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Home My WebLink About3190; Real Estate Collateral Management Company; 2003-0153173; Reimbursement Agreement/Release* RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 DOC # 2003-0153173 OFFICIAL RECORDS SCIN DIEGO COUNTY RECRDER'S OFFICE FEES: 44.00 GREGORY J. SMITH, CDUNTY KECDRDER SPACE ABOVE THIS LINE FOR RECORDER'S USE REIMBURSEMENT 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 REAL ESTATE COLLATERAL MANAGEMENT COMPANY 1 3 REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND REAL ESTATE COLLATERAL MANAGEMENT COMPANY FOR CONSTRUCTION WITHIN THE CITY OF CARLSBAD, RANCHO SANTA FE ROAD REALIGNMENT AND WIDENING, PHASE 1, PROJECT NO. 3190 This Agreement for Reimbursement of Construction Costs for portions of Rancho Santa Fe Road Phase 1, dated as ofmHaw;L y , 2002 ("Agreement"), is made at the City of Carlsbad, San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation ("City") and Real Estate Collateral Management Company, a Delaware corporation ("Developer"), collectively ("the Parties"), with reference to the following recitals: RECITALS A. Developer is in the process of developing that certain real property located in the City of Carlsbad, California generally shown on Exhibit "A", attached hereto and made a part hereof, as the La Costa Oaks portion of the overall Villages of La Costa Master Plan. B. Developer filed separate applications for master tentative subdivision map and related approvals with respect to La Costa Oaks ("Project"). The Project has been granted City approvals including without limitation: Tentative Subdivision Map (CT 99-04), Planned Unit Development Permit (PUD 01-08), and Hillside Development Permit (HDP 99-02), all incorporated into and approved by City per City Council Resolution No. 2001-3 18, on October 23,200 1, (collectively the "Approvals"). C. The Project 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") and Developer has executed the 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 the Approvals. Developer is required to pay its fair share assessment under the Petition at filing of final maps for the project. D. 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 Project and Developer is currently grading the Project, which provides an opportunity to closely coordinate construction of both the Project and Rancho Santa Fe Road Realignment and Widening, Phase 1, Project No. 3190 (the "RSF Phase1 Work"). E. The Parties agree that cost savings can be achieved by having portions of Developer's outside lane obligations for RSF Phase 1 Work constructed as part of the City road construction project. 2 AB #16,977 Resolution No. 2002-337 F. 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. G. The Agreement for Reimbursement of Construction Costs for a Portion of Rancho Santa Fe Road North of La Costa Avenue between the Parties, dated June 7,2002, Section 3.(g) states “City agrees to construct, with reimbursement from Developer, Developer’s portion of the outside curb & gutter, pavement, and base within the limits of the Project as part of Rancho Santa Fe Road Phase 1 construction. Reimbursement for these facilities and any others to be constructed by City for Developer shall be spelled out in a separate reimbursement agreement prior to award of contract by City for the Phase 1 construction.” H. The Agreement for Reimbursement of Construction Costs for a Portion of Rancho Santa Fe Road North of La Costa Avenue between the Parties, dated June 7,2002, Section 4.(h) states “Developer agrees to enter into a reimbursement agreement with City for reimbursement of outside curb & gutter, pavement and base within the limits of the Project as part of Rancho Santa Fe Road Phase 1 construction. The reimbursement agreement shall be executed prior to award of contract by City for the Phase 1 construction.” I. 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 Developer agree as follows: 1. Recitals. The Recitals are true and correct and incorporated herein by this reference. 2. Reimbursable Work. The portion of the Developer’s overall Rancho Santa Fe Road, Phase 1 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 ”BI’ and made a part hereof, and Scope of Reimbursable Work and Estimated Cost Summary” attached hereto as Exhibit “C” 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 and bus turn outs, the outside curb & gutters, storm drain pipes, curb inlets and inlet local depressions, joint utility trench, sleeves for electric conduits, sleeves for irrigation piping and controller wiring within the boundary of the Project, and the construction of the wildlife crossing and design costs to include these facilities in the City plans and specifications. Reimbursable Work does not include any other expenses that Developer would not incur if Developer constructed the improvements under a private contract. 3 3. General City Obligations. 4. City shall prepare the necessary plans, specifications, and other design a md bid documentation for RSF 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 environmental monitoring for the RSF 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 RSF Phase 1 Work. City agrees to process any environmental and other permits related to the RSF 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 RSF Phase 1 Work. During the performance of any Reimbursable Work, City shall retain detailed payment records for all items of Reimbursable Work. General Developer Obligations. By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Rancho Santa Fe Road, Phase 1 improvements. Developer agrees to deposit with City, within thirty (30) calendar days of the date the City Council accepts the lowest responsible bid for the RSF Phase 1 Work, the estimated costs of the portion of Reimbursable Work as shown on Exhibit “B”. Developer agrees to reimburse City for the cost of that portion of the Reimbursable Work northerly of the HCP as shown on Exhibit “C” at the earliest of (i) prior to the City Council Approval of the first final map for the La Costa Oaks North area; (ii) the final accounting for the Financing Program Funds or; (iii) June 30, 2010. Developer agrees to reimburse City for the cost of the Wildlife Crossing, Item No. A-65 of Exhibit “C”, at the time the final accounting for the Financing Program Funds is undertaken or June 30,2010 whichever occurs first. 4 5. Bidding. With respect to all hard costs of construction comprising the Reimbursable Work, City shall advertise 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 Exhibits “B” and “C” which amounts shall then represent the agreed cost of Reimbursable Work, subject to change orders. The Parties agree that Exhibits “B” and “C” are a fair allocation of the costs under such contract as among the components of Reimbursable Work. Costs shown in Exhibits “B” and “C” 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) Developer’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) Notwithstanding anything herein to the contrary, in addition to the actual costs for Reimbursable work incurred by City, Developer specifically agrees that each of the following shall be deemed Reimbursable: (i) Proportionate share of costs paid by City for inspection and testing relating to the Reimbursable Work. (ii) Proportionate share of cost paid by City for contract administration for the Reimbursable Work. (iii) The cost to redesign the City’s project plans, City Drawing No. 368-2, to reflect the work on Rancho Santa Fe Road performed by Developer as part of City Drawing No. 368-2C. This cost is shown on Exhibit “B”. (iv) Proportionate share of cost paid by City for construction support as that construction support relates to the Reimbursable Work. For the Reimbursable Work included on Exhibit “B”, payment for construction support shall be included in the final recalculation of the costs as defined in Section 7(e) below. (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. 5 (e) All change orders affecting the Reimbursable Work shall be subject to approval by the Parties. At the time of approval, the Parties shall also determine the portion of the change order allocated to separate components of Reimbursable Work. Within ten (10) days following City approval of any change order affecting the Reimbursable Work, Developer shall deposit with City, the actual cost, if any, necessary to fund the change order. 6. Payment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made as specified in Section 4(b) above. (b) 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 La Costa Oaks or Developer’s other projects. City shall not offset Developer’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 Developer’s funds. Developer represents and warrants it has sufficient funds presently available to make the deposit as provided herein. (e) Within thirty (30) days from completion of the Reimbursable Work as provided in Section 6(d) above, the City and Developer shall make a final recalculation of the costs of Reimbursable Work. Within thirty (30) days of the completion of the final recalculation, any overpayment for the reimbursable Work shown on Exhibit “B” shall be refunded to Developer or any underpayment paid by Developer. 7. DisputesKlaims. 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 Developer 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 Director, or principal, upon receipt, shall reply to the letter, including a proposed method of resolution within ten (10) 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. 6 8. 9. 10. 11. 12. 13. Assignment 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 Developer, which consent shall not be unreasonably withheld, delayed or conditioned. Notices. Unless otherwise specifically provided herein, all notices, demands 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 Developer shall be addressed as follows: REAL ESTATE COLLATERAL MANAGEMENT COMPANY c/o Morrow Development, Inc. Attention: Fred M. Arbuckle, President 1903 Wright Place, Suite 180 Carlsbad, CA 92008 Telephone: (760) 929-2701 FAX: (760) 929-2705 Notices to City shall be delivered to the following: CITY OF CARLSBAD Engineering Department Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California and venue shall be in San Diego County, California. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes dl negotiations, discussions, and prior drafts with respect to this subject matter. Amendment. This Agreement may be amended only by a written instrument executed by City and Developer. 7 14. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the date the Developer fully pays City its Reimbursement Expenses. 15. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity that is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 16. Indemnification. City shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless Developer, its officers, agents, and employees, against any challenges to the award of contract(s) for the Reimbursable Work to contractor(s). Defense costs include the cost of separate counsel for the Developer, if the Developer reasonably requests separate counsel, as well as the payment of any fines or judgments. 17. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. REAL ESTATE COLLATERAL, am 'cip MANAGEMENT COMPANY, a Delaware corporation - - By: - David A. Watts Vice President By: ayor ATTEST: City Clerk APPROVED AS TO FORM: RONM R. BALL, City Attorney By: Deputy City Attorney t//2L/oc 8 . LOT NUMBERS (TYPICAL) EXHIBIT "B" Contingency 10% Total Schedules Inspection & Testing 12% Contract Administration 2% Construction Support 5% TOTAL SOUTH OF HCP $ 323,805 $ $3,561,857 $441,930 $ 427,423 $ 53,032 $ 71,237 $ 8,839 $ 178,093 $ $4,238,610 $ 503,800 DESIGN: COST TO REDESIGN CITY PLANS TO REFLECT WORK PERFORMED BY (Tasks No. 8-1 1, 17 &18 of Dokken Engineering Amendment No. 7) DEVELOPER AS PART OF DRAWING NO. 368-2C. $ 59,725 TOTAL COST TO BE PAID BY DEVELOPER WITHIN 30 CALENDAR DAYS OF AWARD OF CONTRACT $ 563,525 NOTES 1 Schedules and Item No.3 refer to Bid Schedules for Rancho Santa Fe Road, Phase 1, Project No. 3190-1 2 Unit Costs to be up dated from City accepted Bid. 3 Items marked with an * are not listed on the City Bid Schedule but may appear as a change order item during construction. Prepared: August 26,2002 Rev.: October 22, 2002 Rev.: October 30, 2002 By: Helming Engineering, Inc. Page 1 of 1 , .' EXHIBIT "C" "SCOPE OF REIMBURSEABLE WORK AND ESTIMATED COST SUMMARY" RANCHO SANTA FE ROAD, PHASE 1 PORTION NORTH OF HCP 8t WILDLIFE CROSSING c-4 c-5 c-9 c- 10 c- 11 C- 14 C- 15 *C - 23 *C - 24 E C: RECYCLED WATER AND POTABI 8" Recycled Water C 900 Class 150 PVC. 12" Potable Water Class 350 DIP 8" Potable Water Class 350 DIP, Tyton Joint with Poly-Wrap including Fittings 12" Resilient Wedge Gate Valve per WVD Standard Drawing No. W-14 & 8" Resilient Wedge Gate valve per VWD Standard Drawing No. W14 and W16. 2" Irrigation Service per VWD Standard Drawing No. 6-15 1" Air Release and Vacuum Relief Valve per VWD Standard Drawing No. w -2 2" Blow-Off Assembly per WVD Standard Drawing No. W-1 24" X 8" Tee w/TB 12" x 8" Tee w/TB W-16 Total Schedule C " -.- ~ ,E WATER IMPROVEMENTS (VWD Service Area) 34 $ 2,380 34 $ 2,380 $ 70.00 LF 1067 $ 9,265 109 $ 9,265 $ 85.00 LF 109 $ 106,700 1,067 $ 106,700 $ 100.00 LF 6 $ 8,000 4 $ 12,000 $ 2,000.00 EA 1 $ 3,000 2 $ 1,500 $ 1,500.00 EA 5 $ 2,000 1 $ 2,000 $ 2,000.00 EA 1 $ 2,700 3 $ 4,500 $ 900.00 EA 7 $ 9,600 4 $ 16,800 $ 2,400.00 EA 1 !fi 155.645 !fi 144.145 1$ 200 $ 200 $ 200.00 EA 1 1$ 300 $ 300 $ 300.00 EA Prepared: October 22, 2002 Rev.: October 30, 2002 By: Helming Engineering, Inc. Page 1 of 2 9 : .. . EXHIBIT "C" "SCOPE OF REIMBURSEABLE WORK AND ESTIMATED COST SUMMARY" RANCHO SANTA FE ROAD, PHASE 1 PORTION NORTH OF HCP & WILDLIFE CROSSING Total Schedules Inspection & Testing 12% Contract Administration 2% Construction Support 5% TOTAL NORTH OF HCP $ 288,635 $ 48,106 $ 120,265 $ 22,459 $2,862,300 $ 534,521 NOTES 1 Schedules and Item No.'s refer to Bid Schedules for Rancho Santa Fe Road, Phase 1, Project No. 31 90-1 2 Unit Costs to be opdated from City accepted Bid. 3 Items marked with an * are not listed on the City Bid Schedule but may appear as a change order item during construction. WILDLIFE CROSSING A - 65 IWildlife Crossing I 1 I EA I $360,000.00 I $ 360,000 I I 1 I $ 360,000 Subtotal Wildlife Crossing $ 360,000 $ 360,000 Contingency 10% $ 36,000 $ 36,000 Total Wildlife Crossing $396,000 $396,000 Inspection & Testing 12% Contract Administration 2% Construction Support 5% WILDLIFE CROSSING TOTAL $ 47,520 $ 7,920 $ 7,920 $ 19,800 $ 19,800 $ 471,240 $ 471,240 Prepared: October 22, 2002 Rev.: October 30, 2002 By: Helming Engineering, Inc. Page 2 of 2 SATE OF Illinois COUNTY OF Cook ss. On November 1 1,2002, before me, Mary E. Winslow, Notary public PERSONALLY APPEARED, David A. Watts personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal Signature 4- d&