HomeMy WebLinkAboutVillages of La Costa Sourthwest LLC; 1998-03-06;-.
REIMBURSEMENT AND EASEMENT ACQUISITION
AGREEMENT FOR THE INSTALLATION OF THE STREET
IMPROVEMENTS ON EL CAMINO REAL ALONG
THE RAILROAD PROPERTY, AND
VILLAGES OF LA COSTA SOUTHWEST FRONTAGE
THIS AGREEMENT is made and entered into as of the f& day of M1tr , lm, by and between the CITY OF CARLSBAD, a municipal corporation,
hereinafter referred to as "CITY," and the Villages of La Costa Southwest, L.L.C., a Delaware
Limited Liability Company, hereinafter referred to as "VLCSW," in view of the following
purposes:
A. CITY has an agreement with the City of Encinitas to have the street
improvements installed on El Camino Real, along the Northwestern Pacific Railroad Company
and VLCSW property frontage (Olivenhain Road to El Camino Station 84+87) (hereafter "ECR
Work") concurrent with the installation of street improvements associated with the Olivenhain
Road widening project.
B. The ECR Work extends from El Camino ReaYOlivenhain PCR to the northern
boundary of the railroad property (Station 84+87) and is more particularly described on Exhibit
"A" hereto.
C. VLCSW is the successor in interest to Real Estate Collateral Management
Company ("RECM") the subdivider of the La Costa Valley project ("Project") approved by the
CITY under Resolution No. 90-258 (CT 88-3) for residential development. Condition No. 78 of
said resolution required the Project widen El Camino Real (the "ECR Work") and acquire offsite
easements over the railroad property to accommodate said work.
D. RECM and CITY entered into that certain "Agreement Between the City of
Carlsbad and Real Estate Collateral Management Company Regarding the Acquisition of Certain
Easements for Street and Other Purposes as Required for Subdivision CT 88-3" dated January 3,
1997 to satisfy Condition No. 78 in its entirety ("1997 Agreement"). As a result of change of
circumstance, the parties hereto have concluded it is in their mutual best interests to modify the
1997 Agreement and substitute performance of this Agreement.
E. CITY has requested VLCSW accelerate construction of the ECR Work under the
terms and mutual obligations contained herein and the parties wish to supplement the 1997
Agreement as set forth below.
IT IS, THEREFORE, AGREED:
1. VLCSW agrees to start construction of the ECR Work no later than receipt of
Notice to Proceed from CITY, and substantially complete the construction within sixty (60)
working days from the Notice to Proceed date. The scope of the ECR Work is set forth on
Exhibit "A" hereto.
2. VLCSW has provided the CITY with a detailed construction cost estimate
attached hereto as Exhibit "B," which is hereby approved by the CITY in the total amount of
$139,568 for VLCSW's ECR Work.
3. CITY has agreed to reimburse VLCSW the total amount of $69,784, representing
the CITY's share of one-half of the approved construction costs set forth on Exhibit "B" for the
ECR Work. As more particularly set forth in Section 5 below, VLCSW's share of the right of
way/easement acquisition costs for the ECR Work is $30,339, which amount shall be credited
against CITY's share of construction costs reimbursement, leaving a net reimbursement amount
due from CITY to VLCSW of $39,445. Said net reimbursement amount of $39,445 shall be paid
by the CITY to VLCSW not later than thirty (30) days following completion of construction of
the ECR Work and receipt of an invoice from VLCSW in said amount.
4. VLCSW will hold the cities of Carlsbad and Encinitas harmless from any liability
of any kind resulting from its ECR Work to be performed pursuant to this Agreement and shall
pay all costs of defense of any claims or lawsuits, including attorneys fees.
5. As a result of changed circumstances, the CITY is no longer able to deliver title to
the railroad property as contemplated by the 1997 Agreement. Nonetheless, the CITY shall
continue to be responsible for obtaining the easements necessary to construct the ECR Work and
satisfy Condition No. 78. VLCSW agrees to reimburse the CITY the amount of $30,339.00 as
the cost of acquiring the easements required by Condition No. 78 which amount shall be the total
obligation of VLCSW and the Project for acquisition of the easements over the railroad property.
Said amount is credited in favor of the CITY against the construction cost reimbursement
amount CITY is to pay VLCSW as set forth in Section 3 above.
6. Immediately upon execution of this Agreement, CITY shall release to VLCSW or
otherwise cooperate in the return of the $120,000, plus any interest, presently on deposit in that
certain Bank of America trust account no. 24709-04406 established pursuant to Sections 3.4 and
3.5 of the 1997 Agreement thereby cancelling said deposit entirely.
7. As originally provided in Section 4(c) of the 1997 Agreement, CITY agrees that
the Corte Arboles street improvements in CT 88-3 may continue to terminate at the eastern edge
of SDG&E's transmission line easement as a construction field change without additional plan
check fees.
CWMSWWR\1246150.03 2 3/3/98
8. The parties hereto acknowledge performance of this Agreement as satisfaction of
Condition No. 78 of the Resolution approving the Project and CT 88-3 and intend this
Agreement to supersede and substitute for the 1997 Agreement as provided herein.
9. This Agreement does not amend, modify, supersede or replace the separate
reimbursement agreement for the cost of engineeringlconstruction of El CaminoKalle Barcelona
traffic signal or the reimbursement agreement for cost of engineeringkonstruction of El Camino
median previously or subsequently entered into between VLCSW and the City of Carlsbad.
10. This Agreement shall inure to the benefit of, and the obligations created hereby
shall be binding upon, the successors and assigns of the parties hereto.
11. The invalidity or illegality of any provision of this Agreement shall not be deemed
to affect the validity or legality of any other provision of the Agreement.
12. This Agreement and any amendments hereto shall be governed by and construed
and enforced in accordance with the laws of the State of California.
13. This Agreement sets forth the entire agreement and understanding of the parties
with respect to the transactions contemplated hereby, and supersedes all prior agreements,
arrangements, and understandings relating to the subject matter hereof.
14. This Agreement may be amended, modified, superseded or canceled, and any of
the terms, covenants or conditions hereof may be waived, only by a written instrument executed
by the parties hereto or in case of a waiver, by the party waiving compliance.
[Remainder of Page Intentionally Left Blank]
3 3/3/98
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
first above written.
VILLAGES OF LA COSTA
SOUTHWEST, L.L.C., a Delaware Limited
Liability Company
By: Real Estate Collateral Management
Company, a Delaware Corporation
Managing Member n
By:
CITY OF CAIPZSBAD, a municiAa1
ATTEST:
d* A. k
ALETHA L. RAUTENKRANZ, City Clerk'
By:
(sign here)
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(President or vice-president and secretary or assistant secretary must sign for corporations. If
only one officer signs, the corporation must attach a resolution certified by the secretary or
assistant secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD L. BALL
City Attorney
By:
4 3/3/98
ACKNOWLEDGMENT
STATE OF CALIFORNIA i
COUNTY OF SAN DIEGO
1 ss.
1
On March 6, 1998, before me, Vicki L. Udvarhelvi. aersonallv appeared James M. Jackson and Kerry A. Lane, p;oveb. to me 0;
names are subscribed to the within instrument and the basis of satisfactory evidence to be the persons whose
acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the
instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State [SEAL]
. .-
Board of Directors
Real Estate Collateral Management Company
October 29, 1993
GENERAL OPERATING RESOLUTION
1. General Ooeratino Authority:
Any two officers from Group I below, or
any one officer from Group I below, acting jointly with any one officer from Group II
are authorized to make, execute and deliver on behalf of Real Estate Collateral
Management Company ("RECM") all contracts of any kind or character, all conveyances
of real estate, leases of any real property, transfers or leases of personal property,
licensing agreements, contracts or agreements, and any other instrument, document,
therein now or hereafter owned by or standing in the name of this corporation,
agreement or contract affecting in any way real or personal property or any interest
security agreements or indenture agreements, whether said property stands in the name
including but not limited to, bills of sale, contracts of sale, mortgages, deeds of trust,
of this corporation as owner or otherwise, any document, agreement or instrument that
may be necessary in extending credit, granting participations therein, or acquiring
participations in credit extended by others, and any release or reconveyance, whether
in whole or in part, of any mortgage, deed of trust, lien or other encumbrance, and any
loan agreement or note or any other instrument evidencing an indebtedness of the
corporation.
the Chairman of the Board
the President
any Senior Vice President
the Treasurer
any Vice President
Grouo II
any Assistant Vice President
the Secretary
any Assistant Secretary
any Assistant Treasurer
2. Any one officer from Group I above
is authorized to make, execute or deliver any assignment or reassignment of any previously
executed mortgage, deed of trust, contract of sale, security interest in real or personal
property, bond, certificate of sale, agreement, instrument or obligation held by this corporation
as security for the payment or performance of any obligation to this corporation.
3. Desianation of Eauitable Deed Comoanv as Aaent.
for purposes of executing assignments or reassignments to Bank of America NT&SA of loans,
Equitable Deed Company is authorized to act as the authorized agent of this corporation
mortgages, or deeds of trust which have previously been assigned by Bank of America NT&SA
to RECM.
4. Submission of Documents to Reaulatorv Authorities.
This Board authorizes any officer of this corporation, or any attorney in the Legal
to sign registrations, reports, certificates, applications and other writings on behalf of
Depamnent of Bank of America NT&SA with the title of counsel or a title senior thereto
this corporation for submission to or filing with any federal, state, local or foreign
regulatory authorities, and any amendments, withdrawals, or terminations thereof, as
the officer or attorney deems appropriate.
5. Authoritv Deemed Retroactive
authorized hereunder performed prior to the passage of this resolution in conformity
The authority given hereunder shall be deemed retroactive and any and all acts
with this resolution is hereby ratified and affirmed.
6. Suaersession.
The foregoing supersedes the General Operating Resolution adopted by this Board on
September 16, 1993.
CERTIFICATION
I, R. SCOTT MCMILLEN, an Assistant Secretary of Real Estate Collateral Management
Company, a Delaware corporation, certify that the foregoing is a correct copy of a resolution adopted
by the Board of Directors in an action taken by unanimous written consent in accordance with the.
bylaws as of October 29, 1993. This resolution is still in effect.
Dated: May 2, 1996
R. Scott McMillen, Assistant Secretary
Real Estate Collateral Management Company
.
CSO/IA Knowledqebase
Real Estate Collateral Management Company
Personnel
org # : 372 acronym RECM status: Active domlintl Dom 100
Directors - Current
Garvey. Christine N.
MCCNm. Christopher
Ogorzeiec. Paul R.
St. Clair, Peter H.
Westfaii. James S.
Director (Chalrman)
Director
Director
Director
Director
Prepared by CSO
Printed on : 5/2/96 This data is CONFIDENTIAL
., ”
Page 1 of 1 IX