HomeMy WebLinkAbout1997-10-07; City Council; 14374; APPROVAL WITH CARLSBAD RANCH CO. FOR CANNON ROAD WEST IMPROVEMENTS FAIR SHARE COST AGREEMENT. PROJECT NO. 3184, .! <' . m B . I.. j
CI OF CARLSBAD -AGENDA LL P
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AB# 14, 33 Y TITLE: APPROVAL OF AN AGREEMENT WITH THE
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CITY Am& CONSENT TO CREATION OF A FACILITY IMPACT FEE PROGRAM AND MTG. 10-07-97
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CARLSBAD RANCH COMPANY, L. P., FOR PETITION, WAIVER, AND
AGREEMENT TO PAY FAIR SHARE COST OF CANNON ROAD WEST
AND AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CITY MG~
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CONSTRUCTION OF IMPROVEMENTS FOR CANNON ROAD WEST
PROJECT NO. 3184
RECOMMENDED ACTION:
Adopt Resolution No. q 3 4 62 3 approving an agreement with the Carlsbad Ranch Compal
L. P., for a Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program a
Agreement to Pay Fair Share Cost of Cannon Road West and Agreement for Reimbursement
Costs for the Construction of Improvements for Cannon Road West, Project No. 3184.
ITEM EXPLANATION:
The Carlsbad Ranch Company, L. P., is the owner/developer of Carlsbad Ranch. The LC
Facilities Management Plan for Zone 13 requires the ownerldeveloper to participate in
proposed fee program and to enter into an agreement to pay their fair share of the constructior
Cannon Road.
Staff has been working with the property owners of Zone 8, 13, 24 and Carlsbad Research Cer
Phase V which is in Zone 5 (Carlsbad Tract 85-24, Unit No. 5) to develop a facility fee progran
insure the ultimate construction of this major circulation element road. A final report i documents are currently being prepared which will be presented for final adoption by the (
Council within the next several months.
In order not to delay their development, the developer has requested that Council approve
consent and waiver agreement.
Under conditions of the agreement, the developer will pre-pay the projected fee prior to builc
permit approval and agree to pay any additional amount in the future should the fee exceed 1
currently projected in the preliminary estimates.
a tu This agreement is similar to agreements previously approved by the City Council for func i5
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programs being developed for Alga Road and Poinsettia Lane and Rancho Santa Fe Road.
Q 1;2= Development within LFMP Zones 13 and 24 and Carlsbad Research Center Unit V has becr
quite active, which has led to the acceleration of the Cannon Road West Fee Program. Sev
other developments within the area may seek similar pre-payment agreements in the near futurt
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The Carltas Company, through the development of Carlsbad Ranch, borrowed approxim:
unit of Carlsbad Ranch. The City and Carltas agreed Carltas would make the borrowed mat
available during the subsequent development of Carlsbad Ranch. The Specific Plan amendt-
and related tentative map for Carlsbad Ranch to incorporate the LEGOLAND Carlsbad family 1
required that the material be available as a condition of approval. The development of
Carlsbad Ranch project precedes the City planned construction of Cannon Road West. The would have had to pay to move the material with the construction of Cannon Road and has agl
to reimburse Carltas for the placement of the material in the final location on Cannon Road.
200,000 cubic yards of fill material from the Cannon Road project for the development of the
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Page 2 of Agenda Bill No. 9 % 2 3 y 0
The City has begun the process of the formation of a Bridge and Thoroughfare District to fund 1
construction of Cannon Road West from Paseo Del Norte to El Camino Real. Certain comrr
improvements are eligible for reimbursement from the Bridge and Thoroughfare District. As
condition of approval for Car Country Expansion, the Carltas Company constructed improveme
that are common improvements in the fee program. A reimbursement of $250,000 will be paid
Carltas upon execution of the Agreement for these previously constructed and accep
improvements.
ENVIRONMENTAL:
EIR 87-2 was certified by the City Council June 27, 1989. A 4(d) permit or Interim Coastal S:
Scrub Take Permit was issued August 15, 1997. The project is scheduled for Coastal Commiss on October 8, 1997, The project as currently designed and complies with the conditions in the s
report. No work will begin until the Coastal Permit is issued.
FISCAL IMPACT:
Carlsbad will pay approximately $1,436,000 to the Carlsbad Ranch Company, L. P., from Cannon Road West account. $250,000 will be paid after the execution of the agreement. 1
exact amount paid will be based on the audited cost of construction. Sufficient funds are currel
available in the project account.
EXHIBITS:
1. Location Map.
2. Resolution No. 93 -4 2 3 approving a Petition, Waiver, and Consent to Creation c
Facility Impact Fee Program and Agreement to Pay Fair Share Cost of Cannon Road W
and Agreement for Reimbursement of Costs for the Construction of Improvements
Cannon Road West.
3. Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program and Agreemen
Pay Fair Share Cost of Cannon Road West and Agreement for Reimbursement of Costs
the Construction of Improvements for Cannon Road West.
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RESOLUTION NO. 97-623
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
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CARLSBAD, CALIFORNIA, APPROVING A PETITION, WAIVER,
PROGRAM AND AGREEMENT TO PAY FAIR SHARE COST OF
CANNON ROAD WEST AND AGREEMENT FOR REIMBURSEMENT
OF COSTS FOR THE CONSTRUCTION OF IMPROVEMENTS FOR
CANNON ROAD WEST.
AND CONSENT TO CREATION OF A FACILITY IMPACT FEE
WHEREAS, Condition 2 of Planning Commission Resolution 3851 approved Decemt
1995, has required that the applicant, the Carisbad Ranch Company, L. P., pay a pro-rata :
of the cost of construction of Cannon Road prior to the issuance of the building permit.
WHEREAS, the City Council of the City of Carlsbad has required that the fundi,
Cannon Road West (Project) must be guaranteed before any development takes place il
area bounded by Local Facilities Management Zone 13.
WHEREAS, City staff is actively pursuing formation of a facility fee district to financ
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Project; and
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WHEREAS, although the Council anticipates the facility fee district will be formed i
near future, the Council is willing to consider alternative financing proposals during the p
from the present to the formation date of the fee district; and
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WHEREAS, such interim financing program will only be considered as long as the Cc
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finds that the formation of the fee district is proceeding in a reasonable manner; and
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WHEREAS, the Council finds that the formation of the fee district is proceeding 20
reasonable manner; and 21
WHEREAS, the Council finds that the guarantee provisions related to the Project mi
met through an interim financing program using an agreement between certain property ov
and the City whereby the property owner agrees to pre-pay hidher fair share of the
associated with the Project; and
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26 WHEREAS, the Council finds that the Carlsbad Ranch Company, L. P., a Cali
limited partnership, may enter into the attached Agreement to Pay Fair Share (Exhibit 27
28 satisfaction of their obligation under the Project financing conditions.
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1 WHEREAS, the City Council of the City of Carlsbad, California, hereby finds it necess:
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grading, and install drainage improvements; and 3
desirable, and in the public interest to grade Cannon Road, perform required mitigation for
4 WHEREAS, the Carlsbad Ranch Company, L. P., (CRC) has been conditioned to pro\
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CT 94-09; and 6
fill material for Cannon Road West Reach 1 as a condition of approval of Carlsbad Ra
7 WHEREAS, the development of the Carlsbad Ranch project is occurring prior to the C
8 planned construction schedule for the grading of Cannon Road West Reach 1; and
9 WHEREAS, the City will reimburse CRC for the grading and associated improvem
10 for Cannon Road West upon completion of the construction; and
11 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carls
12 California, as follows:
13 1. That the above recitations are true and correct.
14 2. That the Mayor is hereby authorized and directed to execute said agreen
15 attached as Exhibit 3.
16 3. That the City Clerk of the City of Carlsbad, California, is hereby authorizec
directed to foward a copy of the executed agreement to the Carlsbad Ranch Company, I 17
i8 Attention: David Meyer, 5600 Avenida Encinas, Suite 100, Carlsbad, CA 92008
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PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City CI
held on the 7th day of October , 1997 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, N gaard, Kulchin, and Hall
NOES: None
ABSENT: None
I I ATTEST:
ALtkSWiTE (SEAL)
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RECORDING REQUESTED
BYANDWHENRECORDED
MAIL TO:
City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive
Carlsbad, CA. 92008
I SPACE ABOVE THIS LINE FOR RECORDER'S USE
Parcel No. 21 1-023-1 3
For Legal Description see attached Exhibit 'A'
PETITION, WAIVER, AND CONSENT TO CREATION
OF A FACILITY IMPACT FEE PROGRAM AND AGREEMENT l'0
PAY FAIR SHARE COST OF CANNON ROAD WEST AND
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE
CONSTRUCTION OF IMPROVEMENTS FOR CANNON ROAD WEST
("AGREEMENT")
A. THIS AGREEMENTl is made and entered into as of the 14th day of
OCTOBER , 1997, by and between the CITY OF CARLSBAD, a municipal corporation,
hereinafter referred to as "CITY", and CARLSBAD RANCH COMPANY, L.P., a California limited
partnership, exclusively in its capacity as owner of Lot 5, Map No. 13357, hereinafter referred to
as "DEVELOPER", I. *.
B. WHEREAS, City has determined Lot 5, according to Map No. 13357 (hereunder
"Property") to be located within the boundaries of a proposed benefit area for a Facility Impact
Fee Program to be known as Cannon Road West Facility Fee Program ("Fee Program"); and
C. WHEREAS, Fee Program is intended to be formed to finance those
improvements generally described in Paragraph 1 below; and
D. WHEREAS, Fee Program may take the form of a bridge and thoroughfare area
of benefit fee (pursuant to Government Code Section 66484 and Carlsbad Municipal Code
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(CMC) Section 20.08.140), amendment to the Traffic Impact Fee (CMC Chapter 18.42), a new
Development Impact Fee enacted pursuant to Government Code Section 66000 et seq, an!
combination thereof, or otherwise; and
E. WHEREAS, DEVELOPER desires to proceed with the construction of a portior
of the improvements generally described in Paragraph 1 below (the “Improvements”) anc
processing of a project (the “Project“) for the Property prior to CITY determination of the form 01
establishment of Fee Program; and
F. WHEREAS, the Local Facilities Management Plan for Zone 13 requires a
guarantee for the construction of the segment of Cannon Road West, described in Paragraph 1
below, prior to the issuance of building permits within the zone; and
G. WHEREAS, compliance with the applicable Local Facilities Management Plan for
Zone 13 is a condition of approval for the Project; and
H. WHEREAS, City and DEVELOPER desire to agree to a guarantee which insures
the project‘s fair share of the financing for the improvements described in Paragraph 1 herein
that will allow DEVELOPER to proceed with the development of the Project in advance of the
formation of a Fee Program for the construction of Cannon Road West; and
I. WHEREAS, City Council agrees that DEVELOPER, upon entering into this
Agreement and upon payment of the fair share described herein, has met the requirement set
forth in the Local Facilities Management Plan for Local Facilities Management Plan Zone 13
and related Master Tentative Map Condition Number 2 for Carlsbad Ranch to provide a
financial guarantee for the construction of those improvements described in Paragraph 1 below;
and
J. WHEREAS, DEVELOPER voluntarily enters into this Agreement; and
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Kl WHEREAS, the City Council has determined that due to the size of the Projee
there will be no major impact on the circulation system at the present time if development of th
Project is allowed to proceed with sufficient financial guarantees for actual construction to mee
DEVELOPERS fair share of the circulation improvements; and
L. WHEREAS, Condition Number 32 of DEVELOPER’S final map CT 94-09
Carlsbad Ranch, Planning Commission Resolution No. 3851, required fill material to bt
provided for Cannon Road; and
M. WHEREAS, the availability of the fill material from DEVELOPER precedes
CITY’S start of construction for Cannon Road; and
N. WHEREAS, CITY has completed plans and specifications (the “Plans”) for the
improvements and is supplying them to DEVELOPER to construct said Improvements; and
0, WHEREAS, CITY and DEVELOPER found it in their mutual interest to proceed
at this time with the Improvements to Cannon Road; and
P. WHEREAS, CITY has agreed to reimburse DEVELOPER for the costs to move
and place the required fill material and for the costs of the Improvements for Cannon Road
West (City Project No. 3184); and
Q. WHEREAS, a condition of DEVELOPERS final map CT 87-3 required
construction of the common improvements for Cannon Road from Paseo Del Node to
Car Country Drive (the “CT 87-3 Improvements”); and
R. WHEREAS, a condition of DEVELOPER’S final map CT 94-09 requires the
construction of certain common improvements for Cannon Road from LEG0 Drive to the
Carlsbad Ranch easterly boundary (the “CT 94-09 Improvements”); and
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S. WHEREAS, common improvements for Cannon Road from Car Country Drive to
LEG0 Drive have been completed, accepted and reimbursed by the CITY through the Carlsbad
Ranch Assessment District AD 95-1.
NOW, THEREFORE, in consideration of proceeding with the processing of the Project,
the undersigned DEVELOPER hereby agrees, and certifies the following:
1. DEVELOPER hereby petitions the City for the initiation of proceedings of a Fee
Program which will cause the construction and installation and/or financing of the following
improvements which are more specifically described as follows:
0 Cannon Road to major arterial road standards from Paseo
Del Node to El Camino Real (Cannon Road West)
The improvements proposed for inclusion include all curbs,
gutters, sidewalk, base and pavement, median landscaping
and irrigation, median hardscape, streetlights, street
monumentation, grading and excavation, storm drainage
facilities, guardrails, two 485 foot multispan bridges and
one 156 foot single span bridge together with any
incidentals necessary to complete a four lane major arterial
roadway.
2. The costs of construction, engineering, design, construction inspection, contract
administration, construction engineering, environmental mitigation, condemnation costs for the
necessary right-of-way and slope easements, legal and other incidental expenses will be
funded by the Fee Program.
3. DEVELOPER acknowledges its right to notice of and participation in all phases
of the establishment of Fee Program and expressly waives any right to protest or oppose the
imposition or formation of Fee Program. DEVELOPERS waiver of its right to protest
establishment or formation of the Fee Program shall not prevent DEVELOPER from protesting
the amount of the fee or extent of the improvements for Cannon Road West.
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4. a) DEVELOPER agrees to pay to City its estimated fair share for tht
improvements described in paragraph one (1) above ("Deposit"), currently estimated to be $7:
per average daily trip attributable to the Property.
b) Prior to issuance of any building permit for any phase or phases within thc
Property, DEVELOPER shall pay the Deposit to City in an amount calculated in accordance
with Paragraph 4.a) above for the number of average daily trips proposed within that Project
Deposit is made in fulfillment of conditions of the Tentative Map to allow City to considel
approval of the Project in advance of the establishment of the Fee Program.
c) The actual amount of DEVELOPERs fair share payment under the Fee
Program shall be conclusively determined by City Council at the time the Fee Program is
established.
d) Deposit by DEVELOPER of its fair share of improvement costs as
determined herein, and the contractual covenant created by this Agreement satisfies
DEVELOPERs obligations for the construction of the improvements described in paragraph
one (1) above, as required by the Local Facilities Management Plan for Zone 13.
e) DEVELOPER acknowledges that this Agreement to pay its fair share and
participate in the financing of improvements is voluntary and that without this Agreement
DEVELOPER would be precluded from obtaining building and other development permits under
the provisions of the General Plan, Chapter 21.90 of the Carlsbad Municipal Code, applicable
zone plan, financing plans and related documents until a satisfactory financing program had
been developed to fund the construction of the improvements described in Paragraph 1 above.
5. DEVELOPER hereby waives its right to challenge the establishment or
imposition of Fee Program. DEVELOPERs waiver of its right to challenge the establishment or
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imposition of Fee Program shall not prevent DEVELOPER from protesting the amount of the
fee or extent of the improvements for Cannon Road West.
6. This Agreement does not affect, in any way whatsoever, the obligation of
DEVELOPER to pay any other fees or assessments associated with DEVELOPER’S
development, nor does this Agreement relieve DEVELOPER from providing other publi~
facilities required under conditions of the Local Facilities Management Plan for Zone 13 or
placed upon Master Tentative Map CT 94-09, Carlsbad Ranch, by the City.
7. a) If prior to January 1, 1999, the Fee Program for Cannon Road West is
established, subsequent to Deposit by DEVELOPER pursuant to this Agreement,
DEVELOPERS financial obligation shall be recalculated at that time, using the fee formula
established under the approved Fee Program. If the initial Fee Program obligation is different
from Deposit, plus accrued interest, amount previously paid by DEVELOPER to City pursuant
to Paragraph 4 hereof, City shall refund any excess, or DEVELOPER will pay to City any
additional amount due (Shortfall).
b) Any refund shall be made from funds available through the collection of fees
and shall not be an obligation of City’s General Fund or other revenue sources.
c) In the event that insufficient funds are available from the fee revenues,
DEVELOPER shall be reimbursed in the order in which funds were deposited with City as soon
as sufficient funds become available, as determined by the City Council.
d) No reimbursement is required until the City Council determines that sufficient
funds are available.
e) If a Shortfall exists, DEVELOPER shall be notified of the amount of suct
Shortfall by the Finance Director via certified mail. The amount of said Shortfall shall be duf
and payable to City thirty (30) days after the mailing of such notice.
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9 The computation of the amount of any Shortfall shall not include interesl
charges.
9) If payment in full of the Shortfall is not made by DEVELOPER within nineb
(90) days of notice of said Shortfall by the Finance Director, the amount due shall constitute a
lien OR any portion of the Property for which a building permit has not been issued by the City.
City may deny the issuance of building permits and/or take any other action allowed by law to
deny further development of Property subject to this Agreement, and to collect such Shortfall
including, but not limited to, enforcement of the lien on the Property. City’s recordation of a lien
shall not affect its ability to recover the Shortfall by other legal means concurrently, but no
double recovery will be allowed. The cost of such collection shall be an obligation of
DEVELOPER and shall be added to the amount of the Shortfall payment due City.
h) Any payment received by the City under this Agreement shall be deposited in
a special fund and may only be used to fund the construction of the facilities described herein.
Upon the establishment of a Fee Program to fund these same facilities, any amount remaining
in the special fund may be transferred to the Facility Fee Fund, at the discretion of the Finance
Director.
i) On or after the effective date of the Fee Program adopted by City Council, the
DEVELOPER may elect to terminate this Agreement. The DEVELOPER shall notify the City of
their intent to terminate this Agreement in writing in accordance with the provisions of
paragraph 15 below. Upon receipt of such notification, the City shall review the Deposit
account for the Project and determine the amount of any shortfall or refund due under the
provisions of this Agreement and the amount of any remaining credits pursuant to paragraph
4.d) above, if any. Upon payment of the shortfall, if any, by the DEVELOPER and upon the
determination by the City that the Project is subject to the adopted Fee Program, the City shall
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file a notice of release and termination of Agreement with the Office of the County Recorder of
the County of San Diego. Termination of this Agreement by the City shall affect only those
portions of the Property which have not recorded a final map prior to the filing of the notice oi
release and termination of Agreement. All money or credits received in satisfaction of the terms
of this Agreement for any portion of the Property for which a final map has been recorded prior
to termination of the Agreement shall be considered to have satisfied the Fee Program
requirements for those lots or units included within such recorded map. Any additional credits
in excess of the needs created by the recording of a phased final map shall be made available
to the DEVELOPER for use on the remaining unrecorded portion of the project in accordance
with any provisions for the allowance of credits under the adopted Fee Program.
8. If the Fee Program has not been established for any reason by January 1, 1999,
the amount paid by DEVELOPER under this Agreement, including any credits or
reimbursements due pursuant to paragraph 4.c) above, shall be deemed to represent
DEVELOPERS fair share cost for provision of those facilities described in paragraph one (1)
above and no further payment will be due from or reimbursement due to DEVELOPER .
9. Compliance with this Agreement will be accepted by City as an alternate to the
method described in the current Local Facilities Management Plan for Zone 13 for financing the
improvements described in paragraph one (1) above. This Agreement does not require City to
issue building permits or other development permits or grant approvals or relieve DEVELOPER
of the obligation to comply with all applicable provisions of law, including but not limited to,
Carlsbad Municipal Code Titles 18, 19, 20 and 21.
IO. Compliance with the provisions of this Agreement is a condition of all future
discretionary approvals for the Property. If DEVELOPER does not comply with the provisions
of this Agreement, approval of any project on the Property will not be consistent with the
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General Plan, the Growth Management Program, the Local Facilities Management Plan, or the
applicable financing plan for Zone 13 and all subsequent discretionary approvals and permits
for the Property shall be withheld by City.
11. The City may, at its discretion, elect to pursue any remedy, legal or equitable
against DEVELOPER or DEVELOPER’S successors, heirs, assigns, and transferees, with
respect to the Property, with the exception of owners of individual lots for which building permits
have been issued, to secure compliance with this Agreement.
12. City shall not, nor shall any officer or employee of City, be liable or responsible
for any loss or damage incurred by DEVELOPER or any successor or assign of DEVELOPER,
or by any occupant in Property, as a result of the exercise of any remedies provided to City in
this Agreement. DEVELOPER agrees to indemnify City for any liabilities incurred by City as a
result of City’s exercise of these remedies.
13. This Agreement and the covenants contained herein shall be binding upon and
inure to the benefit of the successors, heirs, assigns, and transferees of DEVELOPER and City,
and run with the Property and create an equitable servitude upon the Property.
14. All notices provided for under this Agreement shall be in writing and shall be
delivered in person or served by certified mail postage prepaid. Delivery of notice to
DEVELOPER shall be presumed to have been made on the date of mailing regardless of
receipt by DEVELOPER. Notices required to be given to DEVELOPER shall be addressed as
follows:
CARLSBAD RANCH COMPANY, L.P.
c/o Carltas Company
Carisbad, CA 92008
Attention: General Partner (with a copy to David C. Meyer)
5600 Avenida Encinas, Suite 100
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Notices to the City shall be delivered to the following:
Finance Director CITY OF CARLSBAD 1200 Carlsbad Village Drive
Carlsbad, CA 92008
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.
15. The obligation and benefits of this Agreement shall be transferred upon sale of
the Property. As used in this Agreement, “DEVELOPER shall be the owner of the Property,
except as to any portion of the Property for which residential permits have been issued.
Notwithstanding any provision of this Agreement to the contrary, upon written notice to the City
pursuant to Paragraph 15 above, all obligations, benefits and responsibilities of this Agreement
shall move to the new owner of the Property.
16. DEVELOPER’S Work. DEVELOPER shall contract with a general engineering
contractor (the “General Contractor”) to perform the work described in Exhibit “B attached
hereto. “DEVELOPERs Work“, as used in this Agreement, shall mean the work described in
Exhibit “B” and any work described in any change order which has been approved in writing by
CITY and DEVELOPER.
17. Reimbursement for DEVELOPERs Work. CITY shall reimburse DEVELOPER
for the actual costs of construction of DEVELOPERs Work, including, but not limited to, the
General Contractor, Construction Manager, Surveying, SoildEnvironmental Engineer,
Archaeological and Paleontological monitoring services, and DEVELOPERs oversight in
accordance with the provisions of Paragraph 2.1, below. A preliminary budget for the
DEVELOPER’S Work is attached hereto as Exhibit “C”. CITY shall provide DEVELOPER at its
sole expense, all plans, specifications, permits, City inspections and licenses necessary to
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complefe bEVi!!!d6!!R’s Work. CITY shall also provide the services during construction by its
civil engineer (O’Day Consultants) (“O’Day”).
18. DEVELOPER shall submit monthly requests for reimbursement to CITY (thc
“Application For Payment“) for the actual costs of DEVELOPERs Work as DEVELOPERs
Work is performed by the General Contractor. Each such monthly request shall be
accompanied by the General Contractor‘s invoice, appropriate lien releases, and invoices for
any other service providers.
19. CITY shall provide DEVELOPER with written objections to any amount(s)
submitted with its monthly Application For Payment within seven (7) business days of receipt.
Should CITY have any objections, it shall work with DEVELOPER to promptly resolve its
objection(s) in a mutually satisfactory manner.
20. In the event CITY fails to make any reimbursement payment to DEVELOPER
within twenty-one (21) calendar days after CITY receives DEVELOPER’S request, excluding
amounts objected to as provided for herein, then CITY shall pay to DEVELOPER a late charge
equal to the lesser of (i) ten percent (10%) of the overdue amount plus interest on overdue
amounts plus interest on overdue amounts equal to 1.5% per month, or (ii) not exceeding the
maximum amount permitted by law. Interest on any overdue amount from CITY to
DEVELOPER shall continue to accrue until the overdue amount and interest thereon is paid.
21. License to Enter and Perform DEVELOPER’S Work. CITY hereby grants to
DEVELOPER a non-exclusive license to enter upon property owned by CITY, or upon which
CITY owns a right-of-way, as necessary to perform DEVELOPERs Work. Prior to
commencement of construction of DEVELOPER’s Work, CITY shall obtain any consent,
license, temporary easement or other appropriate documentation from any other DEVELOPER
as necessary to DEVELOPER to enter and perform DEVELOPERs Work.
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22. Reimbursement for the CT 87-3 Imwovements. Within thirty (30) days of the
date of execution of this Agreement, CITY agrees to pay DEVELOPER $250,000 for the
CT 87-3 Improvements constructed and paid for by DEVELOPER and/or its affiliates, Carltas
Company and Carltas Development Company. CITY shall undertake an audit of the eligible
costs paid by DEVELOPER for the CT 87-3 Improvements. Should the audited costs be
greater than CITY'S initial payment to DEVELOPER, then the CITY will pay DEVELOPER the
additional amount with its final payment to DEVELOPER for DEVELOPERs Work, and should
the audited amount be less than initial payment to DEVELOPER, then the CITY shall subtract
this amount from its final payment to DEVELOPER for DEVELOPERs Work. CITY hereby
acknowledges the CT 87-3 Improvements have been completed and accepted by the CITY.
Said CT 87-3 Improvements are defined in the Bridge and Thoroughfare District Fee Study
Report for Cannon Road West, dated December 11, 1995 prepared by NBS/Lowry, Inc.
23. The CITY hereby will indemnify, protect, hold harmless and defend
DEVELOPER from any and all liabilities, liens, claims, damages, costs, expenses, suits or
judgments, including reasonable attorney's fees arising from DEVELOPERs use of the Plans in
constructing the Improvements.
24. CITY shall not withhold any payments to DEVELOPER and decline the
acceptance of DEVELOPERs Work if the cause pertains to a defect, error or omission arising
from the Plans. Additionally, CITY shall provide timely acceptance of DEVELOPERs Work and
promptly release any bonds and/or cash security required of DEVELOPER.
25. Notices. All notices, requests, and other deliveries hereunder shall be in writing
and either personally delivered or sent by certified mail, postage prepaid, return receipt
requested, addressed to the party to be notified at the address specified herein. Any such
notice shall be deemed received on the date of personal delivery to the party (or such party's
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authorized representative) or three (3) business days after deposit in the U.S. Mail, as the case
may be.
26. General Provisions.
a. Attomev’s Fees. If any suit or other proceeding is brought forth for the
enforcement or interpretation of this Agreement, or because of any dispute or alleged default
hereunder, the prevailing party shall be entitled to recover, from the other party, reasonable
attorney’s fees and other costs incurred in that suit or proceeding, in addition to any other relief
to which such party may be entitled. The prevailing party shall be that party receiving
substantially the relief sought in the proceeding, whether brought to final judgment or not.
b. CounterDarts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the same
agreement after each party has signed such a counterpart.
C. Governina Law. This Agreement shall be governed, interpreted,
constructed and enforced in accordance with the laws of the State of California.
d. Successors. The burdens and obligations of the parties under this
Agreement shall be binding upon, and the rights and benefits of the Agreement shall inure to
the successors-in-interest of the parties hereto.
e. Time. Time is of the essence of each provision of this Agreement.
f. Term. The term of this agreement shall be for a period of one (1)
calendar year from the date hereof.
26. Effective Date
This Agreement shall be effective on and from the date on Page 1 of this
Agreement.
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27. The undersigned entity further states, under penalty of perjury, that it is thl
Owner of the property described herein, or an authorized agent of the owner, and has th
authority tqsign this document, including the creation of the covenants herein.
Executed this 2 p/ day of 5.~~3 &he, 19 97
DEVELOPER :
CARLSBAD RANCH COMPANY, L.P., a California limited partnership
By: Carltas Company, a California limited partnership,
General Partner
By: Carltas Mana ement a
By:
(Proper notarial acknowledgment of execution by Contractor must be attached.)
(President or vice-president and secretary or assistant: secretary must sign for corporations.
only one officer signs, the corporation must attach a resolution certified by the secretary I
assistant secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM;
RONALD R. BALL
i;
\
14
CALIFORNIA ALL-PURP & ACKNOWLEDGMENT e
<<.
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6 r: State of cdlifornia
P.
< Q .: County of g
<x; On September 29, 1997 Bret P. Berry, Nolxy Publi- before me, 5, Date Name and Title of Officer (e.g.. =lane Doe, Notary Public")
i:: Christopher c. calkins p personally appeared ,.': Name(s) of Signer@)
,c, IL personally known to me
:? 0 proved to me on the basis of satisfactory evidence
r' to be the perso& whose name(4 islddsubscribed to the
,\ within instrument and acknowled ed to me that he&&%!
Ii and that by his/d&h!di signature(4 on the instrument the
San Diego
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\ j, executed the same in his/k!d d r authorized capacity&J
person(4, or the entity upon behalf of which the person&
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acted, executed the instrument.
WITNESS my hand and official seal.
..
fl Signature of Notary Public
OPTlONA L
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document. '3 < Description of Attached Document
,? ~etitim, wdx, and consent to creation of a Facility
Title or Type of Document: liupact Pee Proqram (Cannon Road West)
Doc ent Date:
Signer(s) Ot Than Named Above:
Capacity(ies) C ed by Signer(s)
1 ('. :a, Number of Pages:
'>
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I
1
,j
0 individual
c3 Corporate Officer
3 Attorney-in-Fact Cl Trustee
0 Guardian or Conservator
Other:
Signer Is Representing: Signer is Representing:
. . ". , ._ , . - ..- __ ,, ,. - _, -:,.~- ->,Lp;c+; ~" ,:--:- - ,- -- ,- - - - .,"- P"~ - , - , .. , - , Ij, -.,~-,,w~~~<~-~,~~~~~~~~~~~~~~-~,~ .:~:.~:-,"-~~-,~~~~~~~~~~-~~~~~~~~~~~,~~~,~~~~~~~~?-~~~~~~~
0 1996 National Notary Association 8236 Remmet Ave.. P.O. Box 7184 Canoga Park. CA 91309-7184 Prod. NO. 5907 Reorder: Call Toll-Free 1-60
0 0
EXHIBIT "A"
LEGAL DESCRIPTION
Lot 5 of Map No. 13357, Carlsbad Ranch Unit 1 recorded in the Office of the Count)
Recorder of the County of San Diego, State of California, September 11, 1996
15
e 0
EXHIBIT "B"
CT 87-3 IMPROVEMENTS
CANNON ROAD (PASEO DEL NORTE TO CAR COUNTRY DRIVE) UNAUDITED PROJECT COSTS
Prepared by Kahr & Associates
1. Demolition & Earthwork $79,222 2. Utility Spoil Removal $2,457 3. Storm Drain $8731 C 4, A,C, Pavement $43,64f 5. Site Concrete $1 0,89E 6. Brow Ditch
Subtotal $7,12€ 7. General Conditions $227,737 Subtotal $4,004
$288,882 PROJECT TOTAL $35,22E 9. Incidentals (1 5%) $1 8,78E 8. General Contractor's Fee (8%) $234,862
16
0 Exhibit "C" e
Cannon Road West
STA 37+50 to 64+50
~ "_ ~~ ~~ ~
I Construction costs I 1 I
Cannon Road
1 Mobilization / Prepatory Tasks $ 32,400
2 Rough & Finish Grading $ 223,122
3 RecompacVRernedial Grading
Lump Sum
Lump Sum
a.
b.
C.
4
5
6
7
8
9
10
Remove & Recompact Unsuitable
Recompact w/ Geogrid
Geogrid @ Buttress Recompacr
Storm Drain
Erosion Control
Slope Watering (21 Days)
Environmental
Contractor's Completion Bonds
Miscellaneous
Erosion Control Maintenance
Wetland Mitigation Area
11 Excavate & Rough Finish
12 Silt Fence
13 Export Excess Material
SDG&E Temporary Pole Pad
14 Regrading
$ 81,900
$ 10,500
$ 123,200
$ 264,236
$ 111,076
$ 12,360
$ 17,680
$ 16,200
$ 37,700
$ 50,000
$
$ 16,500
$ 5,250
$ 5,000
$
Estimate (Unit Price)
Estimate (Unit Price)
Estimate (Unit Price)
Lump Sum
Lump Sum
Estimate (Unit Price)
Lump Sum
Lump Sum
Lump Sum
Lump Sum (12/1/97-4/30/98)
980,374
Lump Sum
Lump Sum
Lump Sum
26,750
$ 30,000
$ 30,000 Estimate
Total Hard Cost $1,037,124
llncidental costs
15
16
17
a.
b.
18
19
20
Soils Engineering $ 37,160 Estimate (Hourly)
Field Engineering (Surveying) $ 43,950 Lump Sum
Archaeological Monitoring
Pre-Construction Investigation $ 5,500 Estimate (Not to exceed)
Construction Monitoring $ 6,880 Estimate (Hourly) Paleontological Monitoring $ 8,740 Estimate (Hourly) Field Representative $ 18,000 Estimate (Monthly) Job Oversight @ 8% $ 91,148 Estimate (Percentage)
Total Incidentals Cost $ 211,378
Contingency @ 15% $ 187,275
TOTAL ESTIMATED COST $1.435.777 ., ,
cannonwl 9/25/97 4:41