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HomeMy WebLinkAboutCT 00-02; Calavera Hills II, LLC; 2005-0000000; Reimbursement Agreement/ReleaseRATIFICATION OF REIMBURSEMENT AGREEMENT WITH CALAVERA HILLS II, LLC FOR REIMBURSEMENT OF COSTS TO COMPLETE ENVIRONMENTAL WORK FOR COLLEGE BOULEVARD AND CANNON ROAD EAST This Ratification of Reimbursement Agreement (“Agreement”) is entered into as of this / 7& day of , 2005 by and between the City of Carlsbad, a municipal corporation of the State of California (“City”), and Calavera Hills II, LLC, (“Developer“) (collectively, the “Parties”). RECITALS A. 6. C. C. D. E. F. Developer is developing certain real property commonly known as Calavera Hills Phase II, (“Property”), located in City and more particularly described as Carlsbad Tract 00-02 (“Project”); and, The Planning Commission of the City adopted Resolution No. 5117 on January 2, 2002, recommending approval of the Project; and, The City Council of the City adopted Resolution No. 2002-016 on January 15, 2002 approving the Project; and, The project approvals require Developer to design and construct certain off-site public improvements more particularly described as Cannon Road Reach 3, College Boulevard Reach B and C and Drainage Basin BJB (“Off-site Improvements”); and, In June of 1998, the Carlsbad City Council authorized the preparation of a financing program for the future construction of certain College Boulevard and Cannon Roads improvements including associated master planned drainage facilities. The list of improvements included within the proposed financing program which became known as Bridge and Thoroughfare District No. 4 (“B&TD##4) included the Off-site Improvements together with additional improvements not required as a condition of approval of the Project (“Supplemental Improvements”). The Supplemental Improvements included the future construction of Cannon Road Reach 4 extending from College Boulevard to Mystra Drive in Oceanside, College Boulevard extending from Cannon Road to Badger Lane and Master Drainage Plan Facility BJ; and, The State Legislature has found that environmental impact reports should be tiered whenever feasible in order to streamline regulatory procedures, avoid repetitive discussions of the same issues in successive environmental impact reports, and ensure that environmental impact reports prepared for later projects which are consistent with a previously approved policy, plan, program, or ordinance concentrate upon environmental effects which may be mitigated or avoided in connection with the decision on each later project. (Public Resources Code Section 21 093) The Developer was required to prepare an environmental impact report for the Project including all of the B&TD#4 Improvements, known as Environmental Impact Report 98- 02, which was certified by the City Council of the City per Resolution No. 2002-016 on January 15, 2002 (“EIR 98-02”); and, ta General Counsel Approved Version #07.05.01 1 G. H. I. J. K. L. M. The City requested Developer to include the Supplemental Improvements within the scope of work covered by EIR 98-02 and also requested Developer to assist the City in obtaining appropriate Federal and State Resource Agency Permits (‘Agency Permits”) for the Supplemental Improvements; and, The City’s Capital Improvement Program budget includes funding for the preparation of environmental studies and for obtaining Agency Permits for the Supplemental Improvements (“Reimbursable Work”); and, Developer completed the environmental studies and obtained the Agency Permits for the Supplemental Improvements; and, 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, City has completed an audit of the Developer’s costs to prepare EIR 98-02 and to obtain Agency Permits for the Supplemental improvements in accordance with the City Administrative Procedures (“Improvement Audit”), incorporated herein by this reference; and, Improvement Audit finds that the Developer is eligible for reimbursement in the amount of $372,109.25 (“Reimbursable Amount”); and, City and Developer desire to establish a method to fairly reimburse Developer for the cost to prepare environmental studies and to obtain Agency Permits for the Supplemental Improvements. NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. this reference, The recitals above are true and correct and incorporated herein by 2. Satisfaction of Obligation. Developer’s agreement to perform the Reimbursable Work, as set forth herein, and the actual completion thereof, I fully satisfies and constitutes compliance with all requirements regarding the Project solely with respect to Reimbursable Work. 3. General Developer Obligations. a. Developer has caused the completion of the Reimbursable Work in substantial compliance with the City Administrative Procedures. b. Developer hereby waives any and all potential constitutional or other legal objections related to the Supplemental Improvements. C. Developer agrees that the Reimbursable Amount recommended in the General Counsel Approved Version #07.05.01 2 Improvement Audit represents a fair accounting of the costs incurred by the Developer to complete the Reimbursable Work and no additional reimbursement and/or credit will be requested from City for the cost to construct the Improvements. 4. General Citv Obligations. a. City shall reimburse Developer for the Reimbursable Amount as described in Section 5 and 6 below. b. All reimbursements 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 to another party. 5. Reimbursable Work. a. The items of Reimbursable Work shall consist of all costs directly related to the Supplemental Improvements for the preparation of EIR 98-02 and for obtaining Agency Permits as may be found eligible for reimbursement under City Code and City Council Policy including the following: I) Cost to prepare environmental studies and reports including cost for retention of planning, environmental and engineering consultants. 2) Costs to prepare EIR 98-02 documentation including printing and miscellaneous expenses. 3) Cost for legal analysis of environmental documentation and permits. 4) Cost for agency fees and charges. 6. Payment of Reimbursable Amount. a. Payment of Reimbursable Amount shall be made within 30 days of the signing of this agreement. 7. DisputeslClaims. 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"). Acopy 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 (IO) 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 General Counsel Approved Version #07.05.01 3 available to them at law. 8. 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. 9. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as shown below. Notices required to be given to Developer shall be addressed as follows: Calavera Hills II, LLC 2727 Hoover Avenue National City, CA 91950 Attn: Brian Milich Telephone: (619) 336-3138 Fax: (619) 336-3596 Email: dmilich@mcmillin.com 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. IO. Transfer bv Developer. The obligations and benefits of this Agreement shall not be transferred upon sale of the Property. 11. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in North San Diego County, California. 12. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 13. Amendment. This Agreement may be amended only by a written instrument executed by both the City and Developer. General Counsel Approved Version #07.05.01 4 4 14. Term. This Agreement shall be effective as of the date first above written, and shall terminate on January I, 2008 or sooner if full reimbursement has been given in accordance with the provisions of this Agreement. 15. No Third Partv 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. 16. 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 CALAVERA HILLS II, LLC, a California Limited Liability Company *By: McMillin Companies, LLC, a Delaware Limited Liability Company Its Manager By: c r (e-mail address) ATTEST: LORRAINE M. WOM v City Clerk APPROVED AS TO FORM: RONALD R. BALL, General Counsel Approved Version #07.05.01 5 McMillin A Land Corky McMillin Development Company 1 STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO 1 On March 1.2005 personally appeared Don Mitchell & Brian Milich, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons or the entity upon behalf of which the persons acted, executed the instrument. , before me, Brenda N. Henderson, Notaw Public WITNESS my hand and official seal. Signatu cofnMiSSiON EXPIRES JWV 12 2006 This area for official notarial seal Calavera Hills II, LLC and the Citv of Carlsbad Aareement for Reimbursement of Costs to Complete Environmental Work for College Blvd and Cannon Road I AW Ai\ Ai Ai A McMillin Homes McMillin Commercial McMillin Land Development McMillin Realty McMillin Mortgage II Corporate Office 2727 Hoover Avenue National City, CA 91950 Tel (619) 477-4117 Fax (619) 336-3112 www.mcmillin.com Notary Form-2 McMillin Companies A proper notarial acknowledgment of execution by Developer must be attached. Agreement must be signed by one corporate officer from each of the following two groups. If a Corporation, *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. REV. 03/01/2005 IZ