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HomeMy WebLinkAboutCT 96-02; Terraces At Sunny Creek, The; 2002-0000000; Reimbursement Agreement/ReleaseRATIFICATION OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL IMPROVEMENTS TO THE INTERSECTION OF COLLEGE BOULEVARD AND EL CAMINO REAL THIS REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL IMPROVEMENTS TO INTERSECTION OF COLLEGE BOULEVARD AND EL CAMINO REAL, dated as of ld- // 0 & 2002 (Agreement), is made at Carlsbad, California, between THE TERRACES AT SUNNY CREEK, LLC, a California limited liability company (Developer) and the CITY OF CARLSBAD, a municipal corporation of the State of California (City), with reference to the following recitals: A. Developer is processing for development within the City a project known as The Terraces at Sunny Creek, CT 96-02 (Project) located on real property (Property) owned by Developer. A legal description of the Property is attached hereto as Exhibit “A.” B. The Project and Property are located within the City’s Public Facilities Fee (“PFF”) program area. Pursuant to the City’s Municipal Code and per condition 9 of Planning Commission Resolution 4292 as it relates to Carlsbad Tract no. CT 96-02, the Developer must pay a PFF fee to fund the improvements of the PFF Program. As part of the Project, the Developer is required to construct a portion of these improvements outlined in the PFF program. These improvements consist of traffic signal modifications to the intersection of College Boulevard and El Camino Real to accommodate the proposed street improvements for the Project (Traffic Signal Improvements). By constructing a portion of the program improvements, the Developer is eligible for reimbursement costs, as approved by the City pursuant to this Agreement. C. Developer intends to convey, or cause conveyance, of record title to the Property to other persons pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any portion of the Property or Project will be the responsibility of the respective transferee. The original Developer, and the signatory of this Agreement shall remain solely bound to the terms and obligations of this Agreement, unless and until this Agreement is modified to the satisfaction of the Public Works/City Engineer, in accordance with Section 6(i), below. reimb signal (version October 15,2002).doc 1 7 D. Conditions 41 and 42 of Planning Commission Resolution No. 4292 require Developer to construct portions of College Boulevard as part of the Project. E. The total cost of the Traffic Signal Improvements shall be the sum total of (i) the actual contract cost of modifying and installing the Traffic Signal Improvements (Contract Cost), plus (ii) an overhead allocation of four percent (4%) multiplied by the Contract Cost, in lieu of other reimbursement for Developer’s cost incurred for salary and benefits for staff of Developer’s home offices, supervision above the level of on-site superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds, insurance and bond premiums, expenses for meetings with and presentations to governmental agencies which issue permits or otherwise regulate project approval, and (iii) an additional two and one-half percent (2.5%) multiplied by the Contract Cost covering Developer’s construction administration of the Traffic Signal Improvements . An estimate of total cost, showing the categories listed above, is attached hereto as Exhibit “C.” NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. RECITALS AND EXHIBITS. The above Recitals are true and correct. The Exhibits cited above are a part of this Agreement. 2. SATISFACTION OF OBLIGATION. Developer’s agreement to construct the Traffic Signal Improvements as set forth herein, with the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements imposed on the Project with respect thereto. 3. DEVELOPER OBLIGATIONS. a. In consideration of City’s reimbursement and other undertakings as set forth herein, Developer agrees to construct and install the Traffic Signal Improvements. b. Developer shall obtain all property interests necessary for the construction, operation and maintenance of the Traffic Signal Improvements herein described. c. Developer shall complete all work on the Traffic Signal Improvements no later than three (3) years from reimb signal (version October l5,2002).doc 2 w the effective date of the Agreement. d. Developer shall use the complete set of City approved plans, specifications and other design documentation for the Traffic Signal Improvements. The Traffic Signal Improvements are to be constructed in accordance with City drawing number 361-6. e. By entering into this Agreement, Developer waives any and all potential constitutional (NolZun/Dolun) objections relating to the Traffic Signal Improvements. 4. CITY OBLIGATIONS. a. City shall reimburse Developer, that eligible portion of the total cost of the Traffic Signal Improvements, pursuant to Chapter 15.08 of the City’s Municipal Code. The maximum dollar figure available for reimbursement to the Developer, without revising the PFF Program, is $1 15,000, as shown on Exhibit “B”. If Developer incurs a Project cost higher than the PFF Program amount, Developer may request City staff to revise the fee program and prepare and additional reimbursement agreement for the additional amount, subject to approval by City Council. Notwithstanding anything herein, to the contrary, all reimbursable expenses shall for work that is eligible within the PFF Program. b. City shall pay reimbursement for Traffic Signal Improvements to Developer upon review and approval of incurred costs and verification of eligibility of payment under the PFF Program, pursuant to Section 5 of this Agreement. Credits on PFF fees are not permitted under the PFF Program. 5. AUDIT OF REIMBURSEABLE EXPENSES a. Developer may submit for reimbursement upon City acceptance of the Traffic Signal Improvements. b. All Developer’s Reimbursement Requests will be processed and audited by City staff or for by a reputable consulting engineer selected by the City (“Auditing Engineer”). The cost of the Auditing Engineer to process and review the submittal(s) shall be paid by Developer and shall be considered a reimbursable cost covered by the the PFF Program. The total eligible cost covered under the PFF Program, and which is eligible for reimbursement, including Audit Engineer’s costs, is $1 15,000. reimb signal (version October 15, 2002).doc 3 c. Developer shall submit to City two (2) separate complete and detailed reports (Audit Material) accounting for the incurred costs and expenses by Developer for the Traffic Signal Improvements. Developer shall submit Audit Materials upon completion of, and City acceptance of, the Traffic Signal Improvements, . Any delay by Developer in such submittals shall not prejudice its rights, but shall delay day-for-day the time in which City must take any responsive action. d. Developer’s submittal of Audit Material shall include, copies of plans, specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by City to evidence the completion of and payment for the Traffic Signal Improvements. e. Upon its receipt of a written request therefor from City, Developer shall allow an audit of such costs and expenses to be prepared at Developer’s expense by certified public accountants specified by City. f. Developer shall either construct the Traffic Signal Improvements itself or solicit bids from at least three reputable contractors. Developer may reject a low bid if, in its reasonable discretion, it does not believe the low bidder will be able to complete its portion of the Traffic Signal Improvements competently or timely. g. The Public Works DirectorKity Engineer shall, within thirty (30) days of receipt of the Audit Material submittal, issue a report either accepting Developer’s submittal(s) or specifying any reimbursement items or amounts not approved. Failure to notify Developer shall be deemed to constitute City’s approval of the submittal. Upon the Public Works Director/City Engineer’s issuance of a report accepting Developer’s submittal, based upon the Auditing Engineer’s determination on a reimbursable request, City shall, within thirty (30) days thereafter, pay all undisputed reimbursable expenses to Developer, provided funds are available. Reimbursement costs are not to be funded by the City’s general hd. h. If the Public Works Director/City Engineer objects to any reimbursable item, Developer and the Public Works Director/City Engineer shall meet to discuss the disputed amount and attempt to resolve the matter through good-faith negotiation. If Developer and the Public Works DirectorICity Engineer are unable to reach agreement, reimb signal (version October I5,2002).doc 4 10 Developer may appeal the Public Works DirectorEity Engineer’s decision to the City Council pursuant to Section 6(a). i. Before Developer’s final submittal, Developer shall obtain all necessary or appropriate releases from its contractor(s), and shall obtain fiom City, and from any and all appropriate governmental agencies, all approvals, certificates and other documents necessary to indicate completion of the Traffic Signal Improvements. The date Developer receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Traffic Signal Improvements (Completion Date). 6. MISCELLANEOUS. a. Disputes. If a dispute should arise regarding the performance or interpretation of this Agreement, Developer shall send a letter to the Public Works DirectorICity Engineer describing the dispute and recommending a method of resolution. The Public Works DirectorEity Engineer shall reply to the letter, including a recommended method of resolution, within ten (10) days of receipt. If the resolution thus obtained is unsatisfactory to Develope;, the Public Works DirectorKity Engineer shall send a letter outlining the dispute to the City Council through the office of the City Manager for the Council’s resolution. 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 administratively binding upon the parties, but nothing herein shall prohibit the parties seeking remedies available to them at law. b. Jurisdiction. Developer agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is San Diego County, California. c. Obligations and Benefits Not Running With Land. Any and all reimbursements, whether by crediting fees or cash payment, shall be made only to Developer or such entity as Developer shall designate in writing pursuant to Section 6(e). d. No Third Pam Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto. The parties hereto expressly disclaim any such third-party benefit. reimb signal (version October 15,2002).doc 5 \‘ e. Notice. 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, addressed as follows, or to such other address or to such other person as any party shall designate to the others for such purpose in the manner set forth below: If to Developer: The Terraces at Sunny Creek, LLC c/o Gateway Ivey Ranch Associates, Inc. Attention: Mr. Chris Dahrling 2006 Palomar Airport Road, Suite 1 13 Carlsbad, California 92008 Telephone: (760) 639-6390 Facsimile: (760) 639-6305 If to City: Public Works DirectorICity Engineer City of Carlsbad 163 5 Faraday Avenue Carlsbad, CA 92008 f. Countemarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. g. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. h. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. i. Amendment. This Agreement may be amended only by a written instrument signed by both City and Developer. j. m. This Agreement shall be effective as of the date written above, and shall terminate on the earlier of (i) the date City fully reimburses Developer the Reimbursable Amount, or (ii) January 1,2005. reimb signal (version October l5,2002).doc 6 k. Citv Authoritv. City warrants, represents and agrees that it has the legal authority to collect any and all hds that it will use to reimburse Developer. City further warrants, represents and agrees that it has the legal authority to pay andor credit these funds to Developer. These warranties, representations and agreements are a material inducement to Developer to enter into this Agreement. 1. Developer Not Agent of Citv. Neither Developer nor any of Developer’s agents or contractors are or shall be considered to be agents of City in connection with the performance of Developer’s obligations under this Agreement. m. No Vesting. Performance by Property Owner of this Agreement shall not be construed to vest Property Owner’s right with respect to any change in zoning or building law or ordinance. n. CaDtions. The captions of this Agreement are for convenience and reference only and shall not define, explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provision of this Agreement. 0. Incornoration of Recitals. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. Iff Iff Iff Ill Iff Iff Ill Iff Iff Ill reimb signal (version October l5,2002).doc 7 PROPERTY OWNER: CITY: THE TERRACES AT SUNNY CREEK, LLC, a California limited liability company By: GATEWAY IVEY RANCH ASSOCIATES, INC., a California corporation, George Szabo, Jr./President Name and Title of Signatory By: Sign here Name and Title of Signatory APPROVED AS TO FORM: RONALD R. BALL, City Attorney (SEAL) (Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that oflicer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute the instrument.) reimb signal (version October 15,2002).doc 8 STATE OF CALIFORNIA 1 COUNTY OF & On this Ipday of 1 pl;> ,20 02, be Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of s idare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hishedtheir authorized capacity(ies), and that by hishedtheir signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA 1 COUNTY OF 1 ) ss. On this day of ,20-, before me, ,a Notary Public in and for said State, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature reimb signal (version October l5,2002).doc 9 EXHIBIT “A” LEGAL DESCRIPTION OF PROPERTY Lot’s 1 to 181 of Carlsbad Tract No. CT 96-02, the Terraces at Sunny Creek I, according to Map thereof, No. 14060, filed in the Office of the County Recorder of San Diego County, San Diego, California, on October 27,2000, in accordance with Document No. 2000-0582955. EXHIBIT "B" SUMMARY OF MAXIMUM REIMBURSEABLE TRAFFIC SIGNAL AMOUNT BASED ON PUBLIC FACILITIES FEE PROGRAM Project Location: Intersection of College Boulevard and El Camino Real. Project Description: Installation of an 8-phase fully actuated traffic signal, including a Type 170 traffic signal controller and Type 176 intersection control program. Project Need: Needed to meet Growth Management Standards. Financing: Purpose Estimated Cost DesigdConstruction $1 15,000 TOTAL COST $11 5,000 Fundine Source PFF (From City of Carlsbad Capital Improvement Program, Technical Appendix 2000-2001 to Build-out, Page 244.) ua 8 0 L E in w IY ACTION BY UNANIMOUS WRITTEN CONSENT OF THE DIRECTORS OF GATEWAY IVEY RANCH ASSOCIATES, INC. A CALIFORNIA CORPORATION IN LIEU OF MEETING The following action is taken by the Board of Directors of Gateway Ivey Ranch Associates, Inc., a California corporation, by the unanimous written consent of the directors without a meeting as of October 18, 2002, in lieu of physically holding a meeting of directors pursuant to Section 307(b) of the California Corporations Code and the Bylaws of this corporation permitting such action to be taken. By this writing, the Board of Directors of Gateway Ivey Ranch Associates, Inc. approves the following resolution and consents to its adoption: RESOLVED, that George Szabo, Jr., President of the corporation, is hereby authorized to execute any and all documents on behalf of the corporation as a member of The Terraces at Sunny Creek LLC, a California limited liability company. The undersigned, constituting the sole member of the Board of Directors of Gateway Ivey Ranch Associates, Inc., hereby consents to and approves of the foregoing actions and resolutions, and certifies that they are true and correct -r as of October 18,2002.