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HomeMy WebLinkAbout2007-12-18; City Council; 19259; Traffic Signal Reimbursement Bressi GardenlaneCITY OF CARLSBAD - AGENDA BILL AB# MTG. 12/18/07 19,259 DEPT. ENG APPROVE RATIFICATION OF REIMBURSEMENT AGREEMENT WITH BRESSI GARDENLANE, LLC, FOR THE TRAFFIC SIGNAL AT POINSETTIA LANE AND EL FUERTE STREET, PROJECT NO. 3946 DEPT. H CITY ATTY, CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2007-320 to approve and authorize execution of a Ratification of Reimbursement Agreement with Bressi 3ardenlane, LLC, a Delaware Limited Liability Company ("Developer") for the design and construction costs incurred for the construction of the traffic signal at the intersection of Poinsettia Lane and El Fuerte Street, Project No. 3946. ITEM EXPLANATION: Bressi Gardenlane, LLC is the developer of the Bressi Ranch, CT 00-06 project. In accordance with the conditions of approval, the Developer designed and constructed the traffic signal at Poinsettia Lane and El Fuerte Street. The traffic signal installation has been completed and is in use. The traffic signal improvements for Poinsettia Lane and El Fuerte Street, Project No. 3946, are included in the 2007-08 Capital Improvement Program (see exhibit 2). The funding programmed for the project consists of $210,000 in Public Facilities Fee (PFF) funds. 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. The information has been reviewed by staff, and it has been determined that the developer incurred $209,235 in expenses that are eligible for reimbursement. ENVIRONMENTAL IMPACT: On July 9, 2002, City Council adopted Resolution No. 2002-205 certifying the Program Environmental Impact Report (EIR 98-04) and adopting the Candidate Findings of Fact, Statement of Overriding Considerations, Mitigation Monitoring and Reporting Program for the Bressi Ranch Master Plan. EIR 98-04, as certified by the City Council, includes the traffic signal at Poinsettia Lane and El Fuerte Street which is proposed to be purchased/acquired in accordance with this Ratification of Reimbursement Agreement. The requested action is consistent with this environmental review. FISCAL IMPACT: As noted above, the Capital Improvement Program includes $210,000 in Public Facilities Fee (PFF) funds for the traffic signal at Poinsettia Lane and El Fuerte Street, Project No. 3946. The eligible reimbursable cost is $209,235 and, therefore, the existing appropriation in Project No. 3946 is sufficient. FOR CITY CLERKS USE ONLY. COUNCIL ACTION:APPROVED DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER - SEE MINUTES D Page 2 EXHIBITS: 1. Location Map. 2. Capital project description page from the 2007-08 Capital Improvement Program Technical Appendix for the Traffic Signal at Poinsettia Lane and El Fuerte Street, Project No. 3946. 3. Resolution No. 2007-320 approving the Ratification of Reimbursement for Traffic Signal Improvements at the Intersection of Poinsettia Lane and El Fuerte Street, Project No. 3946. 4. Ratification of Reimbursement Agreement for Traffic Signal Improvements at the Intersection of Poinsettia Lane and El Fuerte Street. DEPARTMENT CONTACT: Marshall Plantz 760-602-2766 mplan@ci.carlsbad.ca.us LOCATION MAP NOT TO SCALE SITE. PROJECT NAME POINSETTIA LANE/EL FUERTE STREET TRAFFIC SIGNAL IMPROVEMENTS PROJECT NUMBER CTOO-06 EXHIBIT 1 DRAM BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 1/16/07 C:\DEVELOPMENT PROJECTS\CT\CTOO-06TS.DWG 3 CD'a- O)CO 0. QC O UJ O O UJ O QC Q. 2 O O LU3cc0_ LULUDC UJ DC LU DLL UJ Q•z. UJ Ul(/)zoQ. (/) O (0 O LL Ul H(f) CO O§ Z)oDC O m UJ 3tro_ z- g»—1 PROJECT LOCA"S CDl_ CO CD CD U_ LU y <TlvU CD jO 2- re O 0 n"co S: .£ QC 1Intersection of PoPROJECT DESCo ^ o t± CD ~<— o CD _§ m •£• c o CO •— »- 0 SO> CD £Z X "^ to_ri C^ y o).£-g « - > TJ * - 5C C COO) t 'co 2 C7>05 .CO O Q. •S- Q_ i;™ CO ~ 2-o"O ^— C "S O o> -§ c -| cO •— en >», h:; w ^ W "*"' "~ S m en-— CDCD _ t:~r re ^^ 0 D. •2 — re 2?Installation of acontroller, 200SAback-up system,adjacent controllePROJECT NEEDCO CO \c |= "*""* — 0 "55 •4= CDre Q. 8-° Sw 5 £1C CO 3._ as .£2 wJ= CO W'1— 'C OO ct/J "^ ••"1E =re 3 E £ "• U_ LL LL LL LL LL D. Q- Q. re o *- *- wC ° OCD o S re ._: "oCD > cz men > o *= CO •*— -•— • w™ ° S Ere -^- ® .= •^ "TO m "wjz -c 52 UJ O 0 O OO O O OO O O O CD" o" CM" G?^5~ CO C^ ^™T- <v> <M<«• V* oo^ c= o I^'CD i2i_ -t-> C~ ^* 0 c ~ c II iz TO re .2 i-: •= 'co 0) o S5 co c c CD II ,9>, « '55 ° Q- *• ° 0.= g Vp > 2 w o ° •• g0 "re "o o S *&* % 2-a co CD OCD c zT3 0 -C $CD 5Z CD 5j^ ro c EZ i: O) LL « « " 0) 1 =i 0 '-i "<n c E JS co<D O T3 O °-Q0< £ O "re cc CO CTl 01en z oo LU Otra. tn03 oQ. 1 RESOLUTION NO. 2007-320 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 POINSETTIA LANE AND EL FUERTE STREET. PROJECT NO. 3946 _ 5 WHEREAS, Bressi Gardenlane, LLC, a Delaware Limited Liability Company ("Developer") 6 is the developer of Bressi Ranch, CT 00-06; and 7 WHEREAS, the Developer has performed the design and construction of the traffic signal 8 at the intersection of Poinsettia Lane and El Fuerte Street; and 9 WHEREAS, the Developer has executed the Ratification of Reimbursement Agreement 10 for traffic signal improvements at the intersection of Poinsettia Lane and El Fuerte Street, a copy 11 of which is attached hereto and incorporated by this reference (Agreement); and 12 WHEREAS, the Developer has submitted an accounting of the cost incurred for the 13 design and construction of the traffic signal, which has be reviewed by staff, in accordance with 14 the Agreement; and 15 WHEREAS, the total cost identified in the City's Capital Improvement Program for the 16 traffic signal at Poinsettia Lane and El Fuerte Street is $210,000, and the Developer's eligible 17 expenses incurred for said traffic signal is $209,235; and 18 WHEREAS, there is sufficient funding currently available in Project No. 3946 to reimburse 19 the Developer. 20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 21 California, as follows: 22 1 . That the above recitations are true and correct. 23 2. That the Ratification of Reimbursement Agreement for Traffic Signal 24 Improvements at the intersection of Poinsettia Lane and El Fuerte Street is hereby approved and 25 the Mayor is hereby authorized to execute said agreement. 26 27 28 5 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: RRAINgM. WOCfc), Ci EAL) RATIFICATION OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL IMPROVEMENTS AT THE INTERSECTION OF POINSETTIA LANE AND EL FUERTE STREET (BRESSI GARDENLANE, LLC) This Ratification of Reimbursement Agreement ("Agreement") is entered into as of this 7 *? *- day of LjU^jLntLu^, 2007 by and between the City of Carlsbad, a municipal corporation of the State of California ("City"), and Bressi Gardenlane, LLC, a Delaware Limited Liability Company ("Developer") (collectively, the "Parties"). RECITALS A. Developer is developing certain real property commonly known as Bressi Ranch, ("Property"), located in City and more particularly described as Carlsbad Tract 00-06 ("Project"); and, B. The Planning Commission of the City adopted a series of resolutions on June 5, 2002, recommending approval of the Project; and, C. The City Council of the City adopted Resolution No. 2002-205 on July 9, 2002, approving the Project. D. The project approvals require Developer to design and construct certain public improvements more particularly described as traffic signal improvements at the intersection of Poinsettia Lane and El Fuerte Street ("Improvements"); and, E. The Developer has entered into a secured Subdivision Improvement Agreement with City guaranteeing construction of Improvements dated June 9 2003 ("Secured Improvement Agreement"), incorporated herein by this reference; and, F. The Improvements are included within 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 Secured Improvement Agreement and desires to receive reimbursement and/or credit against payment of Fee Program fees ("Reimbursable Work"); and, 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, General Counsel Approved Version #07.05.01 7 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 $209,235 ("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. 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. General Counsel Approved Version #07.05.01 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) 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. 2) An amount equal to 1.5% of the direct cost of construction of the Improvements for the premiums paid for improvement and/or performance bonds relating to construction of Improvements. 3) An amount equal to 1.8% of the direct cost of construction of the Improvements for allocable portions of premiums paid for blanket liability insurance coverage. 6. Reimbursement Calculation. a. The Reimbursable Amount as determined by the Improvement Audit is $209,235. b. The amount of reimbursement due to Developer is $ 209,235. 7. Payment of Actual Reimbursement. a. Payment of the Actual Reimbursement shall be made within 30 days of the execution 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. General Counsel Approved Version #07.05.01 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: Bressi Gardenlane, LLC Attn: Tyler Pruett 1525 Faraday Avenue, Suite 300 Carlsbad, CA 92008 Telephone: (760) 918-7765 Fax:(760)918-8868 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 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 County of On before me, JL fi/SS&us _, Notary Public, personally appeared personally known to me-ef _ -proved-te me on the basis of satisfactory ovidonco 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. of California , County of t-:^ • CuimnHHon • 1701107JMotafyPutftc-CoHfofnki • ' *-•» Diego County = itg>»OcM».aoiO On before me, Public, pers%a!|f |ippisared Claude Le^s^'/i*^- •' _, Notary <^xi/^'&~ .M^, ' ^TLJ,* -^--^-^to me or ^ proved to me on the basis of satisfi the person;Y6po%i!fe|;Jft3 is subscribed to,the within instrument and actatow executed tm^gn^ jn |is authorized capacity, arrf that by his signatunef q'n ^^ y person, or j^lmtfty upon behalf of wriich the peftob acted, e^iE^|e|d tne inftrume." :SS my hand and official seal.» ?.. y^y rf.™* ' . .. ,JlX -V/^, ^ V-''""^iKC^r-:. '% '"'^^%^if,^ , *" -\ f,> ft; "f< •. ; T,^f^ •'. -1 ^,.,.t».,,.' *•- t'/. : •^if.'.Trl %%,, Rev. 11/01/00 -44- 17. 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 BRESSI GARDENLANE, LLC, a Delaware Limited Liability Company CITY corpi By 'By; (sign hare)~A (print name/title) (e-mail address) "By: (sign 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