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HomeMy WebLinkAbout2007-06-12; City Council; 19019; APPROVE AND AUTHORIZE REIMBURSEMENT AGREEMENT WITH BRESSI GARDENLANE, LLC FOR WIDENING PALOMAR AIRPORT ROAD AT MELROSE DRIVECITY OF CARLSBAD - AGENDA BILL 19,019AB# MTG. 6/12/07 DEPT.ENG APPROVE AND AUTHORIZE REIMBURSEMENT AGREEMENT WITH BRESSI GARDENLANE, LLC, FOR WIDENING PALOMAR AIRPORT ROAD AT MELROSE DRIVE DEPT. HEAD CITY ATTY. CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2007-127 approving and authorizing the reimbursement agreement with Bressi Gardenlane, LLC, for widening Palomar Airport Road at Melrose Drive. ITEM EXPLANATION: One of the conditions of approval for Bressi Ranch CT 00-06 was to pay for a proportionate share of costs to widen Palomar Airport Road at Melrose Drive to allow for an additional eastbound right-turn lane on Palomar Airport Road at Melrose Drive. The City of Carlsbad has a capital improvement project to improve Palomar Airport Road at this intersection and will utilize Traffic Impact Fees, developer deposits, and Community Facilities District shares to reimburse costs of intersection improvements. Bressi Gardenlane, LLC, the developer of Bressi Ranch, has deposited with the City the sum of $64,256.75 representing the developer's estimated fair share cost of the design and construction of intersection improvements on Palomar Airport Road at Melrose Drive. The reimbursement agreement is to allow the City to refund or collect additional monies if the actual costs differ from the estimated costs for this portion of intersection improvements. ENVIRONMENTAL IMPACT: The approval of the reimbursement agreement is a ministerial project and is exempt from the requirements of CEQA pursuant to Section 15268 of the State CEQA Guidelines. FISCAL IMPACT: The reimbursement agreement allows a project to pay its proportionate share of an impacted intersection or roadway, relieving financial strain on City funds. Impacts relating to the reimbursement agreement (auditing and accounting) shall be included in the proportionate share calculations for the specific improvement project. EXHIBITS: 1 . Location Map. 2. Resolution No. _ 2007-127 approving and authorizing reimbursement agreement with Bressi Gardenlane, LLC, for widening Palomar Airport Road at Melrose Drive. 3, Reimbursement agreement between the City of Carlsbad and Bressi Gardenlane, LLC. DEPARTMENT CONTACT: Clyde Wickham, (760) 602-2742, cwick@ci.carlsbad.ca.us FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D D D D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D LOCATION MAP SITE\ SITE. NOT TO SCALE PROJECT NAME REIMBURSEMENT AGREEMENT FOR WIDENING PALOMAR AIRPORT ROAD A T MELROSE DRIVE PROJECT NUMBER CTOO-06 EXHIBIT 1 DRAWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 4/10/07 C: \DEVELOPUENT PROJECTS\CT\CTOO-06-UELROSE.DWG z 1 2 RESOLUTION NO. 2007-127 3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, TO APPROVE AND AUTHORIZE A 4 REIMBURSEMENT AGREEMENT WITH BRESSI GARDENLANE, LLC, AND THE CITY OF CARLSBAD FOR CONSTRUCTION OF 5 AN ADDITIONAL RIGHT-TURN LANE ON EASTBOUND PALOMAR AIRPORT ROAD AT MELROSE DRIVE. 6 WHEREAS, Bressi Gardenlane, LLC, (DEVELOPER) is the developer of the City-approved project known as Bressi Ranch CT 00-06; and 8 WHEREAS, The Environmental Mitigation Measures, Local Facilities Management Plan, Q and conditions of approval for CT 00-06, require DEVELOPER to improve or pay a proportionate 10 share of improvements to various roads and intersections; and 11 WHEREAS, the conditions of approval state that a reimbursement agreement may be 12 available for certain improvements; and 13 WHEREAS, the City has developed an improvement project on Palomar Airport Road at Melrose Drive, including a right-turn lane associated with the project conditions as a shared14 responsibility between the City of Carlsbad and DEVELOPER; and 15 WHEREAS, the City of Carlsbad has caused plans to be prepared for the improvements 16 to Palomar Airport Road; and WHEREAS, the funding of the improvements have been approved by the City of 18 Carlsbad; and 19 WHEREAS, the deposit by Bressi Gardenlane, LLC, satisfies the obligation of 20 "Fair Share" contributions and meets the intent of condition of approval related to CT 00-06. 21 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows:22 1. That the above recitations are true and correct. 23 2. That the reimbursement agreement is hereby approved. 24 3. That the Mayor is hereby authorized to execute the reimbursement agreement 25 with Bressi Gardenlane, LLC. 26 /// 27 /// 28 7// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 12th day of June. 2007, by the following vote to wit: AYES: NOES: ABSENT: Council Members Lewis, Kulchin, Hall, Packard None Council Member Nygaard ATTEST: LORRAINE M. WOOD, City Clerk J (SEAL AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF ADDITIONAL RIGHT TURN LANE ON EAST BOUND PALOMAR AIRPORT ROAD AT MELROSE DRIVE CT 00-06 / BRESSI RANCH Between CITY OF CARLSBAD, a Municipal corporation AND Bressi Gardenlane, LLC, a Delaware Limited Liability Company AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF EAST BOUND RIGHT TURN LANE ON PALOMAR AIRPORT ROAD AT MELROSE DRIVE CARLSBAD TRACT 00-06 (BRESSI RANCH) This Agreement for Reimbursement of Costs for the Construction of the East bound Right Turn Lane on Palomar Airport Road, at Melrose Drive (CT 00-06 / Bressi Ranch), dated as of /M^daucL JjjiJLjw^ j. 2007 ("Agreement") is made at San Diego County, California, by and betweeWthe CITY OF CARLSBAD, a municipal corporation ("City") and Bressi Gardenlane, LLC ("Developer") (collectively, the "Parties"), with reference to the following recitals: RECITALS A. Developer was the record owner of certain real property located in the City of Carlsbad, California ("Bressi Ranch CT 00-06") more particularly described on Exhibit "A" attached hereto and made a part hereof, and Exhibit "B", shown for reference purposes only. The Bressi Ranch Property is a 585.1 Acre Master Planned Subdivision split into multiple neighborhoods and further into subsequent subdivisions and development. B. Developer filed application for Tentative Map (CT 00-06) and related approvals with respect to Bressi Ranch, ("Project"). The Project is the subject of certain development approvals received from City, including without limitation: EIR 98-04, GPA 98-03, ZC 98-04, SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06, all incorporated and approved by City of Carlsbad Ordinances NS 634, NS 635, and City Council Resolution 2002- 205, and Planning Commission Resolutions 5201 thru 5205 inclusive. C. Findings and Conditions of Approval for EIR, Mitigation and Monitoring Report, LFMP Zone 17, and CT 00-06 requires the Developer to pay a proportionate share of right turn lane on Palomar Airport Road at Melrose Drive.(Intersection Improvements). Said Findings and Conditions states that Developer may enter into a reimbursement agreement prior to recordation of the Final Map. D. City has designed and proposes to construct improvements to Palomar Airport Road and Melrose Drive ("City Improvements") which include among other improvements the Intersection Improvements. Developer wishes to pay the City the Developer's fair share of construction costs of the Intersection Improvements to be constructed by the City, estimated at twenty -five percent (25%) of the proposed construction of City Improvements as detailed in the cost estimate prepared by the City and shown in Exhibit "C", attached hereto and made a part hereof, E. Developer has deposited with the City the sum of $64,256.75 representing Developer's estimated fair share cost of the design and construction of Intersection Improvements ("Developer Deposit"). F. The Parties intend that upon completion of the City Improvements, the City will perform an audit to determine the Developer's actual fair share cost of Intersection Improvements. If the actual fair cost of the Intersection Improvements exceeds the Developer Deposit, then Developer will pay to City the difference between the actual fair share cost and the Developer Deposit. If the actual fair share cost of the Intersection Improvements is less than the Developer Deposit then the City shall refund to Developer an amount equal to the difference in cost between the Developer Deposit and actual fair share cost. G. The Parties intend that the design and construction of the Intersection Improvements and this Agreement shall satisfy the requirements of EIR 98-04, GPA 98-03, ZC 98-04, SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06 as such condition relates to the Intersection 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. Intersection Improvements. The proposed Intersection Improvements are further described on Drawing No. 400-8H of the improvement plans for City Improvements, sheet 35, on file with the City Engineer and incorporated by this reference . 3. City Obligations. (a) City agrees that the Developer Deposit, this Agreement and City construction of the City Improvements, satisfies conditions and findings of EIR 98-04, GPA 98- 03, ZC 98-04, SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06 as such findings and conditions relates to Intersection Improvements. (b) City agrees to refund to Developer an amount equal to the difference in cost between the Developer Deposit and actual fair share cost of the Intersection Improvements, as determined by an audit performed by the City after completion of City Improvement, if such audit determines that the Developer's actual fair cost of Intersection Improvements is less than the Developer Deposit. Any such refund shall be made by the City within sixty (60) days of completion of the audit. 4. Developer Obligations. (a.) Developer has deposited with the City the sum of $64,256.75 representing Developer's estimated fair share contribution for the cost to construct Intersection Improvements. (b.) Developer agrees to pay to City an amount equal to the difference between the Developer's actual fair share cost to construct Intersection Improvements, as determined by an audit performed by the City after completion of City Improvements, and Developer Deposit, if such audit determines that the Developer's actual fair cost of Intersection Improvements is more than the Developer Deposit. Any such payment to City shall be made by the Developer within thirty (30) days of written request to make such payment. 5. Audited Fair Share Work. (a.) City shall retain detailed payment records for all items of work during the design and construction of the City Improvements, for use by City in preparing the audit of the Developer's actual fair share cost of Intersection Improvements. This audit shall be made available to the Developer, for review, for a period of no less than thirty (30) days prior to the commencement of the thirty (30) day grace period by which payment is due per section 4. (b.) above. (d) City's refund or Developer's payment obligations hereunder shall be based upon the actual costs incurred by City in performing the design and construction of the Intersection Improvements. 6. 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 -3- 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 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) working days. If the resolution thus obtained 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. 7. Successors: Covenant to Run with Real Property. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the Developer and City and shall run with the real property and create an equitable servitude upon the real property. After City reimbursement to Developer, the provisions of this Agreement shall no longer apply to, and the same shall no longer be or constitute an equitable servitude against or run with the land and the equitable servitude hereby created shall automatically terminate. Upon the request of Developer, City shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that Project is thereafter fully released and free from the provisions of this Agreement, provided that the cost of preparing and recording such documents and/or instruments shall be paid by Developer. 8. Assignment of Agreement. The Developer shall not assign this Agreement or any part thereof or any monies due thereunder 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 specified herein. Notices required to be given to Developer shall be addressed as follows: Bressi Gardenlane, LLC 1525 Faraday Ave., Suite 300 Carlsbad, CA 92008 Telephone: (760)918-7765 Notices to City shall be delivered to the following: CITY OF CARLSBAD Public Works/Engineering Department Attention: Public Works Director 1635 Faraday Ave 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. 10. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. -4- 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 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 by a written instrument executed by City and Developer. 14. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the earlier of (i) the date the City refunds to Developer the surplus Developer Deposit, (ii) the Date the Developer pays to City the difference in the amount between Developer Deposit and the actual audited amount of Developer's fair share cost of the Intersection Improvements or (ii) January 1, 2009. Upon completion of the Work covered by this Agreement, if requested by Developer, City agrees to execute any document deemed necessary to remove this Agreement from title. Developer to bear all costs associated with -5- preparation, processing and recording of documents to remove this Agreement from title. Notwithstanding same, this Agreement shall no longer encumber the project once developer receives the reimbursement amount. 15. Severabilitv. 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. Bressi Gardenlane, LLC, A Delaware Limited Liability Company By: Lennar/LNR Camino Palpmar, LLC, A Delaware Limited Liability Company, It's Administrator By: Lennar Homes of California, Inc. A California Corporation, Its Manager 1525 Faraday Ave., Suite 300 Carlsbid, CA 92008 By: CITYO corpon ATTEST: ^(b/dtQfb ATJORRAiNE M. WOOD City Clerk >x i Bone, Assistant Secretary (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, President or vice-president and secretary, assistant secretary, CFO or assistant treasurer 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.) APPROVED AS TO FORM: RONALD R. BALL^ity Attorney BY: AS V^Jf V-^r^i 'eputy City Attorney -6-\o State of California County of _77 before me, -to u v Notary t.sati8lac d -to be the On Public, personally appeared personally known to me 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. State of California County of *5'<\n PlCao j__^_m-at <» "> • "i*JUDITH A. MEYNCKE & Commission # 1435841 | P| Notary Public - California | San Diego County I" My Comm. Expires Aug 23,2007! On_ Public, pers before me, ally appeared Steude Lewis &JL-II , Notary X 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. KELLEY WAYNICK Commission » 1507477 Notary Public - California ^ - San Diego County My Comm. Expires Aug 14. 2008 • •••HI . m . ^, Rev. 11/29/06 -7-