HomeMy WebLinkAbout1992-01-28 - AGENDA REPORTS - GVR ASMT FUNDING AGMT (2)NEW BUSINESS
DATE: January 28," 1992
AGENDA REPORT
City Manager Approv 1
Item to be presente
Lynn M. Harri T� 6z,-,,
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SUBJECT:
CL
SUBJECT: GOLDEN VALLEY ROAD ASSESSMENT DISTRICT FUNDING AND ACQUISITION
AGREEMENT
DEPARTMENT: Community Development
BACKGROUND
On a previous agenda in January 1990, the City Council reviewed a proposal to
construct Golden Valley Road between Sierra Highway and the Antelope Valley
Freeway. At that meeting staff was directed to prepare a feasibility report
on an assessment district to be formed to construct these improvements. An
assessment district would be a City -sponsored district to construct the
roadway improvements, and the costs of these improvements would be assessed
and be the responsibility of the land in the immediate vicinity.
This concept was originally initiated as part of the development approval for
the AMCAL project at the intersection of Golden Valley Road and Green Mountain
Drive. The project was approved on November 7, 1989, and one. of the
conditions of approval was to initiate or participate in the establishment of
a funding mechanism and associated agreements whereby the City would be
assured of the improvement of Golden Valley Road within the above mentioned
limits. Subsequent to this approval, four other developments wereapproved
with this same condition. This concept was supported by staff because for the
first time we could get an entire roadway constructed in advance ofthe
development of all of the subdivisions. This was in direct contrast to the
generally piecemeal type improvements that we experience so very often when
some projects proceed well in advance of others and only portions of
improvements are constructed at any given moment in time.
In addition to their requirement to complete the roadway, a condition was
placed on all five of the maps which indicated that these improvements had to
be in place within one year following occupancy or approval to occupy any of
the residential -developments associated with these maps or within three years
after the approval of any one map, whichever occurs first.
We have been working with the developers for the past two years to establish
this funding mechanism. One of the major hurdles has been a downturn in
building construction. The Council's established policy for approval of any
of these types of assessment districts is that the value of each property to
be included in an assessment district be at least three and one-half times the
amount of the assessment to be placed on the property. This is commonly
referred to as a value -to -lien ratio. Not all of the developments, as a
result of the downturn in the economy, appraise in their current undeveloped
state at a 3.5 -to -1 value -to -lien ratio. The Amcal project's value -to -lien
ratio does exceed the required 3.5 -to -1.
A PROVED A�e��a Item:
GOLDEN VALLEY ROAD ASSESSMENT DISTRICT
Page 2
As a result of the substantial improvement to the Amcal property with a
corresponding increase in the value of the property and the uncertain start
time for the other four projects, the Planning Commission agreed on
January 7, 1992 to allow this project to proceed without the completion of
Golden Valley Road to Sierra Highway. The developer is, however, required to
complete Golden Valley Road in front of their property between the Antelope
Valley Freeway and Green Mountain Drive, and to guarantee .funding for their
proportionate share of the remaining section of roadway.
In addition, the City's policy requires that the total tax liability for any
piece of property subject to assessments would not exceed 2% of its assessed
value. Since these improvements could, along with other taxing agency costs,
exceed the 2% limit, any agreement must provide for a. buydown by the
developer(s), such that the amount of the assessment, including all other
taxes, would not exceed this 2% liability.
The City Attorney's office and the developer's representative have finalized
an agreement which will satisfy these conditions. In addition, the agreement
provides for the following:
• The total assessed bond issue is $20 million dollars.
• The City retains all discretion and approval of the assessment district.
• Security will be filed with the City to insure the developers: payment of
the assessment.
• Any improvements installed prior to the formation of the assessment
district, which are eligible for acquisition, will be reimbursed out of
the bond issue or dedicated as part of the map approval.
The agreement binds this developer into participating in the formation of this
assessment district. It also provides that the City is reasonably assured
that the assessments can and will be paid because there is sufficient
collateral attached to the properties. In view of the current real estate
market, the value -to -lien ratio is sufficient to recommend .approval of the
project.
Therefore, in order to approve a map, which is necessary prior to any building
construction, the funding and acquisition agreement must be in place so that
we can substantiate that the conditions of approval established by the
Planning Commission have been satisfied. A signed copy of the agreement is on
file in the City Clerk's office.
RECOMMENDATION
Review, approve and authorize the Mayor to sign the Golden Valley. Road
Assessment District Funding and Acquisition Agreement with AMCAL GOLDEN FUND
XXVIII.
GOLDEN VALLEY ROAD ASSESSMENT DISTRICT
Page 3
Direct staff to continue processing modifications to the condition of approval
for the other four developments with provisions for execution of funding and
acquisition agreements with them.
Direct staff to continue processing the formation of the Golden Valley Road
Assessment District.
ATTACHMENT
Assessment District No. 90-1 Golden Valley Road Map
Funding and Acquisition Agreement
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DRAFT NO. ^ 7
JANUARY 20, 1992
CITY OF SANTA CLARITA
GOLDEN VALLEY ^ ROAD IMPROVEMENT
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THIS AGREEMENT, dated as of , 1992 (the "Effective Date"),
is by and between 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
GOLDEN FUND XXVIII, a California limited partnership (the "Developer").
WHEREAS, the City proposes, subject to the ootions set forth in this Aereement, to
establish the Golden Valley Assessment District (the "District") pursuant to the provisions of the
Municipal Improvement Act of 1913, Division 12 of the Streets and Highways Code of
California (the "Act") to provide financing for the acquisition, installation and construction of
certain public capital improvements described on Exhibit "A" attached hereto and by this
reference incorporated herein (the "Improvements") which include, among, other things, the
acquisition from the Developer of the public capital improvements described on Exhibit "B"
attached hereto and on any additional Exhibit B -X which may in the future be attached hereto
(any such Exhibit B -X upon execution by the City and the Developer becoming a part hereof)
(the "Acquisition Improvements"); and
WHEREAS, the proposed boundaries of the District are set forth on Exhibit
attached hereto and by this reference incorporated herein; and
WHEREAS, the Developer has an interest in certain real property described on
Exhibit "D" attached hereto and by this reference incorporated herein (the "Property"), which
Property is located within the proposed boundaries of the District; and
WHEREAS, Section 66462 of the Government Code of the State of California expressly
authorizes the financing and completion of public improvements such as the Improvements,
including the Acquisition Improvements, under an appropriate special assessment act; and
WHEREAS, the City has approved Vesting Tentative Tract Map No. 48117 (the
"Tentative Map") in connection with the development of the Property; and
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WHEREAS, the Tentative Map requires, among other things, as a condition of approval
of a final map with respect to said development (the "Final Map"), that the Developer construct
certain improvements along Golden Valley Road between State Route 14 (commonly known as
the "Antelope Valley Freeway") and Sierra Highway ("Golden Valley Road") and enter into an
agreement which assures the City that Developer shall finance its proportionate share, as such
share is determined bkthe (itv's Engineer of Work, of the improvement of Golden Valley Road
between ierra—�Iighway and the Antelope Valley Freeway to full major highway standards,
including, but not limited to, landscaping and pedestrian and bikeway paths, in accordance with
the rendering submitted to the Planning Commission on November 7, 1989, and the installation
of a traffic signal system at the intersection of Sierra Highway and Golden Valley Road; and
WHEREAS, the Engineer ofpreviously determined that Developer's
II proportionate share is as follows: 1 % of the road, 0% of the stabilization/fill and 18.21%
of the park improvements (the "Proportionate Share"); and
WHEREAS, the City and the Developer intend and will aeree that the execution and
delivery of this Agreement shall satisfy the Golden Valley portion of Condition No. 49 of the
Tentative Map and Amended Condition No. 71 of the Tentative Map which are precedent to the
approval of the Final Map; and
WHEREAS, the execution of this Agreement by the parties hereto shall constitute the
satisfaction of the requirement to pay the following fees that would otherwise be levied by the
by the City in connection with the Developer's project; (i) the Parks and Recreation Fee; (ii) the
Bridge and Thoroughfare Fee; and (ii ra is ign ,
WHEREAS, four other property owners,
No. 48892), who own property within the District have been conditioned to participate in the
funding of Golden Valley Road (such owners and the Developer collectively referred to herein
as the "Consortium"); and
WHEREAS, the City is proceeding with the authorization and issuance of bonds for the
District (the "Bonds") to finance the Improvements, including the Acquisition Improvements,
pursuant to the Improvement Bond Act of 1915, Division 10 of the Streets & Highways Code
of California (the "Bond Law");
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, and for other valuable consideration the sufficiency and receipt of which are hereby
acknowledged, the parties hereto.agree as follows:
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Section 1. Recitals. Each of the parties hereto represents each to the other, that
the above recitals are true and correct.
** 1** 1 Section ^ 2. Satisfaction of Conditions. The execution and delivery of this
Agreement in and of itself shall satisfy Condition No. 49 with respect to Golden Valley Road
and Amended Condition No. 71 of the Tentative Map and will allow Developer to proceed wit
has been tendered to the City.(
recordation of the Final 1
Section 3.
vs 717 i�t Teu ofp formance bonds) required by this Agreement
This Agreement shall become effective concurrently with the
(a) Formation and Issuance. The City and the Developer shall continue to use their
best efforts to complete all necessary proceedings pursuant to the Act for the formation of the
District and the levy of the Proportionate Share of assessments related thereto and pursuant to
the Bond Law for the sale and delivery of the Bonds, provided, however, that each step in the
proceedings and the principal amount and timing of the sale of the Bonds in all respects,
including the phasing of the Bonds, shall be subject to the discretion and approval of the City.
The City shall consult with the Developer regarding the amount, timing and other terms of the
Bonds prior to the City.making such determinations. The City shall use its best efforts to issue
a series of the Bonds so that the proceeds of such series will be available concurrently with the
purchase of the Acquired Improvements by the City. The City shall be under no obligation to
issue Bonds until sufficient value to lien ratios have been met and it is reasonable wi h r sn t
to market conditions to issue all or a portion of the Bonds. The estimated principal amount of
($2.500,000) and the estimated principal amount of the Bonds relating to the entire District is
not to exceed Twenty Million Dollars ($20,000,000): It is expected that the Bonds will be
issued under and pursuant to a resolution of the City (the "Bond Resolution"). Except as
expressly set forth herein, there shall be compliance with the City's Policy Guidelines of Use
of Public Financing for Provision of Public Facilities in Proposed Development Projects (the
"Policy"). Failure by the Developer to make its share of the required advances shall suspend
the City's obligation to proceed with the formation of the District and the issuance and sale of
the Bonds until required advances have been made.
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,Uc Developer Obligations. Nothing containedherein shall be construed as affecting
the Developer's duty to perform. its obligations under other agreements, land use regulations or
subdivision requirements relating to the Acquisition Improvements, which obligations are and
shall remain independent of the Developer's rights and obligations under this Agreement.
LQ Construction by the City. To the extent Improvements will be constructed by
the City, the City Public Works Director shall act as, or shall appoint, a construction coordinator
(the "Construction Coordinator") to coordinate and facilitate the performance of such work. The
Construction Coordinator shall prepare plans and specifications; bid packages, supervise the
work and perform all other responsibilities pursuant to the provisions hereof, and shall comply
with the City's construction requirements.
The Consortium and the Construction Coordinator shall meet, prior to the soliciting of
bids for any portion of LiLch Improvements, upon the written request of the Consortium
delivered to City (the "Preliminary Coordination Meeting"). The Preliminary Coordination
Meeting shall occur within fifteen (15) calendar days after City receives said written request.
At the Preliminary Coordination Meeting, the phasing of the Improvements, and the schedule
for construction of the Improvements and inspection approvals will be determined by the City
after consultation with the Consortium.
* 1 moved from here: text not shown
Section 4. Indemnification by the Developer. The Developer shall indemnify, defend and
hold harmless the City against 2 the Proportionate Share of the actual and reasonable cost,
expense and/or liability the City may actually and reasonably pay or incur in good faith in the
formation of the District and the issuance of the Bonds including attorneys' fees, court costs and
all expenses whether or not a court action is filed; provided, however, that the City shall first
look to any moneys on hand in the funds and accounts established pursuant to the Bond
Resolution before seeking any recovery for such costs. This indemnification shalt not apply to
Section 5. Reimbursements to the Developer.
^tea Reimbursement Relating to Bonds. Upon completion of the sale and delivery of
the Bonds, the City shall reimburse the Developer, without interest, solely from Bond proceeds
and then only to the extent available for such purpose and permitted by the Act, the amount of
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any costs paid from any advances made to the City by the Developer to pay costs with respect
to the formation of the District and the issuance of the Bonds, including, but not limited to costs
of engineers, consultants and appraisers, but excluding legal fees of the Developer. All
payments of such costs shall be • made by check delivered and payable to Cox, Castle &
Nicholson which shall be held in trust and distributed by Cox, Castle & Nicholson in accordance
with instructions- from the ". Consortium. If for any reason the Bonds are not issued, the City
shall not have any obligation to reimburse the Developer for any costs and expenses advanced
or paid from such advances, however, that the City shall refund without interest to the
Developer the Developer's' Proportionate Share of any unexpended funds advanced to the City
that are in excess of the final costs and expenses relating to the formation of the District and the
issuance of the bonds, together with an accounting of such costs and expenses, within thirty (30)
days after the proceedings have been abandoned.
Upon delivery of the Bonds, the City shall reimburse the Developer, without interest,
solely from Bond proceeds and then only to the extent available for such purpose and permitted
by the Act, the cost of the performance bonds required by Section .
2l Reimbursement Relating to Escrowed Funds.
Section 6. General Security Requirements for Improvements.
(a) Concurrently with the execution of this Agreement, the Developer shall execute
the extent of the Developer's Proportionate Share of the total proposed assessment lien on
property within the District. ^ Any such interest in real property shall be subordinate o to
the lien of any construction loan made or to be made in connection with the Project. n The Ci
a performance and payment
a binding construction contract
id naming the City as a benefic
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uirin the provision
ry. 9The performance
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(b) Compliance by the Developer with Section 7 of the Policy (the 2% cap) shall
occur not later than, and shall be a condition of, the close of escrow of a single family ` structure
constructed upon the Property. Compliance shall be accomplished by the prepayment of
outstanding special assessments levied by the City with respect to the District in such amount
or amounts to reduce the total land -secured indebtedness for an individual parcel or lot to the
amount specified in the Policy. The amount or amounts of such prepayment to satisfy such
Policy shall be computed by the City under the Bond Law as of their dates of prepayment and
the City's calculation shall be final and conclusive absent manifest error. By execution of this
Agreement, the Developer covenants to prepare and deliver to each prospective home purchaser
within the District, at the time when the Developer and such prospective purchaser enter into
an escrow agreement to sell a completed home, a form of disclosure of the assessment lien on
such property. Such disclosure form shall (i) describe the then current assessment lien on such
property, and (ii) provide that the assessment lien on such parcel of real property shall be
reduced so that the total assessments and tax on such parcel of property shall not exceed two
percent (2%) of the assessed value of such property at the time escrow on such property closes.
The Developer hereby covenants to provide such disclosure forms, signed by the prospective
home purchaser, to the City prior to the close of escrow.
Uc In addition to the prepayment under tbl above. Developer may opt to prepay the
prepayment.
"fid The Developer hereby agrees to waive its ability to protest the formation of the
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District pursuant to the Majority Protest Act.
" e The Developer shall grant, upon the demandof the Cityall right-of-way
dedications and construction easements to effectuate the acquisition and construction of the
Improvements and shall agree to provide and secure for the behalf of the City any and all
necessary subordination documents relating to such acquisition and construction. The Citv shall
use its best efforts to utilize condemnation proceedings for such rights-of-way and easements
Section 7. Use of Bond Proceeds. The proceeds of the sale of the Bonds shall
be deposited, held, invested, reinvested and disbursed as provided in the Bond Resolution. A
portion of the proceeds shall be set aside thereunder in a separate improvement fund (the
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"Improvement Fund") to pay, among other things, . the cost of the City's acquisition of the
Acquisition Improvements from the Developer as provided in Section 8 of this Agreement. The
Developer agrees to construct the Acquisition Improvements in accordance with this Agreement
and shall complete the Acquisition Improvements in accordance with Section of this Agreement
prior to the adoption of the resolution of intention to form the District or the adoption by the
City of a resolution approving changes or modifications in the resolution of intention consistent
with the actual acquisition of such Acquisition Improvement by the City.
Section 8. Construction of and Payment for Acquisition Improvements.
(a) Plans and Specifications. Bonding and Insurance Requirements. The Developer
represents that it has obtained or will obtain approval of the plans and specifications for the
Acquisition Improvements from all appropriate City departments, and that all of the Acquisition
Improvements have been or will be constructed by the Developer in compliance with the current
City standards applicable to the construction of public improvements and in compliance with any
applicable State or local law or regulation, including, without limitation, the requirement to pay
prevailing wages. In constructing the Acquisition Improvements, the Developer shall not be
required to comply with any provisions of the Public Contracts Code of California or any other
statute requiring public bidding; provided, however, the Developer shall select its general
contractors on the basis of private, competitive bids. With respect to such contracts:
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(1) All contracts related to the construction of the Acquisition
Improvements, and all change orders thereto, together with the plans and
specifications therefor, shall be submitted, upon request, to the City Engineer (the
"City Engineer") (all references herein to the City Engineer include any official
or designee of the City acting in such capacity) for review and approval of the
cost, quantity and quality of work. The City Engineer shall 0 submit to the
Developer a written approval or denial of any contract or change order
(identifying the reasons therefor) within ten (10) days after receipt by the City
Engineer of the contract or change order. The decision of the City Engineer shall
be final and shall not be unreasonably withheld or delayed. If any contract or
change order is not so denied by the City Engineer within such ten (10) day
period it shall be deemed to be approved.
(2) The Developer shall obtain and pay for performance and
payment bonds satisfactory to the City naming the City as an obligee, each in the
amount of 100% of the .dollar value of the applicable work, prior to
commencement of construction of any Acquisition Improvement. The Developer
shall obtain, pay for and maintain throughout the course of any construction
insurance of the type and minimum amount of coverage as approved by the City,
and naming the City, its officers, employees, and agents as additional insureds.
The insurance provider shall be subject to the reasonable approval of the City.
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Such insurance shall afford primary coverage to the.additional insureds, and
provide that the City be given thirty (30) days prior written notice of cancellation
or any material change in coverage. The Developer shall provide the City with
written evidence satisfactory to it of such payment and performance bonds and
such insurance . prior to commencing construction of any Acquisition
Improvement. Such performance and payment bonds for the Acquisition
Improvements shall not be required if (i) the Developer has entered into a binding
construction contract with the provision that the contractor shall provide such
performance and payment bonds which name the City as a beneficiary, gr (ii) the
Developer has provided the City with deed of trust conveying an interest in the
Property as set forth in Section 6(a) herein, or (iii) Bond proceeds are actually on
deposit in the funds and accounts to pay for the Acquisition Improvements.
(b) Purchase Price.
(1) Determination of Purchase Price. Except as hereinafter
provided, the purchase price (the "Purchase Price") to be paid by the City on
behalf of the District for any Acquisition Improvement shall be determined by the
City Engineer of the City and shall not exceed the cost thereof, including the
reasonable cost of necessary appurtenant works and the costs of preparing plans,
specifications and the construction contracts and all costs of construction
reasonably determined by the Bond Counsel and City Engineer to be eligible
under the Act and applicable federal tax law to be part of the Purchase Price,
such as fees and costs incurred in obtaining permits, licenses, the costs of change
orders, engineering, legal, fiscal and inspection fees and the cost of any
performance and payment bonds or insurance required pursuant to Section 8
herein (other than amounts reimbursed pursuant to Section ) constituting a part
of the Acquisition Improvements. The Purchase Price shall not include costs
attributable to the Developer's overhead, interest payments owing by the
Developer or other carrying costs for the Acquisition Improvements prior to their
acquisition by the City, or costs resulting from extraordinary conditions (such as
shortened time for performance) set forth in any" construction contract.
(2) Substantiation. The Developer shall provide to the City
Engineer all documentation substantiating the cost of the Acquisition
Improvements reasonably requested by the City Engineer. There shall be a
presumption of reasonableness as to costs incurred under any construction
contract entered into as a result of a call for bids by the Developer and for any
IM
(3) Land and Interests Therein. The Purchase Price shall not
include the costs of lands, rights-of-way, easements, or any other interest in
lands.
(4) Dedication of Acquired Improvements in Lieu of Payment.
Prior to the formation of the District, Developer may opt to dedicate the Acquired
Improvements to the City in lieu of the City purchasing such Acquired
Improvements. In the event of agreement of such dedication, Developer shall
receive a credit toward its assessment lien to be imposed on the Property at the
time of formation of the District equal to the Purchase Price of the Acquired
Improvements as set forth in this Section 8(b) if such Acquired Improvements
were to be purchased by the City. Section (a), (c); (d)(1)(B) and (E), (e) and (f)
shall apply to the Acquired Improvements which are dedicated to the City.
(c) Inspection and Acceptance.
(1) ' Inspection. Compliance with Regulations. Prior to the City's
acceptance of any Acquisition Improvement, the Acquisition Improvement shall
be subject to inspection by the City Engineer during normal business hours and
upon reasonable notice. The Developer shall provide the City, prior to the City's
acceptance of any Acquisition Improvement, with (1) as -built drawings or similar
plans and specifications in a form complying with applicable City requirements;
(ii) evidence satisfactory to the City Engineer that costs of constructing the
Acquisition Improvement have been fully paid by the Developer; and (iii) all
maintenance bonds, warranties, guaranties or other evidence of contingent
obligations of third parties relating to the Acquisition Improvement, and any
assignment thereof (with the assignments to become effective as of the date the
City accepts such Acquisition Improvement).
(2) Acceptance. When fully completed, each Acquisition
Improvement shall be accepted the City in accordance with applicable City policy.
All documentation evidencing the Developer's offer to transfer of any Acquisition
Improvement to the City for consideration, together with the documentation
described in Section 8(c)(1) of this Agreement, shall be delivered to the City
Engineer prior to the City's acceptance of the Acquisition Improvement. No
Acquisition Improvement shall be accepted unless it is ready for use by the City
or the public, based on applicable City standards relating to construction of public
improvements, or unless it is a discrete portion of an Acquisition Improvement,
as defined in Section 8(d)(2) of this Agreement. Upon acceptance of an
Acquisition Improvement, the City shall promptly acquire the Acquisition
Improvement from the Developer by paying the Purchase Price for the
Acquisition Improvement pursuant to Section 8(d) of this Agreement; provided,
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however, that the Acquisition Improvement has been constructed in compliance
with the approved plans and specifications for such Acquisition Improvement, and
the City has complied with any conditions imposed by the Bond Resolution for
release of the Purchase Price from the Improvement Fund. Neither the City nor
any other public agency shall accept liability or responsibility for any Acquisition
Improvement, or. the maintenance thereof, until the City has accepted the
Acquisition Improvement pursuant to this Section 8(c)(2).
(d) Payment of Purchase Price.
(1) Completed Acquisition Improvement. At the time. the
Developer requests that the City accept an Acquisition Improvement, the
Developer also may request in writing, on the for Payment Request form ("PR")
attached hereto as Exhibit "E" and incorporated by reference herein, payment of
the Purchase Price for the Acquisition Improvement from amounts on deposit in
the Improvement Fund.
A. Timing: Amount. Developer may submit only one (1)
new PR per calendar month. The Purchase Price for any Acquisition
Improvement, when added to all other funds previously requested by
the Developer pursuant to an PR, shall not exceed the total of the
budgeted amounts available in the Improvement Fund for payment by
the City of the Purchase Price for all Acquisition Improvements to be
acquired (the "Budgeted Amounts"), as those Budgeted Amounts shall
be mutually agreed upon and modified from time to time and attached
hereto now or in the future as Exhibit "F"; provided, however, that the
Budgeted Amounts for- each Acquisition Improvement or discrete
portion thereof are not intended to be absolute limits on the Purchase
Price of that Acquisition Improvement or discrete portion thereof, and
any cost savings on a particular Acquisition Improvement or discrete
portion thereof may, at the option of the City Engineer and subject to
Section 8fb) of this Agreement, be offset against costs in excess of
those set forth on Exhibit "F" for another Acquisition Improvement or
discrete portion thereof. However, in no event shall the aggregate
Purchase Price for all Acquisition Improvements exceed the aggregate
amount set forth in Exhibit "F" which comprise the Purchase Price for
all of the Acquisition Improvements.
B. Documentation. Any PR submitted by the Developer
shall be properly executed and- shall include all supporting
documentation required by the City Engineer. The Developer also
shall submit, in recordable form, a Notice of Completion for the
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applicable Acquisition Improvement, acceptable to the City Engineer,
and evidence acceptable to the City Attorney of the City (the "City
Attorney") that the Developer's contractor(s) have provided general
lien releases for the Acquisition Improvement or portion thereof to be
acquired. No Notice of Completion shall be required to be submitted
for an Acquisition Improvement, or portion thereof, unless there is no
other work to be performed under the contract pursuant to which it
was constructed.
C. Review of PR. The City Engineer shall review each
PR and inform the Developer in writing within ten (10) days after
receipt thereof, the reasons, if any, for his denial of all or any portion
of the funds requested by the PR. If not so denied within ten (10)
days, the PR shall be deemed approved. The Developer shall have the
right to challenge the denial by submitting further documentation
and/or to resubmit the PR within thirty (30) days after receipt of the
denial. A resubmittal shall not be deemed a new PR for purposes of
Section 8(d)(1)(A) of this Agreement. The City Engineer shall review
any resubmitted PR and inform the Developer of his approval or denial
of it in accordance with this Section 8(d () 1)(C) within ten (10) days
after receipt of the resubmission. The decision of the City Engineer
regarding a PR, or any resubmitted PR, shall be final and the City
Engineer's approval of any PR shall not be unreasonably withheld or
denied.
D. Pa men . The City shall pay to the Developer the
Purchase Price requested in the PR within forty-five (45) days after
receipt of an PR, or resubmittal of.an PR, which is not timely denied
by the City Engineer; provided, however, that payment shall be subject
to Section 8(d�(11(E) of this Agreement.
E. Notice of Completion. The Developer shall prepare
and execute a Notice of Completion in form -acceptable to the City
Engineer as to each of the Acquisition Improvements to be acquired
and record such notice with the Office of the County Recorder of the
County of Los Angeles, State of California, and cause its contractor
to provide general lien releases in form acceptable to the City Attorney
for any the Acquisition Improvement, or portion thereof for which an
PR is submitted. The City shall be entitled to delay payment to the
Developer for any Acquisition Improvement, or for any discrete
portion of an Acquisition Improvement, until thirty-five (35) days after
a Notice of Completion with respect thereto has been so filed by the
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Developer. No Notice of Completion shall be required to be filed for
an Acquisition Improvement, or portion thereof, unless there is no
other work to be performed under the contract pursuant to which it
was constructed.
(2) Discrete Portions of Acquisition Improvements. The
Developer may submit an PR in accordance with the provisions of Section 8(d)(1)
for certain discrete portions of those Acquisition Improvements described on
Exhibit "E" attached hereto and incorporated by reference herein. Developer
acknowledges that discrete portions of Acquisition Improvements have been
identified for payment purposes only, and that the City shall not accept an
Acquisition Improvement of which a discrete portion -is a part until the entire
Acquisition Improvement has been completed.
(3) Excess Funds. If the Developer requests payment for any
Acquisition Improvement or discrete portion thereof in an amount less than the
Budgeted Amount as set forth on Exhibit "F", for the Acquisition Improvement
or discrete portion thereof, the difference between the amount requested by the
Developer and the Budgeted Amount shall at the option of the City Engineer be
made available for purchasing other Acquisition Improvements or discrete
portions thereof. The City shall not make payments for Acquisition
Improvements in excess of the aggregate of the amounts set forth on Exhibit "F"
which comprise the Purchase Price for all of the Acquisition Improvements.
Upon completion and acceptance of, and payment for, all of the Acquisition
Improvements, any excess funds remaining in the Improvement Fund shall be
applied as determined by the City under the Act in accordance with the Bond
Resolution.
(e) Transfer of Ownership of the Acquisition Improvements. The Developer shall
convey the Acquisition Improvements to the City as follows:
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(1) Real Property. For any Acquisition Improvement constructed
on real property owned by the Developer and to be transferred to the City,
following submission to the City of the Developer's PR and all documentation
necessary for the City's acceptance of the Acquisition Improvement, the
Developer shall convey such real property to the City by recordation of a deed
in form acceptable to the City. Prior to such conveyance the Developer shall
maintain the Acquisition Improvement in good and safe condition and repair.
(2) Acquisition Improvements Constructed on Land Owned by
City. If an Acquisition Improvement is constructed on real property to which the
City holds fee title or easement rights, the Developer hereby is granted a license
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to enter the real property for purposes related to the construction and maintenance
(prior to acquisition by the City hereunder) of. the Acquisition Improvement.
Upon completion of construction of the Acquisition Improvement, the City shall
accept and acquire the Acquisition Improvement from the Developer in
accordance with the provisions of Sections 8(c) and (d) of this Agreement.
(3) Personal Property. If any Acquisition Improvement identified
on Exhibit "B" is comprised of includes personal property, transfer of the
personal property by the Developer to the City shall be accomplished by a bill of
sale after acceptance by the City in accordance with Section 8(c)(2).
(f) Payment of Excess Costs. The Developer hereby agrees to pay all costs of the
Acquisition Improvements in excess of the Budgeted Amounts as set forth in Exhibit ""F"
hereto, as such Budgeted Amounts may be adjusted by the City Engineer pursuant to Section
8_(d)(1)(A) of this Agreement.
Section'" 10. Indemnification and Hold Harmless.
(a) The Developer shall indemnify, defend and hold .harmless the City, its officers,
directors, employees and agents, and each and every one of them, from and against all actions,
damages,. claims, losses or expenses of every kind, nature and description arising out of this
Agreement; or the design, engineering and construction of the Acquisition Improvements,
including, but not limited to, any claims of persons employed to construct the Acquisition
Improvements, save and except the negligence or willful misconduct of the person or entity
seeking such indemnity. The City agrees to cooperate with the Developer in reasonable action
necessary to collect amounts payable by third persons responsible for such damages, claims,
losses or expenses or under any warranties, guarantees or other evidence of contingent
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Section '"
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obligations of third persons with respect to^^
Before paving any claim by a third party for
(b) No provision of this Agreement shall in any way limit the Developer's
responsibility for payment of damages resulting from the operations of the Developer, its agents,
employees or its contractors.
(c) Nothing in this Section ^ 10 shall be understood or construed to mean that the
Developer agrees to indemnify the City or the District, or any of their respective officials,
officers, employees or agents, for any negligent or wrongful acts or omissions to act of the City,
the District, bond counsel, the underwriter, financial advisors, appraisers, special tax consultants
or other financing participants, or any of their respective officers, directors, employees or
agents.
Section " 11. AgO. The City Engineer or the designee thereof shall have the right,
upon reasonable prior notice and during normal business hours, to review the Developer's books
and records pertaining to costs and expenses incurred by the Developer in constructing any of
the Acquisition Improvements. The costs of any such review shall be borne by the Developer.
Section ^ 12. No Relationship to Public Works. The parties hereto agree that this
Agreement is for the acquisition (or dedication if such option is chosen by Developer) of the
Acquisition Improvements.by the City from the proceeds of the sale of the Bonds deposited in
the Improvement Fund and is not, nor is it intended to be, a public works contract. In
performing this Agreement, the Developer is an independent contractor and not the agent of the
City. The City shall have no responsibility for payment to any contractor or supplier of the
Developer.
Section t 13. Attorneys' Fees. In the event of the bringing of any action or suit by
either party against the arising out of this Agreement, the prevailing party shall be entitled to
recover from the other party all costs and expenses of suit, including court costs and reasonable
attorneys'- fees.
Section =t 14. Notices. Any notice, payment or instrument required or permitted by
this Agreement to be given or delivered to either party shall be deemed to have been received
when personally delivered or within seventy-two (72) hours following deposit of the same in any
United States Post Office in California, registered or certified mail, postage prepaid, addressed
as follows:
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Developer: AMCAL Diversified Corporation
31324 Via Colinas, Suite 108
Westlake Village, California 91362
Attention: Mr. Percival Vaz
with a copy to: Cox, Castle & Nicholson
2049 Century Park East, Suite 2800
Los Angeles, California 90067
Attention: Lewis G. Feldman, Esq.
City: City of Santa Clarita
23920 Valencia Boulevard, Suite 300
Santa Clarita, California 91355
Attention: City Manager & City Engineer
with a copy to: Burke, Williams & Sorensen
611 West Sixth Street, 25th Floor
Los Angeles, California 90017
Attention: Carl K.. Newton, City Attorney
Each party may change its address or addresses for delivery of notice by delivering
written notice of the change of address to the other party.
Section 15. Severability; Governing Law. If any part of this Agreement is held
to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible. This Agreement shall
be governed by the laws of the State of California.
Section 16. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the successors -in -interest, heirs and assigns of the parties hereto. This
Agreement may not be assigned by the Developer without the prior written consent of the City.
In connection with any such assignment for which consent of the City is required, the City may
condition its consent upon the acceptability of the financial condition of the proposed assignee
and upon any other factor which the City deems relevant in the circumstances.
Section A 17. Limited Liability of City.. Any and all obligations of the City arising
out of or related to this Agreement are the special and limited obligations of the City, and in the
event payable only from the Improvement Fund. In no event shall the City be obligated to
advance any of its own funds hereunder. No Councilmember, staff member or agent of the City
shall incur any liability hereunder to the Developer or any other party in their individual
capacities by reason of their actions hereunder or execution hereunder.
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Section T18. Waiver, Ownership Rights. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement 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 Agreement thereafter. No provision of this Agreement shall waive or limit in any
way the Developer's rights as an. owner of land within the District.
Section µl9. Merger. This Agreement, together with the Exhibits hereto, supersedes
all prior agreements and representations concerning the subject matter hereof, whether written
or oral, and contains the entire agreement of the parties respecting the matters covered hereby.
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 hereby that is not in writing and signed by all
the parties to this Agreement shall be binding.
Section t 20. Parties in Interest. Nothing in this Agreement, expressed or implied,
is intended to or shall be construed to confer upon or to give to any person or entity other than
the City and the Developer any rights, remedies or claims under or by reason of this
Agreement or any covenants, conditions or stipulations hereof; and all covenants, conditions,
promises, and agreements in this Agreement contained by or on behalf of the City or the
Developer shall be for the sole and exclusive benefit of the City and the Developer.
Section " 21. Usage of Words. As used herein, the singular or any word includes
the plural, and terms in the masculine gender shall include the feminine.
Section t.22. Implied Standard of Reasonableness. Any provision of this
Agreement which requires the consent, approval, discretion or acceptance of either parties hereto
or any of their respective employees, officers or agents shall be deemedto require that such
consent, approval, discretion or acceptance shall not be unreasonably withheld or delayed, unless
such provision expressly incorporates a different standard. The foregoing provisions shall not
apply to provisions in the Agreement which provide for decisions to be in the full discretion of
the party malting the decision.
Section " 23. No Personal Obligation '. This Agreement in and of itself does not
represent a personal obligation of ^ anv officer of Developer, its successors or assigns.
Section 24. Venue and Forum. Any action at law or in equity arising under this
Agreement brought by any party hereto for the purpose of enforcing, construing or determining
the validity of any provision of this Agreement 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.
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Section 225. Counterparts. This Agreement maybe executed in counter -parts, each
of which shall be deemed an original.
Section 26. Amendments. Amendments to this Agreement shall be made only by
written instrument executed by. each of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
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CITY OF SANTA CLARITA, CALIFORNIA
By:
Title:
DEVELOPER:
AMCAL GOLDEN FUND XXVIII,
a California limited partners
By:
Title:
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Its general partner