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HomeMy WebLinkAbout1990-04-24; City Council; Resolution 90-123t 0 0 1 RESOLUTION NO. 90-123 2 3 4 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARL CALIFORNIA, APPROVING AND AUTHORIZING THE MAYOR TO EXEC1 AGREEMENT WITH CERTAIN OWNERS OF PROPERTY WITHIN 2 PROVIDING A GUARANTEE OF FUNDING FOR IMPROVEMENT PALOMAR AIRPORT ROAD EAST IN COMPLIANCE WITH GF MANAGEMENT REQUIREMENTS. t5 II 7 WHEREAS, Section 21.90.80 of the Carlsbad Municipal Code requir 8 9 performance standards be established for specified public facilities; and 10 WHEREAS, the Citywide Facilities and Improvements Plan of 1986 detai /j performance standard for Circulation Facilities; and 11 12 WHEREAS, Palomar Airport Road from Melrose Avenue to Business Park Dl 13 been determined to be operating below the adopted performance standard, P 14 Airport Road from El Camino Real to Melrose Avenue is anticipated to fall bel I1 l5 16 standard in the near future, and the intersection of Palomar Airport Road and El ( Real intermittently operates below the standard; and 17 11 II WHEREAS, the City Council of the City of Carlsbad desires to provide a mit 18 19 I plan to resolve this facility shortfall; and 20 WHEREAS, on August 4, 1987, the City Council approved the Local F: 21 22 Management Plan for Zone 5 which identified certain facilities to be the responsil developers within Zone 5 to finance, specifically the road segment of Palomar 1 23 11 Road from El Camino Real to Business Park Drive; and 24 25 26 27 28 .... WHEREAS, certain property owners within Zone 5 have submitted a propc provide the needed funding for the road improvements; and /I e 0 A 11 WHEREAS, the City Council finds that the proposal by the Zone 5 property 2 llsatisfies the requirements of the Growth Management Ordinance. 3 WHEREAS, the City Council finds that issuance or approval of builc 4 5 development permits within Zone 5 in the absence of guaranteed financi 6 improvement of Palomar Airport Road from Melrose Avenue to Business Park C 7 view of the failure of this facility to conform to the adopted performance standard 8 be detrimental to the public health, safety, and welfare; and 9 I/ NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ca 10 11 California that: 12 13 1) The above recitations are true and correct. 2) The Mayor is authorized to sign and execute the attached Agreemen 14 16 Business Park Drive. I-5 guarantees funding for improvements to Palomar Airport Road from El Camino I improvement of this road segment shall be eligible for reimbursement from pr 17 3) The property owners in Zone 5 who guarantee the financir Facilities Management Plans for those zones indicate that traffic from future develc 20 owners in other Local Facility Management zones of the City of Carlsbad if the 19 18 I 21 22 23 24 of those zones would impact this road segment. .... .... 25 26 -..- .... 27 .... 2. 28 e 0 I 11 4) Funding assistance for improvement of this road segment may be a 2 I) from other sources, and the City will investigate all reasonable and appropriate p 3 I/ 4 ll sources of funds to aid in this effort; however, ultimate responsibility for financ 5 6 PASSED, APPROVED AND ADOPTED at a regular meeting of the C road segment rests with the Zone 5 property owners. 7 a City Council held on the 24th day of April , 1990 by the fc vote, to wit: 9 10 11 AYES: Council Members Lewis, Kulchin, and Larson NOES: Council Member Pettine ~ 1 12 13 14 15 ABSENT: Council Member Mamaux 16 17 ATTEST: I.8 li 2o ! l9 1 21 22 23 24 25 26 27 (SEAL) 3. 28 e e FORWARD FUNDING, MITIGATION AND REIMBURSEMENT AGREEMENT FOR THE COST OF ENGINEERING AND CONSTRUCTION OF PALOMAR AIRPORT ROAD EAST THIS AGREEMENT is entered into this day of , 1990, b! and among those Zone 5 Property Owners described on Exhibit "A" hereto, hereir referred to collectively as the "Contributing Owners" and the City of Carlsbad, a municipE corporation of the State of California, hereinafter referred to as the "City." RECITALS WHEREAS, the City has established a Growth Management System, together witk ordinances and policies implementing same (hereinafter "City's GMS") which include: public facility performance standards which must be continually satisfied in order to allovr further development, including issuance of building permits and other developmen entitlements, for development to proceed in various development zones throughout the City; WHEREAS, the City has verified that a portion of Palomar Airport Road, easterly from the intersection of Palomar Airport Road and El Camino Real to the City limits (hereinafter "PAR East"), is not meeting applicable performance standards and as a resull no development or building permits may be issued within Zone 5 until PAR East is fully improved or acceptable guarantees of financing for its improvement is achieved in accordance with the City's GMS; WHEREAS, the Contributing Owners own developable property within Zone 5 and have been requested by the City to provide financial assurances for a portion of the funds necessary to construct PAR East; and WHEREAS, the Contributing Owners, are willing to provide certain financial assurances and commitments, in combination with those commitments and assurances from the City, as hereinafter enumerated to provide the necessary assurances and guarantees to fully mitigate and satisfy the City's GMS with respect to PAR East; NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties agree as follows: 1. Recitals Incorporated bv Reference. The foregoing Recitals are incorporated herein by this reference and represent a general statement of the intent and scope of this Agreement requiring mutual and reciprocal commitments by the Contributing Owners and the City respecting satisfaction of the City's GMS as it relates to Zone 5 and PAR East. 0 e 2. PAR East Improvements. 2.1 The scope of the PAR East improvements, (hereinafte "Improvements"), to be designed and constructed by the City shall include: (a) grading for full 126 foot right-of-way; (b) construction of paved travel lanes to a total number of four (4), twr (2) in each direction; (c) eighteen (18) foot AC paved median with curb and gutter; and (d) appurtenant shoulder protection and normal drainage; (e) all necessary improvements and grading necessary to accomplis1 needed roadway construction. The parties acknowledge and agree that City shall use its best efforts to minimize thc design and construction costs consistent with reasonable design standards anc engineering specifications and the Improvements shall not include Palomar Airpor. Road/El Camino Real intersection improvements or any improvements outside the City limits. Development projects in the City of San Marcos have been sufficiently conditioned to provide the needed facilities outside of the Carlsbad city limits. 2.2 The Improvements are more specifically described and shown on the Improvement Description attached hereto as Exhibit 'lgl' and incorporated herein by this reference. 2.3 The cost of design and construction of the Improvements, as hereinafter defined (the "Improvement Costs") is presently estimated to be Three Million Eight Hundred Forty-Seven Thousand Five Hundred Fifty-Four Dollars ($3,847,554). Estimate is subject to change based on result of design effort. 2.4 Contributing Owners agree to deposit additional funds or increase bonds if the estimate is increased. This shall be done upon 30 days notice to the contributing owners by the City. 3. Improvement Fundina Sources. 3.1 City will make available all San Diego Regional TransNet Funds (Prop. A) allocated to this project. City agrees to use its best efforts to attempt to secure the maximum amount of such funds. The current programmed allocation is estimated to be fifty percent (50%) of the total project cost, and is subject to change, and is under the control of San Diego Association of Governments (SANDAG). 2 0 0 3.2 Contributing Owners will pay for the project by depositing cash with thr City in the aggregate amount of the actual cost minus the TransNet allocation, curren estimate is One Million Nine Hundred Twenty-Three Thousand Seven Hundred Seventy Seven Dollars ($1,923,777) [Note: Subject to adjustment based on Sections 2.3 and 3.1 for the purpose of assuring each Contributing Owners' advance funding of thc Improvements. The money will be deposited with City within thirty (30) days of writtel notice that the City Council has approved the plans and specifications and authorized thc advertisement of bids for the project. 3.3 Contributing Owners shall deliver to City by May 24, 1990 one o more surety bonds substantially in the form attached hereto as Exhibit IC'', (hereinafte the 'Surety Bonds") in the aggregate amount of One Million Nine Hundred Twenty-Thret Thousand Seven Hundred Seventy-Seven Dollars ($1,923,777). The Surety Bonds sha be issued for the benefit of the City to guarantee Contributing Owners payment obligatior under Section 3.2, unless the Surety Bonds are earlier released pursuant to Section 3.; below. 3.4 Each Contributing Owner shall be individually responsible for it: payment, Surety Bond and contribution in the amount set forth opposite its name or Exhibit "A" hereto and shall have no liability for the failure of any other individua Contributing Owner to make its payment provide its Surety Bond or any other obligatior hereunder. 3.5 No award of a construction contract for the improvements will be madc until such time as all funds are on deposit with the City. If funds have not been depositec as required by this agreement, no further development or building permits will be issued, 3.6 The Surety Bonds shall have an expiration date no sooner than one (1) year following completion and City acceptance of the Improvements. The Cib presently anticipates completing the design and commencing construction during the - quarter of 1991 and completing construction during the quarter of - 3.7 Notwithstanding Section 3.4 above, the Surety Bonds shall be earlier released by the City and canceled upon the earlier to occur of the following; (a) Substitution of another form of financial guarantee reasonably acceptable to the City; including but not limited to; Community Facilities District, hereinafter "CFD", 191 3/15 Act Assessment District. (b) Deposit of cash required for improvement and completion of project. 3 0 0 (c) Individual owners may substitute a cash deposit for its individua bond. 3.8 Provided the Surety Bonds have not been earlier released pursuan to section 3.7 above, the City may call the Surety Bonds to the extent funds an necessary to finance the Contributing Owners' share of the Improvement Costs whict have not been deposited as required by section 3.2 or otherwise provide to City': satisfaction. City shall first give each Contributing Owner and its Surety, thirty (30) day: prior written notice of its intention to call the Surety Bonds. 4. Alternate Financinq Sources. City and Contributing Owners agree to use their best efforts to conside alternate financing sources which will finance the Contributing Owners' share of thc Improvements Such alternate financing sources may include alternatives such as a; City Wide CFD program, a Zone 5 CFD program or other financing alternatives. City anc Contributing owners will also investigate the feasibility of financing the Zone 5 park fee obligation referenced in the existing Zone 5 Facilities Plan and equitably spread all Park Fee related costs to all Zone 5 properties remaining to be developed. The purpose anc intent is to attempt to substitute the alternate financing sources, as it relates to financinc for the Improvements, for the Surety Bonds and the financial assurances of Contributing Owners herein. 5. Reimbursement Program. 5.1 The parties hereto acknowledge the need for an equitable reimbursement program to reimburse the Contributing Owners who actually contribute funds to the construction of the Improvements, or to proportionately reduce the amount of the Surety Bonds. The reimbursement program involves implementation by the City through its ordinances, policies and state law, and may include, but is not necessarily limited to growth management and zone fees, subdivision exaction fees, benefit area fees or other programs intended to reimburse Contributing Owners for any advances made that should be equitably spread on other undeveloped property. 5.2 City will use its best efforts to impose as a condition of approval of all future development, including but not limited to zone plans, and subdivision maps, to the extent lawful and within its municipal powers, on each property, (other than the property of Contributing Owners hereof) which impacts PAR East a fee or other exaction representing each property's proportionate share of the "Improvement Costs" as hereinafter defined. These fees shall be collected by City and when so collected shall be distributed to repay to the Contributing Owners their proportionate share of Improvement Costs or to proportionately reduce the Surety Bonds, as the case may be. The City agrees to pay Contributing Owners or otherwise credit the Surety Bonds such amounts 4 0 0 collected within thirty (30) days of their receipt. This reimbursement program shall remair in effect until the earlier of (a) the remaining reimbursement amount has been full! satisfied or (b) twenty (20) years from the execution of this Agreement. 6. Improvement Costs and Annual Adiustment. 6.1 "Improvement Costs" as used herein shall include, but are not limitec to, costs for design, administration of construction contracts, and actual construction o the Improvements, less the City provided funds referred to in Section 3.1 above. 6.2 "Improvement Costs" shall be documented by copies of all invoice! and payments and shall be based upon actual quantities of contract items constructec in accordance with the plans and specifications and contract unit prices. 6.3 City, as soon as practicable following completion of thc Improvements, will submit to the Contributing Owners an accounting of all lmprovemenl Costs incurred for the Improvements. Said Costs shall be for any reimbursements made during the calendar year of completion and acceptance. Provided however, commencing each January 1 thereafter, the Improvement Cost shall be increased based on an) increases in the Construction Cost Index for the Los Angeles/San Diego area, (1 91 3 equa 100) published by the Engineering News Record (IICCII') using the monthly inde) published immediately prior to each subsequent calendar year as the "comparison index.' In no event shall the Improvement Costs as adjusted annually be less than that calculatec for the preceding calendar year. The parties agree and acknowledge that this methoc of indexing Improvement Costs of construction using the CCI is fair and equitable to the other contributing parties as it most nearly reflects the actual cost of construction as may exist from time to time. In the event the CCI is discontinued, then the City and Contributing Owners shall reasonably agree on a substitute index or method of indexing for delayed future reimbursement payments. 7. Personal to Contributinq Owners. The parties acknowledge and agree that the obligations, reimbursemenl rights and entitlements provided for herein shall be personal to the Contributing Owners and such rights shall not, unless expressly assigned in writing by the Contributing Owners, and such assignment is approved by the City, inure to the benefit of future owners or transferees of all or any part of their respective properties. Liability under this Agreement shall not be joint and several among the Contributing Owners, and each participant shall be liable for its contributive share only as outlined on Exhibit "A" hereto. 5 W e 8. Miscellaneous. 8.1 A demand upon, payment or notice required or permitted to be giver by one party to the other shall be in writing and shall be deemed effective (a) on person2 delivery (b) on the third business day after mailing by certified or registered United State! mail, postage pre-paid, return receipt requested or (c) on the succeeding business dab after mailing by Express Mail or after deposit with a commercial delivery service 0' general use, all postage or fees pre-paid and addressed to the parties at the addresse: below: If given to Contributing Owners: At the addresses set forth on Exhibit "A" hereto. If given to City: City Manager City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008 Notice of change of address shall be given by written notice in the manner set forth ir this paragraph only. 8.2 This Agreement constitutes the entire agreement among the parties hereto pertaining to subject matter hereof, and all prior and contemporaneous agreements, representations and understandings of the parties hereto or the written are hereby supersede and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto. 8.3 This Agreement shall be construed in accordance with and governed by the laws of the State of California. This Agreement shall be deemed made and entered into in San Diego County, which shall also be deemed to be the sole proper venue for any action or proceeding relating to the Agreement. 8.4 In the event any action shall be instituted in connection with this Agreement, the party prevailing in such action shall be entitled to recover from the other party all of its costs of action including reasonable attorneys fees as determined by the court, in addition to any other damages or remedies as to which said party is entitled. 8.5 Contributing Owners and City acknowledge that it may be necessary to execute additional documents or other writings in order to perform this Agreement and in connection with determining the final Improvement Costs and/or the periodic adjustments thereto. City and Contributing Owners hereby agree to cooperate with each other by executing such other documents or taking such other action as may be reasonably necessary to provide for reimbursement of the Improvement Costs and for completion of the construction of the Improvements. 6 e 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on tht day and year first written above. CITY OF CARLSBAD, A Municips Corporation of the State o California APPROVED AS TO FORM: By: CLAUDE A. LEWIS, Mayor City of Carlsbad CONTRIBUTING OWNERS See Exhibit "AI - signatures VINCENT F. BIONDO, JR., City Attorney ATTEST: ALETHA L. RAUTENKRANZ, City Clerk 7 a 0 EXHIBIT A Contributinq ProDertv Owners List to be provided by property owners a a EXHIBIT B Pal omar Airport Road East Scope Of Work The design and construction of Palomar Airport Road from the intersectio include the following improvements: of Palomar Airport Road and El Camino Real to the Easterly City limits mus 1. Necessary environmental assessment and mitigation 2. Right-of-way acquisition to accommodate construction 3. Grading to full prime arterial standards (126 feet ROW) 4. Construction of four (4) paved travel lanes, two (2) in eac direction 5. Eighteen (18) foot AC paved median with curb and gutter 6. Necessary intersection improvements including signa- modifications at: A. Pal omar Airport Road and El Camino Real B. Pal omar Airport Road and El Fuerte 7. Sufficient roadway transitions to accommodate widening on E', Camino Real to Pal omar Airport Road 8. Construction of required drainage structures and shouldev protection 9. Any earthwork and grading necessary to accomplish needec roadway construction e e EXHIBIT C Surety Bond (Form of bond to be provided by property owners)