expressly authorizes the purchase of public improvements under
the Act.
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B. Property Owner, in order to proceed in a timely way
with its development, desires to construct certain public works
of improvement, the purchase of which has been authorized by
the formation of the District. These improvements are set
forth and described in detail in Exhibit "A" which is attached
to this Agreement and incorporated herein by reference.
C. By this Agreement (hereinafter "District Acquisition
Agreement") the District desires to purchase and the Property
Owner desires to sell such completed works of improvement as
are set forth in Exhibit "A" (hereinafter "District Public
Improvements").
D. The District plans to issue Community Facilities
District bonds (herinafter the "Bonds") pursuant to the Act,
the proceeds of which shall be used to pay the cost of the
District Public Improvements. It is intended that the
principal and interest payments on the Bonds shall be made from
the proceeds of a special tax levied within the District by the
City of Poway through Ordinance No. 182-D.
E. 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 District, acting pursuant
to the provisions of the Act, shall acquire such works of
improvement. Upon such transfer, the improvements shall become
public improvements.
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F. A validation action, City of Poway v. Wahlsten, San
Diego Superior Court, Case No. N31394, was filed December 6,
1985, pursuant to Section 53359 of the Act.
G. The Poway Redevelopment Agency is entering into an
acquisition agreement of even date herewith (hereinafter
"Agency Acquisition Agreement") for certain public improvements
also described in Exhibit "A" hereto (hereinafter "Agency
Public Improvements" and together with the District Public
Improvements, referred to as the "Public Improvements").
NOW, THEREFORE, in consideration of the foregoing recitals
which are incorporated herein in, and for other valuable
consideration as provided in this District Acquisition
Agreement, the parties agree as follows:
1. PURCHASE OF IMPROVEMENTS. The District agrees to
purchase and the Proprty Owner agrees to sell certain completed
improvements as set forth in Exhibit "A", and referred to as
the District Public Improvements under the terms and conditions
provided in this Agreement.
2. RECORD KEEPING. Property Owner agrees to keep all
records as may be required by the City Engineer in such form as
may be required by the City Engineer, including, but not
limited to, all invoices and other evidence of the cost of
improvemnts and all bid proposals and contract documents for
any of the works of improvement which are to be purchased by
the District. Separate records in similar form shall be kept
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for the District Public Improvements, Agency Public
Improvements, and private portions of all improvements.
3. BIDDING PROCEDURES. Property Owner shall prepare
a Request For Proposal to interested, qualified contractors
inviting bids for one or more phases of improvements as set
forth in Exhibit "A". The bidding procedure shall generally
allow competitive public bidding, or its equivalent. The bids
shall be prepared so as to separate the costs of the District
Public Improvements from the Agency Public Improvements and
from the costs of the private improvements.
4. FINANCIAL RESPONSIBILITY. District shall have no
financial obligation to construct the works of improvement, and
shall not be liable for payment of the purchase price of such
improvements until the improvements are accepted by District
and the price and quantity have been agreed to by the parties.
5. THE DISTRICT'S CONTINGENCIES. The District shall
purchase the completed works of improvement in accordance with
the provisions of paragraph 11 hereof, subject to verification
of the following:
(a) That the District Public Improvements have
been completed in accordance with the standard plans and
specifications of the City of Poway for such improvemens; and
(b) That the District Public Improvements have
been inspected and duly accepted by the City of Poway; and
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(c) That the quantities of the District Public
Improvements, where measurable, are accurately stated and that
the other costs attributable to constructing the District
Public Improvements are accurately stated.
6. INSPECTIONS. The District, or the City of Poway
at the request of the District, shall inspect the District
Public Improvements in the same manner, and to the same extent,
as subdivision improvements.
7. WARRANTY. Property Owner warrants the District
Public Improvements for a period of one year from the date of
acceptance thereof by the City of Poway in the same manner, and
to the same extent, as subdivision improvements, all as set
forth in paragraph 9 of the Standard Agreement for Construction
of Public'Improvements of the City of Poway.
8. INDEMNTIY. Property Owner agrees to
indemnify, defend and hold harmless the District, the Poway
Redevelopment Agency, the City of Poway, the City Council, and
all officers, agents, employees and consultants of the City and
the Poway Redevelopment Agency, for any loss, damage, claim,
personal injury (including death), cost or expense (including
attorneys' fees) arising out of or resulting from its negligent
act or omission with regard to the design or construction of
the District Public Improvements, whether latent or patent,
which are the subject of this District Acquisition Agreement,
all as more fully set forth in paragraph 4 of the Standard
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Agreement for Construction of Public Improvements to the City
of Poway.
9. QUANTITIES. The estimated costs of the
District Public Improvements, as set forth in Exhibit "B"
attached hereto and by this reference incorporated herein,
shall be revised to reflect the actual costs of the District
Public Improvements constructed as determined by the District
in accordance with paragraph 11.
10. PURCHASE PRICES. The estimated prices to be paid
for the purchase of the District Public Improvements, as set
forth in Exhibit "B", shall be revised, as necessary, to
reflect the costs which are determined to be reasonable in
accordance with paragraph 11. In no event, however, shall the
District pay more than the estimated total price for all of the
District Public Improvements as set forth in Exhibit "B".
Further, the District shall not pay any amount in excess of any
estimated price until completion of all of the District Public
Improvements described in Exhibit "A", provided, however, upon
completion of all the District Public Improvements, the
Property Owner shall be entitled to apply any cost savings
achieved with respect to one or more items or elements of the
District Public Improvements to any cost over-runs incurred in
the completion of the District Public Improvements.
11. ACCEPTANCE AND PAYMENT. Upon actual completion
of a work of improvement set forth in Exhibit "A", the Property
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Owner shall (1) record a Notice of Completion with the Recorder
of San Diego County; and (2) certify to the District that all
of the work has been performed and completed in strict
conformity with the plans and specifications; and (3) submit to
the District a purchase price statement setting forth a
specific description of the improvement, unit prices,
quantities, and any other costs and expenses attributable and
incidental to the construction of such improvement.
Upon the expiration of thirty (30) days following the
recording of said Notice, the Property Owner shall (1) certify
to the District that no mechanic's liens have been recorded
against the work and that all costs of the work have been paid;
and (2) offer the work of improvement to the District.
Within thirty (30) days of receipt by the District of
certification that the work has been completed, the District
shall perform final inspection of the work and either grant or
conditionally grant final inspection approval.
Within thirty (30) days of receipt by the District of
the Property Owner's purchase price statement, the District
shall either approve the statement for payment or submit to the
Property Owner its redetermination of the purchase price based
upon the quantities and costs which it determines to be
accurate.
Upon (1) the expiration of thirty (30) days from the
recording of the Notice of Completion, (2) certification by the
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Property Owner that no mechanic's liens have been recorded and
that all costs of the work have been paid, (3) unconditinal
final approval by the District, and (4) offer of the work of
improvement to the District, the District shall accept the work
of improvement and remit to the Property Owner the purchase
price of such work as determined by the District, but in no
event shall the District remit any sum in excess of the
estimated purchase price of that work of improvement as set
forth in Exhibit "B" until final completion of the District
Public Improvements.
Within thirty (30) days of payment for the acquisition
of the District Public Improvements set forth in Exhibit "A",
the District shall pay any additional sums which the District
previously determined were actually incurred by the Property
Owner in the completion of the District Public Improvements, up
to but not exceeding the total estimated purchase price set
forth in Exhibit "B". For purposes of Paragraph 10 of this
Agreement, "reasonable" shall mean an amount which is at least
the amount of the total of approved bids for construction of
the District Public Improvements, not to exceed the approved
estimated cost set forth in Exhibit "B".
12. INCIDENTAL COST. The cost of acquisition shall
also include certain incidental costs as set forth in Exhibit
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13. PUBLIC IMPROVEMENTS. Upon acquisition of the
District Public Improvements, the District shall have the right
to use such improvements as it deems necessary and appropriate
for the benefit of the general public.
14. TIME TO CONSTRUCT IMPROVEMENTS. Property Owner
agrees to complete construction of all District Public
Improvements in a manner and within such time as to enable the
District to pay therefor in accordance with the provisions of
paragraph 11 hereof, within three (3) years of the date of sale
of the Bonds. This time limitation is of the essence and shall
be strictly construed. Failure of the Property Owner to
complete the District Public Improvements in conformance with
the terms of this paragraph 14 shall unconditionally excuse and
release the District from any and all obligation to pay
Property Owner for uncompleted District Public Improvements in
the event that bond proceeds are not available to pay for such
District Public Improvements. Unavailability of bond
proceeds, however, shall not relieve the Property Owner from
the obligation to offer the dedication of the District Public
Improvements to the District.
15. REQUIREMENTS INCORPORATED BY REFERENCE. Property
Owner agrees to construct the District Public Improvements in
strict compliance with the terms and conditions of Tentative
Tract Map 85-04, the Standard .Agreement For Construction of
Public Improvements as revised August, 1985, (execution of
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which is required as a condition of said Map), and the Plans
and Specifications for such Public Improvements as approved by
the City of Poway, all three of which are incorporated herein
by this reference and made a part hereof. A copy of said
Standard Agreement is attached hereto marked Exhibit "C".
16. GUARANTY OF PERFORMANCE. Prior to the
commencement of any work, Property Owner shall submit to the
District an agreement executed by Cadillac Fairview,. U.S., a
Delaware Corporation, guaranteeing the performance of all of
Property Owner's covenants and obligations set forth herein and
in the Standard Agreement For Construction of Public
Improvements to be executed by Property Owner as a condition of
Tentative Tract Map 85-04.
17. INSURANCE. Property Owner shall commence no
work until it provides to the District proof of all insurance
as required by paragraph 2 of the Standard Agreement For
Construction of District Public Improvements of the City of
Poway, including, but not limited to, general liability
insurance with minimum limits of $5 million, and flood and land
subsidence liability coverage during the period of construction.
18. DEFAULT AND TERMINATION. Property Onwer shall be
in default and this Agreement shall be subject to termination
by the District in the event of the breach of any material
provision hereof. The District shall serve written notice upon
the Property Owner of its intention to declare this Agreement
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in default and the reasons therefor. Unless, within ten (10)
days after the service of such notice, such breach is cured or
written agreement to cure said breach is executed, or with
respect to a breach which cannot be cured within such then (10)
ten day period and thereafter diligently prosecutes same such
cure to completion, this Agreement shall be in default and may
be terminated by District. Upon such default, the District
shall have all remedies available to it by law and all remedies
provided to the City of Poway in paragraphs 12 and 13 of the
Standard Agreement For Construction of Public Improvements.
19. NOTICES. Any notice, payment or instrument
required or permitted by this Agreement to be given or
delivered to any party shall be deemed to have been received
when personally delivered or upon deposit of the same in any
U.S. Post Office, registered or certifgied, postage prepaid,
addressed as follows:
PROPERTY OWNER:
C. F. Poway, Ltd.
La Jolla, CA 92037
DISTRIC
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XT: South Poway Community Facilities
District No. 1
13325 Civic Center Drive
Poway, CA 92064
20. CONTINGENCIES. This District Acquisition
Agreement is contingent upon:
(a) The successful completion of the validation
action described in Recital "F" above; and
(b) The successful sale of the Bonds.
21. BINDING AGREEMENT. This District Acquisition
Agreement shall be binding upon the parties, their heirs,
assigns and successors-in-interest.
22. ENTIRE AGREEMENT. This District Acquisition
Agreement constitutes the entire agreement between the parties
with regard to the subject matter contained herein and, 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 the District Public Improvements.
23. SEVERABILITY. The provisions of this District
Acquisition Agreement shall be separable, and a determination
by a court of competent jurisdiction that one or more
provisions of this District Acquisition Agreement are invalid
shall not void or invalidate the entire Agreement. All
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remaining provisions of this District Acquisition Agreement
shall remain in full force and effect.
24. CHOICE OF LAW. This District Acquisition
Agreement shall be governed, and its provisions shall be
interpreted, by the laws of the State of California.
25. COMPLIANCE WITH LAW. Property Owner shall comply
with all Federal, State and local laws and regulations in the
design, construction and sale of the District Public
Improvements.
26. ASSIGNMENT. The performance of this Agreement
shall not be assigned by the Property Owner without the prior
written consent of the District.
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SOUTH PO~Y)COMMUNITY FACILITIES DISTRICT NO.
C. F. POWAY, LTD.,
A California Limited Partnership
By: CADILLAC-FAIRVIEW/CALIFORNIA, INC. ,
General Partner
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EXHIBIT A
(XI~4UNITY FACILITIES DISTRIC~ IMPROVSbS~I~S
December 30, 1985
PHASE ONE
The following roadways, including underground and surface improvements
therein, built in accordance with Tentative Map approval conditions to City
standards and specifications:
PCM~ADO ROAD
South Poway Parkway to south city limits.
(Full width) 1,900 lineal feet.
South Pow-ay Parkway to Oak Knoll Road
including bridge structure at Poway Creek.
(Full width) 5,800 lineal feet.
Metate T~ne to South Poway Parkway. (Nalf
width and median island)
Pcmerado Road to C~unity Road. (Balf width
and median island)
OTHER SUBDIVISION STRRRTS
Pcm~erado Road to Cu,,L,unity Road. (Full width)
5,850 lineal feet.
As shown on the Tentative Map, including South
Loop 9Dad frcm South Poway Parkway to North
Loop RDad. 1,050 lineal feet.
B Street 820 lineal feet
D Street 1,150 lineal feet
E Street 700 lineal feet
F Street 1,120 lineal feet
Improvements to south side of Matate Lane on
property bouo~y. 2,100 lineal feet.
Improvements to Oak Knoll intersection.
Improvements to west side of C~unity Road
south of Poway Creek.
EXHIBIT B
OOMMUNITY FACILITIES DISTRICT IMPROVSI~tl%YI~
December 30, 1985
Estimated Costs
PHASEOE
POMERADO ROAD
South frcm South Poway Parkway to city limits.
$ 650,000
South Poway Parkway to Oak Knoll Road.
Right of way acquisition 500,000
Bridge structure 555,750
Roadway & appurtenances 3,842,555
$4,898,305
NORTH LOOP ROAD
OTH~ SUBDIVISION STFm~-l~-
Metate T~ne to South Poway
Parkway (half width)
Pomerado Road to
Cu,,~unity Road (half width)
Pcmerado ~Dad to
Cu,,,~unity Road
South Loop Road
B Street
D Street
E Street
F Street
Metate T~ne and
Cu~nunity Road Improvements
Oak Knoll Intersection
Improv~m~ents
Total
2,639,712
4,757,680
5,677,522
922,157
611,155
630,345
389,046
487,967
155,410
13,371
$3,209,451
$21,832,670