HomeMy WebLinkAboutCT 96-07; Kelly Land Company; 1999-0015247; Reimbursement Agreement/ReleaseAMENDMENT NO. 2 TO AGREEMENT FOR
REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF
CANNON ROAD FROM EL CAMINO REAL TO THE
WESTERN BOUNDARY OF KELLY RANCH INCLUDING MODIFICATIONS TO
THE INTERSECTION OF EL CAMINO REAL AND CANNON ROAD
This Amendment No. 2 is entered into and effective as of the 87% day of FE8LUA7tY , 200& amending the agreement dated December 15. 1998
(the "Agreemdnt") by and between the City of Carlsbad, a municipal corporation. ("Civ), and
Kelly Land Company, a Delaware corporation ("Contractor") (collectively, the "Parties") for
reimbursement of costs for the construction of Cannon Road West from El Camino Real to the
western boundary of Kelly Ranch including modifications to the intersection of El Camino Real
and Cannon Road.
A. On F@!3k'.~41md P, 2- RECITALS
Agreement to extend the date by which Kelly Ranch shall complete all Project Cannon Road
, the Parties executed Amendment No. 1 to the
Improvements until March 15,2003; and
B. The Parties desire to alter the Agreement's scope of work to describe roles and
responsibilities as they relate to Senate Bill 975; and
C. Senate Bill 975 amends Section 1720 of the Labor Code relating to payment of
prevailing wage for private development projects, including reimbursement agreements that
for the project; and
receive public funds for public improvements required as a condition of the regulatory approval
D. Cannon Road West Bridge and Thoroughfare District No. 3 is funded through several
public funds: TransNet Highway funds, Caltrans State-Local Transportation Partnership Program
funds, Community District (CFD) No. 1 ,Traffic Impact Fees and Public Facilities Fees; and
are shown in attached Exhibit "A". E. The payment of prevailing wages and increased project costs for Reach 2 Segment 2
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
applicable provisions of the Labor Code and Federal, State, and local la% related to labor.
1. The Contractor, its agents, and employees shall be bound by and comply with
The Contractor shall strictly adhere to the provisions of the Labor Code regarding
minimum wages; the 8-hour day and 40-hour week; overtime; Saturday, Sunday, and holiday
work; and nondiscrimination because of race, color, national origin, sex, or religion.
The Contractor shall forfeit to the Agency the penalties prescribed in the Labor Code for violations.
In accordance with the Labor Code, the Labor Board has on file and will publish a
schedule of prevailing wage rates for the types of work to be done under the Contract.
The Contractor shall not payless than these rates.
1 City Attorney Approved Version #05.22.01
bargaining agreements on file with the State of California Department of Industrial Relations.
Each worker shall be paid subsistence and travel as required by the collective
The Contractor's attention is directed to Section 1776 of the Labor Code which
imposes responsibility upon the Contractor for the maintenance, certification, and availability for
inspection of such records for all persons employed by the Contractor or Subcontractor in
connection with the project. The Contractor shall agree through the Contract to comply with this Section and the remaining provisions of the Labor Code.
2. Pursuant to the California Labor Code, the director of the Department of Industrial
California Labor Code, section 1773 and a copy of a schedule of said general prevailing wage
Relations has determined the general prevailing rate of per diem wages in accordance with
rates is on file in the office of the City Engineer, and is incorporated by reference herein.
Pursuant to California Labor Code, section 1775, Contractor shall pay prevailing wages.
Contractor shall post copies of all applicable prevailing wages on the job site.
to the submittal date of progress pay reimbursement for a discrete improvement.
3. Kelly Land Company shall provide City authorized certified payroll filed weekly up
designations, hours and dates on site.
4. City shall provide an on-site inspector to keep track of individuals and their
attached Exhibit "A. 5. That the Reimbursement Agreement total reimbursable costs are detailed in
6. Auditing Engineer (or Inspector) will review weekly-certified payroll against Daily
certified payroll will be submitted with the request for reimbursement.
Reports to veriw Certified Payroll. City shall sign off on certified payroll and the signed original
7. All other provisions of the Agreement, as may have been amended from time to
time, will remain in full force and effect.
8. pursuant to the Agreement, as may have been amended from time to time, will include coverage All requisite insurance policies to be maintained by Contractor or its successors
for this Amendment.
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City Attorney Approved Version #05.22.01
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behalf of Contractor each represent and warrant that they have the legal power, right and actual 9. The individuals executing this Amendment and the instruments referenced in it on
authority to bind Contractor to the terms and conditions of this Amendment.
CONTRACTOR
*By:
If required by City, proper notarial acknowledgment of execution by contractor must be attached. Ira
Corvoration, Agreement must be signed by one corporate officer from each of the following two groups.
"Group A. Chairman,
President, or
Vice-president
"*Group B.
Assistant Secretary,
Secretaly,
CFO or Assistant Treasurer
Otherwise, the corporation attach a resolution certified by the secretaly or assistant secretary
under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
RONmR. BALL, City Attorney
By: - m"Qe
Deptt+City Attorney 4'7/d972
3
City Attorney Approved Version #05.22.01
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO
) ss. 1
On -29 mqbefore me, 2 d@*otary Public,
personally&peared fl z%EP& P. s+& /ZV , proved to p) to be the person($whose name(i+is/are subscribed
to the within instrument and acknowledged to me that he/ddthey-executed the same in
hidWr a thorized capacityMand that by his/ ’ ignature(6n the instrument,
the persondor the entity upon behalf of which the pescted, executed the instrument.
WITNESS my hand and official seal.
Signature kd // W (Seal)
STATE OF CALIFORNIA 1
COUNTY OF SAN DIEGO ) ss
)
+4. &? %@?before me, dh , Notary Public,
p) to be the personlCd(whose namew is/= subscribed
to the within instrument and acknowledged to me that he/sh&ky executed the same in
hid- authorized capacitymnd that by hislherctkek signature(<on the instrument,
the person$&’or the entity upon behalf of which the personwcted, executed the instrument.
-
fl &T 4. AP,&J5ILy , vr proved to
WITNESS my hand and official seal.
Signature /I %ut%--
U (Seal)
EXHIBIT “A”
SCOPE OF SERVICES AND FEE
Itemized List of what Contractor will do for City and at what price.
TO BE PROVIDED BY KELLY LAND COMPANY
City Attorney Approved Version # 05.22.01
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i w NCOO-
5
Y
. DOC # 2002-0150292
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad 6 1200 Carlsbad Village Dr.
Carlsbad, CA 92008
P
P
FEB 229 2002 €3~23 fiM
%IN DIEGO CMTY RECI1RDER'S OFFICE OFFICIAL RECORDS
FEES: 0.00 GKGORY 3. SMITH, COWTY REDXDEA
THIS SPACE ABOVE FOR RECORDER'S USE
AMENDMENT NO. 1
TO
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF CANNON ROAD FROM
EL CAMINO REAL TO THE WESTERN BOUNDARY OF KELLY
RANCH INCLUDING MODIFICATIONS TO THE INTERSECTION
OF EL CAMINO REAL AND CANNON ROAD
This Amendment No. 1 to Agreement for Reimbursement of Costs for the
Construction of Cannon Road from El Camino Real to the Western Boundary of Kelly
Ranch Including Modifications to the Intersection of El Camino Real and Cannon Road
(this "Amendment"), is entered into as of p&wmy 8- ,2002byandbetween
the City of Carlsbad, a Municipal corporation ("City"), and Kelly Land Company, a
Delaware corporation ("Kelly"), with reference to the following recitals:
RECITALS
A. City and Kelly entered into that certain Agreement for
Reimbursement of Costs for the Construction of Cannon Road from El Camino Real to
the Western Boundary of Kelly (the "Reimbursement Agreement") dated December 15,
1998 and recorded a- docuinent number 1999-0015247 in thc Official Records of the San
Diego County Recorder's Office. All capitalized terms used in this Amendment and not
otherwise defined shall have the meanings assigned to them in the Reimbursement
Agreement.
B. Due to delays in required entitlement approvals for the development
of the Kelly Ranch Project, City and Kelly mutually desire to amend the Reimbursement
Agreement to extend the date by which Kelly shall complete all Project Cannon Road
Improvements.
WORD-SDUJAP\51200812.2
16,5Vo
NOW THEREFORE, in consideration of these recitals and other good and
valuable consideration, the receipt of which is hereby acknowledged, City and Kelly
hereby agree to the above recitals and as follows:
1. The date by which Kelly shall complete all Project Cannon Road
Improvements as set forth in Section 4(g) of the Reimbursement Agreement is hereby
extended until March 15,2003.
2. Except as specifically set forth herein, the Reimbursement
Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the day and year first above written.
KELLY: CITY:
KELLY LAND COMPANY,
a Delaware corporation
By: 0
CLAUDE A. LEWIS. MAYOR
[Print name and title]
By: APPROVED AS TO FORM:
(Proper notarial acknowledgement of execution of Kelly must be attached. Chairman,
president or vice-president and secretary, assistant secretary, CFO or assistant manager
must sign for corporations. Otherwise, the corporation must attach a resolution certified
by the secretary or assistant secretary under corporate seal empowering the offker(s)
signing to bind the corporation.)
THE STATE OF CALIFORNIA §
COUNTY OF SANDIEGO §
On the &day in the year 2002, before me, the
undersigned, a Notary P aid state, personally appeared
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/& executed the same in hisk capacity, and that by
hish signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
-/? */ut , proved to me on the basis or
. bu-J&dd Notary Public
THE STATE OF CALIFORNIA
COUNTY OF SANDIEGO §
On the -day of Lq,- in the year 2002, before me, the
undersigned, a Notary Publk in and f6f said state, personally appeared
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/skeexecuted the same in hihcapacity, and that by
hisk signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
S@TJ A. /ttW?SLY ,- proved to me on the basis or
77777777777777777777waha
Notary Public
. . I
? . . l
I
C5013 DOE i 1999-0015247
JfiN lib 1999. 3‘; do PM
RECORDING REQUESTED BY OFFICIm. EmRDs
WHEN RECORDED MAIL TO:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Dr.
Carlsbad, CA. 92008 l~ll~lllll~~ll~lllllll ’
1899-0015247
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,[,~G~E~M@&y~.:~~ 2’ ‘, OR RE,MBURS;M&#~:QF .&g$ :,_,_:
.~d;fi’~~~~$&&T~~~~,~~ OF CANNON:&jAD FROf$
EL CAl’diNCf&AL TO THE WESTERN BOUNDkRY OFK&LY RANCJ IN~,@lDING MODIFICATIONS TO THE INTEftSECTfON ; z~,OF’EL:CAMINO REAL AN&CANNON ROAD ,_ : : ,L . . “;.
This Agreement for Reimbursement &Costs for the Construction ofCannon Road from El Camino Real to the ?Western Boundary of Kelly Ranch including Modifications to the Intersection of El, Camino Real and Cannon Road, dated!!‘as of December 15 , 1998
(“Agreement”),. is madeat Carlsbad,‘California, by and between the, CITY OF. CARLSBAD, a Municipal corporation (:City”) and .KELLY LAND COMPANY, a’Delaware corporation (“Kelly”) with reference to ,the fo@wing recitals: i ,,<, .I_ 3’ II / ;,: :... ); :,. .,: ,, L’ Cl RECITALS ” .I,.‘1 ., ‘,+_ ,, ,.’ ^‘__, ,’ 0:. i_ ,. _I I’,:*., ~
A. Kelly’is ‘the :rkord”owner of certain real proper@ located in ‘the City of Carlsbad,
California more particularly d&ccribed on Exhibit “A”, attact%% ,hereto,land made a part hereof
(“Kelly Ranch” or “the Property”). Kelly Ranch ,consist&f several planning areas, as designated
on Exhibit “B”, attached hereto and. made a part $hereof:::, As, !used herein, the term “Planning Area” shall refer, as indicated;to one or more of such planning,areas so designated on Exhibit “B”. The various Planning Areas as shown,:on Exhibit “B”, either are, or will become, separate
legal parcels in accordance with the applicsble legal requirements of the State of California and
the City.
B. Upon their creation as separate legal parcels, Kelly intends to convey or cause conveyance of record title to Planning Areas B, C, F, K and L, respectively, to other persons pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any of Planning Areas B, C, F, K and L will be the responsibility of the respective transferee. All of the Planning Areas of the Kelly Ranch, other than Planning Areas
B, C, F, K and L, are herein referred to collectively as the “Kelly Ranch Project”. Kelly is the
developer of the Kelly Ranch Project.
C. Kelly filed a separate application for tentative subdivision map and site development plan with respect to Planning Area E (the “E Project”). The E Project is the subject of certain development approvals received from the City (the “E Project Approvals”), including without limitation: Tentative Subdivision Map (CT 96-07). Planned Unit Development Permit (PUD 97-04), Hillside Development Permit (HDP 96-13) and Coastal Development Permit (CDP 96-13), all approved by City Council per City Council Resolution No. 98-68 on April 7, 1998 which included specific reference to Planning Commission Resolution No. 4225 recommending approval of the E Project with conditions and approved by the Planning Commission on January 21,1998.
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D. Kelly has filed a separate application for a General Plan Amendment, Rezoning, LCP Amendment, Hillside Permit, Coastal Permit and a master tentative map (the “Master Tentative Map”) with respect to Planning Areas D, F, G, H, I and J, as well as K and L. Planning Areas K and L are being processed merely to create them as legal parcels, with the Master Tentative Map intended to note that further mapping of parcels K and L, respectively, will be required prior to any development of them. Kelly has also filed a proposed amendment to the Zone 8 Local Facilities Management Plan (the “LFMP General Amendment”). In addition, Kelly has filed or intends to file a separate application for approval of a site development plan with respect to Planning Area J, a planned development permit with respect to Planning Area I and a site development plan for Planning Areas. Dl.$G and H. ,_‘, ;j ! I,! ? :s: t i 7 E. On June 16, ~gQ~fv$@(&Q ~~~undF’apd~~~~~rlR,,oIution No. 98-188 approving
an assessment engineer’s report (Report”)%nd estabf&iing ‘Brklge and Thoroughfare District No. 3 (“B&TD #3”) to finance the costs of CannonRoad from,,Car Country Drive to El Camino Real including modifications to the intersection of Cannon. Rodd andGEl Camino Real (“Cannon Road West Improvements”). fnr‘addition to the financin9’ provided ‘by B&TD #3, the Report identified five other funding sources which will contribute to thefinancing of the Cannon Road West Improvements. The’five:funding sources together with the proceedsobtained from B&TD #3 and any other funding source that may be identified by City for’use on Cannon Road West Improvements shall colfe,ctively be referred to,as “Financjng Program” ;:,.
F. One of the conditions of approval for’ the Tentative’:Map (&?96-07) for the E Project, condition 53(c) of Planning Commissbn Resolution. No.;@55,, reiuires Kelly to
construct a portion of the Cannon Road West Improvements, including the&n&caped raised median and all utilities,=in accordance with ImprovementD’h$w@g 333;:2G prep&red by O’Day Consultants dated .February 19,?998 (“Cannon Road West Pfan$“), from the westerly boundary
of the E Project (also .identified as ‘Station 99+00” on knprovement Drawing ,333-26) easterly
to El Camino Real including modifications to the intersection of El Camjno Real and Cannon
Road (“Condition 53(c)“). Condition 53(c) also requires the: developer to enter into a
reimbursement agreement and. provides that developer shall be eligible for fee credit and/or
reimbursement for their portionof~~ the Cannon Road common improvements as defined in the
Financing Program. ‘:“, ‘. : _ ” ,,il.,l; il_ : .(( :_: _, ; , , ,.:. ;: _i_. i’ ,i I!!,; :,;:\j ,j ;?I *;y :^‘,& 2, ‘. ‘,,,
G. City intends~:to,iind~de’~ co,ndi%n of’:approvbl on, the Master Tentative Map requiring Kelly to construct “$nddedi-date rightsof-way. for th$remaining portion of Cannon Road across Kelly Ranch from the western boundary of’$e’EProject to the western boundary of Kelly Ranch (“Intended Condition”). Cifiir:“also intends to include ii provision within the Intended Condition which requires Kelly to enter into a reimbursement agreement and provides that Kelly shall be eligible for fee credit and/or reimbursement for any Ordinary Reimbursable Work or Progress Payment Reimbursable Work as defined in this Agreement.
H. The improvements to Cannon Road including modifications to the intersection of El Camino Real and Cannon Road, contemplated by Condition 53(c) and Intended Condition, which are to be constructed pursuant to this Agreement (“Project Cannon Road Improvements”), include the following for that portion of Cannon Road from El Camino Real to the western boundary of the Kelly Ranch:
Full width grading and improvement to Cannon Road from El Camino Real to the western boundary of Kelly Ranch, all curbs, gutters, sidewalks, base and pavement, median landscaping and irrigation, median hardscape, street lights, street monumentation, storm drainage facilities, erosion control, guard rails, and other incidentals necessary to complete a four-lane major arterial roadway. The facilities also include a 133-foot single-span bridge across the Agua Hedionda Creek at El Camino Real. The improvements also include modifications to the intersection of Cannon Road and El Camino Real including a traffic signal, raised landscaped median, grading and paving, curb and gutter, sidewalks, street lights, widening of the existing bridge structure
2
over Agua Hedionda Creek, relocation of a property access road and other incidentals and improvements necessary to complete a major arterial intersection. In addition, the project includes the cost for full mitigation of the environmental impacts of the construction of the improvements noted above.
I. City and Kelly recognize that the Project Cannon Road Improvements includes work which exceeds the road improvement needs of the Kelly Ranch Project (“Expanded Cannon Road Improvements”). Kelly agrees to accept Condition 53(c) and Intended Condition including the Expanded Cannon Road Improvements provided that City agrees to reimburse Kelly on a progress payment basis for th,e,Z,iExpanded Cannon Road Improvements. For the purposes of this Agreement, the Project Cannon.’ Road:.lmprovements have been divided into three categories labeled for convenience as “Ordinary Reimbu’iable Work”, “Progress Payment .,. .,” Reimbursable Work” and “Non~Reimbursable Work”;more partic@arly described as follows:
,:! _’ 3, ,/I .l,(.>,,ll_
1. Tha Q&lid&y “&i&&i&bIe Work~~-~nclude~:ii~~~.-.;following: (a) street
improvements for two4anes ofif’C$nnon Road, 18-foot paved&$&$& ee’ch side of median (for a total of 36 feet of paved section) together with median cur~~~!:ldi;th~~e-fourths of the cost of the 133-foot single-span~&id~e ‘near El Camino Real across A#& Hedionda Creek; (c) three- fourths of the cos$of Cahnbn’ Road grading, storm drain improvements and ‘erosion control; (d) three-fourths of the~~cost’~ ‘of mitigation for. environmental impacts; (e) one-half of median landscaping, irrigation &in&hardscape improvements:on Cannon Road; and ‘(f) incidental costs for work described in &b&ections I. 1 (a) through (e) including contract iadministration, City fees, soils engineering, andi%$ting, construction inspection, construction enQineering and staking, environmental consul.tar$s and mitigation monitoring. 2 .:z,i; 3;
2; ‘t, ji : :. “;, .& pr;gress Payme;t ,Reimbur~~~~~~~~brk i$??,&~ th* following: (a)
street improvements in the northerfy~h%lf of Cannon Ro~d%.$ide ofthe ,18-foot paved section described in Section I.1 Bbove and including outside~curb%nd gutter, sidewefk, street lights and associated electricat wiring,, any frontage landscaping and irrigation. improvements and any other frontage improvements normally required ,of adjacent deveIop”~entliljrojects; (b) grading and improvement for El Camino Real and its intersection withO$nnon’Road except for the Non
Reimbursable Work described’inSiubsection 1.3(b) below;,;(c):lone-fourth of the cost to construct the Agua Hedionda bridge and or$foutth:of the,cost of &non Road grading, storm drain
improvements and erosion control; (d) one-fourth of the cost of mitigation for environmental
impacts; and (e) incidental costs: for’work described, in. Subsections 1.2(a) through (d) including contract administration, City fees;,soils, engineering ;‘a’nd’~: testing, construction inspection, construction engineering and staking, environmenttil consultants and mitigation monitoring.
3. The Non-Reimbursable Work includes the following: (a) street improvements in the southerly half of Cannon Road, outside of the 18 foot paved section described in Subsection 1.1 above and including outside curb and gutter, sidewalk, street lights and associated electrical wiring, frontage landscaping and irrigation improvements and any other frontage improvements normally required of adjacent development projects; (b) grading and improvement of the westerly 17-foot of El Camino Real adjacent to the Kelly Ranch frontage (including Planning Area B) including paving, curb and gutter, sidewalk, street lights and associated electrical wiring, any drainage facility modifications, any frontage landscaping and irrigation and any other frontage improvements normally required of adjacent development projects; (c) one-half of median landscaping, irrigation and hardscape improvements on Cannon Road and (d) incidental costs for work described in Subsections 1.3(a), (b) and (c) including contract administration, City fees, soils engineering and testing, construction inspection, construction engineering and staking, environmental consultants and mitigation monitoring.
4. A line item description of the specific work items included within the
category of Ordinary Reimbursable Work, Progress Payment Reimbursable Work and Non-
Reimbursable Work is included within Exhibit “C” attached hereto and incorporated herein by this reference.
J. For purposes of phasing, the Project is divided into two segments as follows:
1. The “First Segment” shall include all of (a) El Camino Real Improvements; (b) full width grading and erosion control for the Cannon Road Improvements from El Camino Real to the western boundary.of E Project; and (c) full width improvements of Cannon Road as a four-lane major arterial hi$rway::i”from El Camino Real to Frost Street, including the bridge over Agua 1 Redfonda Cree#‘(d) :cuib; gutter and meandering sidewalk along the south side of Cannon Road; from’ Fiost Street: fo:the,western boundary of E project; and .~.. i,*~$ ., L,, L’( :__> I,. *::, >_ SC_ .:;:;. C’, 2 _ :, ‘. “6 :_ <. .: . . ~ ,j, : ( : ‘$1 :i,
2. .$g&,,,,“‘r <_I ;i,. “;:‘:;~ ;.::::,( ,‘fid ,I “k&a&d~.:: Segment” shall i~~Fiiii~~,,,,alI~~~~i~~~ining Cannon Road
Improvements, to the’ weste@boundary of Kelly Ranch,%&d~ shall &‘clude the following sub-segments: (a) *Segment’% shall include that portion of thei:‘Sedond,,Segment which is the full width improvements ofCannon Road as a four-lane major arteria! highway, beginning at the end of the First Segment;“at Frost Street and continuing, to.the.western bou,ndary of E Project; and (b) “Segment :2B’%hall mean that portion of‘the Second Segment which begins at the western boundary of E Project and continuesto the western boundary of.Kelly Ranch. ‘:.
K. City and :&elly desire ,to enter i&to a single reirhburs&en&greement which covers the Reimbursable Work contemplated by-‘the constructloh of the ProjdctTCannon Road Improvements. ,,,:, ‘:, II ‘:‘;:
:,j;, ,,! :,.,,p ! ,,,: (, ,_! ,. i _‘_. . . ,_, ‘,< .j: .:g+;i Qp’;;! ‘::, _Fjl L. C,fy,, and. Kelly ac&j~ledge :“& :_ ~~~~~~~~~~~~~~~~ :+&&j i &j&j5 allows the
City to require ,a, subdivider to construct improvements benefiting‘ prdperty outside the subdivision; but Section 664868,requires the City to enter into a~reimbursement agreement for such improvements.,,The :pat$as: intend that this agreement satisfy the requirements of Government Code Section’664865: j’::’ i ,^ < _; II ,,;: .,s.,‘:, ;i , ,+:!,:. I, : ,, : : :.,;‘+. ,. :‘; ;. ., ,:,,
NOW, THERE&e,I:f Fb,e C$y+j~#$‘&$& ~~foll@&; ., ‘: ;I ,, -;,“, j
‘;,; &: ~,,,
1. The Recitals are true a~~f’$J&,&i,, &S., kb ,:i;. ,;:;:::., j: j_ 1:’ .,.,. ‘~,~~“~~;; .: :,,:i : : 7F“ : _^. ._,;_; .:T ., 7,: .- 2,: .-: -:.. ((‘:; :_ ;.; i .,^ ““~,i
2. Satisfaction of Obligation. Kelly’s -agreement to perform the Project Cannon Road
Improvements as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements regarding the Project with respect to the Cannon Road West Improvements.
3. General Citv Obliuations
(a) City shall make available for Kelly’s use the complete set of plans, specifications
and other design documentation for the Cannon Road West Improvements.
(W City shall obtain all required easements and rights-of-way required to complete
construction of the Project Cannon Road Improvements, and bear the cost of acquisition of
such easements and right-of-way not located within land which comprises the Kelly Ranch
Project.
((3 City shall utilize its powers of eminent domain to obtain necessary rights-of-way for the Project Cannon Road Improvements, as required.
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(d) City shall provide for all bridge work inspections and all environmental monitoring
for the Ordinary Reimbursable Work and Progress Payment Reimbursable Work directly from
the Financing Program funds.
@I City shall secure all required environmental permits for the Project Cannon Road Improvements. City shall not be liable for delay damages, and Kelly shall make no claim for delay damages, to the extent that such damages arise from or relate to the time for processing
by applicable governmental authorities in connection with the environmental permits for the Project Cannon Road Improvements. Notwithstanding the immediately preceding sentence, City agrees to process any environmental permits related to the Project Cannon Road Improvements which may fall underlCity juiisdict& within the statutory time limits established for such permits and shall not unreasonably withhold ap,provaI-of any such permits. .., 1. ‘. : :, : > ,__
(9 City agrees’to$,allow Kelly.- to separately: post bonds and file subdivision improvement agreements for, each :of .the three con&uct$r phase;; segments separate and apart from the remainder’of tha,lzsubdivision improvement’agreementrequirements for the Kelly Ranch Project I ,,-I~~i~;G;~;~L’ G’S ,jli z : : >_ ..I.‘! ,. .I ,I 5,s ,11,11: _+ _; j,.: ..\‘Z i”$.;.! !_S,i j_$ :: ” ”
(9) Ci~;““ag~~~~~~~i;at this agreement together wjtt;“.‘:r~d.. ‘respective subdivision
improvement agreementsL:‘for each, of the three construction seg’ments will satisfy the requirement of the rermbbrsement agr8eiiient referred to ‘in Condition 53(c), and the Intended Condition for the MasterTentative Map. ,’ ‘* jl (h) ‘City agrees to reimburse Kelly for Ordinary Reimbur&bfe. Wor@:and Progress ‘. “’ ‘, y& ‘,,:&
Payment ReimbursableWork as described in Sections 6 and~l below.,::;;’ i j _:, , ,,,A L- : ;+
4. General Keilv,Obliaati~~~:,,~‘, ‘~__ 3 ;“.,,. s’s 2’ ,$: :.:
: SC: Sill :_ I;. : ‘,_j’ ‘: :_’ : 4 ,> ._: ‘,; .,. i -1 ,:;:. (a) ” ._ ;: :i+: I; i.: “;:’ <b_ .,,,.:: K&y, &@I$ p<Fpare separate’ s&s of”($&ement -$#f~ :gi$, specifications for
each of the three projectconstruction phases; First Segment, Segment 2Aand Segment 28. :> s;i;.:
(t-3 Kelly shall enter%&standard subd&ision impr&&&it,agreements and post the required improvement secuiity,.,in accordance .~ with Cityrequirements’ for each of the three construction phase segments;, .” I., _’
03 Kelly agrees of the Project Cannon
Road Improvements within of approval for the E project and the Master Tentative
w Kelly agrees to cause construction of all Non-Reimbursable work described in the Recitals at no cost to the City.
W By entering into this agreement, Kelly waives any and all potential constitutional objections (Nollan/Dolan) and accepts Condition 53(c) and Intended Condition for the Master Tentative Map.
(9 Upon request of City, Kelly shall assist in connection with any of the matters referred to in Sections 3(b), (c), and/or (e) above; provided, however, that City shall bear the cost of such matters; and provided, further, that such costs shall include without limitation certain costs incurred by Kelly in providing assistance, as follows: (i) the cost of Kelly staff and employees shall not be included; (ii) costs borne by City shall include any outside consultants engaged by Kelly in connection with matters referred to in Sections 3(b) and/or (c); and (iii) the
cost of any outside consultant engaged by Kelly in connection with matters referred to in Section 3(e) shall be allocated as agreed upon by City and Kelly at the time, and if not so agreed, then shall be allocated by the Auditing Engineer subject to review under the provisions of Section 8(a). City shall reimburse Kelly for such reimbursable costs incurred, promptly upon submission by Kelly of itemized reports for such expenses, and, as to item (iii) above,
5
05018
determination as to the reimbursable portion of such costs. The reimbursement referenced in this paragraph 4(9 is separate from the Reimbursable Work referred to elsewhere in this Agreement.
(cl) Kelly shall complete all Project Cannon Road Improvements no later than three (3) years from the effective date of this agreement.
0-0 Kelly agrees to pay for the mitigation costs for Non-Reimbursable work performed along El Camino Real. Said costs shall be deducted prior to making any reimbursement pursuant to Section 7(b) of this Agreement. :8-:.l:;j;;-J_ If ._/,_,~ i: <, 3:. ,‘,:,
(0 ;,. * : I;.~~& :2 ‘2 ,: s, :_ ,__,_ >.I_** j^ Kelly agrees tgs ,,~~~~~~~ialll”‘~n‘ecessa,~~~~ntraGts required to complete the
construction of both the FirstSegmen:t and, Second. S&mendlprior to June 30, 1999. In the event Kelly fails to award said:,,contracts;as specified above, Kelly acknowledges and agrees that the loss of any State and Local~Partnership Program.(SLTPP)‘funds brought about by the failure to award such contracts by June 30, 1999, shalt beborne ~ent@ly by Kelly losing a portion of its reimbursement as set forth in this paragraph. The maximum amount of reimbursement subjectto losspursuant to the provisions of this paragraph‘shall be limited to an amount equal to ,16.59%,ofthe construction cost amount which is :determined by the California Department of Transportation (CalTrans) to be eligible for reimbursement under the SLTPP for
Reimbursable Work ~&IS related to the, First,and,Secon8 Segment;. Kelly,acknowledges and agrees that the City is not obligated pursuant to this or any other terms,of this Agreement to in any way replace or make up for the loss of such SLTPP funds brought about by the failure of Kelly to comply with the terms of this subsection. .’ iis
Reimbursable.Work.
,(yi^ _ ,:iji ,:;i(> 2 5. ,‘_ j;_: :_ :li_“s. I > <I:: laj ;brdinary ~&$&able~~o~k and: ~#J$& pagment &~bursable work
shall be referred to collectively as “Reimbursable Work!‘-’
(b) ,&j;- &&fiowl&ges that
Kelly Ranch Project to merchantbuilders.
K&lly is under,,,c&;a;~, &; ‘:3ell pofijons of the
It is acknowledged:that Kelly shall be entitled to
cause the Project to be bid,“cohtraded; bonded, commenced’ and~constructed by one or more of its successors, and thatit may cause fh&con&uction of. First Segment and the construction of Second Segment by separate successors,,: To the extent that,Kelly causes a successor to post the bonds required for the,Firsf Segment, Segment,2Aand/or Segment 2B, Kelly shall be entitled to exoneration and cancellation of,its-own bondr..which has been so replaced. For purposes of this entire Section 5 (exceptfor the’next succeeding grammatical paragraph), the term “Kelly” shall mean and include not only the original signing party to this Agreement, but also such successors who participate in the bidding, contracting, bonding, and construction of one or more of such segments. In no event shall Segment 2B be further segmented for the purposes of bonding and/or construction phasing without the prior amendment of this Agreement. It is further acknowledged that, notwithstanding that Kelly arranged for such construction of the Project by one or more successors, the obligations of the City for reimbursement shall be to Kelly, and any such reimbursement payments shall be made by City to Kelly. It shall be the responsibility of Kelly to cause any successor who is constructing all or any portion of the Project to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Project, as specified in this Agreement.
(c) With respect to all hard costs of construction comprising the Project, Kelly shall solicit bids from three reputable contractors. Reimbursable Work shall be bid together with Non Reimbursable work for that portion of the Project Cannon Road Improvements which are being bid by such contractor. Upon mutual selection by City and Kelly of the contractor for
each Segment, and agreement upon a contract amount for each Segment, the costs thereof shall be allocated among the categories consistent with the method and process used in the Exhibit “C”. The parties agree that the spreadsheet attached hereto as Exhibit “C” is a fair
6
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allocation of the costs under such contract as among the categories of Ordinary Reimbursable Work, Progress Payment Reimbursable Work and Non-Reimbursable Work. Costs shown in Exhibit “C” are subject to modification through change orders.
03 During the performance of any Reimbursable Work, Kelly shall retain detailed payment records for all items of Reimbursable Work, for use by City in auditing any subsequent reimbursement requests by Kelly. Kelly’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,%em of Rei’mbursable, Work. Reimbursement Requests
with the procedures of thisparagraph and Paragraph 6 below. jj:’ ,,’ ‘, I ; ‘&_$; :,;:i I :: Audit of ,Reitis&&dble & ens;s* ^: ‘, ::
6. I’: ,,_1 .,. > .,. i_ ,, ,Yl
(a) Expenses for Reimbursable Work (includi,ng overheat$%llowed under
Clause G(e)(iii) below and the allowance permitted under clause:$?(e)(ii). below)?&re referred to
herein collectively as “Reimbursable Expenses.” Kelly shall be~:;entitled to submit requests for
Reimbursable Expenses upon s,ubstantial completion and approval by the City of any one or
more of the following stages of the Reimbursable Work as follows:
,(t), ~,~‘~i,Y~Within the First Segment:
I~,, ,,_: ,,:
,:a’ .<::i, :_I_ ,. : _, ( j. i’. ;,i.:: ($~$i El Cam f: _:: , _, ,. ” , ino R’eal improve&g&; ,,,
ii::. ,,I ‘$1). I I(?) ,: Grading and~~~~~~R”~~~t~~~~“;” ’
,‘:
(3)
I,; f3tcpn; dratnage rmprove,rt$nts :, ,, iI ,,~:“‘~~w”~
Street ,paving (excludrng, ‘top course), curb and
” #,
gutter improvemen$+
:,,El- Camino Re$bndge widening improvements
Traffic’sigrtal at Cannon Road improvements
(6) Remaining El Camino Real improvements
including, without limitation, sidewalks, streetlights, signing and striping, top course paving, landscaping, irrigation, median hardscape, and any retention amounts held for items specified in Subsections 6(a)(i)(A)(l) through 6(a)(i)(A)(5)
(W Cannon Road improvements
ii; Grading and erosion control Storm drainage improvements
(3) Street paving (excluding top course), curb and gutter improvements Agua Hedionda bridge improvements Remaining Cannon Road improvements including, without limitation, sidewalks, streetlights, signing and striping, top course paving, landscaping, irrigation, median hardscape and any retention amounts held for items specified in Subsections
WWW 1 through W)WN4)
7
- 005020 -
II 1 t,
(ii) Within the Second Segment:
(A) Cannon Road improvements;
Grading and erosion control
09
Storm drainage improvements
(3) Street paving (excluding top course), curb and
gutter improvements
(4) Remaining Cannon Road improvements including,
without limitation, sidewalks, streetlights, signing
and 1. striping, top course paving, landscaping,
_: : :. ;, ,-l~liui~~tion~il~sdian hardscape and any retention , .I:.: . . : 3; il.;<: i .:_I:>, _ “‘Y’ amounts hek.!‘: f&$tems specified in Subsections ;:‘::;‘$, 2:; ,:>_g ;._ H; 5:: : ._. ,,,_ :_“.. ,, 6(a)@)(A)(l) through@a)(ii)(A)(3) $yijj 3 : : j ,;:;d.:,‘:.. _,i!‘;,, j: i, ; .:.$c
Ajfi&atly’s iRei;mbursement ‘Requests: ,will be processed and audited for City by a reputable c&&fting~eng@reer selected by City (“Auditing Engineer”). The costs of the Auditing Engineer shall be pak@irectly by City from Financing Program funds.
(c) :j, ’ “~Th@&.iiting Engineer shall review all contracts for. Reimbursable Work
and the paymenf ‘recoids;!@tibrr#ted in connection therewith asto each of the’stages identified within Paragraph“G(a) above pro’mptly after each sta’ge is substantiallycompfeted and approved
by the City, and’shall within sixty (60) days thereafter issue to City,iand Kelly a report either
accepting Kelly‘s submittal or specifying with particularity any reimbursementitems or amounts
not approved. Any reimbursement items, or amounts not approved by the.Au$ting Engineer
may be further pursued by Kelly, using the dispute resolution provision,of,Paragraph 8(a) below. __, ;
(d) j ,‘, &y’s reimbursement obligations j X&ireunder #&I:. be based upon the
actual costs incurred;‘jt&&elly in performing Reimbursable Work (includingoverhead and the
allowances specified fn(e), b?Jow). < ,-.
(e) N&&$&ding anythifig her&G to the, &$r&;, C@z~specifi~lly agrees
that the following shallbe’deeme&keimbursable Expenses::” -^,’ ’ ‘,_ i i > ,‘^ FT,, 1” _.t_ ,_, ., ,,;,‘qy~‘ : : j:,, :_ : s:i:. ,.
(j) Premju~s: paid..~~i:~~elly-;;for improvident and/or payment and
performance bonds relating. to::the construction of Cannon ‘IRoad limited to one and one-half percent (l-l /2%) of the total of aff ‘Rsimbursable Expenses forsuch construction; .” : :‘j; j _^ ‘$<_ ‘,
(ii) An amount paid by Kelly and limited to one and eight tenths percent (1.8%) of the total of all Reimbursable Expenses (exclusive of the overhead allocation specified under Section 6(e)(iii), as an allowance to cover the allocable portion of premiums paid by Kelly for blanket liability insurance coverage.
(iii) An amount fixed at five percent (5%) of the eligible costs for Reimbursable Work, to compensate for overhead expenses incurred by Kelly including for salary and benefits for staff of Kelly’s home office, purchasing department expenses, project supervision, general corporate legal and accounting fees and other normal overhead expenses
incurred by Kelly, excepting the expenses described in Subsections 6(e)(i) and G(e)(ii) above
7. Pavment of Reimbursable Expenses.
(a) Payment of Reimbursable Expenses for Progress Payment Reimbursable ~ Work shall be made, in cash, within sixty (60) days after the Auditing Engineer’s determination
on any such Reimbursement Request (or determination pursuant to Paragraph 8(a) if
applicable).
6
GO5021
(W Payment of Reimbursable Expenses for Ordinary Reimbursable Work shall be made after first deducting the mitigation costs incurred by the City for the items of non- reimbursable work as specified in Section 4 (h) above and after deducting and crediting against such Reimbursable Expenses all Financing Program fee obligations attributable to the E Project and any other of the Kelly Ranch Project Approvals as have been finally approved by the City Council as of the date of such Reimbursement Request, to the extent they are not already paid, limited by the amount of funds available in the Financing Program.
(c> To the extent that Reimbursable Expenses for Ordinary Reimbursable
Work exceed the total Financing Program ,obligations for the E Project and other final Kelly
Ranch Project Approvals as of the date;: of’ such j Reimbursement Request, the following
procedures shall apply: ” ( ,, :I. I :;,,, : e_.: .; ‘i ; ,
(i) ,’ U$q’ th~,.;;‘kuditing,li~~ngin~~S-;det~rmination on any such
Reimbursement Requestfor Reimbursable Expensed’(or dsteimln~~bo:pursuant to Paragraph
8(a), if applicable), City~shalll”withiri~sixty (60) days, payalt such”Reimbursable Expenses to Kelly to the extent that Project $furtds are available in segments as,follows;, (A) upon completion
of the First Segment for:‘Roimbursable Expenses related to $@i, segment; and (B) upon
completion of the Second S&ment, for Reimbursable Expense related to such segment. ,’ ..’
‘(ii). In making a’%leterminatibn whether adequate’P&ject funds are available, City ‘shall give’ Kelly top priority for ‘payment over all other expenditures by the Financing Program and I the City for. Cannon Road West Improvements,, other than the expenditures obligations, for Macario Canyon Bridge, payments made ‘in accordance with Section 7(a) above, and the prior reimbursement agreement. with Carlsbad Ranch Company L.P. dated July 30, 1998. Without limitation, it is aclhowledg$$&at ttp. Financing Program and the City will obtain funds for Cannon Road-West Improvemehts from ‘the City% Public Facility Fee (“PFF”) fund; Traffic’lmpact Fee (TIF) fund, Community Facilities District No. 1 (CFD #I) fund, the TRANSNET Highway fund, B&TD #3 fund and the Caltrans State and Local Transportation Partnership :Program (SLTPP) fund. The traffic signal at, the intersection of Cannon Road and El Camino, Real will be reimbursed from’,:‘ithe PFF funds. The remaining Reimbursable Work for the improvement of El Camino Reaf.will be reimbursed from TIF funds. Reimbursable work for the improvementcof Cannon aRMid, west of El Camino Real, shall be reimbursed from a combination of CFD #I) TRANSNET Highway, SLTPP, B&TD #3 or other such funds as the City Councit;:may appropriate for construction of the Cannon Road West Improvements. b ; ,,, _,_ .__ : .s::. ,,;.:,: _: _, ,__ ,:,:* .*?^
W Kelly and its successors (not including the successors in interest to Planning Areas B, C, F, K and L) are not required to pay B&TD #3 fees at time of building permit issuance in accordance with the Financing Program, but rather that a credit account will be kept by the City for the amount of the required fees, which amount will then be credited against the reimbursable amount owed to Kelly pursuant to the provisions of Section 7(b)
above.
@> Except as noted in Paragraphs (b), (c) and (d) above, 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 Planning Area of Kelly Ranch. City shall not offset Kelly’s entitlement to reimbursement under this Agreement against any other obligation of any person, except as specified in this Section 7.
(9 Reimbursable Expenses for items of Reimbursable Work paid for by Kelly in advance of construction of the Project Cannon Road Improvements (such as City fees and construction mobilization) may be submitted for reimbursement with the Reimbursement
Request for the first stage of Reimbursable Work submitted for each construction phase (Segment 1 and Segment 2).
9
05022
(9) Except as provided for in Subsection 4(i), it shall be the obligation of City to pay any remaining and unpaid portion of Reimbursable Expenses for both Progress Payment
Reimbursable Work and Ordinary Reimbursable Work within three (3) years from the date of
the final acceptance of the Project Cannon Road Improvement for maintenance by the City.
The city shall not unreasonably withhold acceptance of the Project Cannon Road
Improvements.
8. Miscellaneous
(a) DisouteslClaims. If a dispute, should arise regarding the performance or .,i”‘$,‘<,i. ; ~ interpretation of this Agreement, the,follB~h9,procedura shall be used to resolve any question of fact or interpretation not informalfy’resolved-by the p&tie@ ,Such questions, if they become
identified as a part of a disp,ute, amo,ng”“persons operatrng ‘,under the provisions of this
Agreement, shall be reduced -to writing .by. the p,rincipal of. Kelly or,, the City’s Public Works
Director (Director). A copy of such documented dispute:shall be,;foiwarded to both parties
involved along with recommended:methods of resolutior?which would be of benefit to both
parties. The Director, or prJcipal, upon receipt, shall re,pty to the letter, including a recommended method ‘of, resolution, within ten (10) days. If the re,splution2 thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City
Council for their’resolutjon through the off&of. theCity Manager.
not obligated to $esolve2he dispute.
The City Council may, but is
If the City Council considers thei:dispute, and directs a
solution, the action of the City Council shall ,be binding upon the parties z’invo,lved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. ,* 3. __‘,J,.,., .:. ^
covenants contained herein shall $e’ binding upon and in,ur& to the benefit of the successors, heirs, assigns andtransferees of Kelly.and City.and shall run’with the real,property and create an equitable servitude uponthe real property. Upon their creation asseparate legal parcels, the provisions of this Agreement.shall no longer apply to, and the same shall. no longer be or constitute an equitable servitudseagainst or run with the land:,& to ,Planning Areas B, C, F, K and L, and the equitable servitude hereby created shall auto’maticalIy.Iterminate as to each of said Planning Areas. Upon ‘the request of.,Kelly, City $halli,execute and deliver to Kelly, in
recordable form, any further documents and/or”instruments:reasonabty necessary to evidence that said Planning Areas B;C.F, K and L are,‘.thereafter Ifully released and free from the
provisions of this Agreement, provided that the cost of preparing and recording such documents and/or instruments shall be paid by Kelly.’ 1’ ‘:,
(c) Transfer bv Kellv. The obligations and benefits of this Agreement shall be transferred upon sale of Kelly Ranch Project as specified herein. As used in this Agreement, “Kelly” shall be the owner (or owners) of the real property which comprises the Kelly Ranch Project, except as to any real property for which residential permits have been issued, and EXCEPT THAT THE ENTITLEMENT TO REIMBURSEMENT PURSUANT TO THIS
AGREEMENT SHALL IN ALL EVENTS REMAIN WITH KELLY LAND COMPANY. In accordance with the provisions of Section 5(b) of this Agreement and upon written notice to City pursuant to Paragraph 8(d) below, all obligations and responsibilities of this Agreement shall move to the new owners of the real property which comprises Kelly Ranch Project except as qualified by the preceding sentence. \\
::
t \\
\\
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IO
(d) Notices. Unless otherwise specifically provided herein, all notices, demands
or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as specified herein. Notices required to be given to Kelly shall be addressed as follows:
Kelly Land Company
,:;_l:: i^ill ,j< #j]’ clomifl~~~~iops~~~~~t, Inc. .,::~.~nl;~:-Fial~clnar:Airpdftii~~~l!;Sujte 206 ‘2, li: “‘“cg~$~a@~~A ::~*boqg<~ ,’ > ,,
” i,J.,, ~&#p”qig$ ;:.,:~~60)931-1,1:90il ’ j ;;,
‘%’ .:i : i” I. i : 1,. ;: ; :i : ,g >s ,> ,:: j( .i.,$., ‘:; ii @p %: “. .,.$:sll ’ (76Q@&~95cj If:;,.,: : i I ., ,i
” “ ’ .i ‘,t $“;iiiz;$;:~ ,
.:,,::i::pi7 ‘:,: i 1 ..: $;: j:s (
with a copy to:
../
ss,l,-viheppard, Mullin, Richt~~‘&#&~&~n ,;l;i”
‘., :, ‘: Attention: Christopher B. Neijs;~ Etiqui&, ‘, _: ‘. :;:*i a 501 West Broadway, 1 gth Floor “’ ‘1 .’ I’” II, ,1 ! .’ San Diego, CA..,921.01 ‘, : ” Tele$&e: “.i-@@) 338-6500
FAX: (6’19) 234-3815 ‘_ ,’ ,_’ ::g ‘, 3’2 .,..:
Notices to Cityshall beoelivered to the following:
i ,, ,. :_j$:! .:::s : ._: 5” .‘. :: ,, ji$_i: :: 3 ‘_ j &, ‘Iii y:, ___ ,_ Cln OF C’@LSBAD:; t;lrj$ij’ji,” ‘: ” ” ;,i.” ;‘f
.^ t 1: ,i ; .A:, ; ” “Eii~ineering.~P,epartme~~~l..‘;,:1:: ;>::,: j 1 j _, i i ;. $:_’
:. : ‘)i Attention: Pu~lic,VVorks;.biiector.,‘::jjt: j,ji ‘,I: ‘:! y,? ~ ‘I :,si _i :a; ‘:: 2975 Las pa[magYf)five .‘,~: ‘: _: I’ : ‘,:
?;;!& Carlsbad, CA “92008 :_: ;,,.:
.i.:+ i ,Telephone: :‘, _, :I”;‘i:;;:jp& (760) 438!?61,, x4391
., L ., (76CQ@5769 ’ ., (‘ . ..~.., ;! j$ .:.::;;,y$;:. :, : _, ‘: ” : ,, Each party’&h< notify, the other’ immediately, of any’ changes of address that
would require any notice delivered hereunderto be direq# toanother address. I .+/> I_ s ,,, .(,> :I 3.1 i j ,,b
(e) Counteroarts. : ::.i ,_;,z:, 1 ;: jif$&; ,$greeme& &&““;e 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.
(f) Governina Law. This Agreement shall be interpreted and enforced under the
laws of the State of California.
(g) Comolete Aareement. 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.
(h) Amendment. This Agreement may be amended by a written instrument executed by City and Kelly (including for this purpose any successors of Kelly, to the extent of their ownership of real property within Kelly Ranch Project); except that no amendment regarding the provisions for reimbursement to Kelly shall be valid unless executed by Kelly Land Company.
II
II
11
c5oz-
STATE OF CALIFORNIA )
) 98.
COUNTY OF SAN DIEGO )
On December 16, 1998 before me, Karen R. Kundtz,
Assistant City Clerk of the City of Carlsbad, personally appeared
Claude A. Lewis, Carlsbad City Mayor I
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacityties), and that by his/her/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.
ssistant City Clerk City of Carlsba
(SEAL)
bO5025
(i) Term. This Agreement shall be effective as of the date hereof, and shall terminate upon the earlier of (1) the date the City fully reimburses Kelly the Reimbursement Amount; or (2) January 1,2015.
Executed this Executed this day of December, 1998. day of December, 1998. 9 9
KELLY LAND COMPANY, KELLY LAND COMPANY,
a Delaware corporation a Delaware corporation
J- ,,,...’ J- ,,,...’ [Printed Name and Title], +’ : [Printed Name and Title], +’ : : ,. : ,.
D. L . Clemens , .$~&‘,@~s;&&qg 2, j D. L . Clemens , .$~&‘,@~s;&&qg 2, j “’ ,::, “’ ,::, _’ _’ >,;,; ‘: Z’, >,;,; ‘: Z’, ,._ ,._ .;.,.^ .;.,.^ :: :: .; .> .; .> ,,i y : ,,i y : _‘, > i _‘, > i (s:, ‘i (s:, ‘i :.l :.l .:,* .:,* ) ) ,j,j_, !: :‘:..i__ ,j,j_, !: :‘:..i__ 3 &.~*:i;: 3 &.~*:i;: >; >; j:; : :,: .I ,; ,:_ ‘1, j:; : :,: .I ,; ,:_ ‘1, : :_ ,’ : :_ ,’ ii’ ii’ :::,,, ” :::,,, ”
APPROVED AS T~.~~~~~~~~~ jii “: APPROVED AS T~.~~~~~~~~~ jii “: “~~~*;$,3:,‘: : * ti,;; ___ “~~~*;$,3:,‘: : * ti,;; ___ .,. .,. :y.,.. :y.,.. s , ;^“!qy;,:~ s , ;^“!qy;,:~ : : _, _, ‘1 i!, ;l: ;, ‘1 i!, ;l: ;,
RONALD R. BAL& CfT$??ORNEY ; _,_, :!i!,, RONALD R. BAL& CfT$??ORNEY ; _,_, :!i!,, : : ., ., a, .i ,_, a, .i ,_, , i :, , i :, ,: ,: ‘; ;, ,.Ii ‘; ;, ,.Ii : .‘2.,: ,, : .‘2.,: ,, j I j I ‘,. ‘,. _ _ :,I I.; :,I I.; ‘. ‘: ,. ‘. ‘: ,. I 3; ‘zy,‘ I 3; ‘zy,‘ j ;A::: j ;A::: >, ‘: ,“’ >, ‘: ,“’ Assistant City Attor@y Assistant City Attor@y _I ,;I$: _I ,;I$: ‘! _; .‘___:. ” ‘! _; .‘___:. ” .d >b,,i ; .d >b,,i ; I :_ I :_ ;; > ^ _ ,. ;; > ^ _ ,. ,I :i ,I :i _” _:~ _” _:~ ‘. : ‘. : ,. “ZI( ‘. ,. “ZI( ‘. ._) ._) ,; ,,: c:s< ,; ,,: c:s< ,<,;.1; ,<,;.1; ,,y ; ,,y ; b b 3;: j 3;: j iy ,r,,: iy ,r,,: : .; .“. !I_ : .; .“. !I_ ,:.:, ,:.:, “. : “. : >.. >.. ,.‘.,_ ,.‘.,_ ‘, ‘, :,‘:(g ;.1,. :’ :,‘:(g ;.1,. :’ ,f, >l.:>:$*c .^i. ,f, >l.:>:$*c .^i. _ii:,% ’ 3. _ii:,% ’ 3. %P‘ ‘.i$;.:’ %P‘ ‘.i$;.:’ I_ I_ ; It;: ijr! ‘ii., ; It;: ijr! ‘ii., i,,. : i,,. : i’,, i’,, ,lj’ ,lj’ __’ __’ ,,,j.i..:.. : ,:_ ,,,j.i..:.. : ,:_ ..: :_ ..: :_ :’ :’ :. :. +,< .itiir& $.j.!’ +,< .itiir& $.j.!’ : ‘. : ‘. _’ _’ ,, ‘, ,i :, ,, ‘, ,i :, ‘; ‘; .’ .’ ; $,;” _: ,; ) : ,,‘: 1 ; $,;” _: ,; ) : ,,‘: 1
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12
-
4 c;5026 -
LEGAL DESCRIPTION
LEG112391LD.Ds. I10/15/98;, c:
PARCEL 1
PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS.
PARCEL 2
A PORTION OF LOT "I" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, AS DESCRIBED IN GRANT DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, RECORDED NOVEMBER 13, 1962, AS FILE NO. 193941 OF OFFICIAL RECORDS.
TOGETHER WITH THAT PORTION OF LOT "F" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTI- TION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, AS DESCRIBED IN QUITCLAIM DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, CO-TRUSTEES OF THE SIPPEL IRRIVOCABLE
FAMILY TRUST, RECORDED DECEMBER 29, 1983, AS FILE NO. 83-475227 OF OFFICIAL RECORDS.
PARCEL 3
A PORTION OF LOT "I" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, CbUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL "A" OF CERTIFICATE OF COMPLIANCE WITH CONDITIONS, RECORDED SEPTEMBER 27, 1996, AS FILE NO. 1996-0489998 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998- 325000 OF OFFICIAL RECORDS.
PARCEL4
A PORTION OF LOT "I" OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL "A" OF CERTIFICATE OF RECORDED AUGUST 28, 1998, AS FILE NO. 1998-0550155 OF OFFICIAL RECORDS.
PAGE 1 OF 1
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KELLY LAND COMPANY
CERTIFICATE
The undersigned, Jody B. Cosner, Assistant Secretary of Kelly Land Company, a Delaware
corporation (the “Corporation”), does hereby certify on behalf of itself, the following:
1. The following persons are the duly elected and qualified present incumbents of the office
of the Corporation set after their names and that specimen signatures appear opposite
their respective names.
Dale t. Clemens Vice President
Scott Medansky Assistant Secretary
2. Attached hereto as Exhibit A is a true and correct copy of resolutions duly adopted by the
Board of Directors of this Corporation on December 3, 1998 and that such resolutions as
set forth in Exhibit A have not been amended, altered or repealed and are in full force and
effect as of the date of this Certificate.
IN WITNESS WHEREOF, I have executed this Certificate and affixed the Corporate Seal of
Kelly Land Company on this - day of December, 1998.
I
Jody B. Cosder
Assistant Secretary
Kellv Land ComDanv
Resolutions adopted December 3.1998
Exhibit A
WHEREAS, this Corporation is the record owner and developer of certain real property
located in the City of Carlsbad, California (“Kelly Ranch”).
NOW, THEREFORE, BE IT RESOLVED, that Dale L. Clemens, Vice President and
Scott Medansky, Assistant Secretary of this Corporation be, and each of them hereby is,
authorized on behalf of this Corporation, to execute and deliver the “Agreement for
Reimbursement of Costs for the Construction of Cannon Road from El Camino Real to
the Western Boundary of Kellv Ranch including Modifications to the Intersection of El
Camino Real and Cannon Road” (the “Agreement”) by and between this Corporation and
the City of Carlsbad and upon the terms and conditions set forth in the Agreement; and be
it further
RESOLVED, that Dale L. Clemens, Vice President and Scott Medansky, Assistant
Secretary of this Corporation be, and each of them hereby is, authorized and directed to
execute and deliver such other instruments or documents and to take such other action on
behalf of this Corporation as such officer may in his sole discretion, deem necessary or
advisable to carry out the intent of the foregoing resolution, such execution and delivery
of such further instruments or documents to be conclusive evidence of the proper exercise
of such discretion.
&
I .F
- .I * c5043
SI’ATE OF CALIFORNL4 } }SS. COUNTY OF SAN DIEGO }
On December 9,1998 personally appeared D.L. Clemens before me, Kathleen Anne Farlev,
¶ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are 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 his/her/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. -
Signature
WRITER’S DIRECT LINE
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A LlUlTLO LI*eILI,* PASTNERSYIP lNCL”DlNG PI1OFESSION*L CORPO~ATlONS
ATTORNEYS AT LAW
NINETEENTH FLOOR - , ,..%i( / .-~ _-^
..
,-i, 7. ,.“::. “;
501 WEST BROADWAY z
;: li ‘;mwr----
SAN DIEGO, CALIFORNIA S2101-3596
:“ :I;:‘,
._ .-. I
TELEPHONE (6191 336-6500 OUR FILE NUMBER
(619) 338-6530 cne~ls@smrh.com
FACSIMILE (619) 234-3615
August 28,200l
CD-44254
BY MESSENGER
Jane Mobaldi, Esquire Assistant City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 9200% 1989
Re: Cannon Road Reimbursement Agreement/Extension Addendum
Dear Jane:
With this letter you will fmd enclosed two duplicate ori a inal Addendum, each of which has been executed by Stephen P. Smith in copies of the is behalf of Kelly Land Company. capacity on
You had in order to get it signe 8 reviously approved this form, and indicated that all you needed by the City was a copy duly executed by my client. I believe this will satisfy the requirement.
Please let me know if you have any further questions. If you need a second signature (which I don’t think you do), it is my understandmg that Scott Medansky is also authorized to sign. He is in the Carlsbad office at KLC, and can be available.
Thank you for your courtesy and cooperation.
SD:DM1\LET\CRES\51209507.1
Sincerely,
&eiIs
for SHEPPARD, MULL-IN, RICHTER & HAMPTON LLP
Enclosure cc: Mr. Stephen P. Smith Mr. Scott A. Medansky Ms. Carol Riley
LOS ANGELES n ORANGE COUNTY n SAN DIEGO w SAN FRANCISCO
. .- .
B
D MA
Ci
Ci
Village Dr.
92008
Y
IL TO:
THIS SPACE ABOVE FOR RECORDER’S USE
ADDENDUM NO. 1
TO AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF CANNON ROAD FROM
EL CAMINO REAL TO THE WESTERN BOUNDARY OF KELLY
RANCH INCLUDING MODIFICATIONS TO THE INTERSECTION
OF EL CAMINO REAL AND CANNON ROAD
This Addendum No. 1 to Agreement for Reimbursement of Costs for the
Construction of Cannon Road from El Camino Real to the Western Boundary of Kelly
Ranch Including Modifications to the Intersection of El Camino Real and Cannon Road
(this “Addendum”), is entered into as of the 2 Othday of August 2001 by and
between the City of Carlsbad, a Municipal corporation (“City”), and Kelly Land
Company, a Delaware corporation (“Kelly”), with reference to the following recitals:
RECITALS
A. City and Kelly entered into that certain Agreement for
Reimbursement of Costs for the Construction of Cannon Road from El Camino Real to
the Western Boundary of Kelly (the “Reimbursement Agreement”) dated December 15,
1998 and recorded as document number 1999-0015247 in the Offkial Records of the San
Diego County Recorder’s Office. All capitalized terms used in this Addendum and not
otherwise defined shall have the meanings assigned to them in the Reimbursement
Agreement.
B. Due to delays in required entitlement approvals for the development
of the Kelly Ranch Project, City and Kelly mutually desire to amend the Reimbursement
Agreement to extend the date by which Kelly shall complete all Project Cannon Road
Improvements.
WOKD-SL~\DAP\5 1200812. I
.^ .
By:
By:
NOW THEREFORE, in consideration of these recitals and other good and
valuable consideration, the receipt of which is hereby acknowledged, City and Kelly
hereby agree to the above recitals and as follows:
1. The date by which Kelly shall complete all Project Cannon Road
Improvements as set forth in Section 4(g) of the Reimbursement Agreement is hereby
extended until December 15,200Z.
2. ‘Except as specifically set forth herein, the Reimbursement
Agreement remains unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum
to be executed as of the day and year first above written.
KELLY: CITY:
KELLY LAND COMPANY,
a Delaware corporation
Stephen P. Smith President
[Print name and title] [Print name and title]
APPROVED AS TO FORM:
RONALD R. BALL, CITY ATTORNEY
[Print name and title]
.
(Proper notarial acknowledgement of execution of Kelly must be attached. Chairman,
president or vice-president and secretary, assistant secretary, CFO or assistant manager
must sign for corporations. 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.)
THE STATE OF CAIJFOFWIA 9
Ei COUNTY OF s
On the 1 q*day of _ in the year 2001, before me, the
u
3
.Ayih ersigned, a Notary Pubhc m and or said state, personally appeared
VZP\-kW f. ,%~rt+ , personally known to me or proved to me on the basis or
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and that by
his/her signature on the instrument, the person, or the entity upon behalf of which the
WORD-SU\DAP% 1200812.1
THE STATE OF CALIFORNIA #
5 COUNTY OF SAN DIEGO 9
On the of day in the year 2001, before me, the
undersigned, a Notary Public in and for said state, personally appeared
3 personally known to me or proved to me on the basis or
satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he/she executed the same in his/her capacity, and that by
his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
Notary Public