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Rancho Costera LLC; 2017-08-10;
REIMBURSEMENT AGREEMENT FOR ADDITIONAL PAVEMENT RESTORATION ON EL CAMINO REAL BETWEEN TAMARACK A VE AND CANNON RD (CT 13-03, Robertson Ranch West Village) This reimbursement and credit agreement for additional pavement restoration on El Camino Real, associated with the Robertson Ranch West Village development, dated as of au <t: ~ / Q , 20 J!1 ("Agreement''), is made at Carlsbad, California, between Rancho Castera, LLC, a Delaware limited liability company (the "Developer") and the City of Carlsbad, a municipal corporation of the State of California (the "City"), with reference to the following recitals: A. Whereas, the Developer has processed a development within the City known as Robertson Ranch West Village, CT 13-03 (the "Project") located on real property (the "Property") owned by Developer. A legal description of the Property is attached hereto as Exhibit "A.", and; B. Whereas, Condition 60(C) of Planning Commission Resolution No. 7035, approving the Project Vesting Tentative Map, requires Developer to widen El Camino Real, between Tamarack A venue and Cannon Road, from the existing four lanes to a full six lanes by adding an additional lane on both the west and sides, including construction of a center median, and; C. Whereas, the Developer's construction caused impacts to both sides of the roadway within the existing lanes, and; D. Whereas, a previously scheduled pavement overlay of El Camino Real by the City was deferred to allow construction of the required of the Roberson Ranch West Village improvements, and; E. Whereas, it is in the best interests of the City to restore the pavement over the full width of the roadway concurrently with the Developer's work, and; F. Whereas, Rancho Castera, LLC publicly bid the work to widen El Camino Real per city ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT requirements and are paying prevailing wages, and; G. Whereas, the City Council approved City Council Resolution 2017-025 authorizing the City Manager to execute a reimbursement agreement with Rancho Castera, LLC in an amount not to exceed $966,000 for additional asphalt paving associated with El Camino Real road improvements, and; H. Whereas, there are sufficient funds available in the Pavement Management Program to reimburse for these additional paving costs, and; I. Whereas, Developer may 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 signatory of this Agreement, shall remain solely bound to the terms and obligations of this Agreement, unless and until the Agreement is modified to the satisfaction of the City Council 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 additional paving as set forth herein, with the actual construction of the additional paving thereof to the satisfaction of the City Engineer, shall fully satisfy and constitute full compliance with the applicable 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 the items listed in the attached "Estimate of Cost," Exhibit B. Developer estimates the Total Costs of additional paving to be $766,000. ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 2 b. By entering into this Agreement, Developer waives any and all potential constitutional (Nollan/Dolan) objections relating to the additional paving. 4. CITY OBLIGATIONS. a. Pursuant to section 5 below, City shall perform an Audit to review Developer's incurred cost of the additional paving. b. Upon City's review and approval of the incurred cost and verification of eligibility of payment, City shall pay Developer the balance due pursuant to a timing schedule described in Section 5 below. 5. AUDIT OF REIMBURSEABLE EXPENSES a. Developer may submit for reimbursement upon City acceptance of the El Camino Real road improvements in accordance with the unit prices listed in Exhibit B and for any contingency items related to the paving that are not listed in Exhibit B that have previously been authorized by the City Engineer. b. At the discretion of the City, all Developer's reimbursement requests will be processed City by the City Engineer. c. Upon completion of the Road Improvements, Developer shall present City with two (2) separate complete and detailed reports accounting for the costs and expenses by Developer for the additional paving. 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 Materials 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 road improvements. e. The City Engineer shall, within thirty (30) days of receipt of the Audit Material submittal(s), issue a report either accepting Developer's submittal(s) or specifying any ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 3 reimbursement items or amounts not approved. Failure to notify Developer shall be deemed to constitute City's approval of the submittal. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution procedure herein. f. If the City Engineer objects to any reimbursable item, Developer and the City Engineer shall meet to discuss the disputed amount and attempt to resolve the matter through good-faith negotiation. If Developer and the City Engineer are unable to reach agreement, Developer may appeal the City Engineer's decision to the City Council pursuant to Section 6(a). g. Before Developer's final submittal, Developer shall obtain all necessary or appropriate releases from its contractor(s), and shall obtain from City, and from any and all appropriate governmental agencies, all approvals, certificates and other documents necessary to indicate completion of the Road Improvements and the ability to put the Road Improvements into use. The date Developer receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Road Improvements (the "Completion Date"). h. Upon the Auditing Engineer's determination on any reimbursement request, City shall, within thirty (30) days thereafter, pay all undisputed Reimbursement Amounts to Developer .. 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 Director describing the dispute and recommending a method of resolution. The Public Works Director shall reply to the letter, including a recommended method ofresolution, within ten (10) days of receipt. If the resolution thus obtained is unsatisfactory to Developer, the Public Works Director 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 ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 4 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 Party 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. 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: lfto City: Rancho Costera, LLC c/o Toll Brothers, Inc Attn: Bradley Hare, Sr. Vice President 725 W. Town & Country Road, Suite 200 714-347-1300 City Engineer City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 5 f. Counterparts. 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 and the parties agree and hereby stipulate that the proper venue and jurisdiction for resolution of any disputes arising out of this agreement is San Diego County, California. h. Complete 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) July I, 2021. k. City 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 further warrants, represents and agrees that it has the legal authority to pay and/or credit these funds to Developer. These warranties, representations and agreements are a material inducement to Developer to enter into this Agreement. I. Developer Not Agent of City. 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 ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 6 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. o. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated into the terms of this Agreement. DEVELOPER: Rancho Castera, LLC, a Delaware limited liability company By: _______ _ Sign here Name and Title of Signatory ------::> By~ •. c= Sign here Name and Title of Signatory CITY: CITY OF CARLSBAD, a Municipal Corporation of the State of California APPROVED AS TO FORM: CELIA BREWER, City Attorney By: ----~"---~------Assistant City Atto ney ATTEST: By\j,µ((/aAfA(lrrl~~ Barbara Engleson U -..._ City Clerk (SEAL) ROBERTSON RANCH PA YING REIMBURSEMENT AGREEMENT 7 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange On April 27, 2017 before me, Heidi L. Ferguson, Notary Public (insert name and title of the officer) personally appeared Bradley Hare------------------------------------------------------------- who proved to me on the basis of satisfactory evidence to be the person.'81 whose name'87"is/afe subscribed to the within instrument and acknowledged to me that he/s-AeftRey executed the same in his/her/their authorized capacity(-ies/; and that by his/hefltt-teif-signatur~on the instrument the person~or the entity upon behalf of which the personE5racted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signat (Seal) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 'x'k;<',C¢,<¾'7li'£Q,c<',b('li',c('~~~~~~-<'.c{'£CTX'~£QQC-c'&, ;,;.-~li::c:~-c,'':?&, -2{--~'C'~C-36'{~C-~-C:j---~---:-~-;0.--G:C-~ A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. who 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. Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. -----------· Though this section is optional, completing this information can deter altera · fraudulent reattachment of this form to an unintend ocument. Descrip · of Attached Document Title or Type o ocument: ----------~--Document Date: _______ _ Number of Pages: ____ Signer(s) Other Tha Capacity(ies) Claimed by S1 r(s) / Signer's Name: / Signer's Name: ____________ _ :-J Corporate Officer -Title(s): --r'-------D Corporate Officer -Title(s): ______ _ 1 ] Partner -D Limited D Gei:t€ral r J Individual CJ Attos~~·fin Fact '---' Trustee ~ Guardian or Conservator D Partner -CJ Limited D General D Individual D Attorney in Fact D Guardian or Conservator l] Other:------,-'----------- Signer Is Repr~~ting: ________ _ / ~~~~~~~~~~;,~~'g;.~~~'g;.'Q<;.~'§(;,~~ -'~~~~~ ©~National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-Item #5907 (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 officer(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.) ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 8 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY LOTS 1-323 OF ROBERTSON RANCH WEST VILLAGE, CARLSBAD TRACT NO. CT 13- 03-2 MAP NO. 16092, RECORDED JANUARY 5, 2016 AS INSTRUMENT NO. 2016- 7000052 OF OFFICIAL RECORDS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. ROBERTSON RANCH PA YING REIMBURSEMENT AGREEMENT 9 -..._ ft ALL AMERICAN --ASPHALT- Tol ..... lnc. EXHIBIT "B" Cost Estimate ALL A~ffiRICl\.~ ASPIIALT ALL AMERICAN AGGREGATES t.'IGINl:\t.RINO-l'l.)l'HK.-.l:101<3 · ,\8t'ttALrfA\.lN(j P.O. BOX 22:!9. OlRO\;.\. CA 9::H7lVi1:!'I lC'.ATI! 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ToGllldt UIO fACH $3,IOOJIO __. ..... ..,..._, ___ Tobi Biel Pricle: ..... • Plb..SOft0ne _________ .,.. __. ..... $464,787.30 $11,431.41 $US,IOO.OO $5,SGO.OO $.IOl,740.AIO $1'150.20 $4,665.96 ($41,8!ll.OO) $6.600-00 $11,000.00 $3,IDIUlO $7H,aa.N $716,882.74 • Unl:ptctng..SOftplddioftc,ld!OUllnga7 ..... tor,._.d~.C.. ,.,,_,......~,___wlll•lladdloe. ~orllllllet ..... C,-..n)tobedDlleOftalaM..._ • Plb lmt 111N 3-1-17 ACICB'l8)t CXJalll u .... The .... ptces. ~andanlBans-~ ........ ......,. ..,.__.~ ..,.-: •• ' • , .............. .... Acal .. , • -•lln MWllOft, MiCMe 951-7l&-'1100_ -- RR WEST PAVINU REIMBURSEMENT AUREEMENT IO