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HomeMy WebLinkAboutCT 04-10A; City for Carlsbad; 2012-0131249; Reimbursement Agreement/ReleaseDOCtt 2012-013 RECORDING REQUESTED BY WHEN RECORDED IVIAIL TO: City Cierk CITY OF CARSLBAD 1200 Carlsbad ViHage Dr. Carlsbad, CA 92008 Please record this document At no fee as it is to the benefit Of the City of Carlsbad (Gov Code [6103] iiiiiiiiiiiiiiiiiiiiiiiiiiiiniiiiiiiiiiiiiiii MAR 06, 2012 3:56 PM 249 OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE Ernest J. Dronenburg, Jr., COUNTY RECORDER FEES: 0.00 PAGES: 13 SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF POINSETTIA LANE CARLSBAD TRACT CT 04-10(A) (POINSETTIA PLACE) Between CITY OF CARLSBAD AND SHEA HOMES, INC. -1 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF POINSETTIA LANE ASSOCIATED WITH CARLSBAD TRACT CT 04-10 (POINSETTIA PLACE) This Agreement for Reimbursement of Costs for the Construction of Poinsettia Lane associated with Carlsbad Tract CT 04-10(A) (Poinsettia Place), dated as of JX^JLLAJAOAJ^ /t5 2012 ("Agreement") is made at San Diego County, California, "by and between the City of Carlsbad, a municipal corporation of the State of California ("City") and Shea Homes, Inc. a Delaware Corporation ("Developer"), with reference to the following recitals: RECITALS A. Developer is in the process of developing certain real property commonly known as Poinsettia Place, ("Project") located in the City of Carlsbad, California, more particularly described as Carlsbad Tract No. 04-10(A). B. The City of Carlsbad Planning Commission, by Planning Commission Resolution No. 6650 recommended approval of a Tentative Tract Map CT 04-10(A). The City Council has adopted the Planning Commission's recommendation pursuant to City Council Resolution No. 2010-27 which was adopted on February 16, 2010. C. The City of Carlsbad Planning Commission by Planning Commission Resolution No. 6653 recommended approval of Coastal Development Permit CDP 04-23(A). The City Council has adopted the Planning Commission's recommendation pursuant to City Council Resolution 2010-27 which was adopted on February 16, 2010. D. The City of Carlsbad Planning Director approved Minor Coastal Development Permit CDP 10-14 on July 28, 2011 supplementing Coastal Development Permit CDP 04-23(A). E. The Project is located within the boundaries of Bridge and Thoroughfare District No. 2 and Developer is required to pay fees in conjunction with Bridge and Thoroughfare District No. 2 to finance construction of Poinsettia Lane as more particularly described therein and as required by the Project approvals. F. Poinsettia Lane is a project for which the City has collected, and will continue to collect, funds from the developers of projects located within the boundaries of Bridge and Thoroughfare District No. 2. For purposes of this Agreement the funds resulting from Bridge and Thoroughfare District No. 2, are referred to herein as "Financing Program Funds." G. Developer has requested that in addition to reimbursing the costs of Poinsettia Lane within the Project boundaries, referred to herein as the "Onsite Reimbursable Work" and described more particularly below that the City reimburse the Developer for the construction of offsite Poinsettia Lane grading improvements, referred to herein as "Offsite Reimbursable Work" and described more particularly below using available Financing Program Funds. H. District and Developer acknowledge that Government Code Section 66485 allows the City to require a sub-divider to construct improvements benefiting property outside the subdivision; and Government Code Section 66486 requires the City to enter into a reimbursement agreement for such improvements. The parties intend that this agreement satisfies the requirements of Government Code Section 66486. 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. Reimbursable Work. (a) Reimbursable Work shall include the construction of full width grading of the roadway, paved roadway surface for two lanes (18 foot paved section on each side of median for a total of 36 feet paved section), transition pavement at major intersections, median curbs, outside asphalt berms, street drainage facilities (with the exception of drainage facilities that are included in the City's Drainage Fee Program), culverts, temporary drainage in the parkway and all incidental design, contract administration, fee administration, construction inspection, construction engineering, mitigation measures and land acquisition including the following as eligible under Bridge and Thoroughfare District No. 2: i. Usual and customary design and engineering costs including civil engineering, soils engineering, landscape architecture, survey and construction staking, utility coordination, plan check and inspection fees as they relate to the reimbursable Improvement as well as environmental review, permitting, and habitat mitigation related to the reimbursable improvements. ii. An amount equal to 4.0% of the direct cost of construction of the reimbursable improvements excluding all incidental costs, including but not limited to, the incidental costs set forth in paragraph (a) for the Developers overhead, construction management and supervision including all on-site supervision. iii. An amount equal to 1.5% of the direct cost of construction of the reimbursable improvements, excluding all incidental costs, including but not limited to, the incidental costs set forth in subparagraph (a) for the costs of premiums paid for the improvement and performance bonds relating to construction of the improvements. iv. An amount equal to 1.8% of the direct cost of the construction of the reimbursable improvements, excluding all incidental costs, including but not limited to, the incidental costs set forth in subparagraphs (a) for the allocable portion of the premiums paid by the Developer for blanket liability insurance coverage. V. Dedication of the right-of-way for the Onsite Poinsettia Lane improvements by the Developer shall be considered a reimbursable cost. The value of the right-of-way so dedicated shall be approved by the City after completion of an MAI appraiser's report on the dedicated property in accordance with the requirements of the B&TD #2 fee program. (b) All work giving rise to reimbursable costs is referred to as either "Onsite Reimbursable Work" or "Offsite Reimbursable Work" as described below. Onsite Reimbursable Work. (a) All work giving rise to costs related to the Reimbursable Work on the Project site and to join with Poinsettia Lane to the west is referred to as "Onsite Reimbursable Work". (b) Exhibit A sets forth the cost estimate for the direct costs of construction of the Onsite Reimbursable Work. Parties acknowledge that Exhibit A is for illustrative purposes only and that all costs are subject to audit for eligibility for payment in accordance with the terms of this Agreement. (c) All change orders associated with the construction of the Onsite Reimbursable Work shall be subject to review and approval by the City. At the time of approval, the parties shall determine the portion of the change order that is allocated to Onsite Reimbursable Work. 4. Offsite Reimbursable Work. (a) All work giving rise to costs related to Reimbursable Work not on project site and on the property to the southeast of the project site and in accordance with Coastal Development Permit is referred to as "Offsite Reimbursable Work". (b) Exhibit B sets forth the cost estimate for the direct costs of construction of the Offsite Reimbursable Work. Parties acknowledge that Exhibit B is for illustrative purposes only and that all costs are subject to audit for eligibility for payment in accordance with the terms of this Agreement. (c) All change orders associated with the Offsite Reimbursable Work shall be subject to review and approval by the City. At the time of approval, the parties shall also determine the portion of the change order that is allocated to Offsite Reimbursable Work. General Developer Obligations. (a) Developer shall cause the construction of the Onsite Reimbursable Work, which work shall be as shown on City Drawing No. 469-5B, dated November 11, 2011, prepared by Pangaea Land Consultants Inc. (the "Onsite Plans"). (b) Developer shall cause the construction of the Offsite Reimbursable Work, which work shall be as shown on City Drawing No. 469-5B, dated November 11, 2011, prepared by Pangaea Land Consultants, Inc. (the "Offsite Plans"). -4- (c) It shall be the responsibility of the Developer to observe and follow the requirements of the City for retention of records and the submittal of information as specified in Bridge and Thoroughfare District No. 2 and this Agreement. (d) By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Reimbursable Work. General Citv Obligations. (a) The City agrees to reimburse Developer for the costs of Onsite Reimbursable Work and Offsite Reimbursable Work subject to the terms of this agreement. Bidding: Reimbursement Reguest Reguirements (a) With respect to all hard costs of construction of the Onsite and Offsite Reimbursable Work, Developer shall solicit bids from three reputable contractors with the Reimbursable Work bid separately from any non- reimbursable work being bid. (b) Developer shall open all bids in the presence of interested parties and shall rank all bids from the lowest to the highest bid amount, based upon cost for the reimbursable improvement items of work. (c) Developer shall award the contract to the lowest responsive, responsible bidder and/or reimbursement shall be based on the unit prices of the lowest responsive and responsible bidder. (d) Developer shall retain detailed payment records for all items of Onsite and Offsite Reimbursable Work, for use by City in auditing subsequent reimbursement requests by Developer. Developer's requests for reimbursement (each a "Reimbursement Request") shall include copies of plans, specifications, contracts, change orders, invoices, payment slips, cancelled 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. Incremental Reimbursement of Costs (a) The reimbursement of costs shall be payable in not to exceed two increments. The first increment shall be the "Base Increment" which shall be an amount equal to 90% of the cost incurred to the date of substantial completion. The second increment shall be the "Retained Increment" which shall be an amount not to exceed the remaining, unpaid portion ofthe Reimbursable Expenses forthe Improvement Eligibility of Reimbursement ofthe Base Increment or Retained Increment (a) Once the construction of the Improvement is substantially complete then such Improvement shall be eligible for the Reimbursement of the Base Increment. For the purposes of this Agreement, an Improvement shall be deemed 'substantially complete" when construction or work with respect to the Improvement has progressed to the point where it is sufficiently complete in the sole judgment of the Transportation Director or his or her designee so that the Improvement is opened to the public for traffic or otherwise could be opened to the public for traffic but for the fact the such opening has been withheld or delayed solely the City. The Improvement may be deemed by the Transportation Director to be "substantially complete" pursuant to the preceding sentence even though such Improvement is subject to completion of a punch list of items before such Improvement would be eligible for acceptance by the City. (b) An Improvement shall be eligible for Reimbursement of the Retained Increment for the Improvement once the following has occurred. i. The improvement is "substantially complete"; and ii. The Acceptance of the Improvement by the City pursuant to the applicable Subdivision Improvement Agreement and the City's Municipal Code; and iii. The Notice of Completion for such Improvement has been recorded and a period of at least 35 calendar days has elapsed since the date of such recordation. 10. Audit of Reimbursable Costs. (a) All Developer's Reimbursement Requests will be processed and audited for City by a reputable consulting engineer selected by District ('Auditing Engineer"). The costs of the Auditing Engineer shall be paid directly by City from the B&TD #2 Funds. (b) The Auditing Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within sixty (60) days thereafter issue to City and Developer a report either accepting Developer's submittal or specifying with particularity any reimbursement items or amounts not approved. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution provision of Section 12 below. (c) With each Reimbursement Request, following 60-day review by Auditing Engineer, the Auditing Engineer shall forward each invoice submitted to City by Developer, to the City's Transportation Director ("Director"). The Director shall confirm and approve the Reimbursement Amount based upon the components of Costs set forth in this Agreement. If the Director objects to any items comprising the Reimbursement Amount, the Director shall notify Developer within thirty (30) days of receipt of all invoices forwarded by Developer. -6 11. Pavment of Reimbursable Work Costs. (a) Payment of Reimbursable Work Costs shall be made, within thirty (30) days after the Directors approval of such Reimbursement Request. (b) The Parties agree that the sole source of reimbursement shall be the Financing Program Funds and that the City's General Fund is not a part of this Agreement, and shall not be obligated under the terms of this Agreement. City represents and warrants it has sufficient Financing Program Funds presently available to make timely reimbursements as provided herein. The City shall not unreasonably withhold acceptance of the Improvements. 12. 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 City Transportation Director. A copy of such documented dispute shall be fon^/arded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The City Transportation Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within fifteen (15) working 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 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. 12. Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. 13. Notices. Unless othen^/ise 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 shown below. Notices required to be given to Developer shall be addressed as follows: Shea Homes Inc. Attention: Sarah Beckman 9990 Mesa Rim Road San Diego, CA 92121 Telephone: (858) 526-6554 Fax: (858) 320-0437 -7 Notices to City shall be delivered to the following: CITY OF CARLSBAD c/o City of Carlsbad Attention: Transportation 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. 14. Counterparts. 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 one and the same instrument. 15. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 16. 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. 17. 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. -8- 18. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. Shea H^omes Inc., a Del^wv^re Corporation By: CITY OF CARLSBAD, a municipal corporation of the State of California By: {prjyit nam^ancj^itle o/^ignatory) (print name and title of signatory) ORRAIhilE M. WOOD, City Clerk (Proper notarial acknowledgment of execution by Developer must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Othen^/ise, 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.) APPROVED AS TO FORM: RONALD R. BALL, City Attorney CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 State of California County of On Nmimzm before me, riAl llA Date ^ Hg}4 Insert Name ani/itle of the Officer personally appeared VMI Mmffi ^h/^ ^Af/lo ^f.C)f(Jm4n Name(s) of Signer(s) RANA KHOURY Commission # 1916985 Notary Pubiic • Catifornia San Diego County 1 Jj^omr^Ej^fgOwU^2^ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)y^/are subscribed to the within instrument and acknowledged to me that -he/she/they executed the same in Ilis/lier/their authorized capacity(ies), and that by hts/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Place Notary Seal Above Signatur OPTIONAL Signature of Notary Though the information below is not required by law, it may prove valuable to persons relying on ^thedodtmi^r and could prevent fraudulent removal and reattachment of this form to another document Description of Attached Document Title or Type of Document: Document Date: nt Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUIVIBPRINT OF SIGNER Top of thumb here Signer's Name: • Corporate Officer — Title(s): • Individual • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2010 National Notary Association • NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 ACKNOWLEDGMENT State of California County of San Diego ) On February 19, 2012 before me. Sheila Renae Cobian, Notary Public (insert name and title of the officer) personally appeared Matt Hall who proved to me on the basis of satisfactory evidence to be the person^ whose name{^f^j)afe- ^Jbscribed to the within instrument and acknowledged to me that(©sho/thGy executed the same in (^N^hor/thoir authorized capacity^iestrand that b^<H5?her/their eignature^g^ on the instrument the person(s)^, orthe entity upon behalf of which the personfg)'acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. SHEILA RENAE COBIAN f Commission # 1848471 t WITNESS my hand and official seal. iKS^I^ '*°*^'"y - California 1 Signature o2>V^S^'^^r^C0^)U.^(Sea.) San Dlego County g ™^ My Comm. Expires May 10,2013 k EXHIBIT "A •• Direct Construction Cost Estimate for the Onsite Reimbursable Worl< Description Quantity Unit Unit Cost DIRECT COSTS Cost A Gradlnj 3 1 Mobilization and Clearing & Grubbing 1 AC $ 36,400.00 $ 36,400 2 Remedial / Alluvial Grading (Estimated Quantity 8,000 CY) 8,000 CY $ 6.00 $ 48,000 3 Unclassified Excavation (Estimated Quantity 4,845 CY) 4,845 CY $ 6.00 $ 29,070 4 Excavate and Import from adjacent segment of Poinsettia Lane 25,240 CY $ 7.00 $ 176,680 5 Finish Grading 1 LS $ 7,500.00 $ 7,500 6 Retaining Wall 227 SF $ 37.95 $ 8,615 7 Grading Construction Water 1 LS $ 5,000.00 $ 5,000 Grading Subtotal $ 311,265 B Erosior Control 8 Stabilized Entrance 1 LS $ 3,375.00 $ 3,375 9 Siltfence 2,460 LF $ 1.50 $ 3,690 10 Gravel Bags 200 EA $ 2.00 $ 400 11 Hydroseed 21,640 SF $ 0.33 $ 7,141 12 Fiber Rolls 800 LF $ 2.20 $ 1,760 13 Inlet silt protection 2 EA $ 100.00 $ 200 Erosion Control Subtotal $ 16,566 c Storm : )rain 14 18" RCP 243 LF $ 75.00 $ 18,225 15 24" RCP 63 LF $ 125.00 $ 7,875 16 Type B-2 Inlet 2 EA $ 5,000.00 $ 10,000 17 Type A-5 Cleanout 2 EA $ 6,550.00 $ 13,100 18 Concrete Headwall per D-34 2 EA $ 3,200.00 $ 6,400 19 Rip Rap 2 Ton per D-40 1 LS $ 2,500.00 $ 2,500 20 Brow Ditch Type D per D-75 200 LF $ 18.00 $ 3,600 21 Adjust Cleanout Access Hole to Grade 2 EA $ 500.00 $ 1,000 Storm Drain Subtotal $ 62,700 D Street 22 Street Subgrade Preparation 12,609 SF $ 0.50 $ 6,305 23 Aggregate Base (8") 12,609 SF $ 2.25 $ 28,370 24 Asphalt Concrete (5") 12,609 SF $ 2.50 $ 31,523 25 Median Curb (8") 905 LF $ 20.00 $ 18,100 26 Pavement Cutoff Wall 1 LS $ 6,000.00 $ 6,000 Street Subtotal $ 90,297 TOTALI 1 1 1$ 480.828 Page 1 of 1 Pages EXHIBIT "B" Direct Construction Cost Estimate for the Offsite Reimbursable Worl< Description Quantity Unit Unit Cost DIRECT COSTS Cost A Grading 1 1 Mobilization and Clearing & Grubbing 2.4 AC $ 36,400.00 $ 87,360 2 Slope Grading/Finish 1 LS $ 7,500.00 $ '7,500 Grading Subtotal $ 94,860 B Erosion Control 3 Siltfence 1,300 LF $ 1.50 $ 1,950 4 Hydroseed 98,000 SF $ 0.33 $ 32,340 5 Fiber Rolls 2,260 LF $ 2.20 $ 4,972 6 Desilt Basin 1 LS $ 12,000.00 $ 12,000 Erosion Control Subtotal $ 51,262 TOTAL $ 146,122 Page 1 of 1 Pages