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Home My WebLink AboutCT 01-09; Property Development Centers LLC; 2014-0497221; Reimbursement Agreement/Release7 DOCl lllllllllllil 2014-049722 liiiiliililil RECORDING REQUESTED BY WHEN RECORDED MAILTO; City Clerk CITY OF CARSLBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 Please record this document At no fee as it is to the benefit Of the City of Carlsbad (Gov Code [6103] NOV 14, 2014 11:04 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Emest J. Dronenburg, Jr., COUNTY RECORDER FEES: 48.00 PAGES; 12 SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES ASSOCIATED WITH CT 01-09 (LA COSTA TOWN SQUARE COMMERCIAL) Between CITY OF CARLSBAD AND PROPERTY DEVELOPMENT CENTERS, LLC AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF TRAFFIC SIGNAL AT THE INTERSECTION OF LA COSTA AVENUE AND CAMINO DE LOS COCHES ASSOCIATED WITH CT 01-09 (LA COSTA TOWN SQUARE COMMERCIAL) This Agreement for the reimbursement of costs for the construction of traffic signal at the intersection of La Costa Avenue and Camino de los Coches associated with Carlsbad Tract CT 01-09 (La Costa Town Square Commercial) dated P^\^li^o>J^S 20ii ("Agreement") is made at San Diego County California by and between the City of Carlsbad, a municipal corporation of the State of California ("City"), and Property Development Centers LLC, a Delaware limited liability company ("Developer") (collectively the "Parties"). RECITALS A. Developer is developing certain real property commonly known as La Costa Town Square - Commercial, ("Property"), located in City and more particularly described as CT 01-09 ("Project"); and, B. The Planning Commission of the City adopted Resolution No. 6581 on July 15, 2009, recommending approval of the Project; and, C. The City Council of the City adopted Resolution No. 2009-232 on September 15, 2009 approving the Project; and, D. Condition number 50 of the Planning Commission Resolution No. 6581 requires Developer to design and construct certain public improvements more particularly described as a fully actuated traffic signal including all appurtenances and traffic signal interconnect at the intersection of La Costa Avenue and Camino De Los Coches ("Improvements"). The said condition states that the developer may be eligible for partial reimbursement and a reimbursement agreement must be approved prior to final map recordation; and, E. The Developer has entered into a secured Subdivision Improvement Agreement with City guaranteeing construction of Improvements per the improvement plans DWG 475- 2C dated November 9, 2012 ("Secured Improvement Agreement"), incorporated herein by this reference; and, F. Developer will construct Improvements in accordance with Secured Improvement Agreement and desires to receive partial reimbursement pursuant to condition number 50 ofthe Planning Commission Resolution 6581; and, G. The project's fair share contribution for the construction of the improvements is 61.5 percent of the actual cost determined from the Project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009, and Caltrans Method for Calculating Equitable Mitigation Measures for traffic impact; and, H. Government Code Section 66485 allows the City to require a sub-divider to construct improvements benefiting outside the subdivision; and Government Code Section 66486 requires the City to enter into a reimbursement agreement for such improvements in excess of the construction required for the subdivision. Parties agree that this agreement satisfies the requirements of Govemment Code Section 66486; and, I. The Improvements are budgeted in the amount of $190,000 in the city's Fiscal Year 2013-14 Capital Improvement Program and is funded by the Gas Tax Fund; and, J. City has established procedures entitled "Administrative Procedures for Reimbursable Public Works Projects" ("City Administrative Procedures"), incorporated herein by this reference, which guide the administration of developer constructed projects that receive reimbursement of constmction costs using public funds to ensure compliance with State laws governing the use of publicly funded projects; and, K. A preliminary estimate of cost for design and construction of Improvements has been prepared and attached hereto as Exhibit "A" and made a part hereof by this reference. The Parties acknowledge that Exhibit "A", which was prepared by Developer's engineers, is for illustrative purposes only and that all costs are subject to audit and approval pursuant to City Administrative Procedures; and, L. Upon completion of the Improvements, Developer is eligible for reimbursement of 38.5 percent of the actual cost but not to exceed $73,150, which is 38.5 percent of the City's cost estimate attached hereto as Exhibit "B"; and, M. City and Developer desire to establish a method to fairiy reimburse fees to Developer for the cost to construct Improvements. NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obligation. Developer's agreement to perform the Reimbursable Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to Reimbursable Work. 3. General Developer Obligations. a. Developer will cause the construction of Improvements in substantial compliance with Secured Improvement Agreement, and the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to the Improvements. c. Developer agrees that the Reimbursable Amount recommended in the Improvement Audit prepared in accordance with City Administrative Procedures represents a fair accounting of the costs incurred by the Developer to construct the Improvements and no additional reimbursement and/or credit will be requested from City for the cost to construct the Improvements. 4. General Citv Obligations. a. City shall reimburse funds to Developer for the Reimbursable Amount as described in Section 5 and 6 below. b. All reimbursements made by the City pursuant to the terms of this Agreement shall be made only to Developer, unless othenwise directed, in writing by the Developer, to make reimbursement and/or to grant fee credits to another party. 5. Reimbursable Work. a. The items of Reimbursable Work shall consist of all costs of constmction thereof and all incidental costs of construction of the Improvements eligible for reimbursement under City Code and City Council Policy including the following: 1) Usual and customary design and engineering costs including civil engineering, soils engineering, survey and construction staking, agency fees and permits as they relate to the Improvements only 2) An amount equal to 4.0% of the direct cost of constmction of the Improvements for the Developer's overhead, construction management and supervision, including on-site supervision. 3) An amount equal to 1.8% of the direct cost of construction of the Improvements for the premiums paid by the Developer for blanket liability insurance coverage and for any surety bonds required for the Secured Improvement Agreement. 6. Reimbursement Calculation. The Estimated Reimbursable Amount as determined by the Improvement Construction Estimate and Caltrans Method for Calculating Equitable Mitigation Measures is based on the project's Traffic Impact Analysis, Appendix B of La Costa Town Square Environmental Impact Report, EIR 01-02, dated August 2009. The Estimated Reimbursable amount is equal to 38.5 percent of the actual cost but not to exceed $73,150, which is 38.5 percent of the City's cost estimate attached hereto as Exhibit "B". 7. Pavment of Actual Reimbursement. Payment of the Actual Reimbursement shall be made, by the City within 30 days after submittal of an invoice for payment by Developer. Any invoice submitted by Developer shall be made after approval of the respective audit report by the Deputy Public Works Director in accordance with City Administrative Procedures. 8. Disputes/Claims. If a dispute should arise regarding the perfomiance or interpretation of this Agreement, the following procedure shall be used to 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 Public Works Director of the City ("Director"). A copy of such documented dispute shall be fonwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be fon/varded to the City Council for their resolution through the office of the City Manager 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 involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 9. Assignment of Contract. The Developer may freely assign this contract or any part thereof or any monies due hereunder to any party that succeeds to Developer's obligations under a novation to the Secured Improvement Agreement. Other assignments require written consent of the City 10. Notices, unless othen/vise 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 shown below. Notices required to be given to Developer shall be addressed as follows: Property Development Centers, LLC Attn: David Zylstra, Chief Operating Officer 5918 Stoneridge Mall Road Pleasanton, CA 94588-3229 Telephone: (925) 738-1202 Fax: (925) 738-1206 Notices to City shall be delivered to the following: CITY OF CARLSBAD 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. 11. Transfer bv Developer. : The obligations and benefits of this Agreement may be transferred by Developer to any party that succeeds to Developer's obligations under a novation to the Secured Improvement Agreement. Other transfers require written consent of the City 12. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in North San Diego County California. 13. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 14. Amendment. This Agreement may be amended only by a written instrument executed by both the City and Developer. 15. Term. This Agreement shall be effective as of the date first above written, and shall terminate on August 15, 2020 or sooner if all of the Improvements have been completed and full reimbursement/credits have been given in accordance with the provisions of this Agreement. 16. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual, or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 17. Severabilitv. 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. DEVELOPER Property Development Centers LLC, A Delaware limited liability company By: Safeway Inc., a Delaware corporatioiV itssolfi. member . (sign here) (print name/title) (e-mail address) (sign here) (print nbmenitle) ^ CITY OF CARLSBAD, a municipal corporation of the State of California City Clerk APPROVED AS TO FORM: Celia A. Brewer, City Attorney (e-mail add FORM APPROVED: A proper notarial acknowledgment of/execution by Developer must be attached. jf_a Corporation, 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 must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County On iqfi^feois f California of before me. v'^ilfil f.nM, V^HU^ .(\ < M . - personally appeared ylAUAA (XA^ ' Here Insert Narfie and Title of the OfflceiV Name(s) of Slgner(s) SHELLEY COLLINS Cormnission # 1962114 Notary Public - Cilifornia ^ San Oiego County ^ ^ MyComm. Expires Oec 25.20151 •^<rv'<Hr'ir^M»^«^»i^p>«^|i^P*PvC who proved to me on the basis of satisf^tory evidence to be the persorii^ whose name(^^^/aTe- subscribed to the within instrument and acknowledged that ^ie^htt/ll iHy executed the same in Tig/|^i'/thetf authorized capacity(i^s^ and that by Ti^hiBr/lheir' signature(af^on the instrument the person(^57 Qf the entity upon behalf of which the 5), or person(s)^cted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS Place Notary Seal Above Signature: OPTIONAL — Though the information beiow is not required by iaw, it may prove valuable to persons relying on the document. and couid prevent frauduient removai and reattachment of this form to another document Description of Attached Document Title or Type of Document: Docuinent Date: Numbejxsf Pages: Signer(s) Other Than Named Above: Capaclty(ies) Claimed by Signer(s) Signer's Name: Sic • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee - ' • Guardian or Con§eni/ator • Other: —•p^ Sjgnef Is Representing: RIGHT THUMPr-HINT OF SIGNER TQI^W thumb here ^'u Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here tl 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of lid On fo/i//^ before me, S^'Tt^^/s^//7?^.Klpfe^ ' Date r\ I Here Insert Name and Title of the Officer / ~ personally appeared ^f/(/f/? J. /f 0(/(f f /l/pZ^C^H ^pfcf (/ 7 flame(3) of Signer(s) » 7 ANGELA PARLIAMENT \ Commission # 1935729 | Notary Public - California z z \s^^y Alameda County j J ^^'assy Comm. Expires Jun 5, 20151 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and-otficial seal.. Place Notary Seal Above Signature: OPTIONAL ! of Notary! Though the information beiow is not required by law, it may prove valuabie to persons relying on the document and couid prevent frauduient removai and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: . Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer Is Representing: Signer's Name: • Corporate Officer — Title{s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here a 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) City of Carlsbad TRAFFIC SIGNAL BOND ESTIMATE FOR LA COSTA AVE and CAMINO DE LOS COCHES C.T. 01-09 and 08-03 DWG. No. 475-2C JobNo. 10-1290 Prepared: July 5, 2012 Revised: August 09,2012 Prepared by: O'DAY CONSULTANTS, INC 2710 Loker Avenue West Suite 100 Carlsbad, Califomia 92010 Tel: (760)931-7700 Fax: (760)931-8680 Timothy O. Carroll RCE 55381 Exp. 12/31/12 Date La Costa Town Square Commercial Improvement Plans LA COSTA AVE and CAIMINO DE LOS COCHES Dwg. No. 475-2C Quantity Unit Cost Item Total Traffic Sianal: Traffic Signal (2 X 2 intersection) 1.00 EA $127,050.00 $127,050.00 Striping and Signage LS $3,000.00 Traffic Signal Subtotal: $130,050.00 Total Cost without Contingencies $130,050.00 Contingencies @ 15% $19,507.50 Total Probable Construction Cost $149.557.50 H OL GC O (0 O ^ LU 15 o Si < o o TZ. \-O UJ -5 o cc Q. IXJ z m ? (/) O O < -J Q Z < CO Ui X o o o o UJ Q < o (0 _l < z g 0} o u. u. < QC H UJ H- 0) >-CO -I D O CC o LU