HomeMy WebLinkAboutCT 85-24; The Island @ Carlsbad LLC; 2001-0415716; Reimbursement Agreement/ReleaseI * I .’ DOE # 2001-0415716 3 . JUN 209 2001 2:48 PM ”
RECORDING REQUESTED BY aTICIAL REmRDs
WHEN RECORDED MAIL TO: 10331 W&IKj! llaNT& REma&=
City Clerk Fks: ’ 40.00
CITY OF CARLSBAD
1200 Carlsbad Village Dr.
c
Carlsbad, CA. 92008 lilllllllllll~~~lll~ll 20014415716
SPACE ABOVE THIS LINE FOR RECORDER’S USE
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION
OF THE FARADAY AVE I VAN ALLEN WAY TRAFFIC SIGNAL
FOR
THE ISLAND @ CARLSBAD DEVELOPMENT
AND TRAFFIC SIGNAL IMPROVEMENT DRAWING 383~5C
Between
CITY OF CARLSBAD,
a Municipal Corporation
AND
THE “ISLAND @ CARLSBAD” LLC,
a California Limited Liability Company
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This Agreement for Reimbursement of Costs for the Design and Construction of the
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Faraday Avenue / Van Allen Way Traffic Signal dated as of June 10
(“Agreement”), is made at San Diego County, California, by and between the CIT~“~~
CARLSBAD, a municipal corporation (“City”) and The “Island @ Carlsbad” LLC, a California
limited liability company (“Developer”), with reference to the following recitals:
RECITALS
A. Developer is the record owner of certain real property located in the City and more
particularly described on Exhibit “A” attached hereto and made a part hereof (The “Island @
Carlsbad” Property), and Exhibit “B,” shown for reference purposes only. The “Island @
Cartsbad” Property, as described on Exhibit “A,” is comprised of one (1) separate legal parcel in
accordance with the applicable legal requirements of the State of California and the City.
B. Developer filed separate applications for a building permit (CB 99-1575, CB 99-
1576, CB 99-l 577, CB 99-l 978) and related approvals with respect to The “Island @ Carlsbad”
property (the “Project”). The Project is in association with Conditional Use Permit 00-01 for a 7-
Eleven service station and convenience store, located at the northwest corner of the Project.
C. Developer has agreed to bond for the design and construction of a traffic signal at
the intersection of Faraday Avenue and Van Allen Way (The “Traffic Signal Improvements”).
City will enter into an agreement with Developer so that Developer can obtain proportionate
share reimbursement for the traffic signal from benefiting property owners of each remaining
corner lot at the intersection.
D. City intends to reimburse Developer by collecting funds from benefited property
owners, when or if those benefited property owners develop their property meeting certain
criteria of the Carlsbad Municipal Code (“CMC”), for those improvements generally described in
Section 2 herein.
E. The parties intend that the design and construction of the Traffic Signal
Improvements and this Agreement shall satisfy the requirements to install the “Traffic Signal
Improvements” as recommended by the “The Transportation Analysis for 7 Eleven at the
Island”, prepared by Tait and Associates, dated July 31, 2000, and which is on file with the City
Engineering Department.
F. City and Developer recognize that the Traffic Signal Improvements exceeds the
improvement conditions of the Project. Developer agrees to accept the Traffic Signal
Improvements provided that City agrees to reimburse Developer from funds received from
benefiting property owners when those benefiting property owners develop their properties.
G. The Reimbursable Work is defined as the total actual cost of permits, labor and
materials to install the Traffic Signal Improvements as defined in Section 5 and 6 of this
Agreement of which these costs may be reimbursed to Developer in proportionate amounts as
further described in Recitals “H”, “I”, “J”, and “K” and “L”. The projected list of materials
required to install the Traffic Signal Improvements is described in Exhibit “C” and expenses
subject to reimbursement shall be determined in accordance with Section 5 of this Agreement.
H. City will collect funds from the developers or owners of projects benefited by this traffic signal, located to the north, west, and northwest of the Project, when those properties are
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developed and meet the criteria of Chapter 18.40 of the Carlsbad Municipal Code (“CMC”).
These benefiting property owners/properties, and all successors being identified as follows:
1) Lot 75 of Carlsbad Tract No. 85-24, Unit No. 4, in the City of Carlsbad,
County of San Diego, State of California, according to Map thereof No. 11811, filed in the Office of the County Recorder of San Diego County, May
19, 1987. (APN: 212-120-01)
2) Being a consolidation of parcels 3 & 4 of Carlsbad Minor Subdivision No. 97- 04 in the City of Carlsbad, County of San Diego, State of California,
according to parcel Map thereof No. 17971, filed in the Office of said San
Diego County on December 24, 1997, as file No. 97-0656621 O.R. (APN
212-130-49)
3) Parcel 2 of Carlsbad Minor Subdivision No. 97-04 in the City of Carlsbad,
County of San Diego, State of California, according to parcel Map thereof No.
17971, filed in the Office of said San Diego County on December 24, 1997,
as file No. 97-0656621 O.R. (APN 212-130-45)
I. The following property will also benefit from the Traffic Signal Improvements and the
property owner has already satisfied, in full, their financial obligation to the Developer for said property owner’s proportional costs for the Traffic Signal Improvements. The Developer hereby
discharges any and all obligations that the City may have to collect reimbursement funds from
the owner, and all successors interest, of the following property for purposes of reimbursement
of the Traffic Signal Improvement costs as defined and described herein:
Parcel 2 of Carlsbad Minor Subdivision No. 97-04 in the City of Carlsbad,
County of San Diego, State of California, according to parcel Map thereof No.
17971, filed in the Office of said San Diego County on December 24, 1997,
as file No. 97-0656621 O.R. (APN 212-130-45)
J I. Funds shall be collected from the owners of the properties described in Recital “H”
prior to issuance of their respective City building permits for their respective projects which
meet the criteria of CMC Sections 18.40.040 and 18.40.070.
K J. Reimbursement funds collected from the property owners described in Recital “H”
shall be based on proportionate share funding. Each property will be subjected to paying
twenty-five (25) percent of the actual cost of The Traffic Signal Improvements in accordance
with Sections 6 and 7 of this Agreement.
L K. The Developer recognizes that he/she may never receive reimbursement for a
portion or for all incurred expenses pursuant to Section 5 and 6 due to the expiration of this Agreement; the possibility that the property owners listed in Recital “H” may never develop their
properties pursuant to Recital “I” “J”; the possibility of amendments to the CMC at the time that
the properties listed under Recital “H” are issued building permits; or, potential court
proceedings which may declare this Agreement or portions thereof illegal. Developer agrees to
accept these risks and shall not hold City liable as a result of their fruition.
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals The Recitals are true and correct and incorporated herein by
this reference.
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2. Traffic Sisnal lmorovements City intends to reimburse Developer for the
Traffic Signal Improvements described in the attached Exhibit “C” or as modified pursuant to
Section 5, pursuant to Recitals H”, “ I” “J” and “J” “K” above.
3. General Citv Obliaations
(a) City agrees that this Agreement, together with a Development
Improvement Agreement executed between the Developer and City on City forms and per City
procedure, will satisfy the requirement that Developer install a traffic signal.
(b) City agrees to reimburse Developer pursuant to Recitals “H”, “I”,
and “J” above, and, Section’s 6 and 7 below.
4. General Developer Obligations
(a> It shall be the responsibility of Developer to observe and follow the requirements of City for retention of records and the submittal of information in connection with
the Traffic Signal Improvements, as specified in this Agreement.
(b) By entering into this Agreement, Developer waives any and all potential constitutional objections (NolanIDolan) relating to the Traffic Signal Improvements.
5. Reimbursable Work
(a) During the performance of any Reimbursabte Work, Developer
shall retain detailed payment records for all items of 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,
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 only after City has formerly accepted the Traffic Signal Improvements, in accordance with item 6.(g) below.
6. Audit of Reimbursable Expenses
(a) Expenses for Reimbursable Work (including without limitation
overhead and the allowance permitted under clause (e) below) are referred to herein
collectively as “Reimbursable Expenses.”
W 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 Developer.
((3 The Auditing Engineer shall review all Reimbursement Requests
and the payment records submitted in connection therewith and shall within thirty (30) 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 8 below.
(d) City’s reimbursement obligations hereunder shall be based upon
the actual costs incurred by Developer in performing Reimbursable Work (including overhead
and the allowances specified in (e) below).
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(e) Notwithstanding anything herein to the contrary, and without
limitation and in addition to the Reimbursable Work, City specifically agrees that each of the
following shall be deemed Reimbursable Expenses:
(0 An amount to cover the actual allocable portion of premiums paid by Developer for City permits and fees, design, improvement, development,
material and/or performance and labor and material bonds relating to the construction of the
traffic signal improvements.
(ii) An amount to cover the actual allocable portion of premiums paid by Developer for blanket liability insurance coverage relating to the construction
of the traffic signal improvements.
(iii) An amount fixed at five percent (5%) of the eligible costs for Reimbursable Work, exclusive of this clause (e), to compensate for overhead expenses
incurred by Developer including for salary and benefits, for staff of Developer’s home office,
purchasing department expenses, project supervision, general corporate legal and accounting
fees and other normal overhead expenses incurred by Developer.
(iv) The costs of the Auditing Engineer.
(0 With each Reimbursement Request, Developer shall forward one
copy of each invoice submitted to Developer by Contractor, to the City Public Works Director
(the “Director”), together with an invoice for all other components of the Actual Cost not
otherwise reflected on the Contractor’s invoice. The Director shall confirm and approve the
Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set
forth in Section’s 5 and 6 of 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. Failure to so notify Developer shall be deemed the
Director’s approval of such invoices. In the event the Director does object, Developer and the
Director shall meet to discuss the disputed amount (at which time Developer shall make
available all of the Work Documentation) and attempt to resolve the matter through good-faith
negotiation.
(9) Prior to the submission to the Director of all invoices, Developer
shall obtain necessary or appropriate lien releases from the Contractor(s), and shall obtain from
City and any and all appropriate governmental agencies, all approvals, certificates, and other
documents necessary to indicate the completion of the Reimbursable Work, and the ability to
put the Traffic Signal Improvements into use. The date Developer receives all such final lien
releases, approvals, and certificates shall be deemed the date of completion of the Traffic
Signal Improvements (the “Completion Date”).
7. Pavment of Reimbursable Expenses
(a) If funds are available pursuant to Recitals “H,” “I” “J” and “J” “K”
above (or determination pursuant to Section 8 if applicable), payment of Reimbursable
Expenses shall be made within sixty (60) days after the Auditing Engineer’s determination on
any such Reimbursement Request. City shall make a good faith effort to collect reimbursement
funds from the developers or property owners listed under Recital “H” pursuant to Recital “I” “J”
and “J” “K” and the Developer shall and does hereby agree to indemnify, protect, defend and
hold harmless the City of Carlsbad, its Council members, agents, officers, and representatives,
from and against any and all liabilities, losses, damages, demands, claim and costs, including
court costs and attorney’s fees incurred by City arising, directly or indirectly, from any legal
challenge by the property owners described under Recital “H” or their representatives for the
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collection of the reimbursement fees.
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(b) Payment of any Reimbursable Expenses under this Agreement
shall not be reduced for fees or charges that may be payable as a condition of obtaining
permits for the development of any of the properties indicated in Recital “H” above. City shall
not offset Developer’s entitlement to reimbursement under this Agreement against any other
obligation of any person.
(4 Reimbursable Expenses for items of Reimbursable Work paid for
by Developer in advance of construction of the Traffic Signal Improvements (such as
engineering and design, City fees, interim traffic control plan, traffic signal easements and
construction mobilization) may be submitted for reimbursement with the Reimbursement
Request.
@I The City shall not unreasonably withhold acceptance of the Traffic
Signal Improvements.
(e) Developer agrees that the only source of reimbursement funds
available to Developer are from the benefiting properties as indicated described in Recital “H”
above and that the City’s General Fund or any other City funding source shall not be obligated
under the terms of this Agreement nor available for reimbursement purposes.
8. Disputes/Claims If a dispute should arise regarding the performance or
interpretation of this Agreement, the following procedure shall be used to resolve any question
of fact or interpretation not informally resolved by the parties. Such questions, if they become
identified as a part of a dispute among persons operating under the provisions of this
Agreement shall be reduced to writing by the principal of Developer or the Director. A copy of
such documented dispute shall be forwarded to both parties involved along with recommended
methods of resolution which would be of benefit to both parties. The Director, or principal, upon
receipt, shall reply to the letter, including a recommended method of resolution within ten (10)
days. If the 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, but is not obligated to resolve the dispute. If the City
Council considers the dispute, and directs a solution, the action of the City Council shall be
binding upon the parties involved, although nothing in this procedure shall prohibit the parties
from seeking remedies available to them at law.
9. Successors: Covenant to Run with Real Propertv. This Agreement and
the covenants contained herein shall be binding upon and inure to the benefit of the Developer
and City and shall run with the real property and create an equitable servitude upon the real
property. After City reimbursement to Developer, the provisions of this Agreement shall no
longer apply to, and the same shall no longer be or constitute an equitable servitude against or
run with the land and the equitable servitude hereby created shall automatically terminate.
Upon the request of Developer, City shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that Project is
thereafter fully released and free from the provisions of this Agreement, provided that the cost
of preparing and recording such documents and/or instruments shall be paid by Developer.
10. Assignment of Agreement The Developer shall not assign this
Agreement or any part thereof or any monies due there under without the prior written consent of the City.
11. Notices Unless otherwise specifically provided herein, all notices,
demands or other communications given hereunder shall be in writing and shall be deemed to
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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 specified herein. Notices required to be given to
Developer shall be addressed as follows:
Attn: Robert J. Lichter
Lichter Venture Group
Fourth Floor
1660 Union Street
San Diego, CA 92101
Telephone/Fax: (619) 231-9787
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Public Works/Engineering Department
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.
12. 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.
13. Governinq 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.
14. 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.
15. Amendment This Agreement may be amended by a written instrument
executed by City and Developer.
16. This Agreement shall be effective as of the date first above written, Term
and shall terminate on the earlier of (i) the date the City fully reimburses Developer the Reimbursement Amount, or (ii) January I, 2015.
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17. Severability The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity
or enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Executed this 2 S’L day of bw ,20&l .
Owner: The “Island @ Carlsbad” LLC, a California Limited Liability Co.
k / I -LORRAINE M. WOOD City Clerk
(Proper notarial acknowledgment of execution by Contractor must be attached.
Chairman, president or vice-president and secretary, assistant secretary, CFO
treasurer must sign for corporations. Otherwise, the corporation must attach .
or assistant
a resolution
certified by the secretary or assistant secretary under corporate sear empowering the officer(s)
signing to bind the corporation.)
AS TO FORM:
ty City mrney
Rev. 8/08/00 -8 -
I I.
State of California
County of &A-4 l7r4~40
DANA DUNCAN
Commission # 1219200
Notary Public - CclifUTh
On IVlK&Hf-z9,~*l before me, PA-d* pL/N LA--J
Public, personally appeared Robert J. Lichter.
, Notary
l- personally known to me or c to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
State of California
County of >
On before me,
Public, personally appeared Claude Lewis
, Notary
personally known to me or proved to me on the basis of satisfactory evidence to be
the person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
9
10340
/ Exhibit “A”
The “Island @ Carlsbad”- Legal Description
1 The land referred to herein is situated in the State of California, County of San Diego and is
described as follows:
Lot 73 of Carlsbad Tract No. 85-24, Unit No. 4, in the City of Carlsbad, County of San Diego,
I State of California, according to Map thereof No. 1181 I, filed in the Office of the County
Recorder of San Diego County, May 19, 1987.
IO
*
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EXHIBIT B
. . . Traffic Signal 10342
. ,*
EXHIBIT C
Darnell & Associates, Inc
1446 Front Street
Third Floor
San Diego, CA 92101
File: 0812vatsxls
Traffic Signal Cost Estimate
Date: 1 l/16/2000
Prepared by: BED
Checked by: BED
Intersection: Faraday Avenue @ VanAllen
City: Carlsbad, CA
Item Description Quantity Unit Cost
Project Number: 000812
Amount
1 Install Controller
2 Type Ill Service
3 Ped Heads
4 Ped Buttons
5 Vehicle Heads
6 Luminaires
7 Type 19 Pole
8 Type 24 Pole .
9 Foundations (Large Poles 8 Cont.
10 Pullboxes ’
11 EVP Sensor
12 Loops
13 2” Conduit
14 3” Conduit
15 Illuminated Street Name Sign
16 Wiring
17 Signing 8 Striping
18 Interconnect Cable
19 Labor for Equip. Installation (15%)
1 ea
1 ea
8 ea
8 ea
14 ea
4 ea
2 ea
2 ea
5 ea
15 ea
4 ea
38 ea
535 L.F.
345 L.F.
4 ea
1 L.S.
I L.S.
600 L.F.
1 L.S.
$10,000
$1,500
$400
$150
$500
$300
$2,000
$2,400
$400
$250
$200
$250
‘$12
$14
$500
$5,000
$2,000
$3
$10,650
SUBTOTAL
15% Contingency
ENGINEER’S ESTIMATE
$10,000
$1,500
$3,200
$1,200
$7,000
$1,200
$4,000
$4,800
$2,000
$3,750
$800
$9,500
$6,420
$4,830
$2,000
$5,000
$2,000
$1,800 .
$10,650
$81,650
$12,250