HomeMy WebLinkAbout2005-03-15; City Council; 18020; APPROVAL OF RATIFICATION OF REIMBURSEMENT AGREEMENT WITH CALAVERA HILLS II LLC FOR REIMBURSEMENT OF COSTS TO COMPLETE ENVIRONMENTAL WORK FOR COLLEGE BOULEVARD AND CANNON RD EAST4B# 18,020
MTG. 3/15/05
IEPT. ENG
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RECOMMENDED ACTION:
- TITLE: DE&iDYM
@ APPROVAL OF RATIFICATION OF REIMBURSEMENT
AGREEMENT WITH CALAVERA HILLS II, LLC FOR CITY ATTY. REIMBURSEMENT OF COSTS TO COMPLETE ENVIRONMENTAL
WORK FOR COLLEGE BOULEVARD AND CANNON ROAD EAST CITY MGR.
Adopt Resolution No. 2005-070 approving the Ratification Reimbursement Agreement with Calavera Hills II, LLC for reimbursement of costs to Complete Environmental Work for College Boulevard and Cannon Road East.
ITEM EXPLANATION:
The developer of Calavera Hills Phase II, Calavera Hills II, LLC, recently completed the construction of College Boulevard Reaches B and C, Cannon Road Reach 3 and Drainage Master Plan Facilities BJA and BJB (“Calavera Hills Phase II Project Improvements”). These improvements were installed as a condition of development of the Calavera Hills Phase II Master Tentative Map (CT 00-02).
In conjunction with the preparation of the environmental impact report for the Calavera Hills Phase II project (EIR 98-02), the developer included analysis for additional or ”Supplemental Improvements” not required for the Phase II project. These Supplemental Improvements included construction of Cannon Road Reach 4 (from College Boulevard to Mystra Drive in Oceanside), College Boulevard Reach A (from Cannon Road to Badger Lane near El Camino Real) and Drainage Master Plan Facility BJ (an 8 acre storm water retention facility located east of College Boulevard and south of Cannon Road).
The Supplemental Improvements were included within EIR 98-02 at the recommendation and
request of City staff. City staff had previously been authorized by Council to proceed with the preparation of preliminary engineering and environmental studies for proposed Bridge and Thoroughfare District # 4 (B&TD#4) to finance the construction of Cannon Road Reaches 3 and 4 and College Boulevard Reaches A, B and C. Master Drainage Plan Facilities BJ, BJA and BJB were included within the list of improvements to be financed by B&TD#4 due to their integral relationship with the proposed roadway improvements.
The Calavera Hills Phase ll project, located within Local Facilities Management Plan (LFMP) Zone 7, was conditioned to participate in the financing of proposed B&TD#M. A similar condition was placed upon the owners of property located within LFMP Zones 14 and 15. B&TW was never formed. By subsequent action of City Council, the Calavera Hills Phase II Project Improvements were financed by the owners of property with LFMP Zones 7 and 14 through the formation of Assessment District 2001 -02. The financing of the Supplemental Improvements is now the exclusive responsibility of the property owners within LFMP Zone 15.
During the preliminary scoping of the Calavera Hills Phase II project, staff made the determination that a single environmental document comprehensively analyzing the combined B&TD#M and Phase II improvements would better serve the requirements of CEQA and the needs of the public than
processing two or more separate environmental reports.
The Developer agreed to incorporate the Supplemental Improvements within the scope of their project environmental work provided that they receive reimbursement for the increase in cost necessitated by such incorporation. Staff agreed to process a reimbursement agreement for Council approval; however, due to workload issues, the time for processing such agreement was outside the time frame desired by the Developer. The Developer agreed to assume the financial risk for the
processing of the environmental work without benefit of Council approval of the reimbursement request with the understanding that Developer would be allowed the opportunity to process a request for reimbursement of costs to perform the additional environmental work (in excess of the requirements of the Project) upon completion of the work.
The environmental processing work for the Calavera Hills Phase II project and associated roadway and drainage improvement work is now complete. Environmental approval and agency permits were
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Page 2 of Agenda Bill No. 18,020
Cannin Road Reach 4A
Cannon Road Reach 4B
Total Cost
obtained for the construction of all Supplemental Improvements with the exception of Cannon Road Reach 4B (from approximately 1200 feet east of College Boulevard to Mystra Drive in Oceanside). As Council may recall, the Cannon Road Reach 4B improvements were not certified within EIR 98- 02 to allow more time to resolve environmental and roadway design issues involving habitat preserve impacts and the concerns of residents living in Oceanside. The Cannon Road Reach 4A improvements (from College Boulevard to approximately 1200 feet east) were included within the environmental certification and are approved for construction pursuant to the Agency permits obtained by the Developer.
$391658
$1 73,023
$372.1 09
ENVIRONMENTAL IMPACT:
On January 15, 2002, the City Council adopted Resolution No. 2002-016 which certified the Environmental Impact Report, CEQA findings of fact, statements of overriding considerations, a
mitigation and monitoring program for the Calavera Hills II Master Plan development, the College Boulevard and Cannon Road extension project, Master Drainage Plan Facilities BJ, BJA and BJB (EIR 98-02). EIR 98-02 included all of the Supplemental Improvements proposed for reimbursement. Potentially significant impacts in the areas of air quality, biological resources, cultural resources and hydrology/water quality will be mitigated through the incorporation of mitigation measures contained in EIR 98-02 and Resolution No. 2002-016 which are on file with and can be reviewed at the Planning Department.
FISCAL IMPACT:
The audited amount of eligible costs incurred by the Developer for the work to prepare environmental documentation for EIR 98-02 and to obtain agency permits for the Supplemental Improvements is shown in the following table:
Facility I Audited Reimbursable Work
Colleae Boulevard Reach A 1 $159.428
Adequate funds are currently available within the respective project accounts to fund the reimbursement. The Cannon Road Reach 4B portion of the reimbursement will be funded from TransNet Highway 78 Corridor funds set aside for this purpose. The College Boulevard Reach A and Cannon Road Reach 4A portions of the reimbursement will be funded by revenues generated through existing prepayments made to the proposed B&TDM by LFMP Zone 15 property owners.
EXHl BITS:
1. Location Map
2. Resolution No. 2005-070 approving the Ratification Reimbursement Agreement with Calavera Hills II, LLC for Reimbursement of Costs to Complete Environmental Work for College Boulevard and Cannon Road East,
3. Copy of Ratification of Reimbursement Agreement with Calavera Hills II, LLC, for Reimbursement of Costs to Complete Environmental Work for College Boulevard and Cannon Road East.
DEPARTMENT CONTACT: David Hauser, (760) 602-2739, dhaus@ci.carlsbad.ca.us
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RESOLUTION NO. 2005-070
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING THE RATIFICATION
REIMBURSEMENT AGREEMENT WITH CALAVERA HILLS II,
LLC FOR REIMBURSEMENT OF COSTS TO COMPLETE
ENVIRONMENTAL WORK FOR COLLEGE BOULEVARD AND
CANNON ROAD EAST.
WHEREAS, the developer, Calavera Hills II, LLC ("Developer"), of Carlsbad Tract 00-02
:"Project") was required by the California Environmental Quality Act to prepare environmental
jocumentation in support of the Developer's Project; and,
WHEREAS, Developer was required pursuant to the requirements of Local facilities
Management Plan ("LFMP) Zone 7 to participate in the financing of proposed Bridge and
rhoroughfare District No. 4 ("B&TDM"); and,
WHEREAS, the City Council of City of Carlsbad authorized City staff to proceed with the
ireparation of preliminary engineering and environmental documentation for B&TD#4; and,
WHEREAS, the Project was conditioned to construct certain roadway and drainage
mprovements that were included within the list of improvements to be financed by proposed
3&TD#4; and,
WHEREAS, the list of improvements financed by proposed B&TD#4 included certain road
and drainage improvements not required to be constructed as a condition of the Project
"Supplemental Improvements"); and,
WHEREAS, the City staff of the City of Carlsbad determined that a single environmental
locument analyzing the combined improvements of the Project and B&TD#4 was preferable to
he preparation and processing of separate environmental documents for the Project and
3&TW; and,
WHEREAS, the Developer agreed to the preparation of the combined environmental
jocumentation including the attainment of Federal and State agency permits for the Supplemental
mprovements with the understanding that Developer would be allowed the opportunity to request
reimbursement for all eligible costs to perform the additional environmental work in excess of the
requirements of the Project; and,
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WHEREAS, the Developer has completed the preparation and processing of the
environmental documentation for the Project and B&TD#3 including the attainment of State and
Federal agency permits for the Supplemental Improvements, excluding Cannon Road Reach 4B
which was excluded from environmental certification by action of the City Council; and,
WHEREAS, City has completed an audit of the eligible reimbursable expenses incurred by
the Developer for preparation of the environmental work for the Supplemental improvements; and,
WHEREAS, the Developer is requesting City Council approval of a Ratification
Reimbursement Agreement for the reimbursement of the costs to complete the environmental
work for the Supplemental Improvements; and,
WHEREAS, adequate funds have previously been appropriated by City Council for the
purpose of preparing preliminary engineering and environmental documentation for the
Supplemental Improvements.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California as follows:
1.
2.
That the above recitations are true and correct.
That the Mayor is authorized to execute the Ratification of Reimbursement
Agreement with Calavera Hills II, LLC for Reimbursement of Costs to Complete
Environmental Work for College Boulevard and Cannon Road East
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 15th day of MARCH , 2005 by the following vote, to wit:
Kulchin, Packard, Sigafoose
ATTEST
5
RATIFICATION OF REIMBURSEMENT AGREEMENT WITH CALAVERA HILLS II,
LLC FOR REIMBURSEMENT OF COSTS TO COMPLETE ENVIRONMENTAL WORK
FOR COLLEGE BOULEVARD AND CANNON ROAD EAST
This Ratification of Reimbursement Agreement (“Agreement”) is entered into as of this / 7& day of , 2005 by and between the City of Carlsbad, a municipal
corporation of the State of California (“City”), and Calavera Hills II, LLC, (“Developer“)
(collectively, the “Parties”).
RECITALS
A.
6.
C.
C.
D.
E.
F.
Developer is developing certain real property commonly known as Calavera Hills Phase
II, (“Property”), located in City and more particularly described as Carlsbad Tract 00-02
(“Project”); and,
The Planning Commission of the City adopted Resolution No. 5117 on January 2, 2002,
recommending approval of the Project; and,
The City Council of the City adopted Resolution No. 2002-016 on January 15, 2002
approving the Project; and,
The project approvals require Developer to design and construct certain off-site public
improvements more particularly described as Cannon Road Reach 3, College Boulevard
Reach B and C and Drainage Basin BJB (“Off-site Improvements”); and,
In June of 1998, the Carlsbad City Council authorized the preparation of a financing
program for the future construction of certain College Boulevard and Cannon Roads
improvements including associated master planned drainage facilities. The list of
improvements included within the proposed financing program which became known as
Bridge and Thoroughfare District No. 4 (“B&TD##4) included the Off-site Improvements
together with additional improvements not required as a condition of approval of the
Project (“Supplemental Improvements”). The Supplemental Improvements included the
future construction of Cannon Road Reach 4 extending from College Boulevard to
Mystra Drive in Oceanside, College Boulevard extending from Cannon Road to Badger
Lane and Master Drainage Plan Facility BJ; and,
The State Legislature has found that environmental impact reports should be tiered
whenever feasible in order to streamline regulatory procedures, avoid repetitive
discussions of the same issues in successive environmental impact reports, and ensure
that environmental impact reports prepared for later projects which are consistent with a
previously approved policy, plan, program, or ordinance concentrate upon environmental
effects which may be mitigated or avoided in connection with the decision on each later
project. (Public Resources Code Section 21 093)
The Developer was required to prepare an environmental impact report for the Project
including all of the B&TD#4 Improvements, known as Environmental Impact Report 98-
02, which was certified by the City Council of the City per Resolution No. 2002-016 on
January 15, 2002 (“EIR 98-02”); and,
ta General Counsel Approved Version #07.05.01
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G.
H.
I.
J.
K.
L.
M.
The City requested Developer to include the Supplemental Improvements within the
scope of work covered by EIR 98-02 and also requested Developer to assist the City in
obtaining appropriate Federal and State Resource Agency Permits (‘Agency Permits”) for
the Supplemental Improvements; and,
The City’s Capital Improvement Program budget includes funding for the preparation of
environmental studies and for obtaining Agency Permits for the Supplemental
Improvements (“Reimbursable Work”); and,
Developer completed the environmental studies and obtained the Agency Permits for the
Supplemental Improvements; and,
City has established procedures entitled “Administrative Procedures for Reimbursable
Public Works Projects” (“City Administrative Procedures”), incorporated herein by this
reference, which guide the administration of developer constructed projects that receive
reimbursement of construction costs using public funds to ensure compliance with State
laws governing the use of publicly funded projects; and,
City has completed an audit of the Developer’s costs to prepare EIR 98-02 and to obtain
Agency Permits for the Supplemental improvements in accordance with the City
Administrative Procedures (“Improvement Audit”), incorporated herein by this reference;
and,
Improvement Audit finds that the Developer is eligible for reimbursement in the amount
of $372,109.25 (“Reimbursable Amount”); and,
City and Developer desire to establish a method to fairly reimburse Developer for the
cost to prepare environmental studies and to obtain Agency Permits for the
Supplemental Improvements.
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals.
this reference,
The recitals above are true and correct and incorporated herein by
2. Satisfaction of Obligation. Developer’s agreement to perform the
Reimbursable Work, as set forth herein, and the actual completion thereof, I fully
satisfies and constitutes compliance with all requirements regarding the Project
solely with respect to Reimbursable Work.
3. General Developer Obligations.
a. Developer has caused the completion of the Reimbursable Work in
substantial compliance with the City Administrative Procedures.
b. Developer hereby waives any and all potential constitutional or other legal
objections related to the Supplemental Improvements.
C. Developer agrees that the Reimbursable Amount recommended in the
General Counsel Approved Version #07.05.01
2
Improvement Audit represents a fair accounting of the costs incurred by
the Developer to complete the Reimbursable Work and no additional
reimbursement and/or credit will be requested from City for the cost to
construct the Improvements.
4. General Citv Obligations.
a. City shall reimburse Developer for the Reimbursable Amount as
described in Section 5 and 6 below.
b. All reimbursements made by the City, pursuant to the terms of this
Agreement shall be made only to Developer, unless otherwise directed, in
writing by the Developer, to make reimbursement to another party.
5. Reimbursable Work.
a. The items of Reimbursable Work shall consist of all costs directly related
to the Supplemental Improvements for the preparation of EIR 98-02 and
for obtaining Agency Permits as may be found eligible for reimbursement
under City Code and City Council Policy including the following:
I) Cost to prepare environmental studies and reports including cost for
retention of planning, environmental and engineering consultants.
2) Costs to prepare EIR 98-02 documentation including printing and
miscellaneous expenses.
3) Cost for legal analysis of environmental documentation and permits.
4) Cost for agency fees and charges.
6. Payment of Reimbursable Amount.
a. Payment of Reimbursable Amount shall be made within 30 days of the
signing of this agreement.
7. DisputeslClaims. If a dispute should arise regarding the performance or
interpretation of this Agreement, the following procedure shall be used to resolve
any question of fact or interpretation not informally resolved by the parties.
Such questions, if they become identified as a part of a dispute among persons
operating under the provisions of this Agreement shall be reduced to writing by
the principal of Developer or the Public Works Director of the City ("Director").
Acopy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to
both parties. The Director, or principal, upon receipt, shall reply to the letter,
including a recommended method of resolution within ten (IO) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the
office of the City Manager. The City Council may, but is not obligated to resolve
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 involved, although
nothing in this procedure shall prohibit the parties from seeking remedies
General Counsel Approved Version #07.05.01 3
available to them at law.
8. Assignment of Contract. The Developer shall not assign this contract or any
part thereof or any monies due hereunder without the prior written consent of the
City.
9. 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 shown below. Notices required to be given to Developer shall be
addressed as follows:
Calavera Hills II, LLC
2727 Hoover Avenue
National City, CA 91950
Attn: Brian Milich
Telephone: (619) 336-3138 Fax: (619) 336-3596 Email: dmilich@mcmillin.com
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
FAX: (760) 602-8562
Each party shall notify the other immediately of any changes of address that
would require any notice delivered hereunder to be directed to another address.
IO. Transfer bv Developer. The obligations and benefits of this Agreement shall not
be transferred upon sale of the Property.
11. Governing Law and Venue. This Agreement shall be interpreted and enforced
under the laws of the State of California, and venue shall reside in North San
Diego County, California.
12. Complete Agreement. 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.
13. Amendment. This Agreement may be amended only by a written instrument
executed by both the City and Developer.
General Counsel Approved Version #07.05.01
4 4
14. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on January I, 2008 or sooner if full reimbursement has been
given in accordance with the provisions of this Agreement.
15. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer
any rights upon any individual, or entity, which is not a party hereto, and the
parties hereto expressly disclaim any such third-party benefit.
16. Severability. The invalidity or unenforceability of any provision of this
Agreement, as determined by a court of competent jurisdiction, shall in no way
affect the validity or enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
DEVELOPER
CALAVERA HILLS II, LLC, a California
Limited Liability Company
*By: McMillin Companies, LLC, a
Delaware Limited Liability Company
Its Manager
By: c r
(e-mail address)
ATTEST:
LORRAINE M. WOM v City Clerk
APPROVED AS TO FORM:
RONALD R. BALL,
General Counsel Approved Version #07.05.01 5
McMillin A Land Corky McMillin Development Company
1
STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO 1
On March 1.2005
personally appeared Don Mitchell & Brian Milich, personally known to me to be the persons
whose names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures on the instrument
the persons or the entity upon behalf of which the persons acted, executed the instrument.
, before me, Brenda N. Henderson, Notaw Public
WITNESS my hand and official seal.
Signatu
cofnMiSSiON EXPIRES JWV 12 2006
This area for official notarial seal
Calavera Hills II, LLC and the Citv of Carlsbad Aareement for Reimbursement of Costs to Complete
Environmental Work for College Blvd and Cannon Road
I
AW Ai\ Ai Ai A McMillin Homes McMillin Commercial McMillin Land Development McMillin Realty McMillin Mortgage II
Corporate Office 2727 Hoover Avenue National City, CA 91950 Tel (619) 477-4117 Fax (619) 336-3112 www.mcmillin.com
Notary Form-2 McMillin Companies
A proper notarial acknowledgment of execution by Developer must be attached.
Agreement must be signed by one corporate officer from each of the following two groups.
If a Corporation,
*Group A.
Chairman,
President, or
Vice-president
"Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
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.
REV. 03/01/2005 IZ