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HomeMy WebLinkAboutCT 93-09; Ocean Bluff; Tentative Map (CT) (75)t^J to/13 A f Qciij- CATELLUS October 10, 1997 Mr. David Hauser Assistant City Engineer Engineering Department City of Carlsbad 2075 Las Palmas Drive Carlsbad, California 92008 Re: Poinsettia Lane Reimbursement Agreement Dear David: I am writing to confirm Catellus Residential Group's (Catellus) understanding regarding the basis on which Catellus, developer of the 92-lot Ocean Bluff residential subdivision (Project), will undertake certain activities beyond those currently required by the conditions of approval for the Project's Tentative Map CT 93-09. The scope of Catellus' expanded undertaking is set forth in the Reimbursement Agreement-Poinsettia Lane (Alga to Black Rail) which we have attached for your review and comment. Because City Council action on the Reimbursement Agreement may not occur for some time, we propose the following on an interim basis: (a) The City will immediately set aside three (3) acres of coastal sage scrub habitat interim take, from the current balance of City's five percent (5%) allocation of interim take habitat, and will reserve the same for Catellus' benefit as contemplated by Paragraph 4 of the Reimbursement Agreement, so that during the time between now and final approval of the Reimbursement Agreement, the required habitat take will not have previously been issued to another property owner. (b) The City will expedite processing of the Project's tentative map amendment, grading and improvement plans, final map and other permits and entitlements. (c) The City will provide immediate assistance to Catellus for the acquisition of the Poinsettia Lane right-of-way from Alga to Black Rail. Since the current conditions for CT 93-09 call for acquisition only of the northern half of what the Reimbursement Agreement calls "Reach #1", this cooperation will extend to both Reach #1 and Reach #2. Our major concern, however, is Reach #2, and the City will commit to coordinate all aspects of the Reach #2 acquisition. CATELLUS RESIDENTIAL GROUP PM;I- P> ^ •-. £•' -ITI: 400. IRV'\T. P -.1 IF. MJVIA 02614 (714^ 25!-MOO FAX (714^ 2; I The City of Carlsbad Engineering Department October 10, 1997 Page 2 If you agree with the foregoing, please sign and return one copy of this letter, which will thereafter provide the basis of our understanding regarding the matters addressed in the Reimbursement Agreement. We understand that this letter documents an informal working-level agreement only and will not be submitted to or approved by the City Council. Thank you for your cooperation. We look forward to working with you on the accelerated acquisition and grading of the entire segment of Poinsettia lane between Alga Road and Black Rail. Sincerely, CATELLUS RESIDENTIAL GROUP Brian J. Milich Vice President ACKNOWLEDGED AND AGREED: Date: THE CITY OF CARLSBAD ENGINEERING DEPARTMENT By: REIMBURSEMENT AGREEMENT POINSETTIA LANE (ALGA TO BLACK RAIL) THIS REIMBURSEMENT AGREEMENT ("Agreement"), dated as of October _, 1997, is made at San Diego County, California, between CATELLUS RESIDENTIAL GROUP, a California corporation ("Owner"), and THE CITY OF CARLSBAD, a municipal corporation of the State of California ("City"), with reference to the following RECITALS: A. Owner holds fee title to the real property described on Exhibit A ("Property"), which Owner seeks to develop as a residential subdivision with 92 lots and a site for sixteen affordable housing units ("Project") as contemplated by Tentative Map CT 93-09 ("Tentative Map"). City's Planning Commission, by Planning Commission Resolution No. 3869, recommended conditional approval of the Tentative Map. The City Council has adopted the Planning Commission's recommenda- tions and conditions. B. One of the Planning Commission's recommended conditions to approval of the Tentative Map ("Condition 56J") would require Owner to construct a thirty-two foot (32') paved section meeting major arterial standards (i.e., two lanes) along that portion of Poinsettia Lane (referred to as "Reach #1") between Alga Road and the extension of Street A as shown on the Tentative Map. Owner's obligations under Condition 56J are referred to as the "Existing Poinsettia Obligations". Because the Project is within City's Bridge and Thoroughfare District No. 2 ("B&TD #2"), certain costs incurred by Owner in performing the Existing Poinsettia Obligations would be reimbursable from City's Facility Impact Fee collections. C. City would now prefer that in lieu of constructing half-width improvements on the north side of Poinsettia Lane through Reach #1 as required by the Existing Poinsettia Obligations, Owner instead take steps that will enhance City's future prospects for completing the full-width improvement of Poinsettia Lane not only through Reach #1, but also through that portion of Poinsettia Lane which runs northeast from Reach #1 to Black Rail Road (i.e., from Street A to the intersection of Poinsettia and Black Rail; referred to as "Reach #2"; the entire segment of Poinsettia Lane from Alga Road to Black Rail Road is referred to as the "Alga/Black Rail Segment"). Specifically, City wishes to obtain Owner's agreement to undertake those matters described in Paragraph 1 below as the "Expanded Poinsettia Obligations". D. Owner is willing to voluntarily accept the Expanded Poinsettia Obligations, but only on terms and conditions that will ensure that: (i) City will provide Owner reimbursement from B&TD #2, in the normal fair-share payment procedure, of those expenses eligible for reimbursement that are incurred by Owner in connection with Reach #1 other than those associated with right-of-way acquisition and/or environmental mitigation ("Ordinary Reimbursable Expenses"); (ii) City will provide reimbursement from B&TD #2, on an accelerated basis, of all expenses that are incurred by Owner in connection either with Reach #2 or with right-of-way acquisition and/or environmental mitigation for the entire Alga/Black Rail Segment ("Accelerated Reimbursable Expenses"; referred to collectively with the Ordinary Reimbursable Expenses as the "Reimbursable Expenses"); and (iii) City will provide the immediate issuance of a Section 4d permit for Owner's Interim Take of three (3) acres of coastal sage scrub ("CSS") habitat in connection with the Reach #1. THE PARTIES AGREE: CatellUS/Pdinsettia U:\CATEU.US\roiNSETTIA.REIWBT.AOT.A09 10/9/97 -1- Draft 1. Expanded Poinsettia Obligations. (a) In consideration of City's reimbursement and other undertakings as set forth herein, Owner agrees that in place of the requirements of Condition 56J, Owner will perform the following (collectively, the "Expanded Poinsettia Obligations"): Design and prepare Grading and Improvement Plans For Poinsettia Lane for the entire Alga/Black Rail Segment ("Road Improvement Plans"}; obtain City approval of the Road Improvement Plans for the entire Alga/Black Rail Segment; acquire the right-of-way for Reach #1; grade the full-width right-of-way for the entire Alga/Black Rail Segment; improve Reach #1 with one fane on either side of an unimproved median; and install drainage facilities, as needed; provided, however, that in no event shall the Expanded Poinsettia Obligations include any work that is not included within B&TD #2. (b) The Expanded Poinsettia Obligations shall specifically not include, and Owner shall have no responsibility or liability with respect to, any of the following: Any acquisition or construction of Reach #2; any grading of Reach #2 if City fails to acquire the right-of-way in the time specified below; construction of the outer lanes of Reach #1, including curbs, gutters and sidewalks; provided, however, that the foregoing shall not relieve Owner from any on-site improvement obligations that involve the Reach #2 Frontage Obligations (as defined below). (c) City shall be solely responsible for acquiring the right-of-way for Reach #2 in sufficient time for Owner to grade Reach #2 at the same time as Reach #1. Accordingly, and notwithstanding anything in Paragraph 1 (a) to the contrary, Owner shall have no obligation to grade Reach #2 unless City has acquired all Reach #2 right-of-way at least ten (10) days prior to Owner's demobilization on the Reach #1 grading activity. (d) No delay in City's acquisition of right-of-way shall delay approval or recordation of Owner's final map or issuance of any permits to Owner authorizing grading or other subdivision improvements to the Project, including without limitation Reach #1 and the on-site subdivision improvements. The parties specifically contemplate, in this regard, that Owner will have received permits and begun grading and other subdivision improvements prior to the issuance of grading permit(s) for the Expanded Poinsettia Obligations. In addition, City will permit the on-site grading of the Project immediately upon recordation of the final map, even if off-site right-of-way or grading easement acquisition remains incomplete. (e) The parties acknowledge that as part of the on-site subdivision improvements, Owner will be constructing frontage improvements on the in-tract portion of Reach #2 ("Reach #2 Frontage Improvements"). In recognition that such work should be performed when the Reach #2 street improvements are actually constructed. City agrees to permit Owner to bond for the Reach #2 Frontage Improvements separately from all other subdivision improvements, so that if the other improvements have been completed while the Reach #2 Frontage Improvements remain outstanding, the bonds for the other improvements may be released and exonerated without waiting for completion of Reach #2. (f) Owner's agreement to perform the Expanded Poinsettia Obligations shall be in lieu of the matters described in Condition 56J, and City agrees that Owner's entry into this Agreement shall be in complete satisfaction of Condition 56J. Catettus/Poinsettia 10/9/97 -2- Draft 2. Reimbursable Work. (a) All work giving rise to Reimbursable Expenses is referred to either as "Ordinary Reimbursable Work" or as "Accelerated Reimbursable Work"; all such work is referred to generically as "Reimbursable Work". Notwithstanding anything herein to the contrary, all Reimbursable Expenses shall be for work that is within B&TD #2. (b) With respect to all hard costs of construction comprising Reimbursable Work, Owner 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, Owner shall retain detailed payment records for all items of Reimbursable Work, for use by City in auditing any subsequent reimbursement requests by Owner. City agrees that a reimbursement request generally in the form submitted by [Sambi] on approximately , 1997, in connection with a B&TD #2 reimbursement request ("Reimbursement Request") shall comply with the foregoing requirement. 3. Action on Reimbursement Requests. (a) Owner 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 acquisition of the Reach #1 right-of-way; completion of Reach #1 grading; completion of Reach #2 grading (if not excused pursuant to Paragraph 1(c) above); and construction of the Reach #1 improvements. (b) Upon submission of Owner's first Reimbursement Request, City will solicit bids from three reputable engineering firms to audit the initial and all subsequent Reimbursement Requests, and will, subject to Owner's reasonable approval of the firm and the bid amount, select one of the bidders as the "Auditing Engineer", to audit all Owner's Reimbursement Requests. The cost of the Auditing Engineer shall be initially payable by Owner but shall be a Reimbursable Expense. (c) The Auditing Engineer shall review all contracts for Reimbursable Work and the payment records submitted in connection therewith, and shall within forty-five (45) days after receipt thereof issue to City and Owner a report either accepting Owner's submittal or specifying with particularity any reimbursement items or amounts not approved ("Disputed Claims"). Owner shall have the right to demand non-binding mediation of any Disputed Claims, and if mediation does not produce a settlement of the dispute, to seek binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. (d) Upon the Auditing Engineer's action on any Reimbursement Request, City shall within sixty (60) days thereafter pay all undisputed Reimbursable Expenses that are Accelerated Reimbursable Expenses, and shall, within sixty (60) days thereafter or at such time as B&TD #2 funds are available therefor, pay all undisputed Reimbursable Expenses that are Ordinary Reimbursable Expenses. (e) Owner agrees that to the extent of fees payable by Owner in connection with the Project, payment of Reimbursable Expenses by City may be credited against fees otherwise payable at final map recordation or building permit issuance. (f) Owner shall be entitled to priority payment of all Accelerated Reimbursable Expenses, prior to any payments from B&TD #2 to any other property owners. Effective upon execution of this Agreement, City shall not disburse B&TD #2 funds if doing so could preclude Owner's full and prompt receipt of all Accelerated Reimbursable Expenses when due. Owner acknowledges that Catellus/Poinsettia 10/9/97 -3- Draft its receipt of Ordinary Reimbursable Expenses may be delayed because of payments to other property owners who became eligible for reimbursement therefrom earlier than did Owner; provided, however, that City shall not advance the priority of B&TD #2 reimbursements to any other property if doing so would advance the priority of such other property owner's reimbursement ahead of the Ordinary Reimbursable Expenses to Owner. (g) City's reimbursement obligations hereunder shall be based strictly on the actual costs incurred by Owner in performing Reimbursable Work, without regard to any estimated unit prices or other cost information in the B&TD #2 organization documents. 4. Allocation of Section 4d Take. City shall concurrently with execution of this Agreement take all steps necessary to remove at least three (3) acres of CSS habitat interim take from the current balance of City's five percent (5%) allocation of interim take habitat, and to reserve the same for Owner's benefit until issuance to Owner of a Section 4d permit authorizing an Interim Take of CSS habitat in an amount necessary for the Project. The parties acknowledge and agree, in this regard, that the actual amount of interim take required by the Project may be greater or less than the three acres to be reserved for Owner's benefit hereunder. 5. Indemnity of Owner for Reach #2 Design and Construction. In recognition that Owner has no current obligation with respect to the design or construction of Reach #2, and as a material inducement to Owner, in the absence of which Owner would not have agreed to undertake the Expanded Poinsettia Obligations, City agrees to protect, defend, indemnify and hold harmless Owner from and against any and all actions, causes of action, claims, liens or other proceedings, judgments, obligations, damages, losses or other liabilities, and from all costs incurred in connection with the defense of any such claim or claims, directly or indirectly arising from, relating to or connected with the design or construction of Reach #2 ("Indemnified Losses"). In the event any claim is made or action brought against Owner for which Owner is entitled to be indemnified by City under this Paragraph, City shall retain counsel of its choice to defend such claim or action. Nothing expressed or referred to in this Article is intended or shall be construed to give any legal or equitable right, remedy or claim to indemnification to any person other than Owner, including without limitation any engineers, consultants, contractors or materials suppliers involved in the construction of Reach #2. 6. 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 Owner, to: Catellus Residential Group 5 Park Plaza, Suite 400 Irvine, California 92614 Telephone: (714) 251-6100 Facsimile: (714) 251-8837 Attention: Mr. Brian J. Milich, Vice President Catellus/Poinsettia 10/9/97 -4- Draft If to City, to: The City of Carlsbad Engineering Department 2075 Las Palmas Drive Carlsbad, California 92008 Telephone: (619) Telecopier: (619) 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) If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission of this Agreement, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorneys' fees and court and other costs incurred. The "prevailing party" shall be the party who is entitled to recover its costs of suit, whether or not the suit proceeds to final judgment. A party not entitled to recover its costs shall not recover attorneys' fees. No sum for attorneys' fees shall be counted in calculating the amount of a judgment for the purposes of determining whether a party is entitled to recover its costs or attorneys' fees. (c) This Agreement, and the releases and other agreements contained in this 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. (d) This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. (e) . No modification, waiver or discharge of this 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. (f) This Agreement shall be interpreted and enforced under the laws of the State of California. (g) The following exhibits are attached to and by this reference incorporated into and made a part of this Agreement: A Legal Description of Property Catellus/Poinsettia 10/9/97 -5- Draft IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth above. Owner: City: CATELLUS RESIDENTIAL GROUP, a California THE CITY OF CARLSBAD, a municipal corpora- corporation tion of the State of California By By_ Brian J. Milich, Vice President Claude A. Lewis, Mayor By APPROVED AS TO FORM: Its RONALD R. BALL, City Attorney By_ Deputy City Attorney [Add acknowledgments] Catellus/Poinsettia 10/9/97 -6- Draft EXHIBIT A Legal Description of the Property Catetlus/Poinsettia 10/9/97