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HomeMy WebLinkAboutCT 96-02; Terraces at Sunny Creek, The; 2004-0000000; Reimbursement Agreement/ReleaseRATIFICATION OF REIMBURSEMENT AND CREDIT AGREEMENT FOR DRAINAGE FACILITIES IN COLLEGE BOULEVARD (CT 96-02, The Terraces at Sunny Creek) THIS RATIFICATION OF REIMBURSEMENT AND CREDIT AGREEMENT FOR , (“Agreement”), is made at Carlsbad, California, between THE TERRACES AT SUNNY DRAINAGE FACILITIES IN COLLEGE BWILEVARD, dated as of JU~Y 15th~ 2004 CREEK, LLC, a California limited liability company (the “Developer”) and the CITY OF CARLSBAD, a municipal corporation of the State of California (the “City”), with reference to the following recitals: A. Whereas, the Developer has processed a development within the City known as The Terraces at Sunny Creek, CT 96-02 (the “Project”) located 011 real property (the “Property”) owned by Developer. A legal description of the Property is attached hereto as Exhibit “A.”, and; B. Whereas, prior to entering into an Agreement with the City, Developer chose to construct certain improvements that are considered reimbursable under the terms of this Agreement. These improvements were installed during the year 2000 concurrent with the Developer’s project, described below, without benefit of this reimbursement agreement. The parties wish to ratify the Developer-constructed improvements consistent with the terms of this Agreement which memorializes the Developers and City’s obligations with regard to the reimbursable work, and; C. Whereas, the Project and Property are located within the boundaries of a drainage benefit assessment area, known as the City’s Planned Local Drainage Area B (the “Benefit Area”). The drainage area map and Project vicinity can be viewed in Exhibit “B.” Pursuant to the City’s Municipal Code and Local Facilities Management Plan, all development projects within the Benefit Area must pay a fee (the “Area Drainage Fee”) to fund the construction of drainage facilities necessary to serve developments within each Benefit Area, and; reimb drain (version July 2 1, 2003) 1 D. Whereas, Developer intends to convey or cause conveyance of record title to the Property to other persons pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any portion of the Property or Project will be the responsibility of the respective transferee. The original Developer, and signatory of this Agreement, shall remain solely bound to the terms and obligations of this Agreement, unless and until the Agreement is modified to the satisfaction of the Public Works DirectorKity Engineer, in accordance with Section 6(i), below, and; E. Project Tentative Map, states: Whereas, Condition 40 of Planning Commission Resolution No. 4292, approving the Additional drainage easements may be required. Drainage structures shall be provided or installed prior to or concurrent with any grading or building permit as may be required by the City Engineer. E. Whereas, all work related to constructing public drainage improvements identified in the City’s Master Drainage and Storm Water Quality Management Plan, dated March 1994 (the “Drainage Improvements”) to be constructed by Developer are described in attached Exhibit “C”, and; F. Whereas, the Drainage Improvements are also part of the work to be financed through the Area Drainage Fee. The parties agree that it is fair and practical to grant Developer a credit against the Area Drainage Fee due fiom the Project equal to the eligible cost of the Drainage Improvements constructed by Developer, and; G. actual contract cost of installing the Drainage Improvements (contract cost), plus (ii) an overhead allocation of four percent (4%) multiplied by the contract cost, in lieu of other reimbursement for Developer’s cost incurred for salary and benefits for staff of Developer’s home offices, supervision above the level of on-site superintendent, general corporate, legal, and accounting reimb drain (version July 2 1,2003) Whereas, the “Total Cost” of the Drainage Improvements shall be the sum total of (i) the 2 fees, the cost of borrowed fimds, insurance and bond premiums, expenses for meetings with and presentations to governmental agencies which issue permits or otherwise regulate project approval, and (iii) an additional two and one-half percent (2.5%) multiplied by the contract cost covering Developer’s construction administration of the Drainage Improvements . An estimate of Total Costs, showing the categories listed above, is attached hereto as Exhibit “D’, and; H. Municipal Code is approximately $150,073. This Drainage fee is based on the City approved Fee Schedule and a summary of cost breakdown is provided in Exhibit “E” attached hereto, and; I. Whereas, Developer eligible reimbursement will be calculated by taking the “Total Cost” of the Drainage Improvements based on the city-approved audit, and subtracting the Area Drainage Fee credit using the City of Carlsbad fee schedule in effect at the time of the audit. The balance shall be the reimbursable amount owed to Developer, subject to fhding ability, Whereas, the total amount of Area Drainage Fees imposed on the Project pursuant to the NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. RECITALS AND EXHIBITS. The above Recitals are true and correct. The Exhibits cited above are a part of this Agreement. 2. RATIFICATION. The improvements installed by the Developer, as described herein, during the year 2000 concurrent with the Developer’s project, without benefit of this reimbursement agreement are hereby ratified. 3. SATISFACTION OF OBLIGATION. Developer’s agreement to construct the Drainage Improvements as set forth herein, with the actual construction of the Drainage Improvements thereof to the satisfaction of the City Engineer, shall hlly satisfy and constitute hll compliance with all requirements imposed on the Project with respect thereto. 4. DEVELOPER OBLIGATIONS. a. In consideration of City’s reimbursement and other undertakings as set forth herein, reimb drain (version July 2 1, 2003) 3 . Developer agrees to construct and install the Drainage Improvements. b. Developer shall obtain all property interests necessary for the construction, operation and maintenance of the Drainage Improvements herein described. c. Developer shall use the complete set of City approved plans, specifications and other design documentation for the Drainage Improvements. The Drainage Improvements are to be constructed in accordance with City drawing number 361-6C. All other terms of construction appear in a subdivision improvement agreement entered into between the parties. This Subdivision Improvement Agreement for dwg 361-6 (SECA #9938, dated 11/30/99) is on file with the City Clerk’s office. d. Developer shall complete all work on the Drainage Improvements in accordance with the Development Improvement Agreement for City approved Drawing number 36 1 -6C on file with the City Clerks Office. e. By entering into this Agreement, Developer waives any and all potential constitutional (Nollan/Dolan) objections relating to the Drainage Improvements. 5. CITY OBLIGATIONS. a. City shall reimburse Developer the “Reimbursable Cost,” which is the Total Cost of the Drainage Improvements pursuant to Chapter 15.08 of the City’s Municipal Code. The maximum Reimbursable Cost, subject to the Developer’s proof of incurring the costs, is $526,175 (see Exhibit C). This is also the maximum figure the Developer is eligible for, without revising the Drainage Fee Program. Developer estimates a total projected Drainage Improvement Cost of $408,028 as described in page 1 of Exhibit “D”. Not withstanding anything herein to the contrary, all Reimbursable Cost shall be for work that is eligible within the Drainage Area Program. b. Upon review and approval of the incurred cost and verification of eligibility of payment under the Drainage Fee Program, reimbursement for the Drainage Improvements shall be made reimb drain (version July 2 1,2003) 4 by first crediting to Developer all Area Drainage Fees otherwise due for each portion of the Property and Project until the entire Reimbursable Amount has been credited. Any part of the Reimbursable Amount not reimbursed through this credit shall be paid by City to Developer upon approval of costs pursuant to Section 5 of this Agreement, pursuant to a timing schedule to be approved by the City Council. 6. AUDIT OF REIMBURSEABLE EXPENSES a. Developer may submit for reimbursement upon City acceptance of the Drainage Improvements. b. At the discretion of the City, all Developer’s reimbursement requests will be processed and audited for City by a reputable consulting engineer selected by the City (“Auditing Engineer”). The cost of the Auditing Engineer to process and review the submittal(s) shall be paid by the Developer directly from the Drainage Fee Program. c. Upon completion of the Drainage Improvements, Developer shall present City with two (2) separate complete and detailed reports accounting for the costs and expenses by Developer for the Drainage Improvements (Audit Materials). Any delay by Developer in such submittals shall not prejudice its rights, but shall delay day-for-day the time in which City must take any responsive action. d. Developer’s submittal of Audit Materials 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 of and payment for the Drainage Improvements. e. Upon its receipt of a written request therefor from City, Developer shall allow an audit of such costs and expenses to be prepared at Developer’s expense by certified public accountants specified by City. f. Developer shall either construct the Drainage Improvements itself or solicit bids from at reimb drain (version July 21,2003) 5 least three reputable contractors. Developer may reject a low bid if, in its reasonable discretion, it does not believe the low bidder will be able to complete its portion of the Drainage Improvements competently or timely. g. The City Engineer shall, within thirty (30) days of receipt of the Audit Material submittal(s), issue a report either accepting Developer’s submittal(s) or specifying any reimbursement items or amounts not approved. Failure to notify Developer shall be deemed to constitute City’s approval of the submittal. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution procedure herein. h. If the City Engineer objects to any reimbursable item, Developer and the City Engineer shall meet to discuss the disputed amount and attempt to resolve the matter through good-faith negotiation. If Developer and the City Engineer are unable to reach agreement, Developer may appeal the City Engineer’s decision to the City Council pursuant to Section 6(a). i. Before Developer’s final submittal, Developer shall obtain all necessary or appropriate releases from its contractor(s), and shall obtain from City, and from any and all appropriate governmental agencies, all approvals, certificates and other documents necessary to indicate completion of the Drainage Improvements and the ability to put the Drainage Improvements into use. The date Developer receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Drainage Improvements (the “Completion Date”). j. Upon the Auditing Engineer’s determination on any Reimbursable Request, City shall, within thirty (30) days thereafter, pay all undisputed Reimbursable Expenses to Developer, provided funds are available. Reimbursement cost are not to be funded by the City’s general fund. 7. MISCELLANEOUS. a. Disputes. If a dispute should arise regarding the performance or interpretation of this reimb drain (version July 2 1,2003) 6 Agreement, Developer shall send a letter to the Public Works Director describing the dispute and recommending a method of resolution. The Public Works Director shall reply to the letter, including a recommended method of resolution, within ten (10) days of receipt. If the resolution thus obtained is unsatisfactory to Developer, the Public Works Director shall send a letter outlining the dispute to the City Council through the office of the City Manager for the Council’s resolution. 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 administratively binding upon the parties, but nothing herein shall prohibit the parties seeking remedies available to them at law. b. Jurisdiction. Developer agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is San Diego County, California. c. Obligations and Benefits Not Running With Land. Any and all reimbursements, whether by crediting fees or cash payment, shall be made only to Developer or such entity as Developer shall designate in writing pursuant to Section 6(e). d. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto. The parties hereto expressly disclaim any such third-party benefit. e. Notice. 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 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 below: reimb drain (version July 2 1,2003) 7 If to Developer: The Terraces at Sunny Creek, LLC c/o Gateway Ivey Ranch Associates, Inc. Attention: Mr. Chm Dahrling 2006 Palomar Airport Road, Suite 1 13 Carlsbad, California 92008 Telephone: (760)LiM390+93/- Facsimile: (760&3%XJT 93/-~95&3 Public Works Director City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 If to City: f. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. g. Governing Law. This Agreement shall be governed by, and construed in accordance with, 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 agreement is San Diego County, California. h. Complete Ameement. This Agreement contains the entire agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. i. Amendment. This Agreement may be amended only by a written instrument signed by both City and Developer. j. Term. This Agreement shall be effective as of the date written above and shall terminate on the earlier of (i) the date City hlly reimburses Developer the Reimbursable Amount, or (ii) January 1,2005. reimb drain (version July 2 1, 2003) 8 k. City Authoritv. City warrants, represents and agrees that it has the legal authority to collect any and all funds that it will use to reimburse Developer. City further warrants, represents and agrees that it has the legal authority to pay and/or credit these funds to Developer. These warranties, representations and agreements are a material inducement to Developer to enter into this Agreement. 1. Developer Not Agent of Citv. 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 Agreement. m. No Vesting. Performance by Property Owner of this Agreement shall not be construed to vest Property Owner’s right with respect to any change in zoning or building law or ordinance. n. Captions. The captions of this 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 Agreement. 0. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill reimb drain (version July 2 1,2003) 9 PROPERTY OWNER: CITY: a California limited liability company By: GATEWAY IVEY RANCH ASSOCIATES, INC., a California corporation, THE TERRACES AT SUNNY CREEK, LLC, Georqe Szabo, Jr./President APPROVED AS TO FORM: RONALD R. BALL, City Attorney Name and Title of Si at0 !PV By: George Szabo, Jr./Secretary Name and Title of Signatory BY: 3 Deputy City Atto ey ATTEST: LORRAINE M. WOOD City Clerk (Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute the instrument.) reimb drain (version July 21, 2003) 10 STATE OF CALIFORNIA ) ) ss. COUNTY OF 1 Notary Public in and for said State, personally rsonally known to whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hishedtheir authorized capacity(ies), and that by hisher/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. A STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On this day of ,20 , before me, , a Notary Public in an^ for saic Y appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) idare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hisherkheir signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. State, persona Signature reimb drain (version July 2 1,2003) 11 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Lot's 1 to 181 of Carlsbad Tract No. CT 96-02, the Terraces at Sunny Creek I, according to Map thereof, No. 14060, filed in the Office of the County Recorder of San Diego County, San Diego, California, on October 27,2000, in accordance with Document No. 2000-0582955. I2 EXHIBIT “B” DRAINAGE AREA MAP AND PROJECT VICINITY FEE SCHEDULE P h) cD 0 0 0 0 0 rn 5 8 nl P 8 c t (0 fn 0 n i I I I QI 4 t t t C I; EXHIBIT “E” 1 ~~ Planned Local PLDA Fee for Areas of Drainage Area Low Runoff High Runoff PLDA Fee for Areas of Account Number AREA DRAINAGE FEE CALCULATION A (PLDA) ($/Acre ) ($/Acre) I D $ 60 No. Type General Acres Basis Fee Pian 1 Single Family Residential Housing RM 38.592 $3,578.00 $138,082 2 Muli-Family Housing RH 2.048 $5,855.00 $1 1,991 I Drainage Fee Amount $150,073 I I&