HomeMy WebLinkAbout2001-07-24; City Council; 16301; APPROVAL OF A REIMBURSEMENT AGREEMENT WITH WESTERN PACIFIC - EL CAMINO, LLC FOR THE CONSTRUCTION OF REACHES F AND G OF POINSETTIA LANECITY OF CARLSBAD -AGENDA BILL
AB# /6; 3of TITLE: APPROVAL OF A
REIMBURSEMENT AGREEMENT WITH WESTERN
MTG. 7124101 PACIFIC - EL CAMINO, LLC FOR THE CONSTRUCTION OF
REACHES ‘IF” AND “G” OF POINSETTIA LANE
DEPT. ENG CITY MGR. +-
RECOMMENDED ACTION:
Adopt Resolution No. ,&Of -23 f approving a reimbursement agreement with Western Pacific
Housing - El Camino, LLC for the construction of Reaches “F” and “G” of Poinsettia Lane and
authorizing the appropriation of additional funds from the Public Facilities Fee fund to pay for the
construction of a traffic signal and turn lane improvements at the intersection of Poinsettia Lane and
El Camino Real.
ITEM EXPLANATION:
The developer of the Lohf residential subdivision, Western Pacific Housing - El Camino, LLC, has
worked with City Engineering staff to formulate an agreement providing for the reimbursement of
costs attributable to developer’s construction of the Poinsettia Lane improvements between El
Camino Real (ECR) and the western boundary of the Lohf subdivision. The basis for this
agreement is the existing Bridge and Thoroughfare District No. 2 (B&TD No. 2) fee program,
approved on July 8, 1997 and the Public Facilities Fee (PFF) program. Under the guidelines
established for the B&TD No. 2 fee program, developers that construct improvements covered by
the program are eligible to receive credit against payment of B&TD No. 2 fees and/or
reimbursement for costs incurred in constructing the district funded improvements. The PFF
program also provides for reimbursement of developer constructed PFF improvements; however,
the PFF program does not allow for credits against payment of the PFF.
The Lohf residential development (CT 97-l 5) was approved by the City Council on August 17, 1999.
Western Pacific subsequently acquired the adjacent Steiner property and obtained approval for
another residential subdivision (CT 99-13) from the City on January 5, 2000. As a condition of
approval for both projects, the developer was required to construct portions of Poinsettia Lane from
ECR to the western boundary of the Lohf subdivision. For purposes of reimbursement scheduling
the Poinsettia Lane improvements were separated into two distinct reaches delineated as the on-
site and off-site improvements.
The off-site portion of Poinsettia Lane, extending easterly from the Lohf subdivision boundary to
ECR is known as Reach “G” and was determined to be in excess of the needs required by the
development. However, the developer agreed to construct the Reach “G” improvements including
the necessary traffic signal and median improvements at the intersection with ECR, provided that
the City reimburse the developer on a progress payment basis.
The on-site portion of Poinsettia Lane, located within the boundaries of the Lohf subdivision is
known as Reach ‘IF” and was required to serve the needs of the Lohf development. Although
required to serve the needs of the development, a portion of the on-site improvements are eligible
for reimbursement and/or credit against payment of B&TD#2 fees in accordance with the provisions
of the B&TD#2 fee program. Reimbursements for work required to serve the needs of development
are considered ordinary reimbursable work. Pursuant to the terms of the agreement, reimbursement
for ordinary reimbursable work is made only after deducting fee credits representing the
developments fair share contribution to the B&TD#2 fee program. Any remaining reimbursement is
subject to availability of B&TD No. 2 funds and will be made on a future schedule as determined by
City Council.
Page 2 of Agenda Bill No. / 6, 30/
City staff is currently in the process of updating the fee structure for B&TD No. 2. The developer has
agreed to the inclusion of a provision within the proposed reimbursement agreement whereby the
developer agrees to retroactively pay the updated fee. Payment of the updated fee will take the form
of additional fee credits to be deducted from the payment of the reimbursement for the Reach “F”
improvements.
The full text of the proposed agreement is attached as Exhibit 3.
ENVIRONMENTAL REVIEW:
The potential environmental impacts of the Poinsettia Lane construction were reviewed and a Mitigated
Negative Declaration was issued on October 26, 1998 for the project. The alignment of Poinsettia Lane
was also reviewed through the certified EIR for the Zone 20 Specific Plan. Copies of all environmental
documents and studies related to the project are on file in the Planning Department.
FISCAL IMPACT:
The total estimated cost of reimbursable work constructed by Western Pacific Housing pursuant to the
proposed reimbursement agreement is $1,964,146 allocated between Reaches “F” and “G” and the
traffic signal/intersection improvements as follows:
Reimbursable Costs Non-Reimbursable costs
Project ## Item Total Cost B&TD#2 PFF Developer
Poinsettia Lane Reach “F” $1,573,784 $987,324 $0 $586,460
onsite to Lohf subdivision
3595, 3673, Poinsettia Lane Reach “G” $703,172 $703,172 $0 $0 3674 from Lohf boundary to ECR
3800 Traffic Signal improvements $204,250 $0 $204,250 $0 at Poinsettia Lane/ECR
3643 Median turn lane $69,400 $69,400
improvements on ECR
Totals $2,550,606 $1,690,496 $273,650 $586,460
Pursuant to the terms of the agreement, reimbursement for Reach “G” will be paid within sixty days of
the approval of a City audit of the payment request made at the completion of the various stages of work
identified in the agreement. Funds for the reimbursement of the costs for Reach “G” have been
previously appropriated for the project and are available for immediate reimbursement upon approval of
the respective audits for such work. Reimbursement for the costs to construct the traffic signal and
median turn lane improvements at the intersection of Poinsettia lane and ECR are also to be paid within
sixty days of the completion of the audit for such work. Currently the City has appropriated $125,000 in
PFF funds for the construction of the Poinsettia Lane/ECR traffic signal. An additional $79,250 in PFF
funds must to be appropriated to fully reimburse the developer for the cost of the traffic signal
improvements. Adequate PFF funding is currently appropriated in the ECR median improvement project
to fund the reimbursement for the median turn lane improvements on ECR.
Page 3 of Agenda Bill No. /ii! 341
Reimbursement for the Reach “F” improvements will be subject to availability of B&TD No. 2 funds
after completion of the improvements and after deducting the B&TD No. 2 fee credits for the Lohf and
Steiner projects (estimated at $541,000 based upon 82 single family units and the current proposed
updated fee of $6,600 per unit). The availability of funds to complete the reimbursement will be
determined yearly after adoption of the Capital Improvement Program budget and after taking into
account the reimbursement needs of other developers within B&TD No. 2.
EXHIBITS:
1.
2.
Location Map.
Resolution No.A66/ dJ33 approving a reimbursement agreement with Western Pacific
Housing - El Camino, LLC for the construction of Reaches “F” and “G” of Poinsettia Lane
and authorizing the appropriation of additional funds from the Public Facilities Fee fund to
pay for the construction of a traffic signal and turn lane improvements at the intersection of
Poinsettia Lane and El Camino Real.
3
STEINER
NOT 10 SCALE
PROJECT NAME POINSETTIA LANE EXHIBIT
REACHES "F" & 'G' REIMBURSEMENT AGREEMENT I
IWN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 3/7/01 C: \PRESENTATlONS\HAUSER\POINSETTlA REACHES f-G.DW Y
RESOLUTION NO. 2001-234
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A REIMBURSEMENT
AGREEMENT WITH WESTERN PACIFIC HOUSING - EL
CAMINO, LLC FOR THE CONSTRUCTION OF REACHES “F” AND
“G” OF POINSETTIA LANE AND AUTHORIZING THE
APPROPRIATION OF ADDITIONAL FUNDS FROM THE PUBLIC
FACILITIES FEE FUND TO PAY FOR THE CONSTRUCTION OF
TRAFFIC SIGNAL IMPROVEMENTS AT THE INTERSECTION OF
POINSETTIA LANE AND EL CAMINO REAL.
WHEREAS, Western Pacific Housing, El Camino, LLC, as a condition of approval for
Carlsbad Tract 97-15 (Lohf Subdivision) and Carlsbad Tract 99-13 (Steiner Subdivision) is
conditioned to construct Reach “F” and a portion of Reach “G” of Poinsettia Lane extending from
the western Lohf Subdivision boundary to the eastern Steiner Subdivision boundary; and
WHEREAS, the City desires to construct the remaining portion of Reach “G” of Poinsettia
Lane extending from the eastern Steiner Subdivision boundary to El Camino Real to full major
arterial standards excluding sidewalks and median landscaping and including traffic signal and
turn lane improvements at the intersection of Poinsettia Lane and El Camino Real, identified as
the off site Poinsettia Lane improvements; and
WHEREAS, Western Pacific Housing, El Camino, LLC has agreed to expand their
construction program to include construction of the off site Poinsettia Lane improvements
provided that they are reimbursed from the proceeds of Bridge and Thoroughfare District No. 2
(Aviara Parkway/Poinsettia Lane) and the Public Facilities Fee program; and
WHEREAS, the guidelines for formation of Bridge and Thoroughfare District No. 2 and the
Public Facilities Fee program state that the City Council may use the funds collected for each
respective fee program to reimburse developers for the construction of work included within the
cost estimate upon which the facility impact fees were based; and
WHEREAS, the Western Pacific Housing - El Camino, LLC has requested Council
approval of a reimbursement agreement for the construction of said reimbursable improvements
to Poinsettia Lane including the traffic signal and turn lane improvements at the intersection of
Poinsettia Lane and El Camino Real; and
WHEREAS, adequate funds exist in the Bridge and Thoroughfare District No. 2 fund to
pay for the construction of the Reach “G” Poinsettia Lane improvements; and,
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WHEREAS, adequate funds exist in the Public Facilities Fee fund to pay for the
construction of the traffic signal and turn lane improvements at the intersection of Poinsettia Lane
and El Camino Real; and,
WHEREAS, reimbursement for the Reach “F” improvements will be made by the City
subject to availability of B&TD#2 funds on a future schedule as may be determined by the City
Council.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the reimbursement agreement by and between Western Pacific Housing - El
Camino, LLC and the City for reimbursement of costs for design and construction of
improvements to Poinsettia Lane, is hereby approved and the Mayor is authorized to sign said
agreement on behalf of the City.
3. That the Finance Director is hereby directed to appropriate funds from the Public
Facilities Fee Fund in the amount of $79,250 to the Poinsettia Lane and El Camino Real traffic
signal project account.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 24th day of July , 2001 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, and Hall.
NOES: None.
ABSENT: N
Loraine M. Wood, Cfiy Clerk (SEAL)
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN AND
CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE
This AGREEMENT FOR REIMBURSEMENT OF COSTS FOR DESIGN AND
CONSTRUCTION OF IMPROVEMENTS TO POINSETTIA LANE FROM THE
WESTERN BOUNDARY OF THE LOHF SUBDIVISION TO EL CAMINO REAL
(“Reimbursement Agreement”), dated as of AUGUST 6,2001 is made at San Diego
County, California, between WESTERN PACIFIC HOUSING - EL CAMINO, LLC, a
Delaware Limited Liability Company (“Developer’), and THE CITY OF CARLSBAD, a
municipal corporation of the State of California (“City”)l with reference to the following:
RECITALS:
A. On February 9, 1999, City approved the tentative map for Carlsbad Tract 97-15
(“Lohf Tentative Map”), pursuant to Planning Commission Resolution No. 4427
and City Council Resolution No. 99-46 consisting of a subdivision of the
Developer’s property, previously known as the Lohf property, described on
Exhibit A-l (“Lohf Property”) containing 73 residential and 3 open space lots
(“Lohf Project”). Subsequently, on August 17, 1999, City approved the final map
for same (“Lohf Final Map”) pursuant to City Council Resolution No. 99-288. On
January 5, 2000, City approved the tentative map for adjacent Carlsbad Tract
99-l 3 (“Steiner Tentative Map”), pursuant to Planning Commission Resolution
No. 4702 consisting of a subdivision of the Developer’s property, previously
known as the Steiner property, described in Exhibit A-2 (“Steiner Property”)
containing 9 residential lots (“Steiner Project”). Subsequently, on September 12,
2000, City approved the final map for Carlsbad Tract 99-13 (“Steiner Final Map”)
pursuant to City Council Resolution No. 2000-283. The Lohf Tentative Map and
the Steiner Tentative Map tire collectively referred to herein as “Tentative Maps”.
The Lohf Property and the Steiner Property are sometimes collectively referred
to herein as “Property”. The Lohf Project and the Steiner Project are sometimes
collectively referred to herein as “Project”.
B. One of the conditions of approval for Tentative Maps for both the Lohf Project
and Steiner Project (“Condition 53” and “Condition 41,” respectively) requires
Developer to design and construct certain improvements to Poinsettia Lane
(“Poinsettia Lane Improvements”). The Poinsettia Lane Improvements are
comprised of two separate segments, those which traverse the Property (“On-
site Poinsettia Lane Improvements”) and those which extend from the Project
boundary to El Camino Real (“Off-site Poinsettia Lane Improvements”). The
cumulative effect of the On-site and Off-site Poinsettia Lane Improvements as
per Conditions 53 and 41 is the complete full-width improvement of Poinsettia
Lane from the western boundary of the Lohf Project to the intersection of
Poinsettia Lane and El Camino Real.
C. The Project sites are located within the boundary of Bridge and Thoroughfare
District No. 2 for Aviara Parkway/Poinsettia Lane (“B&TD#2”). Certain costs
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incurred by Developer in the construction of the Poinsettia Lane Improvements
are reimbursable from funds derived from the collection of fees for B&TD#2 or
may be credited against the payment of B&TD#2 fees for the Project.
Additionally, the Off-site Poinsettia Lane Improvements include costs for certain
traffic signal improvement work at the intersection of El Camino Real which are
reimbursable from the City’s Public Facility Fee fund account. Condition No. 53
of Planning Commission Resolution 4427 and Condition 41 of Planning
Commission Resolution 4702 require that the Developer enter into a
reimbursement agreement with City prior to reimbursement of any costs incurred
by Developer in the construction of the Poinsettia Lane Improvements. In the
interest of reducing costs to B&TD#2, the City permitted the Developer to
proceed with improvements concurrent with the formulation of this
Reimbursement Agreement, and all eligible costs incurred during the formulation
process are covered by this Reimbursement Agreement,
D. City is presently in the process of reforming B&TD#2 to raise additional revenue
due to an increase in costs associated with the construction of the district funded
improvements. Developer and City acknowledge that without reformation of
B&TD#2, there will be inadequate funds available to complete the construction of
the district funded improvements and/or to reimburse developers, including
Developer, for the construction of the district funded improvements.
E. City and Developer acknowledge that the Off-site Poinsettia Lane Improvements
are in excess of the needs created by the Project (“Expanded Poinsettia Lane
Obligations”). Developer has voluntarily agreed to accept the Expanded
Poinsettia Lane Obligations, but only on terms and conditions that will ensure
that.
1) City will provide Developer timely reimbursement from B&TD# 2 and
Public Facilities Fee funds, as specified herein, for those expenses
eligible for reimbursement that have been or are incurred by Developer in
connection with the Off-site Poinsettia Lane Improvements as defined in
section 3.a.(l). (collectively, “Progress Payment Reimbursable
Expenses”); and,
2) City will provide reimbursement from B&TD #2 funds and/or allow credit
against payment of B&TD#2 fees, as specified herein, for those expenses
eligible for reimbursement that are incurred by Developer in connection
with the construction of the On-site Poinsettia Lane Improvements
(“Ordinary Reimbursable Expenses”, referred to collectively with Progress
Payment Reimbursable Expenses as the “Reimbursable Expenses”).
F. City and Developer intend that this Reimbursement Agreement satisfy the
requirements of GOVERNMENT CODE §66486.
6-20-01
NOW, THEREFORE, the City and Developer agree as follows:
1.
2.
Verification of Recitals. The Recitals are true and correct.
Satisfaction of Oblination. Developer’s agreement to perform Poinsettia Lane
Improvements as set forth herein, and actual construction thereof, shall fully
satisfy and constitute full compliance with Condition No. 53 of Planning
Commission Resolution 4427 and Condition No. 41 Planning Commission
Resolution 4702 with respect to the Poinsettia Lane Improvements.
3. General Developer Obligations
a. In consideration of City’s reimbursement and other undertakings as set
forth herein, Developer agrees that in implementation of Condition 53 of
Planning Commission Resolution 4427 and Condition 41 of Planning
Commission Resolution 4702, Developer has performed or will perform
the following work:
(1)
(2)
(3)
Establishment of Final Line and Grade for Poinsettia Lane
Improvements
i. Complete all necessary items to establish a final alignment
and grade for Poinsettia Lane between El Camino Real and
the existing easterly terminus of Poinsettia Lane at Cassia
Road including, but not limited to, preparation of biological
and engineering studies, aerial photography, topographic
mapping, survey work and project management; and,
ii. Design and prepare grading and improvement plans for
Poinsettia Lane improvements (“Road Improvement Plans”);
and,
. . . III.
iv.
Obtain City approval of the Road Improvement Plans; and,
Grade the full width right-of-way for Poinsettia Lane
Improvements including all necessary erosion control
measures in accordance with City standards.
On-site Poinsettia Lane Improvements
i. Install full-width major arterial improvements for the portion
of Poinsettia Lane located on the Property in accordance
with City standards.
Off-site Poinsettia Lane Improvements
i. Install full-width major arterial improvements for that portion
of Poinsettia Lane not located on the Property including
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necessary drainage facilities and excluding sidewalks,
median hardscape, landscape and irrigation; provided,
however, that except for sewer and water lines and required
franchise utilities, in no event shall the Off-site Poinsettia
Lane Improvements include any work that is not included
within B&TD#Z or the City’s Public Facility Fee program;
and,
ii. Install traffic signal at the intersection of El Camino Real and
Poinsettia Lane including all necessary street transition
improvements and median construction improvements to
provide safe vehicular approach to the intersection. The
cost of the traffic signal and El Camino Real intersection
improvement will be reimbursed from City Public Facility Fee
funds.
b. Subject to Section 4(a) hereof, Developer shall be responsible for
acquiring the right-of-way for the Off-site Poinsettia Lane Improvements
and any off-site grading or borrow site easements required for the grading
of that right-of-way.
C. Developer shall enter into the standard subdivision improvement
agreement(s), incorporated herein by this reference, and post the required
security with the City to guarantee completion of the Poinsettia Lane
Improvements in accordance with normal City requirements.
d. Notwithstanding any other provision of this Reimbursement Agreement,
Developer shall remain obligated to pay the City’s Public Facility Fee at
time of issuance of any Project related building permit in accordance with
normal City requirements.
e. City agrees to reimburse Developer for the Progress Payments
Reimbursable Expenses in accordance with Section 7 hereof. Developer
acknowledges that the current B&TD#Z fee program may be inadequate
to fund the Ordinary Reimbursable Expenses described herein.
Developer acknowledges and agrees that City is under no obligation to
pay reimbursements for Ordinary Reimbursable Expenses from any
funding source other than the B&TD#Z fee program revenues. With
respect to the Ordinary Reimbursable Expenses, Developer further agrees
to abide by any reimbursement policy and/or schedule established by the
City which distributes available B&TD#Z funds to all eligible recipients who
construct B&TD#Z improvements. Available B&TD#Z funds are identified
as B&TD#Z fee revenue funds which are not allocated to specific B&TD#Z
road improvement projects within the City’s adopted Capital Improvement
Program budget. City agrees to allocate funds, by amendment of the
City’s adopted Capital Improvement Program budget as necessary to
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provide reimbursement for eligible costs as determined in accordance with
Paragraphs 7 and 8 below.
f. In return for the City’s agreement to allocate funds in the Capital
Improvement Program budget, Developer agrees pay the full amount of
the revised fee attributable to the Project, as such fee is determined by
City Council upon reformation of B&TD#Z. Such payment shall be made
in the form of a credit subtracted from the payment of Ordinary
Reimbursable Expenses as provided for in Paragraph 8a.
4. General Citv Obliqations
a. City shall assist the Developer in acquiring all required rights-of-way for
the Offsite Poinsettia Lane Improvements. In the event Developer is not
able to acquire one or more of the required rights-of-way, City shall utilize
its powers of eminent domain to obtain the required rights-of-way for the
Off-site Poinsettia Lane improvements. City shall pay all expenses for
rights-of-way acquired by the City through eminent domain proceedings
directly from the B&TD#Z funds.
b. City agrees to allow Developer to bond for the On-site Poinsettia Lane
Improvements separately from all other subdivision improvements so that
if the other improvements have been completed while the On-site
Poinsettia Lane Improvements remain outstanding, the bonds for the
other improvements may be released and exonerated without waiting for
completion of the On-site Poinsettia Lane Improvements.
5. Reimbursable Work.
a. Reimbursable B&TD#Z funded improvements shall include full width
grading of the roadway, paved road surface for two lane (18 foot paved
section on each side of median for a total of 36 feet paved section),
median curbs, outside asphalt berms, street drainage facilities (with the
exception that drainage facilities in Aviara Parkway which are included in
the City’s Drainage Fee Program have been deleted), culverts, temporary
drainage in parkway, design, contract administration, construction
inspection, construction engineering, mitigation measures and land
acquisition. The costs of construction, engineering, design, construction
inspection, contract administration, construction engineering,
environmental mitigation, condemnation costs for the necessary right-of-
way and slope easements, legal and other incidental expenses will be
funded by the Fee Program.
a. All work giving rise to Reimbursable Expenses is referred to either as
“Ordinary Reimbursable Work” or as “Progress Payment Reimbursable
Work”, all such work is referred to generically as “Reimbursable Work”.
Notwithstanding anything herein to the contrary, all Reimbursable
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Expenses shall be for work that is eligible for reimbursement within
B&TD#Z or the Public Facilities Fee program.
b. With respect to all hard costs of construction comprising Reimbursable
Work, Developer shall solicit bids from three reputable contractors, with
the Reimbursable. Work bid separately from any non-reimbursable work
being bid by such contractor.
C. During the performance of any Reimbursable Work, Developer shall retain
detailed payment records for all items of Reimbursable Work, for use by
City in auditing any subsequent reimbursement requests by Developer.
Developer’s requests for reimbursement (each, a “Reimbursement
Request’) shall include copies of plans, specifications, engineer’s cost
estimates, bids received, contracts, change orders, invoices, payment
slips, canceled checks (front and back), lien releases and other
documentation reasonably required by City to evidence the completion
and payment for each item of Reimbursable Work. Reimbursement
Requests may be submitted by Developer following completion of each
stage of work identified in Paragraph 6a below.
d. Exhibit B sets forth the preliminary cost estimate summary for the
Reimbursable Work. The parties acknowledge that Exhibit B, which was
prepared by Developer’s engineer, is for illustrative purposes only and that
all costs are subject to audit for eligibility for payment in accordance with
the procedures of Paragraph 6 below.
e. Developer shall be entitled to an overhead allocation of four percent (4%)
of actual Reimbursable Expenses in lieu of other reimbursement for
Developer’s costs incurred for salary and benefits for staff of Developer’s
home offices, purchasing department expense, supervision above the
level of on-site superintendent, and general corporate legal and
accounting fees.
f. Dedication of the right-of-way for the On-site Poinsettia Lane
Improvements by the Developer shall be considered a Reimbursable
Expense and shall be reimbursed as an Ordinary Reimbursable Expense
and/or credited against Developer’s payment of B&TD#Z fees. The value
of the right-of-way so dedicated shall be as approved by the City after
completion of a MAI appraisers report on the dedicated property in
accordance with the requirements of the B&TD#Z fee program.
6. Audit of Reimbursable Expenses.
a. Developer may submit Reimbursement Requests upon completion of
each of the following stages of the Reimbursable Work: City approval of
the Road Improvement Plans; completion of grading and storm drainage
improvements; completion of traffic signal at the intersection of El Camino
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Real and Poinsettia Lane; and, completion of the remaining
improvements. Requests relating to Ordinary Reimbursable Work shall
be submitted separately from requests relating to Progress Payment
Reimbursable Work.
b. All Developer’s Reimbursement Requests will be processed and audited
for City by a reputable consulting engineer selected by City (“Auditing
Engineer’). The costs of the Auditing Engineer shall be paid directly by
City from B&TD #2 and/or Public Facility Fee funds.
C. The Auditing Engineer shall review all contracts for Reimbursable Work
and the payment records submitted in connection therewith, and shall
within sixty (60) days after receipt thereof issue to City and Developer a
report either accepting Developer’s submittal or specifying with
particularity any reimbursement items or amounts not approved.
Developer, using the dispute resolution procedure of Paragraph 9 below
may further pursue any reimbursement items or amounts not approved by
the Auditing Engineer.
d. City’s reimbursement obligations hereunder shall be based upon the
actual costs incurred by Developer in performing Reimbursable Work;
provided, however, that to the extent that the cumulative total of
Reimbursable Expenses exceed the costs for such work estimated in
Appendix B to the Fee Study Report for B&TD #2 dated April 3, 1997,
Project No. 9504.001 (“Engineer’s Cost Estimate”), plus the twenty
percent (20%) contingency, then prior to payment of such excess, the
B&TD #2 fee program shall within the following twelve (12) months be
presented to the City Council for amendment to reflect the actual
construction costs. To the extent that Developers B&TD #2 fee
obligations for the Project are increased as a result of any such successful
amendment, the increase in Reimbursable Expenses shall be deducted
and credited against the increased B&TD #2 fee obligations prior to City’s
actual payment of any amounts in excess of the Engineer’s Costs
Estimate.
e. Notwithstanding anything herein to the contrary, City specifically agrees
that the following shall be deemed Progress Payment Reimbursable
Expenses:
i. Any premiums paid by Developer for improvement and/or
payment and performance bonds relating to the construction
of Off-site Poinsettia Lane Improvements; and,
ii. An amount determined as one and eight tenths percent
(1.8%) of the total of all Reimbursable Expenses, as an
allowance to cover the allocable portion of premiums paid by
Developer for blanket liability insurance coverage.
7 6-20-01
7. Pavment of Progress Pavment Reimbursable Expenses.
a. Upon the Auditing Engineer’s determination on any Reimbursement
Request for Progress Payment Reimbursable Expenses, City shall, within
sixty (60) days thereafter, pay all undisputed Progress Payment
Reimbursable Expenses to Developer.
b. Any disputed Progress Payment Reimbursable Expenses that are
ultimately agreed or determined to be payable shall be paid to Developer
within sixty (60) days after any settlement with or award to Developer
pursuant to Paragraph 6c above.
8. Payment of Ordinarv Reimbursable Expenses.
a. Payment for Ordinary Reimbursable Expenses shall be made after first
deducting and crediting against Ordinary Reimbursable Expenses all
unpaid B&TD #2 fee obligations attributable to the Project. The total
estimated fee for the reformation of B&TD#Z is $541,200 (82 units @
$6,600 per unit).
b. At such time as the undisputed Ordinary Reimbursable Expenses amount
exceeds the total B&TD #2 fee obligations for the Project, the following
procedures shall apply:
(1) Upon the Auditing Engineer’s determination on any Reimbursement
Request for Ordinary Reimbursable Expenses, City shall, within
sixty (60) days after determining that adequate B&TD #2 funds are
available, pay all such undisputed Ordinary Reimbursable
Expenses to Developer.
(2) Payment of any Ordinary Reimbursable Expenses shall be made in
accordance with a City-determined reimbursement schedule which
takes into account the reimbursement needs of other eligible
developers within B&TD #2 on a fair-share basis subject to the
provisions of Paragraph 3e, above.
9. Disputes.
If a dispute should arise regarding the performance or interpretation of this
Reimbursement Agreement, the following procedure shall be used to resolve any
question of fact or interpretation not otherwise settled by agreement between
parties. Such questions, if they become identified as a part of a dispute among
persons operating under the provisions of this contract, shall be reduced to
writing by an officer of Developer or by City’s Deputy City Engineer for Planning
and Programs. 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 Deputy City Engineer for Planning and Programs
8 6-20-01
10.
or officer of Developer receiving the letter shall reply to the letter along with a
recommended method of resolution within ten (10) 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 then opt to consider the directed
solution to the problem. In such cases, the action of the City Council shall be
binding upon the parties involved, although nothing in this procedure shall
prohibit the parties seeking remedies available to them at law.
IndemnWHold Harmless.
The City or any officer or employee thereof shall not be liable for any injury to
persons or property occasioned by reason of the acts of omissions of Developer,
its agents or employees, in the performance of this Reimbursement Agreement.
Developer further agrees to protect and hold harmless City, its officials and
employees from any and all claims, demands, causes of action, liability or loss of
any sort, because of, or arising out of, acts or omissions of Developer, its agents
or employees in the performance of this Reimbursement Agreement, including
all claims, demands, causes of action, liability, or loss because of, or arising out
of, in whole or in part, the design or construction of the Poinsettia Lane
Improvements; provided, however, that the approved improvement security shall
not be required to cover the provisions of this paragraph. Said indemnification
and agreement to hold harmless shall extend to injuries to persons and damages
to or taking of property, resulting from design or construction of Development,
and the Poinsettia Lane Improvements as provided herein, and in addition,
damage to adjacent property owners as a consequence of the drainage systems,
streets and other Poinsettia Lane Improvements. Acceptance by the City of the
Poinsettia Lane Improvements shall not constitute an assumption by the City of
any responsibility for any damage or taking covered by this paragraph. City shall
not be responsible for the design or construction of the Development or the
Poinsettia Lane Improvements pursuant to the approved improvements plans or
map, regardless of any action or inaction taken by the City in approving the plans
or map, unless the particular improvement design was specifically required by
City over written objection by Developer submitted to the City Engineer before
approval of the particular improvement design, which objection indicated that the
particular improvement design was dangerous or defective and suggested an
alternative safe and feasible design. After acceptance of the Poinsettia Lane
Improvements, the Developer shall remain obligated to eliminate any defect in
design or dangerous condition caused by the design or construction defect,
however Developer shall not be responsible for routine maintenance. Provision
of this paragraph shall remain in full force and effect for ten years following the
acceptance by the City of the Poinsettia Lane Improvements. It is the intent of
this section that Developer shall be responsible for all liability for design and
construction of the Poinsettia Lane Improvements installed or work done
pursuant to this Reimbursement Agreement and that City shall not be liable for
any nonfeasance, misfeasance or malfeasance in approving, reviewing,
9 6-20-01
checking, or correcting any plans or specifications or in approving, reviewing or
inspecting any work or construction.
11. Other Provisions.
a. 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, addressed as follows:
If to Developer, to:
WESTERN PACIFIC HOUSING
5790 Fleet Street, Suite 210
Carlsbad, California 92008
Telephone: (760) 929-l 600
Facsimile: (760) 43 1-7842
Attention: Mr. Scot Sandstrom, Vice President of Development
If to City, to:
City of Carlsbad
Engineering Department
1635 Faraday Ave.
Carlsbad, California 92008
Telephone: (760) 602-2739
Facsimile: (760) 602-8562
Attention: Deputy City Engineer, Planning and Programs
or to such other address or to such other person as any party shall
designate to the others for such purpose in the manner set forth above.
b. This Reimbursement Agreement and the releases and other agreements
contained in this Reimbursement Agreement shall be binding on and inure
to the benefit of the parties and their heirs, successors, assigns, partners,
principals, agents, officers, directors, shareholders and attorneys of the
Parties. Notwithstanding the foregoing, any reimbursement rights
hereunder shall remain with Developer unless Developer should
specifically assign those rights to a successor, by a written assignment
delivered to City.
C. This Reimbursement 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 but one and the same instrument.
10 6-20-01
d.
e.
f.
h.
No modification, waiver or discharge of this Reimbursement Agreement
shall be valid unless the same is in writing and signed by the party against
which the enforcement of such modification, waiver or discharge is or may
be sought.
This Reimbursement Agreement shall be interpreted and enforced under
the laws of the State of California and the parties agree and hereby
stipulate that the proper venue and jurisdiction for resolution of any
disputes arising out of this Reimbursement Agreement is San Diego
County, California.
Neither Developer nor any of Developer’s agents or contractors are or
shall be considered to be agents of City in connection with the
performance of Developer’s obligations under this Reimbursement
Agreement.
Performance by Developer of this Reimbursement Agreement shall not be
construed to vest Developer’s right with respect to any change in, any
zoning or building law or ordinance.
The captions of this Reimbursement Agreement are for convenience and
reference only and shall not define, explain, modify, limit, exemplify or aid
in the interpretation, construction or meaning of any provision of this
Reimbursement Agreement.
The Recitals to this Reimbursement Agreement are hereby incorporated
into the terms of this Reimbursement Agreement.
This Reimbursement Agreement shall be effective as of the date hereof,
and shall terminate upon the earlier of (I) the date that the City fully
reimburses Developer; or (2) January 1,201O.
II
II
II
II
/I
II
II
II
11 6-20-01
k. The following exhibits are attached to and by this reference incorporated
into and made a part of this Reimbursement Agreement:
A Legal Description of Property
B Preliminary Cost Budget Summary
IN WITNESS WHEREOF, the parties have executed this Reimbursement Agreement as
of the date first set forth above.
Owner:
WESTERN PACIFIC HOUSING - EL
CAMINO,LLC, a Delaware Limited Liability
Company
City:
Co
. A California Corporation, B
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
/25&2
City Attorney BJ%/m.
ATTEST
LORAINE M. WOOD
City Clerk
[Add acknowledgments]
State of California
County of
!Y$&onally known to me
to be the person P whose name($) is/-
subscribed to the within instrument and
acknowledged to me that he/eb&hq executed
the same in hisAbe&beir authorized
capacitym, and that by his/~
signaturefi) on the instrument the person@,
the e~&y upon behalf-of which the person{
acted, exemd the instrument.
Place Notary Seal Above
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer’s Name:
U Individual
q Corporate Officer - Title(s):
El Partner - 0 Limited 0 General
Cl Attorney in Fact
q Trustee
Cl Guardian or Conservator
q Other:
Signer Is Representing:
Top of thumb here
0 1999 Nationa Notary AssomaMn - 9350 De Solo Ave.. P.O. Box 2402 - Chatsworth, CA 91313-2402 - wwwnatlonalmtaryorg Prod. No 5907 Reorder. can ml-Free t-900876-6827
Exhibit A-
EXHIBIT “A”
LEGAL DESCRIPTION
PARCEL A:
PBBCEL 2 IN COTJNTY OF SAN DIEGO, STATE OF CALIFORNIA AS SEOWN ON PARCEL MAP NO. i244, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO,COUNTY, JANUARY lo,
1974.
PARCELB: __-
THE SOUTH HALF OF ,THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTIONI.26,
TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL, PLAT THEREOF.
Form Approved By City Council July 2, 199 1
Resolution No. 9 1 - 194IKE-l
7 Form 18A
Per Jane Mobaldi, Rev. 01/l l/96
Exhibit A-
-&
/
SITE
LOHF PROPERTY
ZC 97-06lLCPA 97-081CT 97-l 5/
HDP 97-l 6/CDP 97-39
Exhibit A-;
CRDER NO. 1217592-11
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREiN IS SITUATED TN THE STATE OF
COUNTY OF SAN DIE':O, AND IS DESCRIBED AS FOLLOWS:
CALIFORNIA I
PARCEL A:
PARCEL 1 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOW AT PAGE 2244 OF -PARCEL mPS FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 10, 1974.
PARCEL 3:
~1 EASEMENT AXD RIGHT OF WAk-
OVER, UJJDER,
FZ?? ROAD AND PUBLIC UTILITY PURPOSES
T ‘/';\iG a_ A_ WITHIN
ALONG ANi ACROSS A STRIP OF LAND 20.00 FEET IN WIDTH
PARC!ZL 2, i M Tgt COUNTY OF SAN DIEGO, r,'Ai. IFORNr$.., c,c II-- AS SHOWN A? PAGE 2244 OF PARCEL iP&\ps, FILED IN ‘$~*A~~~~~~
I .r! 5 Cgr~TjTy RECORDEZ C)F S-u DIEGO COUXTY, JANUARY 10 -
NQRTFSRLY LINE 0 E; SAID 20.00 FOOT 1974, T!G1'E
PARCEL A, HEREINABOVE DFSCRi3zD. STRIP SEING THE SOUTH&y LINE OF SAID EASEMZfiJT TO TERMINATE EASTERLY p+jD WES"TEP,LY ON T:-',E SOrJTHERLY PR~~LCNGATICN OF EA'TERT2jV THE WESTERLY AND MCST ., L,jJj'cS 0' s.?..'Iz p.&*yCEI_ A.
.UI EASDlENT $L-jR y.ljAD ,<Na p;‘YjLIC IJTIi,l’TY
THERETO OVER, Pirx?OSES AND INCID&NT&S UNDER, ALONG AwD ACROSS THE NORTH,"RLy 20.00 FEET OF THAT
PORTION OF PARCEL 2 IN THE COUNTY OF SW DIEGO, STATE OF CALIFORN'A
AS SXOWN AT PArJ-E 2244 OF PA?CzL ~;Ips, FILED IN THS GFFTCE OF ,$;
CobyTY RECORDER OF sA.3 DIZGO CO~WT'Y, JANUARY 10, 1974, LY& WESTERLY GF THE WESTERLY LIN"s OF PARCSL A A30VE DESCRIBED.
A PERMANENT AND NON-EXCLUSIVZ EASEMENT MJD RIGHT OF WAY FOR ROAD A-ND
PUBLIC UTILITY PURPOSES AND INCIDENTALS THERETO OVER, UNDER, ALONG-MD
ACROSS THAT PORTION OF THE NORTHWEST QU-ARTER OF THE NORTHEAST QUARTER
OF SECTION 26, TOWNSHIP 12 SOUTH, P=JGE 4 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE COU?JTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY, FOR THE BENEFIT AND USE OF THE PRESENT AND FUTURE OWNERS OF ALL OR Ai'JY PART OF THE NORTH ONE-
HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION
26. SAID EASEMENT TO BE 40.00 FEET IN WIDTH, THE CENTERLINF OF T~;:CH
BEING DESCRIBED AS FOLLOWS:
: ?j/l3/93 15.20:19 '1. I / E” DO PAGE 7
Exhibit A-Z
~~~~~~~~~~
_ &.&y-; ::g' ORDER NO. 1217592-11
I BEGINNING AT A POINT IN THE WESTERiy LiNE OF SAID NORTHWEST QUARTER OF
THE NORTHEAST QUARTER OF SECTION 25, DISTANT ALONG SAID WESTERLY LINE
SO~JT'~ 0o~37'O4" EAST, 183.00 FEET FROM THE NORTHWEST CORNER OF SAID
NORTHWEST QUARTER OF THE NORTHEAST QUARTER; SAID POINT BEING IN THE
ARC OF A NON-TANGENT 200 .00 FOOT k?IDIUs CURVE CONCAVE SOUTHERLY,
THROUGH WHICH POINT A RADIAL BEARS NORTH 09°58'06" WES-.'; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF
03028'06" A DISTANCE OF 12.11 FEET; THENCE TANGENT TO SAID CURVE NORTH
83030'00" EAST A DISTANCE OF 62.00 FEET TO THE BEGINNING OF A TANGENT
~OO,-JO FOOT RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3S055'OO" A DISTANCE OF
62.69 FEET TO A POINT OF REVERSED CURVATURE WITH A 150.00 FOOT RADIUS
CURVE CONCAVE NORTHERLY, THROUGH WHICH POINT OF REVERSED CURVATURE A
RJJJIAL BEARS NORTH 29'25'00" EAST; THENCE EASTERLY ALONG THE ARC OF
SAID CURVE A DISTANCE 0 F 60.00 FEET MORE OR LESS TO THE WESTERLY LINE OF CC~JNTY ROAD SURVE'r' NO. i800-1 KNOWN AS EL CAMINO REAL.
TyE SIDELINES OF SAID 4O.CO FOOT STRIP SHALL: BE LENGTHENED AND/,aF. S;I(~RT~JED AS TO TER>!iNATE IN S-AID WES'TERLY LINE OF THE NORTHWEST QUARTER OF TC, NOEZTIi";AS'? QUA_',ER 01 SECT:OY 25 PLXD IN SAID WESTERLY LINE 0~ EL CFWiNO REAL.
PAGE 8
Exhibit A-
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UNANIMOUS WRITTEN CONSENT OF THE‘
BOARD OF DIRECTORS OF
AP LHI, INC.
We, the undersigned, as member of the Board of Directors of AP LHI, INC., a corporation organized
under the General Corporation Law of California (the “Corporation”), being all the members of such Board as
presently constituted, do by this writing consent to take the following actions and adopt the following resolutions:
WHEREAS, the Corporation is the managing member of Western Pacific Housing-El Camino,
LLC, a Delaware limited liability company (“WPH”); and
WHEREAS, WPH is in the business of acquiring property and engaging in the development,
zoning, rezoning, design, improvement and construction of single family residences, townhouses, and
condominiums upon such property for sale to the home-buying public; and
WHEREAS, it is in the interest of WPH to negotiate, enter into, modify and terminate
agreements involving third parties relating to the business of WPH; and
WHEREAS, Lance Waite, Vice President of the Corporation, in its capacity as the managing
member of WPH, has from time to time negotiated signed, modified and terminated various agreements
with third parties, relating to the business of the Corporation, in its capacity as the managing member of
WPH; and
WHEREAS, the Board of Directors wishes to authorize, approve and ratify the actions taken by
Lance Waite, acting in his capacity as Vice President of the Corporation, acting in its capacity as the managing member of WPH, in having negotiated, signed, modified and terminated such agreements,
and to authorize and direct Lance Waite to negotiate, sign, modify and terminate such agreements from
time to time when he deems it to be in the best interest of the Corporation, in its capacity as the
managing member of WPH..
NOW, THEREFORE, BE IT RESOLVED, the actions of Lance Waite, acting in his capacity as
a Vice President of the Corporation, acting in its capacity as the managing member of WPH, in having
negotiated, signed, modified and terminated various agreements from time to time, are hereby
authorized, approved and ratified; and
BE IT RESOLVED FURTHER, that Lance Waite, acting in his capacity as a Vice President of
the Corporation, acting in its capacity as the managing member of WPH, is hereby authorized and
directed to negotiate, sign, modify and terminate, from time to time when he deems it to be in the best
interest of the Corporation, in its capacity as the managing member of WPH, agreements relating to the
business of the Corporation, in its capacity as managing member of WPH.
We direct that this consent be filed with the Minutes of the proceedings of the directors of the
corporation.
This consent is executed pursuant to Section 307(b) of the Corporations Code of the State of California,
and Section 2.12 of the Bylaws of the corporation, both of which authorize the directors to take action by
unanimous written consent without a meeting.
DATED: June 1, 1999
Craig A. Manchester
/m
Thomas Connew