HomeMy WebLinkAbout2007-12-18; City Council; Resolution 2007-3171
RESOLUTION NO. 2007-317
2
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING THE RATIFICATION
OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL
4 IMPROVEMENTS AT THE INTERSECTION OF COLLEGE
BOULEVARD AND CARLSBAD VILLAGE DRIVE AND
5 APPROPRIATING FUNDS.
6 WHEREAS, the Calavera Hills II, LLC, a California Limited Liability Company
7 ("Developer") is the developer of Calavera Hills II, CT 00-02; and
8 WHEREAS, the Developer has performed the design and construction of the traffic signal
9 at the intersection of College Boulevard and Carlsbad Village Drive; and
10 WHEREAS, the Developer has executed the Ratification of Reimbursement Agreement
11 for traffic signal improvements at the intersection of College Boulevard and Carlsbad Village
12 Drive, a copy of which is attached hereto and incorporated by this reference (Agreement); and
13 WHEREAS, the Developer has submitted an accounting of the cost incurred for the
14 design and construction of the traffic signal, which has be reviewed by staff, in accordance with
the Agreement; and\ o
WHEREAS, the traffic study prepared for the Calavera Hills II development, as included in16
the Environmental Impact Report for CT 00-02, indicates that 15% of the traffic volume at the17
intersection of College Boulevard and Carlsbad Village Drive is a result of the development of the
Calavera Hills II project and that 85% of the traffic volume is not; and
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WHEREAS, the total cost identified in the City's Capital Improvement Program for the
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traffic signal at College Boulevard and Carlsbad Village Drive is $210,000, and the Developer's
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expenses incurred for said traffic signal is $221,327.70; and
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WHEREAS, there are sufficient Gas Tax monies available and programmed in the Capital
23
Improvement Program to fund 85% of the costs to design and construct the traffic signal at
24 College Boulevard and Carlsbad Village Drive which is equal to $188,128.55; and
25 WHEREAS, the Gas Tax funds are currently programmed in the Capital Improvement
po
Program for 2012-17; and
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1 WHEREAS, the City Council has determined it necessary and in the public interest to
2 move the project forward in the Capital Improvement Program and appropriate funds; and
3 WHEREAS, subject to the requirements of Assessment District 2003-01, the remaining
4 costs of $33,199.15 may be reimbursed from eligible Assessment District 2003-01 bond
5 proceeds.
6 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
7 California, as follows:
1. That the above recitations are true and correct.
2. That the Ratification of Reimbursement Agreement for Traffic Signal
Improvements at the intersection of College Boulevard and Carlsbad Village Drive is hereby10
approved, and the Mayor is hereby authorized to execute said agreement.
3. That the City Finance Director is hereby authorized to appropriate $188,128.55 in
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Gas Tax Funds for the purpose of reimbursing the Developer for a portion of the costs to design
13
and construct the traffic signal at College Boulevard and Carlsbad Village Drive per the subject
14
agreement.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 18th day of December, 2007, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard.
NOES: None.
ABSENT: None.
CLAUDE A LEWIS, Mayor
ATTEST:
l/ORRA$IE M. WObt),
SEAL)
RATIFICATION OF REIMBURSEMENT AGREEMENT FOR
TRAFFIC SIGNAL IMPROVEMENTS AT THE INTERSECTION OF
COLLEGE BOULEVARD AND CARLSBAD VILLAGE DRIVE
(CALAVERA HILLS II, LLC)
This Ratification of Reimbursement Agreement ("Agreement") is entered into as
of this /9° day of JLutt^nt^jU, 2007 by and between the City of Carlsbad, a
municipal corporation of the State of California ("City"), and Calavera Hills II, LLC, a
California Limited Liability Company, ("Developer") (collectively, the "Parties").
RECITALS
A. Developer is developing certain real property commonly known as
Calavera Hills, Phase II, ("Property"), located in the City and more particularly described
as Carlsbad Tract 00-02 ("Project"); and
B. The Planning Commission of the City adopted Resolution No. 5117 on
January 2, 2002, recommending approval of the Project; and
C. The City Council of the City adopted Resolution No. 2002-16 on
January 15, 2002, approving the Project; and
D. The Traffic Study prepared for the Project and as included in the
Environmental Impact Report for the Project indicates that 15% of the traffic volume at
the intersection of College Boulevard and Carlsbad Village Drive is a result of the
development of the Project; and
E. The project approvals require Developer to design and construct certain
public improvements more particularly described as traffic signal improvements at the
intersection of College Boulevard and Carlsbad Village Drive ("Improvements"); and
F. At the time of the project approval the Improvements were included on the
list of projects funded by the City's Public Facilities Fee program ("Fee Program"); and
G. Developer is obligated pursuant to City Code, City Council Policy and/or
the Project conditions of approval to pay a fee and/or to construct certain improvements
in satisfaction of the requirements of the Fee Program; and
H. The Fee Program provides for reimbursement and/or credit against
payment of Fee Program fees for Developer's cost to construct Improvements; and
I. Developer has constructed Improvements in accordance with a Secured
Improvement Agreement and desires to receive reimbursement ("Reimbursable Work");
and
J. City has established procedures entitled "Administrative Procedures for
General Counsel Approved Version #07.05.01
Reimbursable Public Works Projects" ("City Administrative Procedures"), incorporated
herein by this reference, which guide the administration of developer constructed
projects that receive reimbursement of construction costs using public funds to ensure
compliance with State laws governing the use of publicly funded projects; and
K. City has completed an audit of the Developer's costs to construct
Improvements in accordance with the City Administrative Procedures ("Improvement
Audit"), incorporated herein by this reference; and
L. Improvement Audit finds that the Developer is eligible for reimbursement
in the amount of $221,327.70 ("Reimbursable Amount"); and
M. The 2007-08 Capital Improvement Program identifies $210,000 in Gas
Tax Gas Tax funds for the Improvements rather than Public Facilities Fee funds as
previously programmed; and
N. City and Developer desire to establish a method to fairly reimburse
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 has caused the construction of Improvements in
substantial compliance with Secured Improvement Agreement, Grading and Erosion
Control Agreement and the City Administrative Procedures.
b. Developer hereby waives any and all potential constitutional
or other legal objections related to Improvements.
c. Developer shall pay and/or receive credit against payment of
Fee Program fees in accordance with City Codes, City Council Policy and the provisions
of Fee Program.
d. Developer agrees that the Reimbursable Amount
recommended in the Improvement Audit 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.
General Counsel Approved Version #07.05.01
4. General City Obligations.
a. City shall reimburse and/or grant Fee Program credits to
Developer for the Reimbursable Amount as described in Section 5 and 6 below.
b. All reimbursements and/or grants of fee credits made by the
City, pursuant to the terms of this Agreement shall be made only to Developer, unless
otherwise 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
construction thereof and all incidental costs of construction of the Improvements eligible
for reimbursement under City Code, City Council Policy and the requirements of the Fee
Program including the following:
i. 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.
b. Cost of acquisition for easements as they relate to the
Improvements only, and to the extent such costs are eligible for reimbursement under
the Fee Program, including:
i. Appraisal and title insurance costs.
ii Costs of preparing acquisition plats.
iii. The appraised value or actual costs, whichever is less.
c. Costs of environmental review, permitting and habitat
mitigation associated with Improvements.
d. An amount equal to 4.0% of the direct cost of construction of
the Improvements for the Developer's overhead, construction management and
supervision, including on-site supervision.
e. 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 or
Grading and Erosion Control Agreement.
6. Reimbursement Calculation.
a. The Reimbursable Amount as determined by the
Improvement Audit is $221,327.70.
b. The amount of reimbursement due to Developer to be paid
from the Gas Tax fund as programmed in the 2007-08 Capital Improvement Program is
equal to 85% of the Reimbursable Amount which equals $188,128.55.
General Counsel Approved Version #07.05.01 q
c. The remaining 15% of the Reimbursable Amount which is
equal to $33,199.15 is eligible for reimbursement from Assessment District 2003-01
bond proceeds which are available to fund District Improvements not otherwise
programmed to be funded by Gas Tax or Fee Program reimbursements.
7. Payment of Actual Reimbursement.
a. Payment of the portion of the Actual Reimbursement funded
by the Gas Tax fund shall be made within 30 days of the execution of this agreement.
b. Payment of the portion of the Actual Reimbursement funded
by the Assessment District 2003-01 bond proceeds shall be made after the execution of
this agreement, issuance of the Assessment District Bonds and in accordance with the
payment provisions of the District.
8. Disputes/Claims. If a dispute should arise regarding the
performance 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 forwarded 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 forwarded 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 shall not assign this
contract or any part thereof or any monies due hereunder without the prior written
consent of the City.
10. 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 shown
below. Notices required to be given to Developer shall be addressed as follows:
Developer: Calavera Hills II, LLC
Attn: Brian Milich
PO Box 85104
San Diego CA, 92186-5104
Telephone: 619-794-1308
Fax:619-336-3596
General Counsel Approved Version #07.05.01 /o
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 by Developer. The obligations and benefits of this
Agreement shall not be transferred upon sale of the Property.
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 February 1, 2008 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 Party 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.
General Counsel Approved Version #07.05.01
STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO }
On October 25. 2007 before me, Ann M. Futo. Notary Public . personally appeared Brian Milich
and Don Mitchell, 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 Wshe/they executed the same in his/her/their authorized
capacity(ies), and that by Ws^hef/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
ANN M. FUTO
Commission # 1546838
Notary Public - California
San Diego County
MyComm. Expires Jan 23,
This area for official notahal seal
Notary Form-2 McMillin Companies
CERTIFICATE OF ASSISTANT SECRETARY
OF
McMILLIN COMPANIES, LLC
The undersigned, hereby certifies (i) that she is the Assistant Secretary of
McMillin Companies, LLC, a Delaware limited liability company (the "Company");
and (ii) that the Company is the Managing Member of Calavera Hills II, LLC, a
California limited liability company (the "LLC") and (iii) that the following
individuals, any two signing together, are authorized and directed to execute, on
behalf of the LLC, any and all documents, including but not limited to: escrow
instructions, deeds, conveyances, assignments, notices of completion,
promissory notes, loan documents, subdivision documents and easements; and
to do all acts and things which may be deemed necessary or advisable in order
to carry out the business of the LLC.
Mark McMillin
Scott McMillin
Ken Baumgartner
Eliot Alport
Gary Beason
Mark Doyle
Jim Hunter
Don Knox
Gordon MacKenzie
Robert Anselmo
Guy Asaro
Don Faye
Joseph Leal
Don Walker
Gary Arnold
Jeff Brazel
Ceci Doty
Thorn Fuller
Walter Heiberg
Bob Jones
Bryce Jones
Karen Martin
Steve McGill
Pat McMillin
Brian Milich
Guy Oliver
James Ondler
Sandy Perlatti
Rick Ray
Ken Screeton
Joe Shielly
Co-Chairman and Co-CEO
Co-Chairman and Co-CEO
President / COO
Exec. Vice President
Exec. Vice President / CFO
Exec. Vice President
Exec. Vice President - Res. Land
Exec. Vice President
Exec. Vice President
First Senior Vice President
First Senior Vice President
First Senior Vice President / Secretary
First Senior Vice President
First Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President / Treasurer
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
Senior Vice President
H:\data\acqustn\Npierce\CORPORATIONS\CERTIFICATE OF ASST SEC Calavera Hills I111.02.06 doc
John Timmons
David Warren
Jon Bell
Vince Ferrer
Don Mitchell
Robin Otterness
Allen Barbour
Patti Basile
Ed Berlanga
Duncan Budinger
Mark Carpenter
Tom Chubb
Ronda Clair
Ann Cleator
Berdina Cope
Denny Cuccarese
Kim Elliott
Diane Erickson
Paul Faye
Kathrine Foster
Todd Galarneau
Noli Gavino
Joe Haeussler
Jerry Hamilton
Craig Hammett
Terri Ibarra
Kent Ireland
Rick Jarrett
Scott Johnson
Jim Jordan
Blaine Knoll
Dana Kuhn
Ken Kuras
Lance Leininger
Les Leininger
Randy Levinson
Rita Mahoney
Randy Merrill
Melissa Mohr
Buzz Naughton
Dennis Pulido
Liz Ramirez
Rolando Reyna
Kathi Riser
Jim Robinson
Rey Ross
Senior Vice President
Senior Vice President
First Vice President
First Vice President
First Vice President
First Vice President
Vice President
Vice President/Asst Secretary
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
H:\data\acqustn\Npierce\CORPORATIONS\CERTiFICATE OF ASST SEC Caiavera Hills II 11.02.06.doc
Michael Sadegh
Greg Schulte
Eva Stresemann
Dennis Taylor
Kelley Thene
Tom Tomlinson
Chris Van Nort
Patricia Walker
Judy Webster
Frank Zaidle
Vicki Corcoran
Marcella Fescina
Liz Frosio
Laura Wilson
Stephanie Pfaff
Nicole Pierce
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Vice President
Assistant Vice President
Assistant Vice President
Assistant Vice President
Assistant Vice President
Assistant Secretary
Assistant Secretary
IN WITNESS WHEREOF, this Certificate of Assistant Secretary has been
duly executed on this 2nd day of November, 2^06.
Nico| Pierce, ssistanSecretary
H:\data\acqustn\Npierce\CORPORATIONS\CERTIFICATE OF ASST SEC Calavera Hills I111.02.06.doc
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
CALAVERA HILLS II, LLC, a California
Limited Liability Company
j>BAD, a municipal
(sign here) /
(print name/title)
(vt6Ml<g/vncyH»
(e-mail address)
"By:
(st^n here) *
APPROVED AS TO FORM:
RONALD R. BALL, General Counsel
(print name/title)
Deputy General Counsel
(e-mail address)
A proper notarial acknowledgment of execution by Developer must be attached.
If 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.
General Counsel Approved Version #07.05.01