HomeMy WebLinkAbout1987-11-17; City Council; 8589-2; Tamarack AV improvements construction NOCClf' I OF CARLSBAD - AGEND'""6ILL
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TITLE: DEPT. HD. (p NOTICE OF COMPLETION FOR THE CONSTRUCTION OF IMPROVEMENTS TO DEPT. MP TAMARACK AVENUE FROM ADAMS TO HIGHLAND lClTY MGeJ I
RECOMMENDED ACTION: 3) +-&
Adopt Resolution No. 9Z? accepting the construction of
improvements to Tamarack Avenue from Adams to Highland, Project
No. 3144, as complete, directing the City Clerk to record the
Notice of Completion, authorizing the Purchasing Officer to increase the project purchase order, and considering options with respect to one (1) private property Future Improvement Agreement.
ITEM EXPLANATION:
Construction of improvements to Tamarack Avenue from Adams to
Highland, Project No. 3144, are considered complete. Staff
recommends the City Council formally accept the improvements and
authorize the filing of the Notice of Completion.
Construction began on this project late last year and concluded
in early 1987. Toward the end of the construction of the
project, staff discovered the existence of four (4) Future Improvement Agreements along Tamarack Avenue. Future Improvement Agreements condition individual private projects to install, at
property owner's expense, half-street improvements the length of
the individual frontages . A Future Improvement Agreement,
normally executed at the time of a lot split and issuance of a building permit, is a commonly used method to allow the installation of private development projects while deferring required street improvements to a later date.
The four (4) Future Improvement Agreements along Tamarack Avenue
were properly executed by previous property owners and recorded into the respective titles. The Future Improvement Agreements specifically require sixty (60) days prior notice to the respective property owners in advance of the City performing the work and enabling the individual property owners to install the previously obligated improvements themselves at their own expense. Because the existence of these Future Improvement
Agreements was unknown to staff at the time of beginning
construction, formal notice, and therefore, request to the
property owners to install the improvements themselves was not
made.
Immediately upon discovering the existence of the Future
Improvement Agreements, staff notified the affected property
owners by telephone. Following the completion of the Tamarack
Avenue improvements and an accounting, identified below, of the
entire project costs, letters were mailed to the respective property owners on June 4, 1987.
Page Two of Agenda Bill No. gq8’? - 2
CURRENT OWNER IMPROVEMENT FIA NO. RECORDING DATE AND ADDRESS COSTS
80-356651 7/23/80 Devaney/Nelson $ 6,920.52
1199 Tamarack Ave.
80-356651 10/27/80 Haubert 4,116.00
1241 Tamarack Ave.
86-129562 4/03/86 Hannah 14,241.09
1301, 1303, 1305
Tamarack Ave.
81-081016 3/09/81 Walker 5,016.33
1271 Tamarack Ave.
Over the last several months, staff has discussed with the affected property owners the methodology of assembling the costs,
provided copies of all documentation, and generally explained the
Future Improvement Agreement process. During this period of
time, settlements have been received by the City from three (3) of the four (4) property owners paying for the respective costs of the frontage improvements. After considerable discussions both in telephone conference and meetings, the property owners obligated by the fourth Future Improvement Agreement, Merle L. and Norma L. Walker of 1271 Tamarack Avenue, FIA 81-081016, have indicated their objections to the obligations set forth in the
Future Improvement Agreement. Staff offers three (3) potential
options to the City Council for consideration with respect to
this situation:
1. Citing the lack of required notice to the property owners by
the City in advance of the City beginning the improvements to
Tamarack Avenue, relieve the obligation set forth in this
Future Improvement Agreement.
2. Require immediate payment to the City of the obligation in
accordance with the terms of the Future Improvement
Agreement.
3. Require payment to the City of the obligation within one
hundred twenty (120) calendar days from tonights Council
action in accordance with the terms of the Future Improvement
Agreement.
Staff recommends Option No. 3.
Staff has discussed with the City Attorney’s office the issue of
whether failure to notify the property owners and give them the
opportunity to install the street improvements at their own
Page Three of Agenda Bill No. B3-m - a
expense and in a timely manner prior to the City proceeding with
the work is a sufficient defect the extinguish the property
owners' obligations. The City Attorney's office has indicated
that proper notice was in fact required, however, has advised
that the defect is technical in nature and does not extinguish
the obligation. Staff requests Council direction on this matter.
FISCAL IMPACT:
A summary of the total projects costs is as follows:
Project Design $ 7,525.00
Construction 152,766.78
Soils Testing, Project Administration and Inspection 33,968.22 (est.)
Total Project Costs Project Appropriations To Date
$194,260.00
173,260.00
Project Balance ($ 21,000.00)
Value of Four (4) FIA Reimbursements 30,293.94
Project Balance $ 9,293.94
Staff recommends the Purchasing Officer be authorized to increase
Purchase Order No. 2102 an additional $12,200 representing final
project quantities which will enable final payment to the project contractor for construction retention. Additionally, staff
recommends the Council formally appropriate and make available within the project account the value of the four (4) FIA reimbursements to provide adequate cash flow for the project.
EXHIBITS :
1. Location Map.
2. Resolution No. 929.9 accepting the construction of the Tamarack Avenue widening from Adams to Highland, Project No. 3144, as complete.
3. Notice of Completion.
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LOCATION MAP
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TYPICAL SECTION
3 RO JEC T NRM E PROJ- NO- EXHIBIT
TAMARACK AVE.- AOAMS ST. TO HIGHLAND OR. I3144 I 1
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RESOLUTION NO. 9299
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING THE
CONSTRUCTION OF THE TAMARACK AVENUE WIDENING
FROM ADAMS TO HIGHLAND. PROJECT NO. 3144
WHEREAS, a bid for the improvements to Tamarack Avenue
from Adams to Highland, Project No. 3144, was previously
awarded by the Carlsbad City Council; and
WHEREAS, construction of the aforementioned improvements
have been satisfactorily completed; and
WHEREAS, funds in the amount of $173,260 were previously
appropriated for this project; and
WHEREAS, four (4) Future Improvement Agreements exist
within the construction zone of this project;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the
City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the improvements to Tamarack Avenue from Adams
to Highland, Project No. 3144, are hereby complete and
accepted by the City of Carlsbad.
3. That the City Clerk is hereby authorized and directed
to record the Notice of Completion.
4. That the Purchasing Officer is hereby authorized and
directed to increase Purchase Order No. 2102 in the amount of
$12,200 representing final project quantities.
5. That the contractor for this project formally
completed these improvements January 8, 1987, and citing
special circumstances and time delays beyond the control of
the contractor, the Carlsbad City Council does hereby waive
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the customary thirty-five (35) day retention period following
the recordation of the Notice of Completion. The Carlsbad
City Council does hereby authorize and direct the payment of
the project retention to the contractor immediately following
the Purchasing Officer s increase of the project purchase
order.
6. That the Carlsbad City Council hereby formally
appropriates the value of the four (4) Future Improvement
Agreement reimbursements in the amount of $30,293.94 to the
project account No. 320-820-1840-3144 which otherwise makes
these funds available for project related costs.
7. That Carlsbad City staff is hereby authorized and
directed to notify the property owners, Merle L. and Norma L.
Walker of 1271 Tamarack Avenue, of the City Council's decision
of November 17, 1987, regarding the obligations set forth in
Future Improvement Agreement No. 81-081016.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the
Carlsbad City Council held on the 17th day of November
1987, by the following vote, to wit:
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AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES : None
ABSENT: None
ATTEST
ALETHA L. RAUTENKRANZ, City klerk
(SEAL)
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NOTICE OF COMPLETION
MUNICIPAL PROJECTS DEPARTMENT
To All Laborers and Material Men and to Every Other Person Interested:
YOU WILL PLEASE TAKE NOTICE that on Januarv 8, 1987
the engineering project consisting of the widenins of
Tamarack Avenue from Adams Street to Hishland Drive
on which Southland Pavins. IncorDorated was the
contractor, and Amwest Insurance ComDany was the surety,
was completed.
CITY OACARLSBH
VERIFICATION OF CITY CLERK
I the undersigned, say:
I am the City Clerk of the City of Carlsbad; the City
Council of said City on November 17, 1987 accepted the above
described work as completed and ordered that a Notice of
Completion be filed.
true and correct.
I declare under penalty of perjury that the foregoing is
Executed on November 18, 1987 at Carlsbad, California.
CITY OF CARLSBAD
City Clerk
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1271 Tamarack Avenue Carlsbad, California 92008 November 16, 1987
CARLSBAD CITY COUNCIL
1200 Elm Avenue
Carlsbad, California
Re: Street Improvement on Tamarack Avenue
Ladies and Gentlemen of the Council:
As you know from previous correspondence, copies of which are attached for your convenience, we reside on Tamarack Avenue
between Adams and Highland. Our property was one of six parcels purportedly subject to Future Improvement Agreements
which were executed by the developer at the time the minor
subdivision permits were issued, more than six and one-half
years ago. These Agreements have effectively allowed the developer to pass on his obligations to subsequent owners years later. Why are these developers not required to post a bond for the future improvements? Why are small developers allowed to pass on their responsibilities when the large
developers must "pay throug the nose" for every fee
imaginable?
However, notwithstanding the above, the Future Improvement
Agreement existing on our property was breached by the City of Carlsbad.
contract were performed by the City.
The subject Agreement specifically provides:
1.
- None of the conditions agreed to in the
The City make written demand upon the property owner,
giving the owner sixty (60) days to make arrangements to have the improvements made;
There was no demand, written or oral, ever made by the City
prior to tG commencement of construction. And, in fact,
the City Engineers made numerous oral representations to us and our neighbors during the construction that the improvements had been paid for out of the general tax fund and with public facilities fees and that the project would be completed with no assessment to any individual property owner within
Page Two
the project. We relied on those representations.
The Agreement further provides:
2. The improvements may be required to be made:
(a) When the owners of 40% or more of the frontage
have agreed with the City to install the
improvements, or
(b) When the owners of 50% or more of the frontage petition the City to form an improvement district.
NEITHER OF THESE CONDITIONS EVER OCCURRED.
A contract is an executed agreement to do or
not to do a certain thing.
California Civil Code, Section.1549.
Before any party to an obligation can require
another party to perform any act under it, he must fulfill all conditions precedent thereto imposed upon himself; and must be able and offer to fulfill all conditions concurrent so imposed upon him...
California Civil Code, Section 1439 (Emphasis Added.)
Unless a party performs the conditions precedent
imposed by contract, he cannot enforce the other
party's obligation under the contract.
Dam v. Superior Court (1964), 228 C.A.2d 283,
39 Cal. Rptr. 443.
A court will not compel one party to perform a contract and excuse performance by the other party, and this rule must be applied to the entire relation of the parties.
Kittle Mfg. Co v. Davis (19351, 8 Cal. App. 2d 504.
In the present situation, the City did not perform any conditions stated in the Agreement and therefore cannot require performance. The City never did anything which
Page Three
was provided for in the Agreement and yet, expects that we should simply hand over in excess of $5,000.00. under the contract were violated and the City is estopped from seeking reimbursement.
Our rights
The facts are:
The City Council made the decision to make the improvements and funds were appropriated for the payment of said project from the general tax fund. No improvement district was ever
formed and no assessment district was ever created.
This project was intended by the Council to be paid for out of public tax dollars. We, as residents, pay taxes as do our neighbors. Can the City of Carlsbad, in good faith, demand that we pay twice for a street improvement?
IMPLIED IN EVER CONTRACT IS THE COVENANT OF GOOD FAITH AND FAIR DEALING.
The Agreement and its conditions has been breached by the City. We did not have the opportunity to set aside monies to pay this "obligation" inasmuch as there was no notice given of the intended project. We, along with the other residents within the project paid for our share in our tax dollars. It is an extreme financial hardship on us to simply hand over $5000.00. The City has refused to compromise this matter. Is this good faith and fair dealing?
It is hereby demanded that the City Council formally release us from obligation under the purported agreement for the reasons set forth above.
Very truly yours,
Lorna L. Walker
LLW/ smw
Enclosures
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333
tax: $f.lo fec ------ determining tcix- f i riii rime
City of Carlsbad
CONTRACT FOtl FU'rUi?E PUBLIC lt~IPROVEl~1Ei~lTS --
THIS AGREEi4ENT is made by thc City of Carlsbad, a municipal
corporacion, hereinafter referred to as "Cittp'' I , and Jack R. Estes, an
unmarried man,
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cons t' I-uc t i on;
f 0 1 1 c)';!:i :
Section 1. That City agrees to record any irrcvocsble offers
of dedication niaclc by Propcr,ty Ownet- for Minor Subd'ivision NO. 498
.- Section 2. That. Property Owner, in lieu of making the herein-
after described improvements before approval of said Minor Subdivision
is granted, agrees to instal'l and construct, or cause to be installed
or constructed, said improvements in accordance with plans and specifi-
cations approved by the City Engineer within 60 days after written
deinand so to do by City. Property 01,qner shall not be required to make
sa id improvements -before January 1, 1981 or within such further period
of tim as is granted by City, provided, hoxever, that upon the happcciR:j
OF either of the following occurrences said improvements may, at the sole
election of City, be required to be made sooner than said dzte or such
cxtcnrled period of time which may have been grantcct by City: ::
(a) When t.he City Counci 1 finds that thc Owncrs 0.F 1:O.X or filorc
OF the frontage, including the frontscje of Property Oviner, bctwecii inter-
secting streets on both sides of the street upon which thc property herein
desci'ibed has frontage, have sgrzsd with City to install streat improve-
merits to City specifications.
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(b) When owncrs of more than SOX of the frontag;:, bctwxn
intersccting streets on both sides of the street upon which the propcr!:y
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fied herein, he: agrees that City way do any or al I of the following;
(a) Have the necessary cnginezring for said jmprovencnts
done, and install and construct said improvements by contract or othsr-
wise. City or its contractor and his ei;.;,loyczs lR3y cnt-c.r upon any
portion or portions of the property reasonably necessary for said
engineering and construction, arid the entire cost and expense shall be
charged against said property and payab?? by said Prop5rty C:;ntr-, his -
successors, heirs , assigns , or transferess iimwdiatcly upon conplction
of said irnprovernints. In the event samz is not paid within 30 days from
completion, City may foreclose said lien as provided by law for the
foreclosure of mortgages.
(b) Direct the City Engineer to estimate the cost of necessary
cr-igir;eerincJ, and the war!; required to instal 1 and construct szid improvc-
nients, anri Foraclose said lier; in said axunt.
(c) Pursue any remedy, legal or equitable (including those
specifically referred to herein), for the foreclosure of LJ lien, and tire
Property Owner, his successors, heirs, assigns, and transferees, shall
be liable for reasonable attorneyls fees as a cost in said proceedings.
Section 4. That it is agreed that anything hzrein contained tu
the coritrary notwithstanding, the pro.mises and covensin?-~s wade herein sh31
not 1)c Lindirq upon the holders, cnrtc~;-\c_i~es, or leric:fic ;;ti-ics of any
p~irc,lm*~r: nioney mortgage or piircllasc noric.2' deed OF trust for valiic wliich
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amount. of bond to be tlic est irn-Jted cost of cngirizering and irnpI-ovcis?rtrits
at thc time OF such dcposit or posting as ascertained by the City EnJ' c I nccl
and that upon deposit of said cash or posting of said bond the City
agrees to release the property, or any portion of it as to which said
deposit or posting applies, frm the provisions of this agreement, and
to execute any necessary rcleasc to enable the record title of the pro-
perty to be released From the lien herein imposed. -
Section 6. Said City shall not, nor shall any officer or
eniployec thereof, be liable or responsible for aiiy accident, 105s or
damage happening or occurring to the work or improvcmnts specified in '
this agreement prior to the co:i?p?ction and acceptance ol' tha ssl!;e, 17or
shall said City, nor any officer or employee thereof, bc lisblc For
.
any persons or property injured by reason of said work or iniprovemsnts,
but all of said liabilities shall be assuined by said Property Dwncr-, and
his scicccssors, heirs, assigns, and transfcrccs, and thcy shzll savi? ;Re
City ttar-nilcss from, and incleriiiirfy the City against, any and all clsiirns, b
suits and 1i.sbilities of or to any person or propert). injured or claim-
ing to be injured as a result CF said work or in?prove.;?entc,. Said ?ro-
perty Osmer, and his successors, heirs, assigns, and transferees, further
agrces to protect said City and the officers and en;>?o*/ecs thei-cof: fb-oill
al? 1 iat'il i ty 01- claim bccause of, or arising out oC, thz use G? any
patetit or patcntcd article in tile coristructicm of said inprovG1i::tits.
Parcel 1 !IS 498 per Parcel Map 11074 .
Improvements
.:* Curb LF
Gutter SF
Sidewalk SF *.
Street1 ights LF 109.62
Base Course SF 1,520.06
A.C. Pavement
Street Trees .. . I. .. .
SF
EA
1,239.44
50.00
SF 561.25 .. . Subgrade Preparat ion
d. 736 36
3 5,645.44 TOTAL COST
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CITY OF CRRLSBAD, r3unicipsl
Corporation of the State o€
California
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the undersigned Notary Public, personally appeared
* * * * Jack R. Estes * * * * * * * *
known to me to be the personh) whose namew is
to the within instrument and acknowledged that
executed the same for the purposes therein contained.
subscribed
he
mu hand -4 official seal. ._. .. - ~ SS WHEREOF. I hereunto
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2075 US PALMAS DRIVE . CARLSBAD, CALIFORNIA 920084859
office of rho Municipal twocrs
Citp of Carlsbab
TELEPHONE (619) 4381 161
June 4, 1987
Merle L. and Norma L. Walker
1271 Tamarack Avenue
Carlsbad, California 92008
FIA 81-081016; 1271 TAMARACK AVENUE
A review of City records indicates a Future Improvement Agreement
obligation on your property. A copy of the agreement is attached
herein for your review. In accordance with these terms, the
costs for construction engineering and contingencies is due upon
installation and completion of same. The total cost as estimated
on June 31, 1981, was $5,645.44 for the individual lot. The
assessed costs are $5,016.35. This represents actual costs to-
date for 73.21 feet of frontage on Tamarack Avegue. A breakdown
follows:
1. Design, Contract Administration, and
2. Total Construction Cost
Project Management $ 19,796.16
158;966;37
3. Total Construction Cost $172,525.71
4. Total Footage 2,518 feet
5. Unit Cost (3 divided by 5) $68.52
Property Address: 1199 Tamarack Avenue
Carlsbad, CA 92008
Front footage 73.21 feet
Assessment $5,016.35
If you have any questions, plese contact me at 438-1161,
ANV:mja
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1271 Tamarack Avenue
Carlsbad, CA 92008
August 8, 1987
CARLSBAD CITY COUNCIL
1200 Elm Avenue
Carlsbad, California
Re: Street Improvement on Tamarack Avenue
Ladies and Gentlemen of the Council:
We have been informed that the street improvement project on Tamarack
Avenue is to come before the Council on Tuesday, August 11, 1987. Due to a
death in our family we will be unable to appear to present our position at
that time. This letter is to apprise you of our contentions regarding this
matter and to request that we be given the opportunity to be heard before the
Council in the future or that the Council take this matter into consideration
and render a decision based upon the facts outlined below.
We purchased the property at 1271 Tamarack Avenue on November 18, 1985.
The property was previously owned by Jack Estes, Brooks Worthing and Wayne
Ogletree. Subsequent to our purchase, the City of Carlsbad began the subject
street improvement. There was no notice to us of the intended project and
representations to us and our neighbors that the project funds were already
appropriated and the project would be completed with no cost to us.
# during the course of the work, the City Engineering Department made numerous
After completion of the project, we received the enclosed letter and a
copy of the Future Improvement Agreement from A1 Virgilio, Project Manager.
As you can see from the attached material, only - four property owners (six
parcels) are being asked to pay for the improvement which ranges from Adams
to Highland. There are a total of twenty-seven residences in the subject
area. Those six parcels comprise a total of approximately 17.5 percent of
the frontage.
The Future Improvement Agreement provides that the property owner be
' given sixty (60) days written notice of the intended project. It further
provides that the City may elect to undertake the project when forty percent
(40%) of the property owners have agreed to install the improvements or when
fifty percent (50%) have petitioned the City for the improvement. None of
these provisions have ever been complied with by the City of Carlsbad. The
City is therefore in violation of said Future Improvement Agreement; said
Agreement has been breached and should therefore be declared null and void by
this Council.
Notwithstanding the breach of the aforesaid Agreement, we take exception
to the fact that the City has allowed the subdivision to be approved and
permits issued without the payment of the appropriate fees. This has allowed
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the developer to pocket his monies and walk away, leaving the present owners
(four owners down the line) to pay for what should have been his
responsibility. Certainly the City dows not allow the major developers to
pass on these improvements to future owners.
Now we are faced with a demand by the City of Carlsbad to immediately
pay the sum of $5,016.35. The City has refused to make any arrangement for
us to pay this over a period of time. It is hardly an equitable or
reasonable request that we should be required to borrow the funds to pay
forthwith when most of our neighbors are not being required to pay a dime.
The frontage of the entire project was 2,518 feet. The aix parcels
being required to pay totals 431.8 feet, only 17.5 percent of the total
frontage.
The only rights extended to us in an agreement we knew nothing of were
violated. The City has breached the Agreement signed by Jack Estes in 1981,
however unfair that Agreement was to begin with, on at least two points. We
were never given the opportunity provided for to Investigate the street
improvement and certainly there was never agreement by forty percent of the
owners.
We strongly feel that the actions of the City are discriminatory as to
the four property owners. Everyone on the street sharing in the benefit but
only four in the liability. What happened to the appropriated funds we were
told of?
We request that the Council declare the Future Improvement Agreement
null and void, that the Assessment be removed and that the City provide us
with a Satisfaction of any lien which may exist on our property.
We will be happy to meet with the Council at any time to discuss this
matter. Thank you for your consideration. We await your communication.
Very truly yours,
Lorna L. Walker
Enclosures
cc: Alphonse Virgilio, Project Manager
Office of the Mayor
Law Offices of DiCaro & D'Antony
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