HomeMy WebLinkAbout1998-12-15; City Council; 14987; Kelly Ranch Village E Reimbursement AgreementCl I f OF CARLSBAD -AGENDA dLL
9B# /%f 987 TITLE- ’ -- APPROVAL OF A
REIMBURSEMENT AGREEMENT FOR THE
MTG. I 2115t98 CONSTRUCTION OF REACH 2 OF CANNON ROAD WEST
FROM FARADAY AVENUE TO EL CAMINO REAL DEPT. ENG
CT 96-07
RECOMMENDED ACTION:
CITY ATTY. D”
CITY Ma
Adopt Resolution No. ewM approving a reimbursement agreement with the Kelly Land
Company for the construction of Reach 2 of Cannon Road West from Faraday Avenue to
El Camino Real.
ITEM EXPLANATION:
The owner of the Kelly Ranch property (Kelly Land Company) has worked with City Engineering
staff to formulate an agreement providing for the completion Reach 2 of Cannon Road West extending across Kelly Ranch from future Faraday Avenue to El Camino Real. The work covered
by the agreement includes full construction of Reach 2 of Cannon Road to major arterial standards
including a bridge over Agua Hedionda Creek. Also covered by the agreement are various
modifications to El Camino Real including widening of the roadway, installation of raised medians
and turn pockets, relocation of the existing access road north of the mobile home park, widening of
the existing bridge over the Agua Hedionda Creek and installation of a traffic signal. This
agreement does not cover the sewer or water improvements to be constructed within Cannon Road
West. Separate sewer and water facility reimbursement agreements will be brought forward for
Council consideration at a future date.
The basis for this reimbursement agreement is the existing Bridge and Thoroughfare District No. 3
(B&TD No. 3) approved on June 16, 1998. The purpose of the district was to provide a funding mechanism for the construction of Cannon Road West from Car Country Drive to El Camino Real.
The Fee Study Report prepared in conjunction with the Districts formation states that “A developer
who acquires any right-of-way, designs and/or constructs any of the improvements or installs any
required mitigation for any segment of Cannon Road West covered by the fee program may be
eligible for credit and or reimbursement, subject to the approval of the City Council. Only those
improvements or work included within the cost estimates upon which the B&TD No. 3 fee is based
are eligible for credit and/or reimbursement.”
The Kelly Ranch Village “E” residential development (CT 96-07) was approved by the City Council
on April 7, 1998. As a condition of approval (53(c)) the developer was required to construct a portion of Cannon Road West from El Camino Real to the western boundary of the Village “E”
project. Condition 53(c) contained a provision requiring the developer to enter into a reimbursement
agreement with the City. At the request of the developer and in consideration of the future development of the remaining portion of the Kelly Ranch property (west of the Village “E” project),
the proposed agreement addresses reimbursement for the full extension of Cannon Road West across the Kelly Ranch property including the Village “E” frontage as required by condition 53(c).
Under the terms of the agreement the developer will construct Cannon Road in two phases. The
first phase includes full grading of Cannon Road along the Village “E” project frontage, construction
of the Agua Hedionda bridge and construction of full surface improvements to Cannon Road from
El Camino Real to Frost Street (the entry road into Village “El’). Also included in the first phase are
all the El Camino Real improvements described above. The second phase includes full grading and
improvement of Cannon Road from the Village “E” boundary to the western boundary of Kelly
Ranch (at the approximate intersection location for future Faraday Avenue) together with the Cannon Road surface road improvements from Frost Street to the Village “E” boundary.
Page 2 of Agenda Bill No.
For the purpose of reimbursement, the agreement separates work to be done by the Kelly Land
Company into three categories as follows:
1.
2.
Ordinary Reimbursable Work is that work which is reimbursable under the B&TD No. 3
financing program and which is required to serve minimum needs of the Kelly Ranch
development. Generally, this includes the full width grading of Cannon Road and the construction of the center two traffic lanes including raised median. Work in this category is
reimbursed after completion of the work for each construction phase and after subtracting
the fee credits for any Kelly Ranch village which receives a final map approval by the City.
Reimbursements in this category are subject to availability of City funds. As defined in the
agreement available funds are those funds not previously committed to the Carltas
reimbursement agreement or the City’s Macario Canyon bridge project. However, the agreement obligates the City to complete payment on any unpaid reimbursement within
three years of acceptance of the project improvements by the City.
Progress Payment Reimbursable Work is that work which is reimbursable under the B&TD
No. 3 financing program and which is beyond the normal circulation needs of the Kelly
Ranch development. Generally, this includes the frontage improvements along the north
side of Cannon Road adjacent to the Open Space area and the majority of the El Camino
Real intersection modifications. Kelly has agreed to complete this work without objection
provided that they receive reimbursement for completed work on a progress payment basis.
By approving this agreement, the City will be committing project funds for the completion of
the work included in this category.
3. Non-Reimbursable Work is that work not included in the B&TD No. 3 financing program and which is required to serve the Kelly Ranch development. Generally, this includes the
southern Cannon Road frontage improvements and the western El Camino real frontage
improvements. No reimbursements will be made for work in this category.
For a more complete description of improvements included within each of the three above referenced categories refer to Recital I on page three of the agreement (Exhibit 3).
All work covered by this project with the exception of the Kelly Ranch frontage improvements is
funded within the current City Capital Improvement Program. Since the City has already completed
preparation of the plans and secured the environmental approvals for the project, staff has included
provisions in the contract which make the City’s plans available to the developer for their use. Also
included are provisions which provide for environmental monitoring and bridge inspection services
at City cost. City is also agreeing to allow the developer to split their subdivision bonding so that the
various segments of construction work may be accepted separate from the onsite subdivision
improvements.
The full text of the proposed agreement is attached as Exhibit 3. The developer is in agreement
with all the provisions included within the attached reimbursement agreement.
ENVIRONMENTAL REVIEW:
The Planning Director has determined that the requested action is consistent with prior CEQA review. The project was reviewed in the Kelly Ranch Environmental Impact report and the Mitigated
Negative Declaration for Reach 2 of Cannon Road. Significant environmental impacts identified by
those CEQA documents were determined to be mitigable to levels of less than significant. Permits from the resource agencies have been received or will be received prior to construction.
Page 3 of Agenda Bill No?/< @?/
FISCAL IMPACT:
The total estimated cost for the Cannon Road Project Reaches 1 and II is $19.5 million. Funding is provided through six funding sources: TransNet Highway, Community Facilities District No. 1,
Bridge and Thoroughfare District No. 3 fees, Traffic Impact Fees, Public Facility Fees and the State
and Local Partnership Program. The total cost for the reimbursable work covered by this
agreement is $5,392,000. Of this amount, $2,498,000 is payable on a progress reimbursement
basis, and will be payable within the next two years. The remaining $2,894,000 minus $797,600 in
fee credits is payable three years after Kelly completes the project. Sufficient appropriations are
available for the progress reimbursement amounts. Due to the timing of future BTD#3 fee revenues, there is a potential $3.7 million shortfall when the remaining reimbursement to Kelly is
payable. Staff recommends reserving $3.7 million in the Gas Tax Fund in the CIP to be loaned to
the BTD#3 as needed to eliminate this shortfall. As BTD#3 fees are paid from future development
projects, the Gas Tax Fund would be repaid at that time.
EXHIBITS:
1.
2.
Location Map.
Resolution No. -.f?Ea PP a roving a reimbursement agreement with the Kelly Land
Company for the construction of Reach 2 of Cannon Road West from Faraday Avenue to
El Camino Real.
3. Reimbursement agreement dated December 9 , 1998.
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VOCATION huw
LEGEND
pi
PROJECT NAME PROJECT EXHIBIT CANNON ROAD WEST NUMBER 3184 1 0”.
II Exhibit 2
RESOLUTION NO. 98-418
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A REIMBURSEMENT
AGREEMENT WITH KELLY LAND COMPANY FOR THE CONSTRUCTION OF REACH 2 OF CANNON ROAD WEST
FROM FARADAY AVENUE TO EL CAMINO REAL.
WHEREAS, the Kelly Land Company, as a condition of approval for Carlsbad Tract 96-07
(Kelly Ranch Village “E”) is conditioned to construct Cannon Road from El Camino Real to the
7 western boundary of Kelly Ranch Village “E”; and
6 WHEREAS, future development of the remaining portion of the Kelly Ranch project will be
9 required to construct Cannon Road across the remaining portion of Kelly Ranch; and
10 WHEREAS, the Cannon Road West improvements are included within the financing
11 program for Bridge and Thoroughfare District No. 3; and
12 WHEREAS, City and Kelly Land Company desire to enter into an agreement for the
13 reimbursement of the current and future Cannon Road improvements required to serve the
14 needs of the Kelly Ranch development together with the additional improvements along the
northern half of Cannon Road ; and
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WHEREAS, the Engineer’s Fee Study Report prepared in conjunction with the formation
of Bridge and Thoroughfare District No. 3 states that the City Council may use the funds
17 collected by the district to reimburse developers for the construction of work included within the
” cost estimate upon which the district fees were based; and
19 WHEREAS, the full width grading and two traffic lanes separated by a raised median of
20 Cannon Road together with the north frontage improvements of Cannon Road and the
21 modifications to the intersection of El Camino Real are reimbursable items of work included
22 within the financing provisions of Bridge and Thoroughfare District No. 3.
23 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
24 California, as follows:
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Ill
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1. That the above recitations are true and correct.
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2. That the reimbursement agreement by and between Kelly Land Company and the
City, dated December 2, 1998, is hereby approved and the Mayor is authorized to sign said
agreement on behalf of the City.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 15th day of December , 1998 by the following vote, to wit:
AYES: Council Members Lewis, Hall, Finnila, and Nygaard
NOES: None
ATTEST:
ALETHA L. RAl)sNKRANZ, City Clerk / (SEAL)
, DOC s 1999-0015247 c5013 Jtw 11, 1999” 3:ocJ PM
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Dr.
Carlsbad, CA. 92008
_. ,I
This Agreement,for Reimbursement of Costs for the Construct&k of”Cannon Road from El Camino Real to the : Western Boundary of Kelly Ranch Including Modifications to the Intersection of El Camino Real and, Cannon Road, dated, ;as of, ,‘December 15 , 1998
(“Agreement”), is made’& Carlsbad, California,’ by and between the:. CITY OF CARLSBAD, a
Municipal corporafbn (%ity”> andKELLY LAND COMPANY, a Delaware corporation (“Kelly”)
with reference to the following recitals:, ,’ ( . . > I ,,, __ ,’ ’ ,,i 1 , I, ,.,. ._. ..’ _,,> ,,.ijI, RECITALS ,_ .‘, .i ., : ! ::’
A. Kelly isjthe recordowner of certain real proper@&cated inthe City of Carlsbad,
California more patticufady de&bedon Exhibit “A”, attached ,hereto.‘$nd made a part hereof
(“Kelly Ranch” or “the Property”). Kelly Ranchconsist&fseveral planning areas, as designated on Exhibit “8”) attached hereto,and zmade a, part .hereof. Asused’herein, the term “Planning Area” shall refer, as indicated, to,one or more of‘such p]ann@g-‘areas so designated on Exhibit “B”. The various Planning Areas as&own ‘on Exhibit “8”~ either are, or will become, separate legal parcels in accordance with the applic&ble legtil, requirements of the State of California and
the City.
B. Upon their creation as separate legal parcels, Kelly intends to convey or cause conveyance of record title to Planning Areas B, C, F, K and L, respectively, to other persons pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any of Planning Areas B, C, F, K and L will be the responsibility of the
respective transferee. All of the Planning Areas of the Kelly Ranch, other than Planning Areas
B, C, F, K and L, are herein referred to collectively as the “Kelly Ranch Project”. Kelly is the developer of the Kelly Ranch Project.
C. Kelly filed a separate application for tentative subdivision map and site development plan with respect to Planning Area E (the “E Project”). The E Project is the subject of certain development approvals received from the City (the “E Project Approvals”), including without limitation: Tentative Subdivision Map (CT 96-07) Planned Unit Development Permit (PUD 97-04), Hillside Development Permit (HDP 96-13) and Coastal Development Permit (CDP 96-13), all approved by City Council per City Council Resolution No. 98-68 on April 7, 1998 which included specific reference to Planning Commission Resolution No. 4225 recommending approval of the E Project with conditions and approved by the Planning Commission on January 21,1998.
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D. Kelly has filed a separate application for a General Plan Amendment, Rezoning,
LCP Amendment, Hillside Permit, Coastal Permit and a master tentative map (the “Master
Tentative Map”) with respect to Planning Areas D, F, G, H, I and J, as well as K and L. Planning Areas K and L are being processed merely to create them as legal parcels, with the Master Tentative Map intended to note that further mapping of parcels K and L, respectively, will be required prior to any development of them. Kelly has also filed a proposed amendment to the Zone 8 Local Facilities Management Plan (the “LFMP General Amendment”). In addition, Kelly has filed or intends to file a separate application for approval of a site development plan with respect to Planning Area J, a planned development permit with respect to Planning Area I and a site development plan for Planning Areas D, G and H. ,_ ‘I’, * f I;‘1 j :: ;,:++
E. ;i’j‘!:~ ~g>+ 6.. On June 16, ,gg8:i:i~~~~t~“‘Cou~~~~,:appr~~~~~es,olution No. 98-188 approving
an assessment engineer’s repof ~tRep~~)‘;and”:‘esfabl~~fiing ‘Brk@e ,and Thoroughfare District
No. 3 (“B&TD #3”) to finance the co&s of CannonRoad from C&Country Drive to El Camino Real including modifications;@ the intersection of C&nn&Ro~d ,aiid’,*EI Camino Real (“Cannon Road West Improvements”):‘~ tn %ddition to the financing pro$de@ ‘byB&TD #3, the Report identified five other fundingIso@ces which will contribute to thefinancing of the Cannon Road
West Improvements. The, :five,funding sources together with the proceed* obtained from B&TD
#3 and any other fundrng’saurce that may be identified by City for,@% on Cannon Road West
Improvements shall c&lle@\;ely ,be ,referred,?o :as “Financing Program” :I >: _:: ,, ,. _j
Intended Condition which requires Kelly to enter into a reimbursement agreement and provides that Kelly shall be eligible for fee credit and/or reimbursement for any Ordinary Reimbursable Work or Progress Payment Reimbursable Work as defined in this Agreement.
H. The improvements to Cannon Road including modifications to the intersection of El Camino Real and Cannon Road, contemplated by Condition 53(c) and Intended Condition, which are to be constructed pursuant to this Agreement (“Project Cannon Road Improvements”), include the following for that portion of Cannon Road from El Camino Real to the western boundary of the Kelly Ranch:
Full width grading and improvement to Cannon Road from El Camino Real to the western boundary of Kelly Ranch, all curbs, gutters, sidewalks, base and pavement, median landscaping and irrigation, median hardscape, street lights, street monumentation, storm drainage facilities, erosion control, guard rails, and other incidentals necessary to complete a four-lane major arterial roadway. The facilities also include a 133-foot single-span bridge across the Agua Hedionda Creek at El Camino Real. The improvements also include modifications to the intersection of Cannon Road and El Camino Real including a traffic signal, raised landscaped median, grading and paving, curb and gutter, sidewalks, street lights, widening of the existing bridge structure
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over Agua Hedionda Creek, relocation of a property access road and other incidentals and improvements necessary to complete a major arterial intersection. In addition, the project includes the cost for full mitigation of the environmental impacts of the construction of the improvements noted above.
I. City and Kelly recognize that the Project Cannon Road Improvements includes work which exceeds the road improvement needs of the Kelly Ranch Project (“Expanded Cannon Road Improvements”). Kelly agrees to accept Condition 53(c) and Intended Condition including the Expanded Cannon Road Improvements provided that City agrees to reimburse
3. The Non-Reimbursable Work includes the following: (a) street
improvements in the southerly half of Cannon Road, outside of the 18 foot paved section described in Subsection I.1 above and including outside curb and gutter, sidewalk, street lights and associated electrical wiring, frontage landscaping and irrigation improvements and any other frontage improvements normally required of adjacent development projects; (b) grading and improvement of the westerly 17-foot of El Camino Real adjacent to the Kelly Ranch frontage (including Planning Area B) including paving, curb and gutter, sidewalk, street lights and associated electrical wiring, any drainage facility modifications, any frontage landscaping
and irrigation and any other frontage improvements normally required of adjacent development
projects; (c) one-half of median landscaping, irrigation and hardscape improvements on
Cannon Road and (d) incidental costs for work described in Subsections 1.3(a), (b) and (c) including contract administration, City fees, soils engineering and testing, construction inspection, construction engineering and staking, environmental consultants and mitigation monitoring.
C (‘596
4. A line item description of the specific work items included within the
category of Ordinary Reimbursable Work, Progress Payment Reimbursable Work and Non-
Reimbursable Work is included within Exhibit “c” attached hereto and incorporated herein by
this reference.
J. For purposes of phasing, the Project is divided into two segments as follows:
1. The “First Segment” shall include all of (a) El Camino Real
Improvements; (b) full width grading and erosion control for the Cannon Road Improvements
2. Satisfaction of Obliaation. Kelly’s agreement to perform the Project Cannon Road Improvements as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements regarding the Project with respect to the Cannon Road West Improvements.
3. General Citv Obliaations
(4 City shall make available for Kelly’s use the complete set of plans, specifications
and other design documentation for the Cannon Road West Improvements.
W City shall obtain all required easements and rights-of-way required to complete construction of the Project Cannon Road Improvements, and bear the cost of acquisition of such easements and right-of-way not located within land which comprises the Kelly Ranch Project.
03 City shall utilize its powers of eminent domain to obtain necessary rights-of-way for the Project Cannon Road Improvements, as required.
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(d) City shall provide for all bridge work inspections and all environmental monitoring
for the Ordinary Reimbursable Work and Progress Payment Reimbursable Work directly from
the Financing Program funds.
W City shall secure all required environmental permits for the Project Cannon Road
Improvements. City shall not be liable for delay damages, and Kelly shall make no claim for delay damages, to the extent that such damages arise from or relate to the time for processing by applicable governmental authorities in connection with the environmental permits for the
Project Cannon Road Improvements. Notwithstanding the immediately preceding sentence,
City agrees to process any environmental permits related to the Project Cannon Road
Improvements which may fall underCity jurrsdict)_ti,on .witJin :th,e statutory time limits established for such permits and shall not unreasonably wittihold approv&of any such permrts. .I kI
(9 City agrees,;:‘to’,:all~~~:il Kelly; ‘to : <separately, po$t bonds and file subdivision
improvement agreements fo$each,$f the ‘three’ con#t&ction’ phase ‘segments separate and
apart from the remain,c$!,;of the:,subdivision improvement ag’%enien~requtrements for the Kelly Ranch Project i ,i:’ ,, I. _i ,) 2,s. .SG z ;.j j,::,.: *: >I ;, _>. ._ :, .‘, : >, I j i>jj/:i$, :__ 7 ‘.’ ,. ,::.+j’“”
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Cit$, agree$Ythat this agreement together with”::@ respective subdivision
improvement a~i;~ements-’ for,..,each ,of,.. the, three,,l~cqrl~~ruction segments ‘,:-will satisfy the requirement of the .rek$rursement agreement“referred to,in Condition53(c)and the Intended Condition for the MasteGTentative Map. I. .’ ‘^ .~$ .; .s;_>. 1,:: ::J’,;,. .:>: “^
(h) :&y ,agt$s to reimburse Kelly for Ordinary Reir&ur&blei ;Work:and Progress Payment Reimbursable~~Work as described in Sections 6 and”P:below.?i : ,,“, ., :_,i’V ,;: .:’ ii 3:
4. General 2liv ‘&$&tion~~tr,:i;~f ;. _, _, ; :,$,.: >
“.J * 3:; i :: c’::i’ i” .; f ,,:: ” .:{,‘f, > : ‘.‘:::‘, : ,<(” .._I_i::_i.:i . I
(a) K~,iyl:,shalljprepare ;;;arate set$, o&g;;~;~ment; Ij~~~~::~a”~~:.~pecifications for
each of the three project :construction:phases; First Segment, Segm&#:2A;.&%t Segment 28. 1 ‘?< I i j ‘51 .,~ ‘;: _+ :
(W Kelly &&ll &j~e$fff&tandard subdivision im~~~~~~ent,,agreements and post the
required improvement security in ?accordance with ,City:‘&quiremeis for each of the three
construction phase segm’ehtsR : i:l: _: yj;;,
; c,i:I ..: : ,,’
I,. ‘C,S,,.,i> ‘? ,.,:: ,:r i , :i: !ijli,;!Ir,;,‘, ;’ :I II :
(c) ..:.;iiij;(r ;iji& Kelly agrees to~ldo~pl,ete~~oonStru~~on &!e&@~egment of the Project Cannon Road Improvements within the time,llmit$ establishe@$$‘the’project conditions of approval for the E project and the Master Tentative Map.’
03 Kelly agrees to cause construction of all Non-Reimbursable work described in the Recitals at no cost to the City.
(4 By entering into this agreement, Kelly waives any and all potential constitutional objections (Nollan/Dolan) and accepts Condition 53(c) and Intended Condition for the Master Tentative Map.
(9 Upon request of City, Kelly shall assist in connection with any of the matters referred to in Sections 3(b), (c), and/or (e) above; provided, however, that City shall bear the cost of such matters; and provided, further, that such costs shall include without limitation certain costs incurred by Kelly in providing assistance, as follows: (i) the cost of Kelly staff and employees shall not be included; (ii) costs borne by City shall include any outside consultants engaged by Kelly in connection with matters referred to in Sections 3(b) and/or (c); and (iii) the
cost of any outside consultant engaged by Kelly in connection with matters referred to in Section 3(e) shall be allocated as agreed upon by City and Kelly at the time, and if not so agreed, then shall be allocated by the Auditing Engineer subject to review under the provisions of Section 8(a). City shall reimburse Kelly for such reimbursable costs incurred, promptly upon submission by Kelly of itemized reports for such expenses, and, as to item (iii) above,
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determination as to the reimbursable portion of such costs. The reimbursement referenced in this paragraph 4(f) is separate from the Reimbursable Work referred to elsewhere in this Agreement.
(9) Kelly shall complete all Project Cannon Road Improvements no later than three (3) years from the effective date of this agreement.
0-0 Kelly agrees to pay for the mitigation costs for Non-Reimbursable work performed along El Camino Real. Said costs shall be deducted prior to making any
reimbursement pursuant to Section 7(b) of this Agreement.
:,;, ~,~~~,$!: ,.:, I zt,, , :$ ‘_ _” :‘;. i, !l”! i Y ,;:
0) ” f,jl ::,!? s f:$f& Kelly agrees to, &iw&d~~~;~ll ii necessary~~;?$%@acts required to complete the construction of both the First; j,@$i’me,nt andSecond% Segme5nt~Qr@r to June 30, 1999. In the
event Kelly fails to award::sald!licontr~~~sl as specified ab~ve,~ ~,Kellyacknowledges and agrees that the loss of any State ;a@ Local i Partne&hi@ .Progr;iihY(SL;TPP) funds brought about by the failure to award such::contracts,:by June 30, 1999, sh~llli~~~;,boriie’;ntire!y by Kelly losing a portion of its reimbursementi$a&’ set forth in this paragraph. The maximum amount of reimbursement sul;jject,toi:~c~~~rsuant to the provisions of thrs’paragreph shall be limited to an amount equal to ‘16.59°/dof~the construction cost amount which /s:;:determine$ by the California Department of Transportation. (CalTrans) to be eligjble for reimbursement’ under the SLTPP for
Reimbursable Workitems related, to ‘the First ,and ‘S$co& SegmenL, KeIly%rcknowledges and agrees that the City is no$obligated pursuant’& this or any other term$;of th&;Agreement to in any way replace.or make up for the loss of sucti SLTPP funds brought’about; by the failure of Kelly to comply with’the’terms of this subsection. .(i Z’, .I/ .; :. ,’ ReimbursabfeiWoik. ‘, / :‘_, ,I^:, ::_
5. ii;!I’ 2 _, il i i, ,:, . . :. 1, :.: :,; ,, ::::I I’$,:_$ i ‘i:& iii (a) : o;diriary disbursable Work andt F3~~~~~ss Payrnti;ht- R~j~bursable Work
shall be referred to.collecI$ely as “Reimbursable Work’? i,,li. . . . ,, :_:,j_:: ‘,‘, ,,_, j!..J& _:...,
(b) ,Citj/‘ acknowledges that Kelly, .is ,unde~~,~~~~~~~,‘tcl~,~selr portions of the Kelly Ranch Project to m,erchantjlbuilders. It is acknowledged‘that Kelly shall be entitled to cause the Project to be bid$$ontracted8 bonded; commentid’and coh$tructed by one or more of its successors, and thatIt m#y cause“thec$&%ruction of, FirstSegment and the construction
of Second Segment by separate isuccessors. To the iexter@that ,Kelly causes a successor to
post the bonds required for thei!First’Segment, Segment, 2A,&$#% Segment 2B, Kelly shall be entitled to exoneration and canceflstion”‘~~,it, qwnbond$vhich has been so replaced. For purposes of this entire Section 5 (except for the ,next succeeding grammatical paragraph), the term “Kelly” shall mean and include not only the original signing party to this Agreement, but
also such successors who participate in the bidding, contracting, bonding, and construction of one or more of such segments. In no event shall Segment 2B be further segmented for the purposes of bonding and/or construction phasing without the prior amendment of this
Agreement.
It is further acknowledged that, notwithstanding that Kelly arranged for such
construction of the Project by one or more successors, the obligations of the City for
reimbursement shall be to Kelly, and any such reimbursement payments shall be made by City to Kelly. It shall be the responsibility of Kelly to cause any successor who is constructing all or any portion of the Project to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Project, as specified in this Agreement.
(cl With respect to all hard costs of construction comprising the Project, Kelly shall solicit bids from three reputable contractors. Reimbursable Work shall be bid together with Non Reimbursable work for that portion of the Project Cannon Road Improvements which are being bid by such contractor. Upon mutual selection by City and Kelly of the contractor for each Segment, and agreement upon a contract amount for each Segment, the costs thereof shall be allocated among the categories consistent with the method and process used in the Exhibit “C”. The parties agree that the spreadsheet attached hereto as Exhibit “c” is a fair
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allocation of the costs under such contract as among the categories of Ordinary Reimbursable Work, Progress Payment Reimbursable Work and Non-Reimbursable Work. Costs shown in Exhibit “C” are subject to modification through change orders.
03 During the performance of any Reimbursable Work, Kelly shall retain
detailed payment records for all items of Reimbursable Work, for use by City in auditing any subsequent reimbursement requests by Kelly. Kelly’s requests for reimbursement (each a
“Reimbursement Request”) shall include copies of plans, specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by City to evidence the completion and payment for each:;jtem”of:,,Rei~bursable, Work. Reimbursement Requests may be submitted in stages, as.k@ntifk#in Pa~~grapR!6(a)‘b;elpw, by Kelly for each portion of work identified in Paragraph$$., _’ _I::$,,I i ’ i$; $ :$;:l:s ,_, ii jr::! ! :, ,,!ji,i,l ,_L ,>,l ,;
64 ~~hjbjf,YD’T~~ets ~d;rtr;e~~~~~ielj~i~~~~~os~ e~t~:timfi~~s nor the Reimbursable
Work for the Second.;;j@ment. ,$he parties acknowledge”ihati~~~~~~,“D:::j~~hich was prepared by Kelly’s engineers, :.rs:for illu#itive purposes only and tha%aIf costs are subject to further detail pursuant to;‘ct&rse!(c)~$bove as well as to audit for eligibility,:~~r:~~~~~nt in accordance with the procedur@of this‘paragraph and Paragraph 6 below. ;_:. Ii :_iil:_I’” ,$ ;il_; ; ;.:, ‘$,,$ .;I1 f Audit of K&imgg~mable & enses. ., c, :I’:),:, .lii ,. ,,. >’ ‘1; _I’
6. _,. ii” ; ii! :: ._ :, i. :< i$i_ < ,i:.,j;;.’ (a) ,;Expenses for Reimbursable Work (including : vet-head&lowed
Clause G(e)(iii)‘- below. and the allowance permitted under claus$ F(ej’(ij: .belowj’!are referred to P
under
herein collectively as “Reimbursable iExpenses.? Kelly s,ha&&e;~ntitled tosubmit requests for Reimbursable Expens’esupon substantial completion and,;i‘approval by theCrty;;of any one or more of the following stages of the ,Reimbursable Work as:i&ilows: .! s i $.I .‘:I: .’ ,,I ,. ::: ,.i, :’ z:s
;$?,, (j)’ i~~~~/!Q$$)/ithin tl& First S&$&nt:
‘, ,,’ ” .i)l.,i :.I : , ij; ,ii : ._y i ; 1, (:. .;. is “‘““;i p,; .‘_’ : ,, I <ii ., ,_ I_ f>‘i.?” ; $__, I I, ,a._ 1 :‘; ._i “‘f’ : : ,:; : 1 ,, ‘_ j. : / ‘_ (A)..: El Camino R:eal improvem$$s;:. ” ” : ‘..::W ,$ ::;:i& ,‘- <$i#$ “:‘I: .
Gradrng and.,er@ron con&$ “:,’ ‘.‘;,. l ,,‘:‘*‘,:?iisq 2.. ; ;:: (2) Storm drawage rm,provements
: /;I (3) ‘Street’ paving (excludtng top course), curb and .‘_ _! ‘I “S ,KI ‘1 I, , gutter; jmproveme tsr : “Et.C~miria-ipe,]:!;!~~B~e widening improvements 1 ? Trafficsign#~“t Cannon Road improvements
(6) Remaining El Camino Real improvements
including, without limitation, sidewalks, streetlights, signing and striping, top course paving,
landscaping, irrigation, median hardscape, and any retention amounts held for items specified in Subsections 6(a)(i)(A)(l) through 6(a)(i)(A)(5)
(W Cannon Road improvements Grading and erosion control Storm drainage improvements
(3) Street paving (excluding top course), curb and
gutter improvements
Agua Hedionda bridge improvements
Remaining Cannon Road improvements including, without limitation, sidewalks, streetlights, signing and striping, top course paving, landscaping, irrigation, median hardscape and any retention amounts held for items specified in Subsections
W)(i)(W) through WNMW)
7
005020 -
(ii) Within the Second Segment:
(A) Cannon Road improvements;
Grading and erosion control
Storm drainage improvements
(3) Street paving (excluding top course), curb and
gutter improvements
(4) Remaining Cannon Road improvements including,
without limitation, sidewalks, streetlights, signing
and ,,: sfrtping, top course paving, landscaping, ,_, z,,:,:i:;-i,j :,i;:: :, ‘: ~irrlgatlon~-::~~~~~i~:~ hardscape and any retention i$.ji:Ij.j .r . ,:i>;“I.rl’l’i‘ < ‘. .:i : :I,.ii..c, ,_‘” j : zamoutits he&&‘for~~items specified in Subsections .,’ ,, ,I:: J, .::ie!i.sI, . .;,, ,.! $,!j: f:+ i_ ,__’ : : * ., , i ,_ I_ca( ,,:z:r.;,z- G(a)(ii’)(A)( I) through 6(a)(ii)(A)(3)
(b) .&*i; i.._:,~~,~~_.:!, ;,;;:,,::2; ;;::j :i > ,’ ‘$ _+:^2
~~l~~~~~~~~~~~~imb~rs~~~~t R~qQ&&:,will b&~$&w~ssed and audited for
City by a reputable consulti,~~“engsn$rseIected by City (“Au&k$‘Engineer”). The costs of the Auditing Engineer shal(‘i$#d @irectly by City from FinancingProgram funds. ,’ < L), i_: ~:~_<‘,._ (c);,; i ‘. .Tg@k.t. I rng Engineer shall review all contra&$ for Rambursable Work
and the paymer&ecoiis’$!&bmitted in connection, therewith as to each ‘of theStages identified _’ :l;p/ within Paragrapti;:;G(a)“aibove promptly after each$t&e fs siltj’stantial~‘combieted and approved
by the City, and shall within sixty (60) days thereafter issue to City :and Kellya report either accepting Kelly$ &ubmittil or specifying, with particularity any reimbursement items or amounts not approved.: : Any reimbursement items or amounts not approved by: the;$uditing Engineer may be further pursued by Kelly using the dispute resolutkm p&ision,of Paragraph 8(a) below. .., I:,
(d). C&e re&bursement obligations. ~&&&her s’hall be -based upon the actual costs incurred: b$: Kelly in performing Reitibursab;f’e~‘Work (includkig overhead and the
allowances specified$QQ below). <I .::jj ,;,,.. ! ‘_ ._; j Q,ji2 :’ ‘j$_$4 :‘j, ,,$zj’” ll-_l,._.:“l, .~ _I_ ,J^Z ‘I i I ; ,‘:I,. 2 I : ::l
(e) : ~j%.yitf‘l ‘2‘ d 8 ‘in tng anything herein to the &ontrary; City’specifically agrees
that the following shalj,:i~~‘aeenij~~~~~imbursabl~ Expense@ I*: ‘.: ‘.‘.‘: i
.; _,,. _, i ,‘...I, A;, ,,‘:‘ii f!:l ,!i :.,:*,. :.
(i, :; I,_
..‘C 5 S,,I ,; ,;,; ,y, 1 .$,i’hi <I i* ( ,,
Prbn”;tugs paia,: f“jgj~~;~~for imbr;ve$ent and,or payment and
performance bonds relating,to.;the ,&$-rstruction’,of Canno Roz$ ‘ttmited to one and one-half percent (I-l /2%) of the total of ail F@mburs~bte Expensesf#~uch construction; , q:,,;*,; j,_ .: .,*_ > ,>, > ,. ::z,, j 3 : :,,
(ii) An amount paid by Kelly and limited to one and eight tenths
percent (1.8%) of the total of all Reimbursable Expenses (exclusive of the overhead allocation specified under Section 6(e)(iii), as an allowance to cover the allocable portion of premiums
paid by Kelly for blanket liability insurance coverage.
(iii) An amount fixed at five percent (5%) of the eligible costs for Reimbursable Work, to compensate for overhead expenses incurred by Kelly including for salary and benefits for staff of Kelly’s home office, purchasing department expenses, project supervision, general corporate legal and accounting fees and other normal overhead expenses incurred by Kelly, excepting the expenses described in Subsections 6(e)(i) and G(e)(ii) above
7. Pavment of Reimbursable Expenses.
(a) Payment of Reimbursable Expenses for Progress Payment Reimbursable Work shall be made, in cash, within sixty (60) days after the Auditing Engineer’s determination on any such Reimbursement Request (or determination pursuant to Paragraph 8(a) if applicable).
8
. . GG502l,
lb) Payment of Reimbursable Expenses for Ordinary Reimbursable Work shall be made after first deducting the mitigation costs incurred by the City for the items of non- reimbursable work as specified in Section 4 (h) above and after deducting and crediting against
such Reimbursable Expenses all Financing Program fee obligations attributable to the E Project
and any other of the Kelly Ranch Project Approvals as have been finally approved by the City Council as of the date of such Reimbursement Request, to the extent they are not already paid, limited by the amount of funds available in the Financing Program.
(cl To the extent that Reimbursable Expenses for Ordinary Reimbursable Work exceed the total Financing Program ,obligations for the E Project and other final Kelly Ranch Project Approvals as of the date, of such~~.Reim,bursement Request, the following procedures shall apply: ~ ,,. _. .c :,, ., ._: ;_ j, ),_ ,, _.: _’ ,:_.:- _~~~_,, _s i I ,,:_l,‘: .:7 .,’ (i) ,;~~t~%“~~& t~~,"ij(~uditi~gIli:Engineer'sli:i.determination on any such
Reimbursement Requestfor ReimbursabiB:E~~en~~~‘~~~~~~t~~rniiratiari: pursuant to Paragraph 8(a), if applicable), City$htill, ‘within ‘sixty (60) days, payl%$such: Reimbursable Expenses to Kelly to the extent tha@Project funds are available in segments& follows?“(A) upon completion of the First Segment ! for~Re@nbursable Expenses related to such se9ment; and (B) upon completion of the Second’@gment, for Reimbursable Expense related to suchsegment. ‘:,* $:, $.$., ,... “,<i:’ __, .iici I _ : :.~~i)“ir :’ ;jq’>
available, City ‘shall
In making a ,~~~~t’~ih~ti~~ i~~ether a~~qua~~:l;~rbject funds are
give’ Kelly top priority for ‘payment over all other expenditures by the Financing Program“and; the City for. Cannon Road west Improvements, ,lother than the expenditures ‘obligation@ for Macario Canyon :, IBridge, payments made in accordance with Section 7(a) above, and/‘,the prior reimbursement agreement,, with C@sbad Ranch Company L.P. dated July 30; 199&Without Ijmitation, it is’ acknowledged that th;e ,Financing Program and the City will obtain fun&for Can,non Road West Improvements from,the City’s Public Facility Fee (“PFF”) fund, Trtiffic Impact Fee’.(TIF) fund, Communrty Facilitiesi,D/strict No. 1 (CFD #I) fund, the TRANSNET #$&way fund, B&TD #3 ‘fund and the, CEiltren%~State and Local
Transportation Partnership’ Program (SLTPP) fund. The traffic, &@tiI.~at:the intersection of
Cannon Road and” El Camino ‘Real will be reimbursed from xhe PFF. fu,nds. The remaining
Reimbursable Work f&the improvement of El Camino Re&+vil! be reimbursed from TIF funds. Reimbursable work for’the,,~r;npro~~merit,of.Canno~;;Ro~~~’~~est’ of El Camino Real, shall be
reimbursed from a combination of CFD #I, TRANSNET Highway,,.SLTPP, B&TD #3 or other such funds as the City Council< may appropriate, fo,r construction ‘of the Cannon Road West
Improvements. ._: ,.I, < ,, 2 ; 3 i ; z,, 3 : ;:_:i:,.“’ _‘; ,,_ ‘> :s .__ ,$)_ ,i>J).. ..^
(4 Kelly and its successors”‘(not including the successors in interest to Planning Areas B, C, F, K and L) are not required to pay B&TD #3 fees at time of building permit issuance in accordance with the Financing Program, but rather that a credit account will be kept by the City for the amount of the required fees, which amount will then be credited against the reimbursable amount owed to Kelly pursuant to the provisions of Section 7(b) above.
03 Except as noted in Paragraphs (b), (c) and (d) above, payment of any Reimbursable expenses under this Agreement shall not be reduced for fees or charges that may be payable as a condition of obtaining permits for the development of any Planning Area of Kelly Ranch. City shall not offset Kelly’s entitlement to reimbursement under this Agreement against any other obligation of any person, except as specified in this Section 7.
(9 Reimbursable Expenses for items of Reimbursable Work paid for by Kelly in advance of construction of the Project Cannon Road Improvements (such as City fees and construction mobilization) may be submitted for reimbursement with the Reimbursement Request for the first stage of Reimbursable Work submitted for each construction phase (Segment 1 and Segment 2).
9
05022
(9) Except as provided for in Subsection 4(i), it shall be the obligation of City to pay any remaining and unpaid portion of Reimbursable Expenses for both Progress Payment Reimbursable Work and Ordinary Reimbursable Work within three (3) years from the date of
the final acceptance of the Project Cannon Road Improvement for maintenance by the City.
The city shall not unreasonably withhold acceptance of the Project Cannon Road
Improvements.
8. Miscellaneous
(a) Disputes/Claims. If a dispute~should arise regarding the performance or interpretation of this Agreement, theJotl,owing $~r$cedJi~$@shafl be used to resolve any question of fact or interpretation not infom#iyresolved by the p@esSuch questions, if they become identified as a part of a ~dr~~~te-<,ernongi,:peisons operatiiig”‘under the provisions of this Agreement, shall be reduced’ %o writingby :the .pnncipal of Kelly.~or$he City’s Public Works Director (Director). A: copy, of such,‘documented ’ dikpute: shall, I be!@rwarded to both parties involved along with i~~~m:~dnded,~~~ethods of resolution2#iichwould be of benefit to both parties. The Directoe.,:iot, principal, upon receipt, shall “rep& to the’tetter, including a recommended metho8’!,df::f~solution, within ten (IO) days. If the ~resolutkon thus obtained is unsatisfactory to:$e aggrieved party, a letter outlining the dispute shall be .fc@varded to the City Council for their resolutionthroygh the officeof.the,C/ty Manager. The City Cogncil may, but is
not obligated to, resol@,‘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 ki%$ved, although nothing in this~procedure~shall prohibit the parties from seeking rem&$&s a$fa‘ble to them at
law. ,, ‘_,_ :.’ :,g_; :
(c) Transfer bv Kellv. The obligations and benefits of this Agreement shall be transferred upon sale of Kelly Ranch Project as specified herein. As used in this Agreement, “Kelly” shall be the owner (or owners) of the real property which comprises the Kelly Ranch Project, except as to any real property for which residential permits have been issued, and EXCEPT THAT THE ENTITLEMENT TO REIMBURSEMENT PURSUANT TO THIS AGREEMENT SHALL IN ALL EVENTS REMAIN WITH KELLY LAND COMPANY. In
accordance with the provisions of Section 5(b) of this Agreement and upon written notice to City
pursuant to Paragraph 8(d) below, all obligations and responsibilities of this Agreement shall move to the new owners of the real property which comprises Kelly Ranch Project except as qualified by the preceding sentence. \\
:
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(d) 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 specified herein. Notices required to be given to Kelly shall be
addressed as follows:
with a copy to:
Notices to Cit
Kelly Land Company
Attention:,. D. L Clemens - I‘: +:d$(t i?$,$ $* c/o tlgl~~~;:P~~~~~~~l-~~st, Inc. ;:,;-;:;:;‘L”@“’ _> :,$‘~“‘- +,:“$:;.$ .iil;l,i?~~~~al~mar,~~rpu~~~~~~:~~ite 206 ! : ,~;‘~;:;;_:;- ,Ca$$bad;;CA :9260&@ ’ : I 5 ziI ,‘! ._i : ‘,i;; ._ ; ; j,j,jl ~:;;l:. Teli%ijhbge:~q ; ‘I (760) ~&I~~0
‘:j’$:j $: pi;,. ( i, ,I i ‘$$ :vj j, ‘~;i;>gq$~~: .ii9Zi3 i ‘,
. ..I._:! ” “ ,)i ;+it” (isa) &q1-795~,:,g:;i,Ib.::,:; ;;“,iil >,,i~. .‘Z
” 5 :.:.::$ i : ^” ;_,, :;: ~;~;~~jy$,; I_, > > ‘IL. ~“I:“$!‘:‘~8heppard, Mullin, Richter ~~~ambton ,j~~p
: I& I: :_, : ^,:_ ;’ ,L$, I^_. _,_:,:, a,, 1; ,b I,, .i_ Attention: Christopher B. N&$E~q~i&::~;,
501 West Broadway, 19’” Floor ‘Y ‘.
would require
counterparts,
:' .,? > _I i." 2.2 i $ ,, $ 3 ,<j,,,Q : i. ,,1 _:, __I ;.i_ /, ,; .I<. Sap, &go, CA::,@&& '7I ; jj Teleptione: “(6q9) 338Y6500 I, +’
.; FAXi (619)234-3815 ,;j_ ; i:;;;, ’ ‘3 :.::; : _,_,, $1.; ‘_,
y:shall be&Jlivered to the following: ::,‘< :., : :_: _I .A’ .,. ; I I ‘,j’$ii;j& : j ,j 3 b i’:+:* . ,’ ,: ,‘; _:‘: < .:. 1’1, , Cl-,-y OF CAkLSBAD& [;hij; ,“,
: : b : ji,:~~ ,sii. 2’23 2 2 I :.a I .i3 > i b;+,;, * ,_i 1.‘d ‘$ y:, ,e< ‘> .I_,, Engineering Department:~:; ;.::i\
;;_ ::: : /j$:! <,:‘;::
.:t : : ,: :‘p’, _, .,_.. ,_ ,. _I. _;,^~.‘, .‘^ ,, 2 , :_,: “x&nti+: +&ljc W&&.:~~~~ctor;i‘j’: _I’ , z;z,i,tji, j,: 1:;
‘1; ‘. .(‘__ ;“,ii: : :, _.ll,‘l. ._ ;:’ ii 2675 Las Palmas’ f%ve ?:!::;zli., C&bad, CA. .92008 I :,:, : : j ;_I_ ,,: .q:; ii, :;:I ‘:’ ^ ..:... ,_,_ “‘t~lj’i;::i~elep~one: ,,;x, ,~,l~jbm-~ (760) 436-I 1 S’l ,: $cs’-39j-J ,: ,__ i_;:_i ,, I. ~@I&;, ’ ,r,i : ..I ;i:i:i;; ::e > : ,,.::l. ;; .’ ,(. ;^ v ; a : ?‘:_: ; : (76,0).4,6!-5769. _ II : : :__ ;j;_ > .I :j_: Each partyidti&! r$tifyi;‘thb ‘:;dth&r~ ifimediately of ~~~~~khanges of address that
any notice delivered hereunder to be directed< &another address. t .>.. __,,’ ( ;.& j : ,,s,s‘;:i;i &.’ ,_, :,;,v“,:l’.i~ :I
(e) Counter-oar%. ‘This .Agr&~J$;;.~.~;‘~rhaj,. be executed in any number of
each of which when so executed and delivered shall be deemed to be an orioinal
and all of which counterparts taken together shall constitute one and the same instrument. -
(f) Governina Law. This Agreement shall be interpreted and enforced under the
laws of the State of California.
(g) Complete Aareement. 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.
(h) Amendment. This Agreement may be amended by a written instrument
executed by City and Kelly (including for this purpose any successors of Kelly, to the extent of their ownership of real property within Kelly Ranch Project); except that no amendment regarding the provisions for reimbursement to Kelly shall be valid unless executed by Kelly Land Company.
ii II
11
\ , c5K
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On December 16, 1998 before me, Karen R. Kundtz,
Assistant City Clerk of the City of Carlsbad, personally appeared
Claude A. Lewis, Carlsbad City Mayor I
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
ssistant City Clerk City of Carlsba
(SEAL)
(i) Term. This Agreement shall be effective as of the date hereof, and shall
terminate upon the earlier of (1) the date the City fully reimburses Kelly the
Reimbursement Amount; or (2) January 1,2015.
Executed this day of December, 1998. 9
KELLY LAND COMPANY,
a Delaware corporation SBAD, a municipal
Ctda r&Pcalifrrr&e\
s
[Printed Name and Ti@t:31;? _s is. 1 : .I ! %,Y : .:. s:,~.:‘i.~~:':l~ ;_sc: ' ,.,g.; 2. I VidtW~rttsxcZti)n~ i 1.1 ':_;,( j D. L . Clemens , ~. j!~ ,I\ bIj', ,_ , ,_', (I:&! Nj !.I, ,. : s ,,' .& .!<!l I‘.: :^ +^il ,,:,, ,, ,I,' j:; Ii: j ; ,, '; : .> ;: +: 2;" : :_,;., 1 j: ,, : : :,, ',*j,; , ,, .: ::: II : ._. ,,.i,:s!; ,, i : i ;.::!:y$ ! ;'I ‘yL..c(L!.; , '?,._< ._: _I .(~ :. ::; ‘i:,,‘,, :, ,, __' >' ,, :_,_ ,, ,%', j I
RNEY i, ;:; I! j i: i, i i I, ;
12
65026 -
LEGAL DESCRIPTION
LEG/12391LD.DA-,(10/15/96;, C:
PARCEL 1
PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS.
PARCEL 2
A PORTION OF LOT "I" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, AS DESCRIBED IN GRANT DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, RECORDED NOVEMBER 13, 1962, AS FILE NO. 193941 OF OFFICIAL RECORDS.
TOGETHER WITH THAT PORTION OF LOT ‘E"' OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTI- TION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, NOVEMBER 16, 1896, AS DESCRIBED IN QUITCLAIM DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, CO-TRUSTEES OF THE SIPPEL IRRIVOCABLE FAMILY TRUST, RECORDED DECEMBER 29, 1983, AS FILE NO. 83-475227 OF OFFICIAL RECORDS.
PARCEL 3
A PORTION OF LOT -1" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, CbUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL "A" OF CERTIFICATE OF COMPLIANCE WITH CONDITIONS, RECORDED SEPTEMBER 27, 1996, AS FILE NO. 1996-0489998 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998- 325000 OF OFFICIAL RECORDS.
PARCEL 4
A PORTION OF LOT "I" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL "A" OF CERTIFICATE OF RECORDED AUGUST 28, 1998, AS FILE NO. 1998-0550155 OF OFFICIAL RECORDS.
PAGE 1 OF 1
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KELLY LAND COMPANY
CERTIFICATE
The undersigned, Jody B. Cosner, Assistant Secretary of Kelly Land Company, a Delaware
corporation (the “Corporation”), does hereby certify on behalf of itself, the following:
1. The following persons are the duly elected and qualified present incumbents of the office
of the Corporation set after their names and that specimen signatures appear opposite
their respective names.
Dale t. Clemens Vice President
Scott Medansky Assistant Secretary
2. Attached hereto as Exhibit A is a true and correct copy of resolutions duly adopted by the
Board of Directors of this Corporation on December 3, 1998 and that such resolutions as
set forth in Exhibit A have not been amended, altered or repealed and are in full force and
effect as of the date of this Certificate.
IN WITNESS WHEREOF, I have executed this Certificate and affixed the Corporate Seal of
Kelly Land Company on this - day of December, 1998.
Jody B. Cosder
Assistant Secretary
’ 86 .- ,.., c 050,5
Kellv Land ComDanv
Resolutions adopted December 3.1998
Exhibit A
WHEREAS, this Corporation is the record owner and developer of certain real property
located in the City of Carlsbad, California (“Kelly Ranch”).
NOW, THEREFORE, BE IT RESOLVED, that Dale L. Clemens, Vice President and
Scott Medansky, Assistant Secretary of this Corporation be, and each of them hereby is,
authorized on behalf of this Corporation, to execute and deliver the “Agreement for
Reimbursement of Costs for the Construction of Cannon Road from El Camino Real to
the Western Boundary of Kelly Ranch including Modifications to the Intersection of El
Camino Real and Cannon Road” (the “Agreement”) by and between this Corporation and
the City of Carlsbad and upon the terms and conditions set forth in the Agreement; and be
it further
RESOLVED, that Dale L. Clemens, Vice President and Scott Medansky, Assistant
Secretary of this Corporation be, and each of them hereby is, authorized and directed to
execute and deliver such other instruments or documents and to take such other action on
behalf of this Corporation as such officer may in his sole discretion, deem necessary or
advisable to carry out the intent of the foregoing resolution, such execution and delivery
of such further instruments or documents to be conclusive evidence of the proper exercise
of such discretion.
I . t
w l ’ -
.
C.503
STATE OF CALIFORNIA } }SS. COUNTY OF SAN DIEGO )
On December 9.1998 personally appeared D.L. Clemens before me, Kathleen Anne Farlev,
z personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their author&cl capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hanp and official seal. /)
Signature
WRITER’S DIRECT LINE TELEPHONE (6191 336-6500 OUR FILE NUMBER
(619) 338-6530 oneds@smrh.com
FACSIMILE (6191 234-3616 CR&44254
August 28,200l //$Gy-
BY MESSENGER
g$ TryI
c\q I’ C\V 3i CI’,r
Jane Mobaldi, Esquire Assistant City Attorney City of Carlsbad .‘ / 1200 Carlsbad Village Drive ,._,.
Carlsbad, California 9200% 1989
SHEPPARD, MULLIN, RICHTER & HAMPTON LLp * LIHII~O LIABILIT” PAITNECISYIC ,NCL”DlNG PmOFLSSIONAL COFIPoR*TIONS
ATTORNEYS AT LAW ~; -5;. :
NINETEENTH FLOOR
501 WEST BROADWAY ” : .._.
SAN DIEGO, CALIFORNIA R2101-3590
Re: Cannon Road Reimbursement Agreement/Extension Addendum
Dear Jane:
With this letter you will find enclosed two duplicate ori a inal Addendum, each of which has been executed by Stephen P. Smith in copies of the
behalf of Kelly Land Company. is capacity on
You had in order to get it signe 2 reviously approved this form, and indicated that all you needed by the City was a copy duly executed by my client. I believe this will satisfy the requirement.
Please let me know if you have any further questions. If you need a second signature (which I don’t think you do), it is my understanding that Scott Medansky is also authorized to sign. He is in the Carlsbad office at KLC, and can be available.
Thank you for your courtesy and cooperation.
Sincere@, ,’ ,F / :
fJ
ueils
SD:DMlLET\CRB\51209507.1 for SHEPPARD, MULLEN, RICHTER & HAMPTON LLP
Enclosure cc: Mr. Stephen P. Smith Mr. Scott A. Medansky Ms. Carol Riley
LOS ANGELES n ORANGE COUNTY n SAN DIEGO n SAN FRANCISCO
.- I
TO:
‘I-HlS SPACE ABOVE FOl< RECORDBK’S USE
ADDENDUM NO. 1
TO
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF CANNON ROAD FROM
EL CAMINO REAL TO THE WESTERN BOUNDARY OF KELLY
RANCH INCLUDING MODIFICATIONS TO THE INTERSECTION
OF EL CAMINO REAL AND CANNON ROAD
This Addendum No. 1 to Agreement for Reimbursement of Costs for the
Construction of Cannon Road from El Camino Real to the Western Boundary of Kelly
Ranch Including Modifications to the Intersection of El Camino Real and Cannon Road
(this “Addendum”), is entered into as of the 2 Othday of August 2001 by and
between the City of Carlsbad, a Municipal corporation (“City”), and Kklly Land
Company, a Delaware corporation (“Kelly”), with reference to the following recitals:
RECITALS
A. City and Kelly entered into that certain Agreement for
Reimbursement of Costs for the Construction of Cannon Road from El Camino Real to
the Western Boundary of Kelly (the “Reimbursement Agreement”) dated December 15,
1998 and recorded as document number 1999-0015247 in the Offkial Records of the San
Diego County Recorder’s Office. All capitalized terms used in this Addendum and not
otherwise defined shall have the meanings assigned to them in the Reimbursement
Agreement.
B. Due to delays in required entitlement approvals for the development
of the Kelly Ranch Project, City and Kelly mutually desire to amend the Reimbursement
Agreement to extend the date by which Kelly shall complete all Project Cannon Road
Improvements.
WOKD-SD\DAI’\51200X12. I
NOW THEREFORE, in consideration of these recitals and other good and
valuable consideration, the receipt of which is hereby acknowledged, City and Kelly
hereby agree to the above recitals and as follows:
1. The date by which Kelly shall complete all Project Cannon Road
Improvements as set forth in Section 4(g) of the ‘Reimbursement Agreement is hereby
extended until December 15,2002.
2. ‘Except as specifically set forth herein, the Reimbursement
Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum
to be executed as of the day and year first above written.
KELLY:
KELLY LAND COMPANY,
a Delaw‘are corporation
By:
Ste'phen P. Smith President
[Print name and title]
By:
[Print name and title]
CITY: /.
[Print name and title]
APPROVED AS TO FORM:
RONALD R. BALL, CITY ATTORNEY
(Proper notarial acknowledgement of execution of Kelly must be attached. Chairman,
president or vice-president and secretary, assistant secretary, CFO or assistant manager
must sign for corporations. 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.)
WORD-SD\DAW 12008 12.1
THE STATE OF CALIFORNIA $
ii COUNTY OF s’
in the year 2001, before me, the
personally appeared
to me or proved to me on the basis or
is subscribed to the within instrument
in his/her capacity, and that by
the entity upon behalf of which the
WOKD-SLNDAl’iS 1200812.1