HomeMy WebLinkAbout3190; Mag Properties; 2003-0153044; Other, RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
DOC # 2003-0153044
FEE 3-09 2003 4:45 PM
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT FOR
CONSTRUCTION WITHIN THE CITY OF CARLSBAD,
RANCHO SANTA FE ROAD REALIGNMENT AND WIDENING,
PHASE 1, PROJECT NO. 3190
BETWEEN
CITY OF CARLSBAD,
A Municipal Corporation
AND
MAG PROPERTIES
AGREEMENT BETWEEN THE CITY OF CARLSBAD AND
MAG PROPERTIES FOR CONSTRUCTION WITHIN THE CITY
OF CARLSBAD, RANCHO SANTA FE ROAD REALIGNMENT
AND WIDENING, PHASE 1, PROJECT NO. 3190
THIS AGREEMENT, executed the am day of %%= , 2002 is by and
between the CITY OF CARLSBAD, a municipal corporation, (“City”), and MAG PROPERTIES, a
California General Partnership (“MAG”) (collectively The “Parties”).
RECITALS
A. MAG is in the process of seeking discretionary approvals from the City for developing
that certain real property located in the City of Carlsbad, California generally described in
Exhibit “A”, attached hereto and made a part hereof.
B. The MAG property is located within the boundaries of a proposed Community Facilities
District known as Community Facilities District No. 2 - Rancho Santa Fe and Olivenhain
Road (“CFD 2”). MAG will be required to execute the City’s Petition, Waiver and
Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share,
in connection therewith, (the “Petition”) to finance construction of Rancho Santa Fe
Road as more particularly described therein and as required by any City conditions of
approval to develop the MAG property.
C. The Parties agree that the construction of Rancho Santa Fe Road is of great importance
to both parties. The alignment of Rancho Santa Fe Road generally bisects the MAG
property.
D. The Parties agree that cost savings can be achieved by having portions of MAG’s
obligations for Rancho Santa Fe Road, Phase I constructed as part of the City road
construction project.
E. The Parties acknowledge that Government Code Section 66485 allows the City to
require a sub-divider to construct improvements benefiting property outside the
subdivision; and in such circumstances, Section 66486 requires the City to enter into a
reimbursement agreement for such improvements. The Parties intend that this
Agreement satisfy the requirements of Government Code Section 66486.
F. The Rancho Santa Fe Road realignment is a City project for which the City has
collected, and will continue to collect, funds from the developers of projects located
within the boundaries of the proposed CFD No. 2, as well as contributing Citywide CFD
No. 1 Funds and financing from other governmental sources. For purposes of this
Agreement the City’s financing program and resulting funds, whether collected prior to or
after formation of the proposed CFD No. 2, are referred to herein as “Financing Program
Funds.”
NOW, THEREFORE, the City and MAG agree as follows:
1. Recitals. The Recitals are true and correct and incorporated herein by this reference.
2. Reimbursable Work. The portion of the MAG’s overall Rancho Santa Fe Road, Phase 1
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improvements which is the subject of this Agreement is hereafter referred to as the
"Reimbursable Work." The Reimbursable Work is fully described in "Scope of
Reimbursable Work and Cost Summary" attached hereto as Exhibit "B and made a part
hereof, and generally consists of the construction of pavement and base for the outside
twelve (12) feet of the roadway plus right turn lanes, the outside curb & gutters, median
hardscape, storm drain inlets, joint utility trench, sleeves for electric conduits, sleeves for
irrigation piping and controller wiring within the boundary of the Project, design costs to
include these facilities in the City plans and specifications, project management and
inspection, materials testing and project administration. Reimbursable work does not
include any other expenses that MAG would not incur if MAG constructed the
improvements under a private contract.
3. General Citv Obliqations.
City shall prepare the necessary plans, specifications, and other design and bid
documentation for Rancho Santa Fe Road, Phase 1 Work. These plans and
specifications are identified as City of Carlsbad Project No. 3190, Drawing No.
368-2.
City has obtained, or will obtain, all easements and rights-of-way required to
complete construction of the work.
City shall pay the expenses of inspections and environmental monitoring for the
Phase 1 work directly from the Financing Program Funds and shall provide those
services directly.
City has obtained, or will obtain, all required environmental and other permits for
the Phase 1 work. City agrees to process any environmental and other permits
related to the Phase 1 work which may fall under City jurisdiction in a timely
manner, and shall not unreasonably withhold or delay approval of any other
permits needed for the Phase 1 work.
During the performance of any Reimbursable Work, City shall retain detailed
payment records for all items of Reimbursable Work.
4. General MAG Obliqations.
(a) By entering into this Agreement, MAG waives any and all potential constitutional
objections (Nolan/Dolan) relating to the Rancho Santa Fe Road, Phase 1
improvements.
(b) MAG agrees to reimburse the City for the cost of constructing the reimbursable
items as shown on Exhibit "B" at the issuance of the first building permit for any
portion of the MAG property.
5. Biddinq.
With respect to all hard costs of construction comprising the Reimbursable Work, City
shall advertise for bids from reputable contractors. Reimbursable Work will be bid and
contracted together with the Phase 1 work. Upon selection of the lowest responsible
bidder, the costs thereof shall be allocated as necessary among the categories
consistent with the method and process used in Exhibit "B". The Parties agree that
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Exhibit "B" is a fair allocation of the costs under such contract as among the components
of Reimbursable Work. Costs shown in Exhibit "B" are subject to modification through
change orders consistent with Paragraph 6(e) of this Agreement.
6. Reimbursable Expenses.
(a) Expenses for Reimbursable Work (including without limitation City's overhead
and allowance permitted under Section 6(c) below) are referred to herein
collectively as "Reimbursable Expenses."
(b) MAG's reimbursement obligations hereunder shall be based upon the actual
costs incurred by City in contracting for the Reimbursable Work (in addition to
City's overhead and the allowances specified in Section 6(c) below).
(c) Not withstanding anything herein to the contrary, in addition to the actual costs
for Reimbursable work incurred by City, MAG specifically agrees that each of the
following shall be deemed Reimbursable:
(i) Proportionate share of costs paid by City for project management and
inspection relating to the Reimbursable Work.
(ii) Proportionate share of cost paid by City for materials testing for the
reimbursable work.
(iii) Proportionate share of cost paid by City for engineering construction
support relating to the reimbursable work.
(d) Reimbursable work will be deemed complete upon the City's receipt of all final
lien releases, approvals, certificates, and City's approval of the construction
punch list.
7. Payment of Reimbursable Expenses.
(a) Payment of Reimbursable Expenses shall be made as specified in Section 4(b)
above.
(b) Except as noted in Section 7(a) above, payment of any Reimbursable Expenses
under this Agreement shall not be reduced for fees or charges that may be
payable as a condition of obtaining permits for the development of any portion of
MAG properties or MAG's other projects. City shall not offset MAG's
reimbursement under this Agreement against any other obligation of any person.
(c) The City shall not unreasonably withhold, condition or delay acceptance of the
Reimbursable Work.
(d) The Parties agree that the sole source of reimbursement shall be MAG's funds.
8. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of
this Agreement, the following procedure shall be used to initially resolve any question of
fact or interpretation not informally resolved by the parties. Such questions, if they
become identified as a part of a dispute among persons operating under the provisions
of this Agreement shall be reduced to writing by the principal of MAG or the Director. A
copy of such documented dispute shall be forwarded to the other party involved along
with proposed methods of resolution that would be of benefit to both parties. The
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Director, or principal, upon receipt, shall reply to the letter, including a proposed method
of resolution within ten (IO) days. If the proposed resolution is unsatisfactory to the
aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for
their resolution through the office of the City Manager as soon as practicable. The City
Council may, but is not obligated to resolve the dispute. If the City Council considers the
dispute, and directs a solution, the action of the City Council shall be binding upon the
parties for purposes of processing any Reimbursement Requests, provided however,
nothing in this Agreement shall prohibit the parties from seeking remedies available to
them at law or equity.
9. Assisnment of Contract. The City shall not assign this contract or any part thereof or
any monies due hereunder without the prior written consent of the MAG, which consent
shall not be unreasonably withheld, delayed or conditioned.
IO. Notices. U nless o therwise s pecifically p rovided h erein, a II notices, d emands or other
communications given hereunder shall be in writing and shall be deemed to have been
duly delivered upon personal delivery, or by Federal Express (or similar reputable
express delivery service), or by facsimile transmission with back-up copy mailed the
same day, or as of the second business day after mailing by United States Certified Mail,
return receipt requested, postage prepaid, address as specified herein. Notices required
to be given to MAG shall be addressed as follows:
Theodore A. Aroney
7750 El Camino Real, Suite 2G
Carlsbad, CA 92009
and
Betty L. Mabee and Larry Mabee
Successor Co-Trustees of Mabee Family Trust Dated October 4, 2001
Mabee Properties
3838 Camino del Rio North, Suite 222
San Diego, CA 92108
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Engineering Department
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
I. MODIFICATIONS
This Agreement may not be modified, amended, or otherwise changed unless by an
amendment, in writing, executed by both parties.
II. COUNTERPARTS
This Agreement may be executed by The Parties in separate counterparts, each of
which when so executed shall be an original, but all such counterparts shall constitute
one and the same instrument.
Ill. CHOICE OF LAW
This Agreement shall be governed by the laws of the State of California and venue shall
be proper in the San Diego Superior Court, North County Branch.
IV. SEVERABILITY
If o ne or m ore c lauses, sentences, paragraphs, p rovision o r terms of this Agreement
shall be held unlawful, invalid, or unenforceable, it is hereby agreed by the Parties that
the remainder of this Agreement shall not be affected thereby.
V. HEADINGS
The headings of articles and paragraphs of this Agreement are for convenience only,
and no presumption or implication of the intent of the parties as to the construction of
this Agreement shall be drawn therefrom.
Ill
Ill
Ill
Ill
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* VI. COMPLETE AGREEMENT
The forgoing constitutes the full and complete agreement of the parties. There are no
oral understandings or agreements not set forth in writing herein.
IN WITNESS WHEREOF, this Agreement is executed by City and MAG pursuant to
action taken by the City Council of Carlsbad and the Partners of the MAG Partnership.
MAG PROPERTIES, a California General
I ATTES * &a/l$YmL
\I I - L#rraine M. Wood, City Clerk
If required by City, proper notarial acknowledgement of execution by contractor must be
attached. If a Comoration, Agreement must be signed by one corporate officer from each of the
following two groups.
*Group A
Chairman,
President, or
Vice-president
**Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Page 7 of 7
State of
County of Sm b >mo
On xvlhcU- I \ 200. before me, AIY]CLnd& st P %% rl't5 k
CJ
Name and Title oi Omcar (e.g..fiane Doe. Notary Puolic")
personally appeared ~nr~. A. Amnad 8
0 personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person&
Nbma(s) of Signer@) P whose narneMis/&&qsubscribed to the within instrument
and acknowledged to me that he/- executed the
same in hislh&ib& authorized capacity(W, and that by
hisibshetr signatureo-on the instrument the person(%
or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
>. . .I
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
Name and Tltle of Officer (e.g , "Jane Doe, Notary Publi')
personally appeared Be- La \Wcxbe- d Name@) of Slgner(s)
mrsonally known to me
0 proved to me on the basis of satisfactory
to be the person!&'whose name# is/&&
subscribed to the within instrument and
acknowledged to me thatJMsheltb@ executed
the same in PISlher/ttJefr authorized
capacity(M), and that by plslherl~
signaturem on the instrument the person(,$ or
the entity upon behalf of which the personj0f
acted, executed the instrument.
WITNESS my hand and official seal.
Azbuaw%"- Signature of Notary Publlc
Though the information below is not required by law, it may prove valuable to persons relying OR the document and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Corporate Officer - Title(+:
Partner - 0 Limited 0 General
0 Attorney-in-Fact
Signer Is Representing:
0 1999 Nallonal Notary Associallon 9350 De Solo Ave , P.0. Box 2402 - Chatsworih. CA 91313-2402 * w.natlonalnolary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6627
EXHIBIT “A”
MAG PROPERTY DESCRIPTION
THAT PORTION OF SECTION 31, TOWNSHIP 12 SOUTH, RANGE 3 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, AS
DESCRIBED AS PARCEL “A OF CERTIFICATE OF COMPLIANCE RECORDED
RECORDS, CERTIFICATE OF COMPLIANCE RECORDED JULY 2, 1982 AS
LAND AS DESCRIBED IN QUITCLAIM DEED TO MAG PROPERTY RECORDED
PARCEL “B” OF LAND AS DESCRIBED IN QUITCLAIM DEED TO MAG PROPERTY
RECORDS.
DECEMBER 15, 1989 AS DOCUMENT NUMBER 89-680019 OF OFFICIAL
DOCUMENT NUMBER 82-207275 OF OFFICIAL RECORDS, THAT PORTION OF
JANUARY 30, 2002 AS FILE NO. 2002-0079623 OF OFFICIAL RECORDS AND
RECORDED JANUARY 30, 2002 AS FILE NO. 2002-0079622 OF OFFICIAL
,. EXHIBIT "B"
"SCOPE OF REIMBURSABLE WORK AND COST SUMMARY"
RANCHO SANTA FE ROAD NORTH, PHASE 1
CITY/MAG
I Subtotal Schedules $3,081,370 $ 312,225
Contingency 10%
Total Schedules
Inspection & Testing 12%
Contract Administration 2%
Construction Support 5 yo
TOTAL
$ 308,137
$3,389,507
$ 406,741
$ 67,790
$ 169,475 $ 17,172
$4,03331 3 $ 408,703
NOTES
1 Schedules and Item No.'s refer to Bid Schedules for Rancho Santa Fe Road, Phase 1, Project No. 3190-1
2 Unit Costs to be updated from City accepted Bid.
3 Inlet costs are split 50/50 between City & MAG.
Prepared: August 26,2002
Rev.: October 22, 2002 By: Helming Engineering, Inc. Page 1 of 1