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HomeMy WebLinkAbout1992-08-25 - AGENDA REPORTS - GOLDEN VALLEY RD ASMT AGMT (2)AGENDA REPORT City Manager Approva m t e presente by: en Pu0 kamp CONSENT CALENDAR DATE: August 25, 1992 SUBJECT: GOLDEN VALLEY ROAD ASSESSMENT DISTRICT ASSIGNMENT AGREEMENT DEPARTMENT: Community Development BACKGROUND The attached agreement was prepared on behalf of one of the five Golden Valley Road developers, AMCAL (Percy Vaz). The agreement provides for the developer to engage construction financing in anticipation of City bond issuance. In other words, the agreement is used to pledge certainty to the lender that the funds for construction will be available. Previously approved City funding and acquisition agreements provide for the issuance of such assignment agreements with City Council fund approval. It is important to note that this assignment agreement is contingent upon the Cityfs issuance of bonds, and does not in any way pledge City issuance and City efforts up front to guarantee construction financing on behalf of the developer. The City Attorney has reviewed and approved the language in the agreement. Approve agreement and direct Mayor to execute. Attachment: Golden Valley.Road Assignment Agreement PPR'vWED Agemle Iii:— — ASSIGNMENT OF PAYMENT RIGHTS This Assignment of Payment Rights ("Assignment"), dated as of , 1992 (the "Effective Date") is by and between AMCAL Golden Fund XXVIII, a California limited partnership ("AMCAL") and , a (the "Contractor"). WHEREAS, the City of Santa Clarita, a general law city and municipal corporation, and a political subdivision of the State of California (the "City") and AMCAL have entered into a Funding and Acquisition Agreement dated January 29, 1992, a true and correct copy of which is attached as Exhibit "1" and incorporated by reference (the "Agreement"); WHEREAS, in accordance with the terms of the Agreement; the City has formed Assessment District No. 92-2 (the "District") to provide financing for the acquisition, installation and/or construction of certain public capital improvements described on Exhibit "B" attached to the Agreement and on any additional Exhibit B -X thereto which may in the future be executed by and between the City and AMCAL ("Acquisition Improvements"); WHEREAS, Section 8 of the Agreement provides for the construction of and payment for the Acquisition Improvements by the City on behalf of the District; WHEREAS, AMCAL and the Contractor have entered into a written agreement, a true and correct copy of which is attached hereto as Exhibit "2", pursuant to which the Contractor has agreed to construct certain Acquisition Improvements set forth therein (the "Construction Agreement"); WHEREAS, AMCAL and the Contractor intend by this Assignment that the Contractor shall be paid for construction of those certain Acquisition Improvements set forth in the Construction Agreement by the City pursuant to the Agreement, which shall be the Contractor's exclusive means of compensation under the Construction Agreement; and WHEREAS, the City shall consent to the Assignment only upon satisfaction of the following conditions precedent: (1) evidence of the required sureties for the remaining four property owners in the Consortium (as defined in the Agreement) as required by their funding and acquisition agreements has been submitted to the City's reasonable satisfaction; (2) due diligence regarding information supplied by the remaining four property owners in the Consortium (as defined in the Agreement) has been completed to the reasonable satisfaction of the City or its authorized representative; and (3) there has been a sale and delivery of Bonds (as defined in the Agreement). 74144.1 NOW THEREFORE, in consideration of the promises and covenants set forth herein, and for other good and valuable consideration the sufficiency and receipt of which are hereby acknowledged, AMCAL and the Contractor hereby agree as follows: Section 1 Recitals. AMCAL and the Contractor represent to each other that the above recitals are true and correct. Section 2 Assignment. AMCAL hereby assigns to the Contractor all of its rights, title and interest to payment by the City on behalf of the District under Section of the Agreement for all Acquisition Improvements constructed by the Contractor under the terms of the Construction Agreement, less any sums expended by AMCAL for such improvements which are payable as part of the Purchase Price under the terms of Section 8(b)(1) of the Agreement. Section 3. Assumption of Obligations to Ohtain Payment. The Contractor hereby assumes all obligations set forth in Section 8(a)(1) and (2), Section &( =, Section 8(c)(1), Section 8(d)(1) A through E, and Section 8(d)(21 of the Agreement with respect to all Acquisition Improvements constructed by the Contractor. &91:'Q.n4 Indemnity and Hold Harml a. The Contract hereby agiees to indemnify, defend and hold harmless the City and AMCAL and their respective officers, directors, employees and agents from and against all actions, damages, claims, losses or expenses of every kind, nature and description • including, without limitation; attorneys' fees and costs arising out of this Assignment; or the designs, engineering and construction of the Acquisition Improvements constructed by the Contractor, including, but not limited to, any claims of persons employed to construct the Acquisition Improvements constructed by the Contractor, save and except the gross negligence or wilful misconduct of the person or entity seeking such indemnity. The Contractor shall provide a defense with counsel reasonably acceptable to AMCAL in the event a defense is required for AMCAL or its officers,directors, employees or agents and with counsel reasonably acceptable to the City in the event a defense is required for the City or its officers, directors, employees, or agents. b. No provision of this Assignment shall in any way limit the Contractor's responsibility for payment of damages resulting from the operations of the Contractor, its agents, employers or subcontractors. Skd'IR-L Audit. AMCAL and the City or their respective designees shall have the right, upon reasonable prior notice and during normal business hours, to review the Contractor's books and records pertaining to costs and expenses incurred by the Contractor in constructing any Acquisition Improvements. The costs of any such review shall be done by the Contractor. 40 .1 -2- Section 6. Attorneys' Fees. In the event of the bringing of any action or suit by either AMCAL, the City, the District or the Contractor against any or all of the other parties • arising out of this Assignment, the prevailing partyshall be entitled to recover all costs and expenses incurred in the action or suit, including court costs and reasonable attorney's fees and costs. Section 7 Severability: Governing Law. If any part of this Assignment is held to be illegal or unenforceable, the remainder of this Assignment shall be given effect to the fullest extent reasonably possible. This Assignment shall be governed by the laws of the State of California. Section 8. Waiver. Failure by a party to insist upon the strict performance of any of the provision of this Assignment by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of the party's right to insist and demand strict compliance thereafter by the other party with the terms of this Assignment thereafter. Section 9. Venue and Forum. Any action at law or in equity arising under this Assignment brought for the purpose of enforcing, construing or determining the validity of any provision of this Assignment shall be filed and tried in the Superior Court of the County of Los Angeles, State of California, and the parties waive all provisions of law providing for the filing, removal or change of venue to any other court. Section 10, Counterparts. This Assignment may be executed in counterparts, • each of which shall be deemed an original. Section 11, Amendments. Amendments to this Assignment shall be made only by written instrument executed and delivered by each of the parties hereto, and consented to by the City. Section 12. Merger. This Assignment supersedes all prior agreements and representations concerning its subject matter, whether written or oral, and contains the entire agreement of the parties respecting the matters set forth in this Assignment. No other agreement, statement or promise made by any party or any employee, officer or agent of any party with respect to any matters covered in this Assignment that is not in writing and signed by all the parties shall be binding. Other than as specified herein, the foregoing shall not be construed to modify any terms of the Agreement, which shall remain in full force and effect. 24144.1 -3- 0 E IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. CONTRACTOR By: Title: AMCAL GOLDEN FUND XXVIII, a California limited partnership By: By: Title: Its general partner 4044.1 -4- 14144.1 CONSENT TO ASSIGNMENT The City of Santa Clarita, California, on behalf of itself and the District, consents to the terms and conditions set forth above. CITY OF SANTA CLARITA, CALIFORNIA By: Title: ATTEST: CITY CLERK APPROVED AS TO FORM: • CITY ATTORNEY