Loading...
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. 12/26/85 0255k/2468-01 -2- 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. 12/26/85 0255k/2468-01 -3- 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 12/26/85 0255k/2468-01 -4- 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 12/26/85 0255k/246S-01 -5- (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 12/26/85 0255k/2468-01 -6- 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 12/26/85 0255k/2468-01 -7- 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 12/26/85 0255k/2468-01 -8- 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 12/26/85 0255k/2468-01 -9- 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 12/26/85 0255k/2468-01 -10- 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 12/26/85 -11- 0255k/2468-01 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 12/26/85 0255k/2468-01 -12- 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 12/26/85 0255k/2468-01 -13- 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. 12/26/85 0255k/2468-01 -14- SOUTH PO~Y)COMMUNITY FACILITIES DISTRICT NO. C. F. POWAY, LTD., A California Limited Partnership By: CADILLAC-FAIRVIEW/CALIFORNIA, INC. , General Partner 12/26/85 0255k/2468-01 -15- 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