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HomeMy WebLinkAbout2007-12-18; City Council; 19256; Reimbursement Calavera Hills Traffic SignalCITY OF CARLSBAD - AGENDA BILL ^AB# 19|256 MTG. 12/18/07 DEPT. ENG APPROVE RATIFICATION OF REIMBURSEMENT AGREEMENT WITH CALAVERA HILLS II, LLC, FOR THE TRAFFIC SIGNAL AT COLLEGE BOULEVARD AND CARLSBAD VILLAGE DRIVE AND APPROPRIATE FUNDS fe*VQ xDEPT. HEAD \^\-^ CITYATTY. x^g- CITY MGR. (/A RECOMMENDED ACTION: Adopt Resolution No. 2007-317 to approve and authorize execution of a Ratification of Reimbursement Agreement with Calavera Hills II, LLC, a California Limited Liability Company ("Developer") for the design and construction costs incurred for the traffic signal at the intersection of College Boulevard and Carlsbad Village Drive and appropriate funds. ITEM EXPLANATION: In accordance with the project approvals, the developer of the Calavera Hills II project designed and constructed the traffic signal at College Boulevard and Carlsbad Village Drive. The traffic signal construction has been completed and it is in use. The traffic signal improvements were originally included in the Public Facilities Fee (PFF) Program list of projects with a budgeted value of $210,000. When a Developer constructs improvements that are on the PFF Program list of projects, they are eligible to enter into a reimbursement agreement which enables the City to reimburse the Developer, for the costs associated with the specified improvement, from the PFF fund. The Developer has submitted a record of expenses for the design and construction costs associated with the traffic signal improvements, and a request for reimbursement in the amount of $221,327.70. The information has been reviewed by staff, and has been found to be accurate and acceptable. A review of the traffic analysis associated with the Calavera Hills II project indicates that 15% of the traffic volume at the intersection of College Boulevard and Carlsbad Village Drive can be attributed to the project. In other words, 85% of the volume at this intersection is not associated with the Calavera Hills II project. In accordance with these values, the Developer has agreed to limit the reimbursement from City funds to 85% of the cost to design and construct the traffic signal which equals $188,128.55. The remaining 15% of the cost which is equal to $33,199.15 will be reimbursed from Assessment District No. AD 2003-01 bond proceeds which are associated with the Calavera Hills II project as available and in accordance with the District requirements and procedures. ENVIRONMENTAL IMPACT: On January 15, 2002, City Council adopted Resolution No. 2002-16 certifying the Environmental Impact Report (EIR 98-02) and adopting the Candidate Findings of Fact, Statement of Overriding Considerations, Mitigation Monitoring and Reporting Program for the Calavera Hills Phase II project. The requested action is consistent with the prior environmental review. FOR CITY CLERKS USE ONLY. COUNCIL ACTION: APPROVED DENIED CONTINUED WITHDRAWN AMENDED D/ D Dnn CONTINUED TO DATE SPECIFIC CONTINUED TO DATE UNKNOWN RETURNED TO STAFF OTHER - SEE MINUTES nnnn Page 2 FISCAL IMPACT: The Fiscal Year 2006-07 Capital Improvement Program identified $210,000 in PFF funds for the traffic signal at College Boulevard and Carlsbad Village Drive. On June 26, 2007, City Council adopted the final Operating Budgets for Fiscal Year 2007-08 and appropriated funds for the Fiscal Year 2007-08 Capital Improvement Program. In conjunction with this action, the Fiscal Year 2007-08 Capital Improvement Program noted that $210,000 in Gas Tax funds would be appropriated for this traffic signal in place of the previously identified PFF funds. The funds are currently programmed in the Capital Improvement Program for 2012-17. Because the traffic signal is complete and the developer is seeking reimbursement, staff recommends moving the funds forward to Fiscal Year 2007-08. As noted above, the developer has agreed to limit the funding from these sources to 85% of the costs or $188,128.55. Therefore, staff is recommending that $188,128.55 in Gas Tax funds be appropriated at this time for the purpose of reimbursing the developer for a portion of the traffic signal costs. Sufficient funds are currently available in the Gas Tax fund to reimburse the developer for 85% of the project costs, as noted above. The remaining 15% of the costs or $33,199.15 would come from Assessment District 2003-01 bond proceeds which are available to fund District improvements not otherwise funded by fee program reimbursements. The payment from Assessment District bond proceeds would be made subject to the requirements and procedures of the District. EXHIBITS: 1. Location Map. 2. Resolution No. 2007-317 approving the Ratification of Reimbursement Agreement for Traffic Signal Improvements at the Intersection of College Boulevard and Carlsbad Village Drive and appropriating funds. 3. Ratification of Reimbursement Agreement for Traffic Signal Improvements at the Intersection of College Boulevard and Carlsbad Village Drive. DEPARTMENT CONTACT: Marshall Plantz 760-602-2766 mplan@ci.carlsbad.ca.us LOCATION MAP NOT TO SCALE SITE VICINITY MAP NOT TO SCALE PROJECT NAME COLLEGE BLVD. / CARLSBAD VILLAGE DR. TRAFFIC SIGNAL IMPROVEMENTS PROJECT NUMBER CTOO-02 EXHIBIT 1 DRAWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 1/16/07 C: \DEVELOPUENT PRacCTS\CT\CTOO-02TS.DWG 1 RESOLUTION NO. 2007-317 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 CARLSBAD, CALIFORNIA, APPROVING THE RATIFICATION OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL 4 IMPROVEMENTS AT THE INTERSECTION OF COLLEGE BOULEVARD AND CARLSBAD VILLAGE DRIVE AND 5 APPROPRIATING FUNDS. 6 WHEREAS, the Calavera Hills II, LLC, a California Limited Liability Company 7 ("Developer") is the developer of Calavera Hills II, CT 00-02; and 8 WHEREAS, the Developer has performed the design and construction of the traffic signal 9 at the intersection of College Boulevard and Carlsbad Village Drive; and 10 WHEREAS, the Developer has executed the Ratification of Reimbursement Agreement 11 for traffic signal improvements at the intersection of College Boulevard and Carlsbad Village 12 Drive, a copy of which is attached hereto and incorporated by this reference (Agreement); and 13 WHEREAS, the Developer has submitted an accounting of the cost incurred for the 14 design and construction of the traffic signal, which has be reviewed by staff, in accordance with the Agreement; and\ o WHEREAS, the traffic study prepared for the Calavera Hills II development, as included in16 the Environmental Impact Report for CT 00-02, indicates that 15% of the traffic volume at the17 intersection of College Boulevard and Carlsbad Village Drive is a result of the development of the Calavera Hills II project and that 85% of the traffic volume is not; and 19 WHEREAS, the total cost identified in the City's Capital Improvement Program for the 20 traffic signal at College Boulevard and Carlsbad Village Drive is $210,000, and the Developer's 21 expenses incurred for said traffic signal is $221,327.70; and 22 WHEREAS, there are sufficient Gas Tax monies available and programmed in the Capital 23 Improvement Program to fund 85% of the costs to design and construct the traffic signal at 24 College Boulevard and Carlsbad Village Drive which is equal to $188,128.55; and 25 WHEREAS, the Gas Tax funds are currently programmed in the Capital Improvement po Program for 2012-17; and 27 /// 28 1 WHEREAS, the City Council has determined it necessary and in the public interest to 2 move the project forward in the Capital Improvement Program and appropriate funds; and 3 WHEREAS, subject to the requirements of Assessment District 2003-01, the remaining 4 costs of $33,199.15 may be reimbursed from eligible Assessment District 2003-01 bond 5 proceeds. 6 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 7 California, as follows: 1. That the above recitations are true and correct. 2. That the Ratification of Reimbursement Agreement for Traffic Signal Improvements at the intersection of College Boulevard and Carlsbad Village Drive is hereby10 approved, and the Mayor is hereby authorized to execute said agreement. 3. That the City Finance Director is hereby authorized to appropriate $188,128.55 in 12 Gas Tax Funds for the purpose of reimbursing the Developer for a portion of the costs to design 13 and construct the traffic signal at College Boulevard and Carlsbad Village Drive per the subject 14 agreement. 15 16 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 18th day of December, 2007, by the following vote to wit: AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard. NOES: None. ABSENT: None. CLAUDE A LEWIS, Mayor ATTEST: l/ORRA$IE M. WObt), SEAL) RATIFICATION OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL IMPROVEMENTS AT THE INTERSECTION OF COLLEGE BOULEVARD AND CARLSBAD VILLAGE DRIVE (CALAVERA HILLS II, LLC) This Ratification of Reimbursement Agreement ("Agreement") is entered into as of this /9° day of JLutt^nt^jU, 2007 by and between the City of Carlsbad, a municipal corporation of the State of California ("City"), and Calavera Hills II, LLC, a California Limited Liability Company, ("Developer") (collectively, the "Parties"). RECITALS A. Developer is developing certain real property commonly known as Calavera Hills, Phase II, ("Property"), located in the City and more particularly described as Carlsbad Tract 00-02 ("Project"); and B. The Planning Commission of the City adopted Resolution No. 5117 on January 2, 2002, recommending approval of the Project; and C. The City Council of the City adopted Resolution No. 2002-16 on January 15, 2002, approving the Project; and D. The Traffic Study prepared for the Project and as included in the Environmental Impact Report for the Project indicates that 15% of the traffic volume at the intersection of College Boulevard and Carlsbad Village Drive is a result of the development of the Project; and E. The project approvals require Developer to design and construct certain public improvements more particularly described as traffic signal improvements at the intersection of College Boulevard and Carlsbad Village Drive ("Improvements"); and F. At the time of the project approval the Improvements were included on the list of projects funded by the City's Public Facilities 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 a Secured Improvement Agreement and desires to receive reimbursement ("Reimbursable Work"); and J. City has established procedures entitled "Administrative Procedures for General Counsel Approved Version #07.05.01 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 in the amount of $221,327.70 ("Reimbursable Amount"); and M. The 2007-08 Capital Improvement Program identifies $210,000 in Gas Tax Gas Tax funds for the Improvements rather than Public Facilities Fee funds as previously programmed; and N. City and Developer desire to establish a method to fairly reimburse 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. General Counsel Approved Version #07.05.01 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. 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: i. 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. b. 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. c. Costs of environmental review, permitting and habitat mitigation associated with Improvements. d. An amount equal to 4.0% of the direct cost of construction of the Improvements for the Developer's overhead, construction management and supervision, including on-site supervision. e. 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 $221,327.70. b. The amount of reimbursement due to Developer to be paid from the Gas Tax fund as programmed in the 2007-08 Capital Improvement Program is equal to 85% of the Reimbursable Amount which equals $188,128.55. General Counsel Approved Version #07.05.01 q c. The remaining 15% of the Reimbursable Amount which is equal to $33,199.15 is eligible for reimbursement from Assessment District 2003-01 bond proceeds which are available to fund District Improvements not otherwise programmed to be funded by Gas Tax or Fee Program reimbursements. 7. Payment of Actual Reimbursement. a. Payment of the portion of the Actual Reimbursement funded by the Gas Tax fund shall be made within 30 days of the execution of this agreement. b. Payment of the portion of the Actual Reimbursement funded by the Assessment District 2003-01 bond proceeds shall be made after the execution of this agreement, issuance of the Assessment District Bonds and in accordance with the payment provisions of the District. 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: Calavera Hills II, LLC Attn: Brian Milich PO Box 85104 San Diego CA, 92186-5104 Telephone: 619-794-1308 Fax:619-336-3596 General Counsel Approved Version #07.05.01 /o 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 February 1, 2008 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 STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO } On October 25. 2007 before me, Ann M. Futo. Notary Public . personally appeared Brian Milich and Don Mitchell, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that Wshe/they executed the same in his/her/their authorized capacity(ies), and that by Ws^hef/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature ANN M. FUTO Commission # 1546838 Notary Public - California San Diego County MyComm. Expires Jan 23, This area for official notahal seal Notary Form-2 McMillin Companies CERTIFICATE OF ASSISTANT SECRETARY OF McMILLIN COMPANIES, LLC The undersigned, hereby certifies (i) that she is the Assistant Secretary of McMillin Companies, LLC, a Delaware limited liability company (the "Company"); and (ii) that the Company is the Managing Member of Calavera Hills II, LLC, a California limited liability company (the "LLC") and (iii) that the following individuals, any two signing together, are authorized and directed to execute, on behalf of the LLC, any and all documents, including but not limited to: escrow instructions, deeds, conveyances, assignments, notices of completion, promissory notes, loan documents, subdivision documents and easements; and to do all acts and things which may be deemed necessary or advisable in order to carry out the business of the LLC. Mark McMillin Scott McMillin Ken Baumgartner Eliot Alport Gary Beason Mark Doyle Jim Hunter Don Knox Gordon MacKenzie Robert Anselmo Guy Asaro Don Faye Joseph Leal Don Walker Gary Arnold Jeff Brazel Ceci Doty Thorn Fuller Walter Heiberg Bob Jones Bryce Jones Karen Martin Steve McGill Pat McMillin Brian Milich Guy Oliver James Ondler Sandy Perlatti Rick Ray Ken Screeton Joe Shielly Co-Chairman and Co-CEO Co-Chairman and Co-CEO President / COO Exec. Vice President Exec. Vice President / CFO Exec. Vice President Exec. Vice President - Res. Land Exec. Vice President Exec. Vice President First Senior Vice President First Senior Vice President First Senior Vice President / Secretary First Senior Vice President First Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President / Treasurer Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President Senior Vice President H:\data\acqustn\Npierce\CORPORATIONS\CERTIFICATE OF ASST SEC Calavera Hills I111.02.06 doc John Timmons David Warren Jon Bell Vince Ferrer Don Mitchell Robin Otterness Allen Barbour Patti Basile Ed Berlanga Duncan Budinger Mark Carpenter Tom Chubb Ronda Clair Ann Cleator Berdina Cope Denny Cuccarese Kim Elliott Diane Erickson Paul Faye Kathrine Foster Todd Galarneau Noli Gavino Joe Haeussler Jerry Hamilton Craig Hammett Terri Ibarra Kent Ireland Rick Jarrett Scott Johnson Jim Jordan Blaine Knoll Dana Kuhn Ken Kuras Lance Leininger Les Leininger Randy Levinson Rita Mahoney Randy Merrill Melissa Mohr Buzz Naughton Dennis Pulido Liz Ramirez Rolando Reyna Kathi Riser Jim Robinson Rey Ross Senior Vice President Senior Vice President First Vice President First Vice President First Vice President First Vice President Vice President Vice President/Asst Secretary 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 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 H:\data\acqustn\Npierce\CORPORATIONS\CERTiFICATE OF ASST SEC Caiavera Hills II 11.02.06.doc Michael Sadegh Greg Schulte Eva Stresemann Dennis Taylor Kelley Thene Tom Tomlinson Chris Van Nort Patricia Walker Judy Webster Frank Zaidle Vicki Corcoran Marcella Fescina Liz Frosio Laura Wilson Stephanie Pfaff Nicole Pierce Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Vice President Assistant Vice President Assistant Vice President Assistant Vice President Assistant Vice President Assistant Secretary Assistant Secretary IN WITNESS WHEREOF, this Certificate of Assistant Secretary has been duly executed on this 2nd day of November, 2^06. Nico| Pierce, ssistanSecretary H:\data\acqustn\Npierce\CORPORATIONS\CERTIFICATE OF ASST SEC Calavera Hills I111.02.06.doc 17. 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. DEVELOPER CALAVERA HILLS II, LLC, a California Limited Liability Company j>BAD, a municipal (sign here) / (print name/title) (vt6Ml<g/vncyH» (e-mail address) "By: (st^n here) * APPROVED AS TO FORM: RONALD R. BALL, General Counsel (print name/title) Deputy General Counsel (e-mail address) 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