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HomeMy WebLinkAbout2006-04-18; City Council; 18493; Approving Reimbursement Agreement Greystone Homes Inc Appropriation Funds Planned Local Drainage Area Facilities C and CFCITY OF CARLSBAD - AGENDA BILL AB# MTG. . DEPT. 18,493 U/18/06 ENG TITLE: APPROVING RATIFICATION OF REIMBURSEMENT AGREEMENT WITH GREYSTONE HOMES, INC., AND APPROPRIATION OF FUNDS TO PAY FOR THE REIMBURSEMENT OF PLANNED LOCAL DRAINAGE AREA FACILITIES C AND CF, PROJECT NO. 3804 ^x"tf^/r 'C-. s^n F PT HI^ /^" ^A • CITYATTY/^ CITYMGR. LL^~~ RECOMMENDED ACTION: Adopt Resolution No. 2006-070 approving the Ratification of Reimbursement Agreement for Portion of Master Drainage Plan (PLDA) Facilities C and CF with Greystone Homes, Inc., approving appropriation of PLDA 'C' Funds and, authorizing Finance Director to reimburse Greystone Homes, Inc., $224,822 for the construction of PLDA Facilities C and CF. ITEM EXPLANATION: In connection with the development of the Cobblestone Sea Village project, CT 84-32A, Greystone Homes, Inc., constructed portions of Planned Local Drainage Area (PLDA) Facility C and CF consisting of 36" and 72" storm drains, an 8'x8' box culvert and other storm drain appurtenances. City Planning Commission Resolution No. 2849 and City Council Resolution No. 89-354 required construction of the PLDA facilities. In accordance with the City's Drainage Ordinance, the developer is eligible for reimbursement for construction of PLDA facilities limited to the actual cost to construct the facility or the cost of the facility as estimated in the Drainage Master Plan (MDP), whichever is less. An audit of the drainage costs incurred by developer for the construction of the PLDA facilities performed in accordance with the City's Administrative Procedures for Reimbursable Public Works Projects recommends a total reimbursable amount of $224,822, which is less than the cost for these facilities as estimated in the MDP. The Cobblestone Sea Village project paid all PLDA fee obligations for the project and is, therefore, requesting full reimbursement in the amount of $224,822. Greystone Homes, Inc. has signed the attached Ratification of Reimbursement Agreement in accordance with the City's Administrative Procedures. FISCAL IMPACT: Greystone Homes, Inc., submitted documentation of $224,822 in costs associated with the construction of the PLDA facilities. The City appropriated funds in the amount of $290,000 for reimbursement of these facilities. A total of $154,058 of the appropriation was previously expended to pay audit costs and to reimburse Standard Pacific and Laurel Tree Apartments for construction of other segments of PLDA Facilities C and CF. A total of $135,942 in remaining appropriations is available to fund the requested Greystone Homes reimbursement. An additional appropriation of $88,880 is required to complete the Greystone Homes reimbursement. Adequate funds are available in the PLDA 'C' Fund Account to complete the requested reimbursement. ENVIRONMENTAL REVIEW: The reimbursement for a previously constructed facility is exempt from CEQA under Section 15061(b)(3) since the reimbursement will have no effect on the environment. EXHIBITS: 1. Location Map. 2. Resolution No. 2006-070 approving the Ratification of Reimbursement Agreement for Portion of Master Drainage Plan (PLDA) Facilities C and CF with Greystone Homes, Inc., approving appropriation of PLDA 'C' Funds and, authorizing Finance Director to reimburse Greystone Homes, Inc., $224,822 for the construction of PLDA Facilities C and CF. 3. Ratification of Reimbursement Agreement. DEPARTMENT CONTACT: David Hauser, (760) 602-2739, dhaus@ci.carlsbad.ca.us LOCATION MAP COBBLESTONE SEA VILLAGE NOT TO SCALE CITY OF OCEANSIDE HIGHWAY,** SITE VICINITY MAP HOT TO SCALE PROJECT NAME REIMBURSEMENT TO GREYSTONE HOMES, INC. FOR CONSTRUC- TION OF PLANNED LOCAL DRAINAGE FACILITIES C AND CF PROJECT NUMBER 3804 EXHIBIT 1 DRAWN BY: SCOTT fVANS, CARLSBAD ENGINEERING DEPT. 4/10/04 C:\CAPITAL\3906-1.DWG 1 RESOLUTION NO. 2006-070 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, 3 4 5 6 7 8 9 10 11 12 13 14 21 22 23 24 CALIFORNIA, APPROVING THE RATIFICATION OF REIMBURSEMENT AGREEMENT FOR PORTION OF PLANNED LOCAL DRAINAGE AREA (PLDA) FACILITIES C AND CF WITH GREYSTONE HOMES, INC., APPROVING APPROPRIATION OF PLDA 'C' FUNDS AND AUTHORIZING FINANCE DIRECTOR TO REIMBURSE GREYSTONE HOMES, INC., $224,822 FOR THE CONSTRUCTION OF PLDA FACILITIES C AND CF. PROJECT NO. 3804. WHEREAS, installation of Planned Local Drainage Area (PLDA) storm drain Facilities C and CF (the "Facilities") were a condition of approval for the subdivision of Cobblestone Sea Village (CT 84-32A); and WHEREAS, the Planned Local Drainage Area (PLDA) Fee Program provides for reimbursement for the costs of constructing master planned facilities constructed by developers in excess of the PLDA fees required of the development project; and WHEREAS, PLDA fees have been paid for the subject property; and WHEREAS, Greystone Homes, Inc., installed the Facilities; and WHEREAS, Greystone Homes, Inc., has requested reimbursement in the amount of I O $224,822 for the construction of the Facilities; and 16 WHEREAS, Greystone Homes, Inc., has submitted a signed Ratification of 17 Reimbursement Agreement for City approval in accordance with City Administrative Procedures; 18 and 19 WHEREAS, an audit of the constructed Facilities was conducted and the Public Works 20 Director approves reimbursement in the amount of $224,822; and WHEREAS, there is insufficient appropriation available for reimbursement in the City's Capital Improvement Program (CIP) through the PLDA Fee Program for the construction of the Facilities, referenced as CIP Project No. 3804; and WHEREAS, there are adequate funds available in the PLDA 'C' Fee Program Fee Program Fund to complete the requested reimbursement for Facilities. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 26 California, as follows: 27 1. That the above recitations are true and correct. 28 1 2 3 4 5 6 7 8 g 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That adequate funds are available in the City's PLDA 'C' Fee Program Fund to pay for the requested reimbursement of Facilities. 3. That funds in the amount of $88,880 are appropriated to the CIP Project No. 3804 account. 4. That the Mayor is authorized to sign the Ratification of Reimbursement Agreement. 5. That the Finance Director is hereby authorized to reimburse Greystone Homes, Inc., in the amount of two hundred twenty four thousand eight hundred twenty two dollars ($224,822) from Planned Local Drainage Area C for the construction of the Facilities. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 18th . day of APril _, 2006 by the following vote, to wit: AYES:Council Members Lewis, Hall, Kulchin, Packard and Sigafoose NOES: None ABSENT: CLAUDE A. LEWI ATTEST: LORRAINE M. WOOD, City Cler (SEAL) RATIFICATION OF REIMBURSEMENT AGREEMENT FOR PORTION OF MASTER DRAINAGE PLAN FACILITIES C AND CF (GREYSTONE HOMES INC.) This Ratification of Reimbursement Agreement ("Agreement") is entered into as of this 20th day of April , 200 6 by and between the City of Carlsbad, a municipal corporation of the State of California ("City"), and Greystone Homes Inc., a Delaware Corporation, ("Developer") (collectively, the "Parties"). RECITALS A. Developer developed certain real property commonly known as Cobblestone Sea Village, ("Property"), located in City and more particularly described as Carlsbad Tract 84-32A ("Project"); and, B. The Planning Commission of the City adopted Resolution No. 2849 on June 7, 1989, recommending approval of the Project; and, C. The City Council of the City adopted Resolution No. 89-354 on October 10, 1989, approving the project; and, C. The project approvals require Developer to design and construct certain public improvements more particularly described as a portion of Master Drainage Plan Facilities C and CF ("Improvements"); and, D. The Developer has entered into a secured Subdivision Improvement Agreement with City guaranteeing construction of Improvements dated February 3, 1997 ("Secured Improvement Agreement"), incorporated herein by this reference; and, E. The Developer has entered into a secured Grading and Erosion Control Agreement with City guaranteeing the grading and erosion control required to support the Improvements dated February 3, 1997, incorporated herein by this reference; and, F. The Improvements are included within the list of projects funded by the City's Planned Local Drainage Area fee program ("Fee Program"); and, G. Developer is obligated pursuant to City Code, City Council Policy and/or the Project conditions of approval to pay a fee and/or to construct certain improvements in satisfaction of the requirements of the Fee Program; and, H. The Fee Program provides for reimbursement and/or credit against payment of Fee Program fees for Developer's cost to construct Improvements; and, I. Developer has constructed Improvements in accordance with Secured Improvement Agreement and Grading and Erosion Control Agreement and desires to receive reimbursement and/or credit against payment of Fee Program fees ("Reimbursable Work"); and, General Counsel Approved Version #07.05.01 r J. 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, K. City has completed an audit of the Developer's costs to construct Improvements in accordance with the City Administrative Procedures ("Improvement Audit"), incorporated herein by this reference; and, L. Improvement Audit finds that the Developer is eligible for reimbursement and/ Fee Program fee credits in the amount of $224,822 ("Reimbursable Amount"); and, M. City and Developer desire to establish a method to fairly reimburse and/or grant credits against payment of Fee Program fees to Developer for the cost to construct Improvements. NOW, THEREFORE, the City and Developer agree as follows: 1 . Recitals. The recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obligation. Developer's agreement to perform the Reimbursable Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to Reimbursable Work. 3. General Developer Obligations. a. Developer has caused the construction of Improvements in substantial compliance with Secured Improvement Agreement, Grading and Erosion Control Agreement and the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to Improvements. c. Developer shall pay and/or receive credit against payment of Fee Program fees in accordance with City Codes, City Council Policy and the provisions of Fee Program. d. Developer agrees that the Reimbursable Amount recommended in the Improvement Audit represents a fair accounting of the costs incurred by the Developer to construct the Improvements and no additional reimbursement and/or credit will be requested from City for the cost to construct the Improvements. 4. General City Obligations. a. City shall reimburse and/or grant Fee Program credits to Developer for the Reimbursable Amount as described in Section 5 and 6 below. General Counsel Approved Version #07.05.01 b. All reimbursements and/or grants of fee credits 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 and/or to grant fee credits to another party. 5. Reimbursable Work. a. The items of Reimbursable Work shall consist of all costs of construction thereof and all incidental costs of construction of the Improvements eligible for reimbursement under City Code, City Council Policy and the requirements of the Fee Program including the following: 1) Usual and customary design and engineering costs including civil engineering, soils engineering, survey and construction staking, agency fees and permits as they relate to the Improvements only. 2) Cost of acquisition for easements as they relate to the Improvements only, and to the extent such costs are eligible for reimbursement under the Fee Program, including: i. Appraisal and title insurance costs. ii. Costs of preparing acquisition plats. iii. The appraised value or actual costs, whichever is less. 3) Costs of environmental review, permitting and habitat mitigation associated with Improvements. 4) An amount equal to 4.5% of the direct cost of construction of the Improvements for the Developer's overhead, construction management and supervision, including on-site supervision. 5) An amount equal to 1.8% of the direct cost of construction of the Improvements for the premiums paid by the Developer for blanket liability insurance coverage and for any surety bonds required for the Secured Improvement Agreement or Grading and Erosion Control Agreement. 6. Reimbursement Calculation. a. The Reimbursable Amount as determined by the Improvement Audit is $224,822. b. The Fee Program fee obligation for the Project is $216,018 (based upon 85.45 acres x $2528/acre). c. The amount of Fee Program fee paid by the Developer is $216,018. d. The amount of Fee Program fee credit to be granted to the Developer is $0 (Fee Program fee obligation for Project minus the amount of Fee General Counsel Approved Version #07.05.01 •7 Program fee paid by Developer). e. The amount of reimbursement due to Developer is $224,822 (Reimbursable Amount minus Fee Program fee credit) ("Actual Reimbursement"). 7. Payment of Actual Reimbursement. a. Payment of the Actual Reimbursement shall be made within 30 days of the signing of this agreement. 8. Disputes/Claims. 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"). A copy 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 (10) 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 available to them at law. 9. 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. 10. 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: Developer: Greystone Homes Inc/ Lennar Homes Attn: Victoria Woodbury Telephone: (760)918-7765 Fax: (760)918-8868 General Counsel Approved Version #07.05.01 ~. a 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. 11. Transfer by Developer. The obligations and benefits of this Agreement shall not be transferred upon sale of the Property. 12. 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. 13. 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. 14. Amendment. This Agreement may be amended only by a written instrument executed by both the City and Developer. 15. Term. This Agreement shall be effective as of the date first above written, and shall terminate on June 30, 2005 or sooner if all of the Improvements have been completed and full reimbursement/credits have been given in accordance with the provisions of this Agreement. 16. No Third Party 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. General Counsel Approved Version #07.05.01 18. 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 Greystone Hojpnes Inc. //' *By: ( (print name/title) (e-mail address) (sign her€) (print name/title) (e-mail address) ASSf- CITY icipal ATTEST: LORRAINE M. WOOD City Clerk ^vs-a V^^p^^ V..*'"'^ APPROVED AS TO FORM: RONALD R. BALL, General Counsel Deputy Genera^Counsel A proper notarial acknowledgment of execution by Developer must be attached. If a Corporation. Agreement must be signed by one corporate officer from each of the following two groups. *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. General Counsel Approved Version #07.05.01 10 ALL-PURPOSE CALIFORNIA ACKNOWLEDGEMENT State of California ) County of San Diego ) SS. On March 30, 2006 before me, Denise Gatto, Notary Public, personally appeared Peter Fagrell personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature: <nise Gatto,YJotaryPublic #l36*S3 / OFFICIAL SEAL DEMISE GATTO NOTARY PUBLIC - CALIFORNIA COMMISSION # 1369183 ORANGE COUNTY My Commission Exp. September 26,2006 (Seal) ALL-PURPOSE CALIFORNIA ACKNOWLEDGEMENT State of California ) County of San Diego ) SS. On March 30, 2006 before me, Denise Gatto, Notary Public, personally appeared Sherrie Sarasua personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature: OFFICIAL SEAL DENISE QATTO NOTARY PUBLIC-CALIFORNIA COMMISSION # 1369183GRANGE COUNTYMy OommlMlonExp.8«pt«nbef 26.2006 (Seal) Mar-30-OG 11:00u From-LENNAR COMMUNITIES 760-918-8868 T-076 P.002/005 F-818 GREYSTONE HOMES, INC. CERTIFICATE OF INCUMBENCY I, Sherrie Sarasua, Assistant Secretary of Greystone Homes, me, a Delaware corporation, hereby certify that the following persons have been duly elected and/or appointed to the position(s) set opposite their respective names, that said elections and/or appointments are in full force and effect and, except where indicated (*), mat any one of the following persons is authorized to execute and deliver documents on behalf of the Corporation. Officer Title Jaffe, Jonathan M. White, Michael P. Robert W. Garcin Shea, Mark Eric. Franz Tim . Kent Michael Levesque Greg. McGuff Jeffrey. Spitzer Thomas. Banks Peter. Beucke Dale. Billy Marc. Chasman Condon, Joy Nick. Dodson Michael R. Dowell Evans, David Pete . Fagrell Eric . Franz Robert W. Garcin Giermann, Edward C. Giermann, Edward C. Goudie, Valerie Barry G. Grant Emile. Haddad Hetzel, Andrew Higgins, Erik R. Randal B. Hurlburt Alan. Jones Graham. Jones Debbie. Kober-Parker Jeff. Lawhon Moore, Eugene Jason. Perrin Pomi, Greg Allan. Quan Anita. Reynoso Jeffrey . Roos Shea, Mark Gerald. Smith Studley, Kim Thompson, Jerrold F. Larry. Thompson Robert. Tummolo Dave. Vogel PRESIDENT Chief Financial Officer SECRETARY CONTROLLER Division President - Phoenix Division Division President - Las Vegas Division President - San Diego Division President - Temecula Division Division President - Sacramento Division VICE PRESIDENT VICE PRESIDENT Vice President/Operations VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT Vice President/General Counsel VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT Vice President VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT Vice President VICE PRESIDENT Vice President VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT Vice President Vice President Vice President/Asst. General Counsel VICE PRESIDENT Vice President/Operations GHI-09/09/05 Pagel Mar-30-06 11:01an From-LENNAR COMMUNITIES 760-918-8868 T-076 P.003/005 F-818 White, Michael P. Baker, Dee Jennifer. Bonasia Geri. Bone Laurie A. Byer Brian. Cresap Thomas . Dee Don. Larson Jason. Perrin Allan. Quan Anita. Reynoso Sherrie Sarasua Thompson, Cindy Larry. Thompson Allan . Yue Thomas. Banks Geri. Bone Brinkman, Donna Laurie A. Byer Marc. Chasman Clemens, Jeffrey T. Brian. Cresap Eckert, Sherrie Eckert, Sherrie George, Ronald Jeff. Jameson Michael Levesque Mary. Lorch Lynch, Kevin Greg. McGuff R. Lawrence. Olin Jason. Perrin Prentiss, Steve Rauschenburg, Mary Anita. Reynoso Gerry. Riley Jeffrey . Roos Steven R. Shepard Cliff. Soffer Stone, Angela Stone, Angela Robert. Tummolo Fred. Watson VICE PRESIDENT ASSISTANT SECRETARY ASSISTANT SECRETARY Assistant Secretary Assistant Secretary ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY ASSISTANT SECRETARY Authorized Agent - Temecula Valley, LLC Authorized Agent - Temecula Division Authorized Agent Authorized Agent Authorized Agent - Greystone Hidden Meadows, LLC Authorized Agent - Temecula Valley, LLC Authorized Agent - Temecula Valley, LLC Authorized Agent Authorized Agent Authorized Agent Authorized Agent - PCCIII - Oak Communities, LLC Authorized Agent - Greystone Hidden Meadows, LLC Authorized Agent - Temecula Division Authorized Agent Authorized Agent - Springfield II / Arbor Glen Authorized Agent - PCCIII - Oak Communities, LLC Authorized Agent - Temecula Valley, LLC Authorized Agent Authorized Agent - Temecula Valley, LLC Authorized Agent - PCC Ill-Crown Hill 100, LLC Authorized Agent - Temecula Division Authorized Agent - Greystone Hidden Meadows, LLC Authorized Agent - Temecula Division Authorized Agent Authorized Agent Authorized Agent Authorized Agent - PCC Ill-Crown Hill 100, LLC Authorized Agent - Springfield II / Arbor Glen Dated this 7th day of September, 2005. ':—Snerrie Sarasua^ssistant Secretary OKI-09/09/05 Page 2