HomeMy WebLinkAbout2007-12-18; City Council; Resolution 2007-3201
RESOLUTION NO. 2007-320
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A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
3 CARLSBAD, CALIFORNIA, APPROVING THE RATIFICATION
OF REIMBURSEMENT AGREEMENT FOR TRAFFIC SIGNAL
4 IMPROVEMENTS AT THE INTERSECTION OF POINSETTIA
LANE AND EL FUERTE STREET. PROJECT NO. 3946 _
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WHEREAS, Bressi Gardenlane, LLC, a Delaware Limited Liability Company ("Developer")
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is the developer of Bressi Ranch, CT 00-06; and
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WHEREAS, the Developer has performed the design and construction of the traffic signal
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at the intersection of Poinsettia Lane and El Fuerte Street; and
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WHEREAS, the Developer has executed the Ratification of Reimbursement Agreement
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for traffic signal improvements at the intersection of Poinsettia Lane and El Fuerte Street, a copy
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of which is attached hereto and incorporated by this reference (Agreement); and
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WHEREAS, the Developer has submitted an accounting of the cost incurred for the
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design and construction of the traffic signal, which has be reviewed by staff, in accordance with
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the Agreement; and
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WHEREAS, the total cost identified in the City's Capital Improvement Program for the
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traffic signal at Poinsettia Lane and El Fuerte Street is $210,000, and the Developer's eligible
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expenses incurred for said traffic signal is $209,235; and
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WHEREAS, there is sufficient funding currently available in Project No. 3946 to reimburse
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the Developer.
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NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
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California, as follows:
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1 . That the above recitations are true and correct.
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2. That the Ratification of Reimbursement Agreement for Traffic Signal
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Improvements at the intersection of Poinsettia Lane and El Fuerte Street is hereby approved and
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the Mayor is hereby authorized to execute said agreement.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 18th day of December, 2007, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Hall, Packard and Nygaard.
NOES: None.
ABSENT: None.
CLAUDE A LEWIS, Mayor
ATTEST:
RRAINgM. WOCfc), Ci
EAL)
RATIFICATION OF REIMBURSEMENT AGREEMENT
FOR TRAFFIC SIGNAL IMPROVEMENTS AT THE INTERSECTION OF
POINSETTIA LANE AND EL FUERTE STREET
(BRESSI GARDENLANE, LLC)
This Ratification of Reimbursement Agreement ("Agreement") is entered into as of this
7 *? *- day of LjU^jLntLu^, 2007 by and between the City of Carlsbad, a municipal
corporation of the State of California ("City"), and Bressi Gardenlane, LLC, a Delaware Limited
Liability Company ("Developer") (collectively, the "Parties").
RECITALS
A. Developer is developing certain real property commonly known as Bressi Ranch,
("Property"), located in City and more particularly described as Carlsbad Tract 00-06
("Project"); and,
B. The Planning Commission of the City adopted a series of resolutions on June 5, 2002,
recommending approval of the Project; and,
C. The City Council of the City adopted Resolution No. 2002-205 on July 9, 2002,
approving the Project.
D. The project approvals require Developer to design and construct certain public
improvements more particularly described as traffic signal improvements at the
intersection of Poinsettia Lane and El Fuerte Street ("Improvements"); and,
E. The Developer has entered into a secured Subdivision Improvement Agreement with
City guaranteeing construction of Improvements dated June 9 2003 ("Secured
Improvement Agreement"), incorporated herein by this reference; and,
F. The Improvements are included within the list of projects funded by the City's Public
Facilities Fee program ("Fee Program"); and,
G. Developer is obligated pursuant to City Code, City Council Policy and/or the Project
conditions of approval to pay a fee and/or to construct certain improvements in
satisfaction of the requirements of the Fee Program; and,
H. The Fee Program provides for reimbursement and/or credit against payment of Fee
Program fees for Developer's cost to construct Improvements; and,
I. Developer has constructed Improvements in accordance with Secured Improvement
Agreement and desires to receive reimbursement and/or credit against payment of Fee
Program fees ("Reimbursable Work"); and,
J. City has established procedures entitled "Administrative Procedures for Reimbursable
Public Works Projects" ("City Administrative Procedures"), incorporated herein by this
reference, which guide the administration of developer constructed projects that receive
reimbursement of construction costs using public funds to ensure compliance with State
laws governing the use of publicly funded projects; and,
General Counsel Approved Version #07.05.01
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K. City has completed an audit of the Developer's costs to construct Improvements in
accordance with the City Administrative Procedures ("Improvement Audit"), incorporated
herein by this reference; and,
L. Improvement Audit finds that the Developer is eligible for reimbursement and/ Fee
Program fee credits in the amount of $209,235 ("Reimbursable Amount"); and,
M. City and Developer desire to establish a method to fairly reimburse and/or grant credits
against payment of Fee Program fees to Developer for the cost to construct
Improvements.
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The recitals above are true and correct and incorporated herein by
this reference.
2. Satisfaction of Obligation. Developer's agreement to perform the
Reimbursable Work, as set forth herein, and the actual construction thereof, shall
fully satisfy and constitute compliance with all requirements regarding the Project
solely with respect to Reimbursable Work.
3. General Developer Obligations.
a. Developer has caused the construction of Improvements in substantial
compliance with Secured Improvement Agreement, Grading and Erosion
Control Agreement and the City Administrative Procedures.
b. Developer hereby waives any and all potential constitutional or other legal
objections related to Improvements.
c. Developer shall pay and/or receive credit against payment of Fee
Program fees in accordance with City Codes, City Council Policy and the
provisions of Fee Program.
d. Developer agrees that the Reimbursable Amount recommended in the
Improvement Audit represents a fair accounting of the costs incurred by
the Developer to construct the Improvements and no additional
reimbursement and/or credit will be requested from City for the cost to
construct the Improvements.
4. General City Obligations.
a. City shall reimburse and/or grant Fee Program credits to Developer for
the Reimbursable Amount as described in Section 5 and 6 below.
b. All reimbursements and/or grants of fee credits made by the City,
pursuant to the terms of this Agreement shall be made only to Developer,
unless otherwise directed, in writing by the Developer, to make
reimbursement and/or to grant fee credits to another party.
General Counsel Approved Version #07.05.01
5. Reimbursable Work.
a. The items of Reimbursable Work shall consist of all costs of construction
thereof and all incidental costs of construction of the Improvements
eligible for reimbursement under City Code, City Council Policy and the
requirements of the Fee Program including the following:
1) An amount equal to 4.0% of the direct cost of construction of the
Improvements for the Developer's overhead, construction management
and supervision, including on-site supervision.
2) An amount equal to 1.5% of the direct cost of construction of the
Improvements for the premiums paid for improvement and/or
performance bonds relating to construction of Improvements.
3) An amount equal to 1.8% of the direct cost of construction of the
Improvements for allocable portions of premiums paid for blanket liability
insurance coverage.
6. Reimbursement Calculation.
a. The Reimbursable Amount as determined by the Improvement Audit is
$209,235.
b. The amount of reimbursement due to Developer is $ 209,235.
7. Payment of Actual Reimbursement.
a. Payment of the Actual Reimbursement shall be made within 30 days of
the execution of this agreement.
8. Disputes/Claims. If a dispute should arise regarding the performance or
interpretation of this Agreement, the following procedure shall be used to 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 Public Works Director of the City ("Director").
A copy of such documented dispute shall be forwarded to both parties involved
along with recommended methods of resolution, which would be of benefit to
both parties. The Director, or principal, upon receipt, shall reply to the letter,
including a recommended method of resolution within ten (10) days. If the
recommended 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. 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 involved, although
nothing in this procedure shall prohibit the parties from seeking remedies
available to them at law.
9. 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.
General Counsel Approved Version #07.05.01
10. 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 shown below. Notices required to be given to Developer shall be
addressed as follows:
Developer: Bressi Gardenlane, LLC
Attn: Tyler Pruett
1525 Faraday Avenue, Suite 300
Carlsbad, CA 92008
Telephone: (760) 918-7765
Fax:(760)918-8868
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
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.
11. Transfer by Developer. The obligations and benefits of this Agreement shall not
be transferred upon sale of the Property.
12. Governing Law and Venue. This Agreement shall be interpreted and enforced
under the laws of the State of California, and venue shall reside in North San
Diego County, California.
13. Complete Agreement. 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 both the City and Developer.
15. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on June 1, 2008 or sooner if all of the Improvements have been
completed and full reimbursement/credits have been given in accordance with
the provisions of this Agreement.
16. No Third Party Beneficiaries. This Agreement shall not be deemed to confer
any rights upon any individual, or entity, which is not a party hereto, and the
parties hereto expressly disclaim any such third-party benefit.
General Counsel Approved Version #07.05.01
State of California
County of
On before me,
JL fi/SS&us
_, Notary
Public, personally appeared
personally known to me-ef _ -proved-te me on the basis of satisfactory ovidonco to be the
person whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
of California ,
County of t-:^ •
CuimnHHon • 1701107JMotafyPutftc-CoHfofnki •
' *-•» Diego County =
itg>»OcM».aoiO
On before me,
Public, pers%a!|f |ippisared Claude Le^s^'/i*^- •'
_, Notary
<^xi/^'&~ .M^, '
^TLJ,* -^--^-^to me or ^ proved to me on the basis of satisfi
the person;Y6po%i!fe|;Jft3 is subscribed to,the within instrument and actatow
executed tm^gn^ jn |is authorized capacity, arrf that by his signatunef q'n ^^ y
person, or j^lmtfty upon behalf of wriich the peftob acted, e^iE^|e|d tne inftrume."
:SS my hand and official seal.» ?.. y^y rf.™* ' . ..
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Rev. 11/01/00
-44-
17. 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.
DEVELOPER
BRESSI GARDENLANE, LLC, a Delaware
Limited Liability Company
CITY
corpi
By
'By;
(sign hare)~A
(print name/title)
(e-mail address)
"By:
(sign here)
APPROVED AS TO FORM:
RONALD R. BALL, General Counsel
(print name/title)
Deputy General Counsel
(e-mail address)
A proper notarial acknowledgment of execution by Developer must be attached. If a Corporation.
Agreement must be signed by one corporate officer from each of the following two groups.
*Group A.
Chairman,
President, or
Vice-President
**Group B.
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
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.
General Counsel Approved Version #07.05.01