HomeMy WebLinkAbout1999-04-20; City Council; 15147; Aviara Parkway & Poinsettia Lane Intersection.
GROUP FOR COMPLETION OF AVIARA PARKWAY AND
POlNSEll-IA LANE INTERSECTION IMPROVEMENTS
RECOMMENDED ACTION:
Adopt Resolution No. ($9 - / ?/n approving the First Amendment to Agreement for
Reimbursement of Costs for Construction of Improvements for Poinsettia Lane From Aviara
Parkway to Black Rail Road with Catellus Residential Group and approving First Amendment to
Subdivision Improvement Agreement with Sambi Seaside Heights.
I
ITEM EXPLANATION:
The conditions of approval for Carlsbad Tract 92-02 require the developer, Sambi Seaside Heights
LLC, to construct a portion of Aviara Parkway from the northern project boundary to Poinsettia
Lane. A portion of these improvements are included within the improvements financed by Bridge
and Thoroughfare District No. 2. Pursuant to the provisions of B&TD #2, the developer is entitled to
receive fee credits and/or reimbursement for constructing improvements included within the district.
Plans for the construction of the required Aviara Parkway improvements were prepared by the
developer and approved by the City Engineer. The required improvements were constructed by the
developer in accordance with the approved plans. Upon completion of the improvements, City staff pointed out to the developer that the completed Aviara Parkway improvements included a severe
dip in the road surface at the intersection with Poinsettia Lane. Staff informed the developer that the City would not accept the completed improvements or allow credits against payment of
B&TD #2 fees until the dip was removed. The developer responded that the improvements were
constructed in accordance with the City approved plans and that any construction revisions should
be subject to credit and/or reimbursement through the B&TD #2 program.
City staff and the developer were in a virtual stalemate over this issue for the past year and a half.
During this same time, the Ocean Bluff developer, Catellus Residential Group, was proceeding with
a project to extend Poinsettia Lane from Aviara Parkway to Black Rail Road in compliance with
their project conditions of approval. Staff has refused to allow Catellus to complete the Poinsettia
Lane connection with Aviara Parkway until the problem of the dip is resolved.
Staff recently concluded negotiations with both the Sambi and Catellus developers to resolve the
stalemate and complete the construction of Poinsettia Lane and Aviara Parkway as desired by the City. Sambi has agreed to contribute an additional $20,000 in fees to B&TD #2 over and above
their existing fee contribution. In addition, Sambi agreed to prepare and turn over to the City revised
construction plans to eliminate the existing dip condition. Catellus is agreeing to include the
intersection reconstruction work within their existing construction project provided that they receive
a guaranteed reimbursement for such work on a progress payment basis. In addition, Catellus is
requesting modification to one of their previous reimbursement agreement provisions to allow for
earlier reimbursement of certain overhead expenses associated with work identified as ordinary reimbursable work.
The two agreements attached as Exhibits 2 and 3 to this agenda bill reflect the agreements staff
reached with the Sambi and Catellus developers as noted above and are being presented for Council consideration and approval.
Page 2 of Agenda Bill No. Zi 1 Y 3
ENVIRONMENTAL IMPACT:
The Planning Director has determined that the proposed work is Categorically Exempt from the
provisions of CEQA pursuant to Section 15301(c) (repair or minor alteration to existing streets for
the purpose of public safety). A Notice of Exemption will be filed by the Planning Director
subsequent to project approval.
FISCAL IMPACT:
The cost to correct the improvements is estimated at $120,000, excluding the cost for the plan
revisions contributed by Sambi Seaside Heights. Payment of the $120,000 for the corrective
improvements will be made from the following sources: Sambi Seaside Heights will contribute
$20,000 (through an adjustment of a reimbursement owed to them by the City); another $20,000
will be paid from available Alga Road Assessment District funds, and the remaining $80,000 will be
paid from available BTD#2 funds previously appropriated.
EXHIBITS:
1. Location Map.
2. First Amendment to Agreement for Reimbursement of Costs for Construction of
Improvements for Poinsettia Lane from Aviara Parkway to Black Rail Road with Catellus
Residential Group.
3. First Amendment to Subdivision Improvement Agreement CT 92-02 (On-site Improvements)
with Sambi Seaside Heights.
4. Resolution No. 99 - /36 approving the First Amendment to Agreement for
Reimbursement of Costs for Construction of Improvements for Poinsettia Lane From Aviara
Parkway to Black Rail Road with Catellus Residential Group and approving First
Amendment to Subdivision Improvement Agreement with Sambi Seaside Heights.
LEGEND:
SAMBI SEASIDE HEIGHTS IMPROVEMENT OBLIGA T/ON
CATELLUS RESIDENTIAL GROUP IMPROVEMENT OBLIGATION
0 AREA OF CORRECTIVE WORK
AVIARA PARKWAY AND POlNSETTlA LANE
IMPROVEMENTS 3
FIRST AMENDMENT TO AGREEMENT FOR
REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF
IMPROVEMENTS FOR POlNSElTlA LANE FROM
THIS FIRST A
&RAIL ROAD
KSBAD, a municipal co
99, is made at San
City are to thati certajn’*Agree
as in the Reim
to therein as the E
the payment and
i
rsement of
1 Black Rail
C. Reimbursement Agreeme
intersection of Aviara Parkway and
work referred
ain aspects of
‘ent. ’
h are the subject of the
arn corrective action to the
WPoinsettia Intersection”), which as
designed and constructed by another property owner has a grade differential of approximately
seven inches (7”) from Aviara Parkway onto the eastbound Poinsettia Lane and lacks a proper
transition area (for which additional right-of-way must be acquired).
D. Owner has no obligation to perform any corrective action on the Aviara/Poinsettia
Intersection under Owner’s existing Tentative Map or other approvals relating to its Amended Project. However, as an accommodation to City, and because it is in City’s best interests to
ensure timely corrective action is taken, Owner does wish to ensure that the intersection is
opened to traffic as soon as possible. In addition, Owner’s contractors are already mobilized
and constructing Reach #l and Reach #2 of the Aviara/Black Rail Segment described in the
Reimbursement Agreement. Accordingly, and subject to the terms and conditions of this
Amendment, Owner is willing to take steps to open the Aviara/Poinsettia
I
Intersection to traffic, either (i) by having its contractor construct all the improvements involved
in the full Intersection Correction, as depicted in detail on City-approved Drawing No. 327-9-C
(“Final Intersection Correction”), if City timely obtains the necessary plans and right-of-way, or
(ii) by doing a grade transition correction to provide interim access (“Temporary Intersection
Correction”), to serve until such time as City itself is able to construct all the improvements
involved in Final Intersection Correction. The term “Intersection Correction” is used in this
Amendment to refer to either the Final or the Temporary Correction, whichever Owner actually
performs pursuant to Paragraph 1 below.
THE PARTIES AGREE:
l(b) below, and in
,;City herein, Owner inal Intersection
(b$$;:. ~~The:i:‘conditions
““’
Intersection C$$ij&$fp (“@jjal ?.pr ~o&&jff to Own&s .obli’&WR toi.l&o the Final
sole expense, J&right-ofbway necessary for
~~~~: ,(ij,:eity s~~~~ ,~~~~~~uired, at its
the &&nsettia/Aviara trgns~tton; I(t) ‘@f&y shall have
obtained any ~@&&onmental clearances and/or habitat take per#hit&$r$cioen$ $0 the Final
Intersection C&$&&on; (S) City shall ,.havecaus& O’Day Cog~~~@‘rts ~~~,~~~~~~ release the
City-approved .&i’nsfor the Final Intersection Correction :~‘,~~~~~d P@I~;)~ f$$h hard copy
and in digital f&$a*for use by Owner’$ Engineers J-luns$$$$$ ~sso~~~e~~.~H~~saker”); and
(iv) City shall have provided writte~&@nfirmatibm-that O’D&&#W&s a&@ngine&;:of record for
the Final Intersection Ccfr$ction, riot%ithstsnding, that; l#ns$iker wilf$&&o@~ construction staking and certain othee:$ctivities,: in connection; with the l?ters~~~~:‘~8rrection. City
acknowledges that if Owtier *rs,:to do the Final Qersection Cor@cfi@$&$#he ‘Final Correction
Conditions must be~s~tisfi~~e;~;,~~~n, to permit Owner to z&@$ its ex&#g contracts while
already mobilized for’ the conSti~c@&@~~,~t~e AvJara/Bl.ac~I,!%i~ Se~,m$$n%~ Accordingly, if the Final Correction Condition$$j&e. n@ b~~~s~~~~~~~~~~~~,ixb;ir,gg?;.‘fbil~~ Owner shall have no
further obligation hereunder#@j res&@ to th~“~~~~,Int~r$RCtf~nl,~arrection, and City shall be
solely responsible for accomplishing theL~ti@‘r@& Ihte~~e~~~~~~~,%6rrection without cost or
participation by Owner. If the Finaf”~~~~~~rp~~~~~~~~~~~~~~,~een satisfied by April 39, 1999,
then Owner shall perform the Final Inters~~~~~~~~~~~t~~n on a fully reimbursable basis and the
provisions of Paragraphs 2 and 4 below shall apply.
(c) Notwithstanding the foregoing, if the Final Correction Conditions have not
been satisfied by April 30, 1999, then Owner shall also have the right (but not the obligation),
exercisable on written notice (“Interim Correction Notice”) delivered to City at any time prior to
City’s commencement of the Final Intersection Correction, to perform the Temporary Intersection Correction, on a partially reimbursable basis as set forth herein. In such event, the
provisions of Paragraphs 3 and 4 below shall apply.
2. Provisions Applicable to Final Intersection Correction. If Owner should
perform the Final Intersection Correction pursuant to Paragraph l(a) above, then the following
provisions shall apply:
(a) Neither Owner nor Hunsaker shall have any liability for the Approved
Plans, and City shall not require Owner to enter into any indemnity agreement or other
arrangement that might have been imposed on a property owner or developer that was required
to do the Final Intersection Correction and/or was responsible for preparation of the Approved
2
Plans. City shall indemnify, defend and hold Owner harmless from any claim by O’Day relating
to Owner’s use of the Approved Plans, and from any claim, loss or liability in connection with
the design or construction of the Final Intersection Correction.
UN Owner shall cause Hunsaker to do an as-built report for the purpose of
showing what was actually constructed on the ground, but preparation of the as-built report
shall not impose any liability on Owner or Hunsaker for the design of the intersection or be
deemed any evaluation or representation by Owner or Hunsaker as to the adequacy of the
design, and Hunsaker shall not be required to become the engineer of record of the
Intersection Correction.
insettia Intersection, and ction obligation with
respect thereto will be inst cuits beneath the
intersection pavement
+,:., .:; :,.’ 3 j:_ ,...,:: ~ T‘. : I:, > ,- ._ @):Y. Owner shall haveno obli&t[on to obtain c~~p~~~‘~~~~~~~~r otherwise
comply with Ci@competQive bidding procedures$and may contra&&r ~~~~~~~ting change orders to existin’&contracts relating to Zhe Aviara@ack Rait~~~#m&t or&#ry..othe~~Pspect of the
Amended Project, or,,by whatever other means’pwner de~~~~-;~ason~~l~i:ti, accomplish the
Final IntersectionCorrection as quic~l)c.as,practisal?le. .,e ‘,>, ,_ 1.z , I “%‘., .,, ‘
(f) ‘:j Cwr$#$ehall he$e no obli&‘k#‘to”. provide bon#$$r$&&& improvement
security with respect to th&Pfh&lntersection Correction. il._ ‘, :
(9) Once~@tiner%ioes! commence t,he~&&Sil. I’iters@$@$n Correction, and ,‘.. ;I :.,*‘;&q;~ ,~).; ii_ “,,l *‘,, _ i, ~‘.-&> subject to City compliance withy it@ o~~~~~~q~~~~~~~~~ua~~~, C%Vner @#“diligently pursue the
same through to completiot&$ : - l,‘> :.:,I’ ,i -, ^_ .;‘ ‘; (
(W een satisfied by April 30,
Owner shall have no further obli espect to the Final Intersection
Correction, and City shall thereafter be responsible for completing the work, at its expense or
through another property owner or developer, as soon as practicable thereafter. City
acknowledges and agrees, in this regard, that the need for the Final Intersection Correction has
been recognized for more than eighteen (18) months, and that completion of the intersection is
of material importance to the success of Owner’s residential development project.
3. Provisions Applicable to Temporarv Intersection Correction. If Owner
should elect at its sole option to perform the Temporary Intersection Correction pursuant to
Paragraph 1 (c) above, then the following provision shall apply:
(a) The Temporary Intersection Correction shall consist of taking such
actions as are necessary to minimally prepare the intersection for interim access to Poinsettia
Lane eastbound.
(b) Promptly following receipt of the Interim Correction Notice, City shall
meet with Owner with a view toward issuing, within ten (10) days after delivery of the Interim
Correction Notice, all approvals and permits necessary for Owner to commence the Temporary
3
Intersection Correction Implementation. City shall expedite processing to the maximum extent
possible to meet this schedule.
63 Owner shall have no obligation to obtain competitive bids or otherwise
comply with City competitive bidding procedures, and may contract for the work by initiating
change orders to existing contracts relating to the Aviara/Black Rail Segment or any other
aspect of the Amended Project, or by whatever other means Owner deems reasonable to
accomplish the Temporary Intersection Correction as quickly as practicable.
4. . All costs and expenses by
Owner in con e reimbursable as set forth
below. Only those costs an& the Temporary
Intersection Correction wh&% 1 uired for the Final
Intersection Correction, i.e., worksh t be removed when the Final Intersection:~,C0Cre~~~~~ j set fort,., below;
other costs and expenses?$$socia tion will be non-
reimbursable and be+%n@~~ner at its sole cost. 1.G ” .: :,,i, ,, “.i’;r ,.Z.! 1, ,. .“?,, ” i ._ ,,..- “,*:.,‘,: :
(&jj fXq@f and expenses_
: “j_, *;,
Intersection C$@ctiu~. @j@-h are r&&‘@@$ in :&y ,,,.. Owner ‘~~~ connI$&pn with the f$j&$!~$ ‘Intere&“~$$@pi ..,*I 1’ z$L ’ ~~~~~&$$enses”) shall
include without$%itation, e&h of the ~following ‘a!t;construction costs;, alf”x@osts ilnc@rred for legal
counsel, enginsersWid other consultants in connection with this Am’endm;ent;, c@ engineering;
soils and geotechnical consulting and;:engineer@g; field supervi~~~~;,tr~~~~.~~~~~; an amount
determined as one and, 6/l 0,~ percent (1.8%) -of the totti~$& a!f Reimbursable Intersection
Expenses, as an allowance to, cover the alloc&ble: portib$$@@~premiu$$ ,pafddi::by Owner for
blanket liability inWance ~~verag~~~~~rance;-.and--an ove~~Bl~~trowa~~61~~~~f~~~~percent (4%) of all other actu&Reimb&&ble lf&+ct/~n ~j’<penapsE...i:t:o~irijer’s $~~~~~~,~~~eimbursable
Intersection Expenses for th$Einal Intersection Rep&% attached a~i$&ibit~&L i: ,‘<, ^’ ~,‘, ‘.,_” (b) Owne& m&~~,submi’t .,I. .:, +.;., Reimbursemept&#equests z;.t:;for Reimbursable
Intersection Expenses to C~~~~~~~~~~~~,,time, ~anc!,~~~~~~~c~~rnp~~~~~ by the supporting
documentation required f.&$&y thg .,Rt~~~b~~~~~~le~~~~~~~~~nt ‘Q~#&s Reimbursement
Requests shall be processedby~ ‘th~@%.rditing~ Engineer :as out@ed in the Reimbursement
Agreement. All costs of the Audiiirt~~5~~i~e~~~~h~~~-ber paid direct& by City. ,.: , . . . ,; ,( ‘,I_., >, :, j .^
(cl The Auditing Erigi’nedY;“sn& review Reimbursement Requests for
Reimbursable Intersection Expenses and the payment records submitted in connection
therewith, and shall within thirty (30) days after receipt thereof issue to City and Owner a report
either accepting Owner’s submittal or specifying with particularity any reimbursement items or
amounts not approved. Any reimbursement items or amounts not approved by the Auditing
Engineer may be further pursued by Owner using the dispute resolution procedure of
Paragraph 6 of the Reimbursement Agreement.
(4 Following approval by the Auditing Engineer, all Reimbursable
Intersection Expenses, including without limitation the overhead allowance, shall be paid by City
within thirty (30) days. Payment shall be made by check issued by City, and Owner shall have
no obligation to accept fee credits or other non-cash payment mechanism.
(e) City shall identify and reserve B&TD #2 funds in an amount sufficient to
make payment for all Reimbursable Intersection Expenses.
5. Modifications Reqarding Existinq Aqreement.
(4 Owner shall not be required to install final landscaping along any portion
of the Aviara/Black Rail Segment of Poinsettia Lane outside of the Amended Project,
notwithstanding that the current approved landscape plans, City-approved Drawing No. 360-38,
reflect such landscaping. Owners shall be entitled to amend the current plans to provide only
for reimbursable erosion control planting.
03 In modification of Paragraph 2(e) of the Reimbursement Agreement, the
parties agree that Owner’s over
Reimbursable Expenses shall b
other Reimbursable Expen
against B&TD #2 fees
(c) Amended Project pendtng a turnover of p~~rons~‘&$$
notwithstanding t#the er@@Reach #l has not been completed.
:.;r _< . (?&fie*#r(oj&i~~~~ ;*: : 3‘ >, ; ,__,, 5’11!~,~~jj,i,;~~~:!~: 6. .~ j ): !,+ $;.l-v, ._II :_ ‘1 , _’ ‘::’ .., ; (d) This Amendment may be executed in any numbet?of counterparts, each
of which when$oexecuted and deliveied’shall:.be deemed to be#rn qr@na~.afi~ all of which
counterparts taken together shall consfitute but one and the.:s~~~,:~~strutrtent, -. !.
(b>, Except as ,, +#odified hereby, all p&@jons ,~~,-:~~h~:i:,~airnbursement Agreement shall$&~& i&f$l force’$&&,~ff&t. ‘,
.:i .: *: “3 I :: ;:;.& * IN WITNESS WHERE@F~ the parties have-.‘executed this Amen&Q&~a’s of the date first
CATELLUS RESIDENTIAL G’R@Uf&; ; .)‘:
a California Corporation
set forth above.
OWNER:
I APPROVED AS TO FORM:
I RONALD R. BALL, City Attorney
~ssistanz City Attorney
4p-3}70.
5
State of California
ow >
ss.
County of
On APRIL LZI.\W~ bate , before me, ~RTMA &MET5 c&g!Ee ? NoTAf?Y Pwuc ,
Name and Tie of Dfker (e.g.. ‘Jane Doe, Notay Public”)
personally appeared FFlE.R ‘I: IAuENEU ! BrtUCE To L~HMAkf Name(s) of S&w(s)
@personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) &/are
subscribed to the within instrument and
acknowledged to me thaLb&he/they executed
the same in -b.is&.er/their authorized
capacity(ies), and that by -hie#%/their
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
Place Notaty Seal Above
OPTIONAL
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.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Number of Pages:
Capacity(ies) Claimed by Signer
Signer’s Name:
0 Individual
0 Corporate Officer - Title(s):
•i Partner- 0 Limited 0 General
0 Attorney in Fact
0 Trustee
13 Guardian or Conservator
0 Other:
Signer Is Representing:
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0 1997 National Notary Association * 9350 De Soto Ave.. P.0 Box 2402 * Chatsworth. CA 91313-2402 Prod. NO. 5907 Reorder: Call Toll-Free l-800-876-6827
EXHIBIT “A”
Cost Estimate for Corrections to Aviara Parkway Improvements
Work Item Description Cost Estimate
Demolition 9,780
Rough Grading 5,000
Storm Drains 13,700
Drainage Devices 1,500
Paving 45,203
Curb and Gutter 10,840
Signal Conduit 1,000
Traffic Control/Signs/Barricades 8,500
Contingency (12%) 12,135
Total Construction Cost $ 107,658
Engineering/Construction Staking 6,100
Liability Insurance (1.8%) 1938
Developer’s Overhead (4%) 4304
Total Project Cost $ 120,000
CATELLUS RESIDENTIAL GROUP, INC.
SECRETARY CERTIFICATE
RESOLVED, that Peter Lauener in is capacity as Vice President is
authorized for, on behalf of and in the name of Catellus Residential Group, Inc.
(the “Corporation”), to sign the Poinsettia Lane and Aviara Parkway Intersection
Reimbursement Agreement, and all other related documents and agreements for
The City of Carlsbad. The execution of such agreements and documents by him
shall be conclusive evidence of full Corporate approval thereof.
IN WITNESS WHEREOF, I have affixed my name as Assistant Secretary
of said Corporation and have caused the corporate seal of the corporation to be
hereunto affixed this gth day of April, 1999.
: \ \,, i ? ,: :
’ t
t’
‘, I
i
F’IRSTAMENDMENTTO
SUBDMSION IMPROVEMENT AGREEMENT
CT 92-02 (ALGA ROAD)
(“AMENDMENT”)
A. WHEREAS, the undersigned Property Owner entered into an agreement with the
City of Carlsbad (“City”) entitled “Subdivision Improvement Agreement CT 92-02
(Alga Road)“, executed on August 19, 1996 (“Subdivision Improvement Agreement”); and,
B. WHEREAS, Property Owner also entered into an agreement with the City entitled
“Petition, Waiver, and Consent to Creation of a Facility Impact Fee Program and Agreement to
Pay Fair Share Cost of Alga Road and Poinsettia Lane” (“Agreement”) executed on August 3,
1995 and filed with the County Recorder of the County of San Diego, California on September 5,
1995 per file page No. 1995-0392214; and,
C. WHEREAS, in addition to other matters, the Agreement and Subdivision
Improvement Agreement spelled out the duties and obligations of the Property Owner and City
with regard to construction of a portion of Aviara Parkway (formerly known as Alga Road) and
the establishment of a Fee Program for the construction of Aviara Parkway and Poinsettia Lane
including the provision for fee credits and reimbursements for those portions of Aviara Parkway
constructed by Property Owner; and,
D. WHEREAS, City approved the formation of Bridge and Thoroughfare District
No. 2 for Aviara Parkway and Poinsettia Lane (“B&TD #2”) on July 8,1997; and,
E. WHEREAS, Property Owner constructed that portion of Aviara Parkway (“Aviara
Parkway Improvements”) required pursuant to the conditions of approval for Carlsbad Tract
92-02 (“Project”) as refmed to in the Subdivision Improvement Agreement in accordance with
the Project Improvement Plans as approved by the City; and,
F. WHEREAS, upon completion of the improvements to Aviara Parkway by the
Property Owner, City identified certain design features of the completed improvements not
conducive to the smooth riding characteristics normally expected on arterial roads within the
City; and,
G. WHEREAS, City has refused to accept the Aviara Parkway Improvements until
certain corrections are made to improve the riding characteristics of the road (“Corrections”);
a4
H. WHEREAS, Property Owner has refused to complete the Corrections until City
agrees to reimburse Property Owner for the work to complete the Corrections from funds
generated through B8zTD #2; and,
I. WHEREAS, another property owner (“Catellus Residential Group”) is currently
in the process of constructing improvements to Poinsettia Lane which are adjacent to and connect
with the Aviara Parkway Improvements; and,
J. WHEREAS, City will not allow Catellus Residential Group to complete the
construction of the Poinsettia Lane improvements until the Corrections are made to the Aviara
Parkway Improvements; and,
K. WHEREAS, Catellus Residential Group is prepared to complete the Corrections
pursuant to a reimbursement agreement with the City; and,
L. WHEREAS, City has completed the audit of reimbursable work performed by
Property Owner in regards to the Aviara Parkway Improvements in accordance with the
provisions of B&TD #2 and Agreement; and,
M. WHEREAS, Property Owner has paid B&TD #2 fees in an amount which exceeds
their Project fee obligations by a total of $78,000 pursuant to the provisions of B&TD #2; and,
N. WHEREAS, the estimated construction cost for the Corrections is $120,000 plus
the cost to revise the Project Improvement Plans (“Revised Plans”); and,
0. WHEREAS, Property Owner is willing to contribute $20,000 towards Corrections
to prepare the Revised Plans at their sole cost and expense; and,
P. WHEREAS, Property Owner has prepared Revised Plans at their sole cost and
expense and the City has approved the Revised Plans on April 6, 1999; and,
Q. WHEREAS, City and Property Owner desire to complete the Corrections and to
have the Aviara Parkway Improvements accepted by the City and to fully and finally resolve
their differences regarding property owner obligations.
NOW, THEREFORE, in consideration of the preceding recitals Property Owner and City
hereby agree to the following:
1. Property Owner agrees to release the Revised Plans to the City for use by Catellus
Residential Group and/or the City for the purpose of constructing the Corrections and hereby
waives any claim for reimbursement for the cost to prepare the Revised Plans.
2. Property Owner acknowledges and agrees that all work performed by Catellus
Residential Group and/or the City in connection with the Revised Plans shall remain subject to
all provisions of the Subdivision Improvement Agreement including without limitation
Paragraphs 4, 5 and 17. Property Owner agrees that the ten year design and construction defect
indemnification period applies to Property Owner’s Improvements, including Corrections.
3. Property Owner agrees to make an additional contribution of $20,000 in the form
of a credit against potential refimd as set forth below, to offset the cost of the Corrections.
4. City agrees to refund to Property Owner $58,000 ($78,000 less cash contribution
of $20,000) in B&TD #2 fee overpayments made by the Property Owner upon completion of
Corrections and City’s final acceptance of the Aviara Parkway Improvements, including
Corrections.
5. City agrees to use B&TD #2 funds to construct the Corrections and in no event to
seek further funds or assessments from the property owner in connection with the corrections
and/or to reimburse Catellus Residential Group for the construction of the Corrections.
6. The above paragraphs notwithstanding, all other provisions of Agreement and
Subdivision Agreement shall remain in full force and effect.
7. This Amendment and the covenants contained herein shall be binding upon and
inure to the benefit of the successors, heirs, assigns, and transferees of Property Owner and City.
8. This Amendment together with the Agreement and Subdivision Improvement
Agreement constitute the entire agreement of the parties with respect to the subject matter. All
modification, amendments, or waivers of the terms of this agreement must be in writing and
signed by the appropriate representatives of the parties.
Executedthis
PROPERTY OWNERz SAMBI SEASIDE HEIGHTS, LLC
a California Limited Liability Company,
(Notarial acknowledgment of execution by PROPERTY OWNER must be attached.)
(President or vice-president and secre&y or assistant secretq must sign for corporation. If only
one officer signs, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering that officer to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
:~o&!!!
City Attorney +3/ 97,
State of California
County of FL& &cc; / Li??M >
ss.
/x’ 8, Lf.9’4, before me, C&&J’- B em/&t%% &&&v Date’ Name and Tile of Offwx (e.g., ‘Jane Doe. i%ta!y P&Iii’) /
personally appeared ti- -z/&4 X&m j4hle(s) of Slner(s) I
Cl ersonally known to me
& oved 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.
SS my hand and official seal.
Place Notary Seal Above
, Signature of Notary Public
OPTIONAL
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.
Description of Attach
Title or Type of
Document Date:
Signer(s) Other Than Named Above:
Number of Pages:
/c/o&e
Capacity(ies) Claimed by Signer
Signer’s Name:
0 Individual
q Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
Cl Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
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Q 1997 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chatsworth. CA 91313-2402 Prod. No. 5907 Reorder: Call Toll-Free 1-600-676-6627
RESOLUTION NO. 99-136
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A RESOLUTION APPROVING THE FIRST AMENDMENT TO
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
CONSTRUCTION OF IMPROVEMENTS FOR POINSET-I-IA LANE
FROM AVIARA PARKWAY TO BLACK RAIL ROAD WITH
CATELLUS RESIDENTIAL GROUP AND APPROVING FIRST AMENDMENT TO SUBDIVISION IMPROVEMENT AGREEMENT
WITH SAMBI SEASIDE HEIGHTS.
WHEREAS, pursuant to the conditions of approval for Carlsbad Tract 92-02 (“Project”),
Sambi Seaside Heights LLC. (“Sambi”) is required to construct a portion of Aviara Parkway from
the northern boundary of the Project to Poinsettia Lane (“Aviara Parkway Improvements”); and,
WHEREAS, portions of the Aviara Parkway Improvements are included within Bridge and
Thoroughfare District #2 (“B&TD #2”) and as such. are eligible for fee credits and/or
reimbursement from the proceeds of the district inconformance with the provisions of B&TD #2;
and,
WHEREAS, in satisfaction of said conditions of approval for Project, Sambi prepared
II improvement plans for the Aviara Parkway Improvements, which plans were approved by the
II City, and entered into a Subdivision Improvement Agreement guaranteeing the construction of the
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Aviara Parkway Improvements; and,
WHEREAS, upon construction of the Aviara Parkway Improvements, by Sambi, in
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conformance with the City approved improvement plans, City refused to accept the improvements 19
20 due to the existence of a severe dip in the Aviara Parkway Improvements at the intersection with
Poinsettia Lane; and, 21
WHEREAS, Sambi refused to effect corrections to the Aviara Parkway Improvements 22
23 unless the City agreed to reimburse Sambi for such corrections from the proceeds of B&TD #2
24 and/or other funding sources; and,
25 WHEREAS, City recognizes that the dip in the roadway was exacerbated due to the
26 preexisting condition of the improvements to the Aviara Parkway (formerly Alga Road) and
27 Poinsettia Lane intersection constructed as part of the Alga Road Assessment District; and,
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WHEREAS, a second developer, Catellus Residential Group (“Catellus”) is required
pursuant to a condition of approval for Carlsbad Tract 93-09 to extend Poinsettia Lane from
Aviara Parkway to Black Rail Road; and,
WHEREAS, Catellus has entered into a reimbursement agreement with the City to obtain
reimbursement for a portion of the Poinsettia Lane improvements constructed by Catellus in
accordance with the provisions of B&TD #2; and,
WHEREAS, City has refused to allow Catellus to complete the Poinsettia Lane connection
to Aviara Parkway until such time as the corrections are made to the Aviara Parkway
Improvements; and,
WHEREAS, Catellus is prepared to complete the corrective work pursuant to a
amendment to their reimbursement agreement guaranteeing early reimbursement for the cost of
the corrective work in addition to other minor changes affecting their original reimbursement
schedule; and,
WHEREAS, Sambi is willing to contribute an additional sum of $20,000 to B&TD #2 to help
offset the cost of the corrective work and is further willing to pay for the cost to revise the
improvement plans for the corrective work; and,
WHEREAS, City Council has previously allocated funds from the Alga Road Assessment
District to make corrective improvements to the Poinsettia Lane and Aviara Parkway
intersection; and,
WHEREAS, City Council has previously allocated sufficient funds from B&TD #2 in an
21 amount sufficient to reimburse Catellus for the construction of the corrective work; and,
22 WHEREAS, Sambi, Catellus and the City all desire to enter into appropriate agreements
23 to complete the Aviara Parkway and Poinsettia lane improvements including the corrective work
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~ to the
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Aviara Parkway and Poinsettia Lane intersection.
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1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
2 California, as follows:
3 1. That the above recitations are true and correct.
2. 4 That the Mayor is hereby authorized to enter into the amended agreement with
5 Sambi Seaside Heights, LLC, entitled “First Amendment to Subdivision Improvement Agreement
6 CT 92-02(0n-site Improvements)“.
3. 7 That the Mayor is hereby authorized to enter into the amended agreement with
8 Catellus Residential Group entitled “First Amendment to Agreement for Reimbursement of Costs
g for Construction of Improvements for Poinsettia Lane From Aviara Parkway to Black Rail Road”.
10 4. That the Finance Director is directed to allocate $20,000 from the existing
11 appropriation for the Alga Road Assessment District project to be used to reimburse Catellus
,2 Residential Group for the corrective work done pursuant to the amended reimbursement
13 agreement.
14 5. That $100,000 of the existing appropriation from .B&TD #2 funds for the
,5 improvement of Aviara Parkway from Palomar Airport Road to Cobblestone Road be used to
16 reimburse Catellus Residential Group for the corrective work done pursuant to the amended
17 II reimbursement agreement.
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19 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 20 tbday of A-1 , 1999 by the following vote, to wit:
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AYES * Council Members Lewis, Nygaard, Finnila & Hall
ABSENT: cou
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26 ATTEST:
28 ALETHA L. RAUTENKRANZ, City Clerk) (SEAL)
City
April 29,1999
Kazuyu ki Kawakita
Toyohara America Group
8649 Firestone Boulevard
Downey, CA 920241
~IRtkTAMENbMEN’l?‘U SUBDIVISiON IMPROVEMENT AGREEMENT FOR
CT 92102, ALGA ROAD
Enclosed for your reference are copies of Carlsbad City Council Agenda Bill
No. 15,147, and Resolution No. 99-136. These documents went before the City
Council on April 20, 1999, when the Resolution was adopted, approving the
amendment to an existing agreement with your agency.
Also enclosed is a copy of the fully executed First Amendment for the above
referenced agreement.
If you have any questions regarding your project, please call Mr. Dave Hauser,
Engineering Department, at: 438-l 161.
Kathleen D. Shoup
Sr. Office Specialist
1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 * (760) 434-2808 6B
April 29, 1999
Peter Lauener
Catellus Residential Group
5 Park Plaza, Suite 400 Irvine, CA 92714
~iR@r ~~E~ti;CiitENli’ ta REIMBURSEMENT AGREEMENT FOR COSTS FOR
CONSfRUCTldN OF IMPROVEMENTS FOR POINSETTIA LANE, ETC. ETC.
Enclosed for your reference are copies of Carlsbad City Council Agenda Bill
No. 15,147, and Resolution No. 99-136. These documents went before the City
Council on April 20, 1999, when the Resolution was adopted, approving the
amendment to an existing agreement with your agency.
Also enclosed is a fully executed copy of the Amendment for the above referenced agreement.
If you have any questions regarding your project, please call Mr. Dave Hauser,
Engineering Department, at: 438-l 161.
: - *yLdYLdf+ . . !-,
Kathleen D. Shoup
Sr. Office Specialist
1200 Carlsbad Village Drive * Carlsbad, CA 92008-l 989 * (760) 434-2808 a9