HomeMy WebLinkAbout2002-05-21; City Council; Resolution 2002-1451
2
3
4
5
6
7
a
9
10
11
12
13
14
15
16
17
la
19
20
21
22
23
24
25
26
27
26
~&klI611 L
RESOLUTION NO. 2o02-145
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING THE
EXECUTION OF AGREEMENT FOR REIMBURSEMENT OF
CONSTRUCTION COSTS FOR A PORTION OF RANCHO SANTA FE
ROAD NORTH OF LA COSTA AVENUE WITH REAL ESTATE
COLLATERAL MANAGEMENT COMPANY.
WHEREAS, the City of Carlsbad proposes to widen and realign Rancho Santa Fe Road
~m La Costa Avenue to Melrose Drive pursuant to City Project No. 3190; and
WHEREAS, Real Estate Collateral Management Company (the "Developer") is the
sveloper of the City approved project known as Carlsbad Tract 99-04, La Costa Oaks (the "Oaks
.eject"); and
WHEREAS, the Developer desires to commence grading operations and utility
mstruction for the Oaks Project and a portion of the realignment and widening of Rancho
anta Fe Road in advance of the City constructing Rancho Santa Fe Road; and
WHEREAS, the Developer has agreed to construct portions of the City's Rancho Santa Fe
oad project including full width grading, storm drain and water facilities for the portion of Rancho
anta Fe Road as shown on Drawing No. 368-2C (the "Improvements") provided that the City
iimburse the Developer for such improvements; and
WHEREAS, the City Engineer has determined that having the Rancho Santa Fe Road
iprovements constructed by Developer will result in cost savings to CFD No. 2; and
WHEREAS, the City Council finds that Developer may enter into the Agreement for
eimbursement of Construction Costs for a Portion of Rancho Santa Fe Road North of La Costa
venue (the "Agreement") (a copy of which is attached hereto); and
WHEREAS, adequate funds to reimburse the Developer for constructing Rancho
anta Fe Road improvements exist with the fees collected pursuant to the proposed CFD No. 2.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
alifornia, as follows:
1. That the above recitations are true and correct.
2. That the Agreement is hereby approved.
1
2
3
4
5
6
7
8
g
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. That the Mayor is hereby authorized to execute the Agreement with Real Estate
~ Collateral Management Company.
4. That the City Clerk is hereby authorized to cause the executed Agreement to be
recorded in the Office of the County Recorder of San Diego County, State of California.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 21st day of MAY , 2002 by the following vote, to wit:
AYES: Council Members Lewis, hin, Finnila, Nygaard, Hall
NOES: None
ATTEST:
(SEAL)
RECORDING REQUESTED BY
WHEN RECORDED MAIL To:
City Clerk
CITY OF CARLSBAD
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Attachment A to
Resolution No. 2002-145
(AB #16,757)
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT FOR REIMBURSEMENT OF
CONSTRUCTION COSTS FOR A PORTION OF
RANCHO SANTA FE ROAD NORTH OF LA COSTA AVENUE
Between
CITY OF CARLSBAD,
a Municipal Corporation
AND
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
Reimbursement Agreement CitylVLC 04/22/02
5
AGREEMENT FOR REIMBURSEMENT OF
CONSTRUCTION COSTS FOR A PORTION OF
RANCHO SANTA FE ROAD NORTH OF LA COSTA AVENUE
This Agreement for Reimbursement of Construction Costs for a Portion of
Rancho SantaFe Road North of La Costa Avenue, dated as of , 2002
("Agreement"), is made at the City of Carlsbad, San Diego County, California,
by and between the CITY OF CAFUSBAD, a municipal corporation ("City") and
REALESTATE COLLATERAL MANAGEMENT COMPANY, a Delaware corporation
("Developer"), collectively ("the Parties"), with reference to the following recitals:
RECITALS
A.
B.
C.
D.
E.
F.
Developer is in the process of developing that certain real property located in the City of
Carlsbad, California generally shown on Exhibit "A", attached hereto and made a part
hereof, as the La Costa Oaks portion of the overall Villages of La Costa Master Plan.
Developer filed separate applications for master tentative subdivision map and related
approvals with respect to La Costa Oaks ("Project"). The Project has been granted City
approvals including without limitation: Tentative Subdivision Map (CT 99-04), Planned
Unit Development Permit (PUD 01-08), and Hillside Development Permit (HDP 99-02),
all incorporated into and approved by City per City Council Resolution No. 2001-318,
on October 23,2001, (collectively the "Approvals").
The Project is located within the boundaries of a proposed Community Facilities District
known as Community Facilities District No. 2 - Rancho Santa Fe and Olivenhain Road
("CFD 2") and Developer has executed the Petition, Waiver and Consent to Creation of a
Community Facilities District and Agreement to Pay Fair Share, in connection therewith,
(the "Petition") to finance construction of Rancho Santa Fe Road as more particularly
described therein and as required by the Approvals.
The Parties agree that the construction of Rancho Santa Fe Road is of great importance to
both parties. The alignment of Rancho Santa Fe Road generally bisects the Project and
Developer is ready to grade the Project, which provides an opportunity to closely
coordinate construction ofboth the Project and Rancho Santa Fe Road.
The Developer would experience delays to the Project if the grading and installation of
drainage facilities and utility relocations for the portion of the Rancho Santa Fe Road
adjacent to the Project is not completed concurrent with the grading for the Project.
The Parties acknowledge that Government Code Section 66485 allows the City to require
a sub-divider to construct improvements benefiting property outside the subdivision; and
in such circumstances, Section 66486 requires the City to enter into a reimbursement
agreement for such improvements. The Parties intend that this Agreement satisfy the
requirements of Government Code Section 66486.
Reimbursement Agreement CityNLC 2 04/22/02
G. The Rancho Santa Fe Road realignment is a City project for which the City has collected,
and will continue to collect, funds from the developers of projects located within the
boundaries of the proposed CFD 2, as well as contributing Citywide CFD No. 1 Funds
and financing from other governmental sources. For purposes of this Agreement the
City's financing program and resulting funds, whether collected prior to or after
formation of the proposed CFD 2, are referred to herein as "Financing Program Funds."
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals are true and correct and incorporated herein by this reference.
2. Reimbursable Work. .The portion of the City's overall Rancho Santa Fe Road
improvement project which is the subject of this Agreement is hereafter referred to as the
"Reimbursable Work." The Reimbursable Work is fully described in "Scope of
Reimbursable Work and Cost Summary" attached hereto as Exhibit "B" and made a part
hereof, and generally consists of the grading for full width road improvements, associated
on-site and off-site drainage improvements and stormwater detention facilities and
OMWD waterline relocations between Rancho Santa Fe Road stations 176+00 and
217+50 northerly of La Costa Avenue. Reimbursable work does not include the items
identified in Exhibit "B as 'non-reimbursable', or any other expenses that the City
would not incur if the City administered the construction of Rancho Santa Fe Road.
3. General Citv Obligations.
City shall expedite processing of the necessary plans, specifications, and other
design and bid documentation for the Reimbursable Work. These plans and
specifications are identified as City of Carlsbad Drawing No. 368-2C.
City has obtained, or will obtain, all easements and rights-of-way required to
complete construction of the Reimbursable Work not located within land which
comprises the Project.
City shall pay the expenses of inspections and environmental monitoring for the
Reimbursable Work directly from the Financing Program Funds and shall provide
those services directly.
City has obtained, or will obtain, all required environmental and, other permits for
the Reimbursable Work. City agrees to process any environmental and other
permits related to the Reimbursable Work which may fall under City jurisdiction
in a timely manner, and shall not unreasonably withhold or delay approval of any
other permits needed for the Reimbursable Work.
City agrees to allow Developer to separately post bonds and file a development
improvement agreement for Rancho Santa Fe Road, Drawing No. 368-2C, and
construct the road and Project as one construction phase.
City agrees to reimburse Developer for the costs of Reimbursable Work subject to
Sections 6 and 7 below.
Reimbursement Agreement CityNLC 3 04/22/02
(g) City agrees to construct, with reimbursement from Developer, Developer's
portion of the outside curb & gutter, pavement and base improvements within the
limits of the Project as part of Rancho Santa'Fe Road Phase 1 construction.
Reimbursement for these improvements and any others to be constructed by City
for Developer shall be defined in a separate reimbursement agreement prior to
award of improvement contract by City for the Phase 1 construction.
4. General Developer Oblirrations.
(a) Developer shall utilize the Scope of Reimbursable Work and Cost Summary
(Exhibit "B") in competitively bidding construction of the Reimbursable Work as
a separate contract to a licensed general contractor.
(b) As the Reimbursable Work will be paid from the Financing Program Funds,
the Reimbursable Work shall be contracted at "prevailing wages" in accordance
with SB 975 (amending Government Code Section 63036, and Labor Code
Section 1720).
(c) By entering into this Agreement, Developer waives any and all potential
constitutional objections (NoladDolan) relating to the Rancho Santa Fe Road
improvements.
(d) It shall be the responsibility of the Developer to observe and follow the
requirements of City for retention of records and the submittal of information in
connection with the Reimbursable Work, as specified in this Agreement.
(e) Developer agrees to pay for all expenses related to the grading, installation of
drainage facilities and utility relocations for Rancho Santa Fe Road, described
herein, that the City would not otherwise incur if the City administered the
project. This includes, but is not limited to, items such as engineering and design
related to preparing plans for the Developer, plan checking services and
modifymg the City's 100% Rancho Santa Fe Road plans, specifications and bid
documents.
(0 Developer agrees to construct the road bed for Rancho Santa Fe Road to subgrade
plus or minus 0.1 feet. Subgrade is defined herein as the road centerline grade
minus 2.0 feet as shown on Exhibit "C" attached hereto and made a part hereof.
Within the boundaries of the Project, Developer shall construct the full roadbed,
as shown on Exhibit "C", to facilitate construction of the full pavement width by
City as part of Rancho Santa Fe Road Phase 1 construction.
(g) Developer agrees to construct and have ready for public vehicular traffic, access
through the Project from existing Cadencia Street to the realigned Rancho Santa
Fe Road, as shown on City of Carlsbad Drawing No. 397-1, by June 1, 2003 or
such later date that will ensure access for traffic from Cadencia Street to the
realigned Rancho Santa Fe Road prior to opening the road to vehicular and
commuter traffic.
Reimbursement Agreement CiiyNLC 4 04/22/02
(h) Developer agrees to enter into a reimbursement agreement with City for
reimbursement of outside curb & gutter, pavement and base within the limits of
the Project as part of Rancho Santa Fe Road Phase 1 construction.
The reimbursement agreement shall be executed prior to award of contract by
City for the Phase 1 construction.
5. Bidding: Reimbursement Requests.
(a) With respect to all hard costs of construction comprising the Reimbursable Work,
Developer shall solicit bids from three reputable contractors. Reimbursable Work
will be bid and contracted separately from Developer's own Project work.
Upon selection of the contractor for each component of Reimbursable Work,
and agreement upon a contract amount for each component, the costs thereof shall
be allocated as necessary among the categories consistent with the method and
process used in Exhibit "B. The Parties agree that Exhibit "B" is a fair allocation
of the costs under such contract as among the components of Reimbursable Work.
Costs shown in Exhibit "B" are subject to modification through change orders
consistent with Section 60) of this Agreement.
(b) During the performance of any Reimbursable Work, Developer shall retain
detailed payment records for all items of Reimbursable Work, for use by City in
auditing subsequent reimbursement requests by Developer. Developer's requests
for reimbursement (each a "Reimbursement Request") shall include copies of
plans, specifications, contracts, change orders, invoices, payment slips, cancelled
checks (front and back), lien releases and other documentation reasonably
required by City to evidence the completion and payment for each item of
Reimbursable Work. Reimbursement Requests may be submitted monthly in
arrears, as provided in Section 6(a) below, by Developer for each component of
work as the Reimbursable Work progresses.
6. Audit of Reimbursable Expenses.
(a) Expenses for Reimbursable Work (including without limitation Developer's
overhead and allowance permitted under Section 6(e) below) are referred to
herein collectively as "Reimbursable Expenses." Developer shall be entitled to
submit requests for Reimbursable Expenses monthly in arrears, and separately for
each construction component of Reimbursable Work.
(b) All Developer's Reimbursement Requests will be processed and audited for City
by a reputable consulting engineer selected by City ("Auditing Engineer").
The costs of the Auditing Engineer shall be paid directly by City from Financing
Program Funds.
Reimbursement Agreement CityNLC 5 04/22/02
(c) The Auditing Engineer shall, within thirty (30) days from receipt, review all
Reimbursement Requests and the payment records submitted in connection
therewith and issue to City and Developer a report either (i) approving
Developer's Reimbursement Request, or (ii) specifying with particularity the
amount and reasons for any reimbursement items or amounts not approved.
Any reimbursement items or amounts not approved by the Auditing Engineer may
be further pursued by Developer using the dispute resolution provision of
Section 8 below.
(d) For each Reimbursement Request, following the 30-day review by Auditing
Engineer, the Auditing Engineer shall fonvard its report and one copy of each
invoice submitted to Developer by Contractor, to the City Public Works Director
("Director"), together with an invoice for all other components of the
Reimbursable Expenses not otherwise reflected on any Contractor's invoice.
Ifthe Director objects to any items comprising the Reimbursement Request,
the Director shall notify Developer within ten (10) days of receipt of the Auditing
Engineer's report. Failure to so notify Developer shall be deemed the Director's
approval of such Reimbursement Requests as approved by the Auditing Engineer.
(e) City's reimbursement obligations hereunder shall be based upon the actual costs
incurred by Developer in contracting for the Reimbursable Work (in addition to
Developer's overhead and the allowances specified in Section 6(f) below).
(0 Notwithstanding anything herein to the contrary, in addition to the actual costs for
Reimbursable Work incurred by Developer, City specifically agrees that each of
the following shall be deemed Reimbursable at an amount fixed at eight and three
tenths (8.3) percent of the actual costs for Reimbursable Work, (exclusive of this
clause (Q) to compensate for the allocable portion of the following expenses:
(i) Premiums paid by Developer for improvement andor payment and
performance bonds (if any) relating to the Reimbursable Work.
(ii) Premiums paid by Developer for its liability insurance as required for the
Reimbursable Work.
(iii) Other normal overhead expenses including salary and benefits, project
supervision, staff of Developer's home office, and general corporate legal
and accounting fees.
(g) Prior to the submission to the Director of all Reimbursement Requests, Developer
shall obtain necessary or appropriate lien releases from the Contractor, and shall
obtain from the City and all appropriate governmental agencies, all approvals,
certificates, and other documents necessary to indicate the completion of the
Reimbursable Work. Reimbursable work will be deemed complete upon the
City's receipt of all final lien releases, approvals, certificates, and City's approval
of the construction punch list.
Reimbursement Agreement CityNLC 6 04/22/02
(h) All change orders shall be subject to approval by the Parties. At the time of
approval, the Parties shall also determine the portion of the change order allocated
to separate components of Reimbursable Work. The allocation of change order
items identified to have both Reimbursable Work and Non-Reimbursable Work
shall be in proportion to the allocation as defined in Exhibit “B’. In making such
decisions, the Parties shall be guided by the following principles as they apply to
change orders:
(i) Changed or unknown circumstances.
(ii) Oversight in the original design.
(iii) Performing work in an orderly, reasonable and prudent manner according
to standard engineering and construction practices.
7. Pavment of Reimbursable ExDenses.
(a) Payment of Reimbursable Expenses shall be made, within sixty (60) days after the
Auditing Engineer’s determination on any Reimbursement Request
(or determination pursuant to Section 8 if applicable).
@) Except as noted in Section 7(a) 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 portion of
LaCosta Oaks or Developer’s other projects. City shall not offset Developer‘s
entitlement to reimbursement under this Agreement against any other obligation
of any person.
(c) Reimbursable Expenses for items of Reimbursable Work paid for by Developer in
advance of construction of the Reimbursable Work (such as pipe materials and
construction mobilization) may be submitted for reimbursement with the first
Reimbursement Request submitted for such construction component, provided
Developer has advised the City in writing in advance of incurring the expense
and provided the City with a reasonable estimate of such expense. If this
Agreement is not approved by the Parties, any expenses incurred by Developer
shall not be deemed reimbursable.
(d) The City shall not unreasonably withhold, condition or delay acceptance of the
Reimbursable Work.
(e) The Parties agree that the sole source of reimbursement shall be the Financing
Program Funds and that the City’s General Fund is not part of this Agreement,
and shall not be obligated under the terms of this Agreement. City represents and
warrants it has sufficient Financing Program Funds presently available to make
timely reimbursements as provided herein.
Reimbursement Agreement City/VLC 7 04/22/02
8.
9.
10.
Disputeslclaims. If a dispute should arise regarding the performance or interpretation of
this Agreement, the following procedure shall be used to initially resolve any question of
fact or interpretation not informally resolved by the parties. Such questions, if they
become identified as a part of a dispute among persons operating under the provisions of
this Agreement shall be reduced to writing by the principal of Developer or the Director.
A copy of such documented dispute shall be forwarded to the other party involved along
with proposed methods of resolution that would be of benefit to both parties.
The Director, or principal, upon receipt, shall reply to the letter, including a proposed
method of resolution within ten (10) days. If the proposed resolution is unsatisfactory to
the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council
for their resolution through the office of the City Manager as soon as practicable.
The City Council may, but is not obligated to resolve the dispute. If the City Council
considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties for purposes of processing any Reimbursement Requests, provided however, nothing in this Agreement shall prohibit the parties from seeking
remedies available to them at law or equity.
Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due hereunder without the prior written consent of the City, which consent
shall not be unreasonably withheld, delayed or conditioned.
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 Developer shall be addressed as follows:
REAL ESTATE COLLATERAL MANAGEMENT COMPANY
c/o Morrow Development, Inc.
Attention: Fred M. Arbuckle, President
1903 Wright Place, Suite 180
Carlsbad, CA 92008
Telephone: (760) 929-2701
FAX: (760) 929-2705
Notices to City shall be delivered to the following:
CITY OF CARLSBAD Engineering Department
Attention: Public Works Director 1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
FAX: (760) 602-8562
Each party shall notify the other immediately of any changes of address that would
require any notice delivered hereunder to be directed to another address.
Reimbursement Agreement CityNLC 8 04/22/02
11. Countemarts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute one and the same instrument.
12. Governing Law and Venue. This Agreement shall be interpreted and enforced under the
laws of the State of California and venue shall be in San Diego County, California.
13. Comulete Ameement. 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.
14. Amendment. This Agreement may be amended only by a written instrument executed by
City and Developer.
15. m. This Agreement shall be effective as of the date first above written, and shall
terminate on the earlier of (i) the date the City fully pays Developer its Reimbursement
Expenses, or (ii) January 1,2015, subject to Developer’s satisfaction of 6(g) above.
16. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights
upon any individual or entity that is not a party hereto, and the parties hereto expressly
disclaim any such third-party benefit.
17. Indemnification. Developer shall assume the defense of, pay all expenses of defense, and
indemnify and hold harmless City, its officers, agents, and employees, against any
challenges to the award of contract@) for the Reimbursable Work to contractor(s).
Defense costs include the cost of separate counsel for the City, if the City reasonably
requests separate counsel, as well as the payment of any fines or judgments.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Reimbursement Agreement CityIVLC 9 04/22/02
18. Severability. The invalidity or unenforceability of any provision of this Agreement, as
determined by a court of competent jurisdiction, shall in no way affect the validity or
enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
REAL ESTATE COLLATERAL CITY OF CARLSBAD, a municipal
MANAGEMENT COMPANY, a Delaware Corporation of the State of California
corporatwA .
David A. Watts
By: By:
City Manager or Mayor
Vice President
ATTEST:
Lorraine M. Wood
City Clerk
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
By:
Deputy City Attomey
Reimbursement Agreement City/VLC 10 04/22/02
Exhi bit "A" The Oaks
16
R~\0071\bPln\007lx138 8.5 x 11 Lot Exhibit-for Tin O.drgC 14301Apr-16-2002il3,
EXHIBIT "C"
R
'W
e 126
*
SUPER ELEVATION
V 126 RW
53
VARIES
O"9' T i 53
"- VARIES
O"9'
TYPICAL ROUGH GRADE SECTION