HomeMy WebLinkAbout2002-12-10; City Council; Resolution 2002-3541
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II RESOLUTION NO. 2002-354
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, TO APPROVE RATIFICATION OF
REIMBURSEMENT AGREEMENT WITH THE TERRACES AT
SUNNY CREEK, LLC, FOR MODIFICATION OF TRAFFIC SIGNAL AT INTERSECTION OF COLLEGE BOULEVARD AND EL CAMINO REAL AND APPROPRIATE FUNDS.
WHEREAS, The Terraces at Sunny Creek, LLC, a California Limited Liability Company
(Developer) is the developer of The Terraces at Sunny Creek, CT 96-02; and
WHEREAS, the Developer has performed modifications to the traffic signal at the
intersection of College Boulevard and El Camino Real; and
WHEREAS, these traffic signal modifications are identified in the 2002-2003 Capital
Improvement Program; and
WHEREAS, the Developer has executed a Ratification of Reimbursement Agreement for
the design and construction costs for the traffic signal modifications at College Boulevard and El
Camino Real, a copy of which is attached hereto and marked as Exhibit "A" and incorporated by
this reference (Agreement); and
WHEREAS, Developer has submitted an accounting of cost incurred for the design and
construction of the traffic signal modifications in accordance with the Agreement which has been
reviewed by staff; and
WHEREAS, the total cost identified in the City's Capital Improvement Program is
$1 15,000, and the Developer's expense incurred for said traffic signal modifications is $1 10,121;
and
WHEREAS, there is sufficient funding available in the Public Facilities Fee Fund to cover
the reimbursement to Developer; and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
Ill
Ill
Ill
Ill
Ill
1 That the above recitations are true and correct.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2. That the Ratification of Reimbursement for the Traffic Signal Improvements to the
Intersection of College Boulevard and El Camino Real is hereby approved and the Mayor is
hereby authorized to execute the Reimbursement Agreement with The Terraces at Sunny Creek,
LLC.
3. That the City Finance Director is hereby authorized to appropriate funds in the
amount of $1 10,121 from Public Facilities Fee Funds to reimburse the Terraces at Sunny Creek,
LLC.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 10th day of December , 2002 by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, and Hall.
NOES: None.
ABSENT: No
4TTEST
I LdRkAI)dE M. WOOD, City Clerk
Page 2 of 2 of Resolution No. 2002-354
(SEAL)
RATIFICATION OF
REIMBURSEMENT AGREEMENT
FOR TRAFFIC SIGNAL IMPROVEMENTS TO THE
INTERSECTION OF COLLEGE BOULEVARD AND EL CAMINO REAL
THIS REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL MPROVEMENTS TO
INTERSECTION OF COLLEGE BOULEVARD AND EL CAMINO REAL, dated as of /c?- /I - 0 a
2002 (Agreement), is made at Carlsbad, California, between THE TERRACES AT SUNNY CREEK, LLC, a
California limited liability company (Developer) and the CITY OF CARLSBAD, a municipal corporation of the
State of California (City), with reference to the following recitals:
A. Developer is processing for development within the City a project known as The Terraces at Sunny Creek,
CT 96-02 (Project) located on real property (Property) owned by Developer. A legal description of the Property is
attached hereto as Exhibit “A.”
B. The Project and Property are located within the City’s Public Facilities Fee (“PFF”) program area.
Pursuant to the City’s Municipal Code and per condition 9 of Planning Commission Resolution 4292 as it relates to
Carlsbad Tract no. CT 96-02, the Developer must pay a PFF fee to fund the improvements of the PFF Program. As
part of the Project, the Developer is required to construct a portion of these improvements outlined in the PFF
program. These improvements consist of traffic signal modifications to the intersection of College Boulevard and El
Carnino Real to accommodate the proposed street improvements for the Project (Traffic Signal Improvements). By
constructing a portion of the program improvements, the Developer is eligible for reimbursement costs, as approved
by the City pursuant to this Agreement.
C. Developer intends to convey, or cause conveyance, of record title to the Property to other persons pursuant
to contractual commitments not related to this Agreement. Any further development activity with respect to any
portion of the Property or Project will be the responsibility of the respective transferee. The original Developer, and
the signatory of this Agreement shall remain solely bound to the terms and obligations of this Agreement, unless and
until this Agreement is modified to the satisfaction of the Public WorksICity Engineer, in accordance with Section
6(i), below.
reimb signal (version October I5,2002).doc 1
7
D. Conditions 4 1 and 42 of Planning Commission Resolution No. 4292 require Developer to construct
portions of College Boulevard as part of the Project.
E. The total cost of the Traffic Signal Improvements shall be the sum total of (i) the actual contract cost of
modifying and installing the Traffic Signal Improvements (Contract Cost), plus (ii) an overhead allocation of four
percent (4%) multiplied by the Contract Cost, in lieu of other reimbursement for Developer’s cost incurred for salary
and benefits for staff of Developer’s home offices, supervision above the level of on-site superintendent, general
corporate, legal, and accounting fees, the cost of borrowed funds, insurance and bond premiums, expenses for
meetings with and presentations to governmental agencies which issue permits or otherwise regulate project
approval, and (iii) an additional two and one-half percent (2.5Y0) multiplied by the Contract Cost covering
Developer’s construction administration of the Traffic Signal Improvements . An estimate of total cost, showing the
categories listed above, is attached hereto as Exhibit “C.”
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. RECITALS AND EXHIBITS. The above Recitals are true and correct. The Exhibits cited above are a
part of this Agreement.
2. SATISFACTION OF OBLIGATION. Developer’s agreement to construct the Traffic Signal
Improvements as set forth herein, with the actual construction thereof, shall hlly satisfy and constitute fill
compliance with all requirements imposed on the Project with respect thereto.
3. DEVELOPER OBLIGATIONS.
a. In consideration of City’s reimbursement and other undertakings as set forth herein, Developer agrees to
construct and install the Traffic Signal Improvements.
b. Developer shall obtain all property interests necessary for the construction, operation and maintenance of
the Traffic Signal Improvements herein described.
c. Developer shall complete all work on the Traffic Signal Improvements no later than three (3) years fiom
reimb signal (version October 15,2002).doc 2
the effective date of the Agreement.
d. Developer shall use the complete set of City approved plans, specifications and other design documentation
for the Traffic Signal Improvements. The Traffic Signal Improvements are to be constructed in accordance with
City drawing number 36 1-6.
e. By entering into this Agreement, Developer waives any and all potential constitutional (NoZZun/DoZun)
objections relating to the Traffic Signal Improvements.
4. CITY OBLIGATIONS.
a. City shall reimburse Developer, that eligible portion of the total cost of the Traffic Signal Improvements,
pursuant tQ Chapter 15.08 of the City’s Municipal Code. The maximum dollar figure available for reimbursement to
the Developer, without revising the PFF Program, is $1 15,000, as shown on Exhibit “B”. If Developer incurs a
Project cost higher than the PFF Program amount, Developer may request City staff to revise the fee program and
prepare and additional reimbursement agreement for the additional amount, subject to approval by City Council.
Notwithstanding anything herein, to the contrary, all reimbursable expenses shall for work that is eligible within the
PFF Program.
b. City shall pay reimbursement for Traffic Signal Improvements to Developer upon review and approval of
incurred costs and verification of eligibility of payment under the PFF Program, pursuant to Section 5 of this
Agreement. Credits on PFF fees are not permitted under the PFF Program.
5. AUDIT OF REIMBURSEABLE EXPENSES
a. Developer may submit for reimbursement upon City acceptance of the Traffic Signal Improvements.
b. All Developer’s Reimbursement Requests will be processed and audited by City staff or for by a reputable
consulting engineer selected by the City (“Auditing Engineer”). The cost of the Auditing Engineer to process and
review the submittal(s) shall be paid by Developer and shall be considered a reimbursable cost covered by the the
PFF Program. The total eligible cost covered under the PFF Program, and which is eligible for reimbursement,
including Audit Engineer’s costs, is $1 15,000.
reimb signal (version October I5,2002).doc 3
h
c. Developer shall submit to City two (2) separate complete and detailed reports (Audit Material) accounting
for the incurred costs and expenses by Developer for the Traffic Signal Improvements. Developer shall submit
Audit Materials upon completion of, and City acceptance of, the Traffic Signal Improvements, . Any delay by
Developer in such submittals shall not prejudice its rights, but shall delay day-for-day the time in which City must
take any responsive action.
d. Developer’s submittal of Audit Material shall include, copies of plans, specifications, engineer’s cost
estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien
releases and other documentation reasonably required by City to evidence the completion of and payment for the
Traffic Signal Improvements.
e. Upon its receipt of a written request therefor fkom City, Developer shall allow an audit of such costs and
expenses to be prepared at Developer’s expense by certified public accountants specified by City.
f. Developer shall either construct the Traffic Signal Improvements itself or solicit bids from at least three
reputable contractors. Developer may reject a low bid if, in its reasonable discretion, it does not believe the low
bidder will be able to complete its portion of the Traffic Signal Improvements competently or timely.
g. The Public Works DirectodCity Engineer shall, within thirty (30) days of receipt of the Audit Material
submittal, issue a report either accepting Developer’s submittal(s) or specifying any reimbursement items or
amounts not approved. Failure to notify Developer shall be deemed to constitute City’s approval of the submittal.
Upon the Public Works DirectodCity Engineer’s issuance of a report accepting Developer’s submittal, based upon
the Auditing Engineer’s determination on a reimbursable request, City shall, within thirty (30) days thereafter, pay
all undisputed reimbursable expenses to Developer, provided funds are available. Reimbursement costs are not to
be funded by the City’s general fund.
h. If the Public Works DirectodCity Engineer objects to any reimbursable item, Developer and the Public
Works Director/City Engineer shall meet to discuss the disputed amount and attempt to resolve the matter through
good-faith negotiation. If Developer and the Public Works Director/City Engineer are unable to reach agreement,
reimb signal (version October 15,2002).doc 4
Developer may appeal the Public Works DirectodCity Engineer’s decision to the City Council pursuant to
Section 6(a).
i. Before Developer’s final submittal, Developer shall obtain all necessary or appropriate releases from its
contractor(s), and shall obtain from City, and fiom any and all appropriate governmental agencies, all approvals,
certificates and other documents necessary to indicate completion of the Traffk Signal Improvements. The date
Developer receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the
Traffic Signal Improvements (Completion Date).
6. MISCELLANEOUS.
a. Disputes. If a dispute should arise regarding the performance or interpretation of this Agreement,
Developer shall send a letter to the Public Works DirectodCity Engineer describing the dispute and recommending a
method of resolution. The Public Works Director/City Engineer shall reply to the letter, including a recommended
method of resolution, within ten (10) days of receipt. If the resolution thus obtained is unsatisfactory to Developer,
the Public Works Director/City Engineer shall send a letter outlining the dispute to the City Council through the
office of the City Manager for the Council’s resolution. The City Council may, but is not obligated to, resolve the
dispute. If the City Council considers the dispute and directs a solution, the action of the City Council shall be
administratively binding upon the parties, but nothing herein shall prohibit the parties seeking remedies available to
them at law.
b. Jurisdiction. Developer agrees and hereby stipulates that the proper venue and jurisdiction for resolution of
any disputes between the parties arising out of this Agreement is San Diego County, California.
c. Obligations and Benefits Not Running With Land. Any and all reimbursements, whether by crediting fees
or cash payment, shall be made only to Developer or such entity as Developer shall designate in writing pursuant to
Section 6(e).
d. No Third Pam Beneficiaries. This Agreement shall not be deemed to confer any rights upon any
individual or entity which is not a party hereto. The parties hereto expressly disclaim any such third-party benefit. ,
reimb signal (version October l5,2002).doc 5
e. Notice. Unless otherwise specifically provided herein, all notices, demands or other communications given
hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal
Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the
same day, or as of the second business day after mailing by United States certified mail, return receipt requested,
postage prepaid, addressed as follows, or to such other address or to such other person as any party shall designate to
the others for such purpose in the manner set forth below:
If to Developer: The Terraces at Sunny Creek, LLC
c/o Gateway Ivey Ranch Associates, Inc.
Attention: Mr. Chris Dahrling
2006 Palomar Airport Road, Suite 1 13
Carlsbad, California 92008
Telephone: (760) 639-6390
Facsimile: (760) 639-6305
If to City: Public Works DirectorICity Engineer
City of Carlsbad
1635 Faraday Avenue
Carlsbad, CA 92008
f. Countemarts. This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which, taken together, shall constitute one and the same instrument.
g. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of California.
h. Comdete Agreement. This Agreement contains the entire agreement between the parties with respect to the
matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between
the parties with respect to the matters set forth herein.
i. Amendment. This Agreement may be amended only by a written instrument signed by both City and
Developer.
j. Term. This Agreement shall be effective as of the date written above, and shall terminate on the earlier of
(i) the date City fully reimburses Developer the Reimbursable Amount, or (ii) January 1,2005.
reimb signal (version October 15,2002).doc 6
k. Cihr Authority. City warrants, represents and agrees that it has the legal authority to collect any and all
funds that it will use to reimburse Developer. City hrther warrants, represents and agrees that it has the legal
authority to pay andor credit these funds to Developer. These warranties, representations and agreements are a
material inducement to Developer to enter into this Agreement.
1. Developer Not Agent of Citv. Neither Developer nor any of Developer’s agents or contractors are or shall
be considered to be agents of City in connection with the performance of Developer’s obligations under this
Agreement.
m. No Vesting. Performance by Property Owner of this Agreement shall not be construed to vest Property
Owner’s right with respect to any change in zoning or building law or ordinance.
n. Captions. The captions of this Agreement are for convenience and reference only and shall not define,
explain, modify, limit, exemplify, or aid in the interpretation, construction or meaning of any provision of this
Agreement.
0. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated into the terms of this
Agreement.
Ill
Ill
If/
Ill
Ill
Ill
Ill
/If
Ill
Ill
reimb signal (version October l5,2002).doc 7
PROPERTY OWNER: CITY:
THE TERRACES AT SUNNY CREEK, LLC,
a California limited liability company
By: GATEWAY IVEY RANCH ASSOCIATES,
INC., a California corporation,
Georqe Szabc Jr./President
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
Name and Title of Signatory
By:
Sign here
Name and Title of Signatory
INE M. WOOD
CiQ"C1erk
(SEAL)
(Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer must sign for
corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary
under corporate seal empowering that oficer(s) signing to bind the corporation.)
(If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to
execute the instrument.)
reimb signal (version October l5,2002).doc 8
STATE OF CALIFORNIA )
COUNTY OF ss'
On this ssok'day of &-f.&h 02 ,20 a, be
Notary Public in and for said State, personally appeared
personally known to me (or proved to me on the basis of s
idare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by hishedtheir signature@) 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
STATE OF CALIFORNIA )
) ss.
COUNTY OF 1
On this day of ,20-, before me, ,a
Notary Public in and for said State, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
idare subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by hishedtheir 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
reimb signal (version October l5,2002).doc 9
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Lot's 1 to 18 1 of Carlsbad Tract No. CT 96-02, the Terraces at Sunny Creek I, according to Map
thereof, No. 14060, filed in the Office of the County Recorder of San Diego County, San Diego,
California, on October 27,2000, in accordance with Document No. 2000-0582955.
EXHIBIT "B"
SUMMARY OF MAXIMUM
REIMBURSEABLE TRAFFIC SIGNAL AMOUNT
BASED ON PUBLIC FACILITIES FEE PROGRAM
Project Location:
Intersection of College Boulevard and El Camino Real.
Project Description:
Installation of an 8-phase hlly actuated traffic signal, including a Type 170 traffic signal
controller and Type 176 intersection control program.
Project Need:
Needed to meet Growth Management Standards.
Financing:
Purpose Estimated Cost FundinP Source
DesigdConstruction $1 15,000 PFF
TOTAL COST $115,000
(From City of Carlsbad Capital Improvement Program, Technical Appendix 2000-2001 to Build-out, Page 244.)
l- T
J
ACTION BY UNANIMOUS WRITTEN
CONSENT OF THE DIRECTORS OF
GATEWAY IVEY RANCH ASSOCIATES, INC.
A CALIFORNIA CORPORATION
IN LIEU OF MEETING
The following action is taken by the Board of Directors of Gateway Ivey Ranch
Associates, Inc., a California corporation, by the unanimous written consent of the directors
without a meeting as of October 18, 2002, in lieu of physically holding a meeting of directors
pursuant to Section 307(b) of the California Corporations Code and the Bylaws of this
corporation permitting such action to be taken. By this writing, the Board of Directors of
Gateway Ivey Ranch Associates, Inc. approves the following resolution and consents to its
adoption:
RESOLVED, that George Szabo, Jr., President of the corporation, is hereby authorized to
execute any and all documents on behalf of the corporation as a member of The Terraces at
Sunny Creek LLC, a California limited liability company.
The undersigned, constituting the sole member of the Board of Directors of Gateway Ivey
Ranch Associates, Inc., hereby consents to and approves of the foregoing actions and resolutions,
and certifies that they are true and correct as of October 18,2002.