HomeMy WebLinkAboutRancho Costera LLC; 2017-08-10; (3)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 aur cl IO, 20J1 ("Agreement"), is made at Carlsbad, California, between Rancho
Coster~ 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 Costera, 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 Costera, 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 of resolution, within ten (I 0) 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:
If to 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 A venue
Carlsbad, CA 92008
ROBERTSON RANCH PA YING 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
~ .. c=
Sign here
Name and Title of Signatory
CITY:
CITY OF CARLSBAD,
a Municipal Corporation of the State of
California
er
APPROVED AS TO FORM:
CELIA BREWER, City Attorney
By:"'---1--=::..!E'-=-__c:'--------11'-----
Assistant City Atto ney
ATTEST:
By\ iMT/(Ha,£2rd:n1~~
Barbara Engleson U --...
City Clerk
(SEAL)
ROBERTSON RANCH PAVING 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.'87 whose name~is/a,:e
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/theif authorized capacityEfest; and that by his/her/tl9eir signatur~on the instrument the
person~or the entity upon behalf of which the person(s]acted, 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
---------~ --
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.
Signature of Notary Public
Though this section is optional, completing this information can deter a/tera ·
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 amed Above: ____________ _
Capacity(ies) Claimed by S1
Signer's Name: -----------'"",(''-----
~ I Corporate Officer -Title(s): _________ _
[I Partner -1-:i Limited [7 G ral
c:: Individual [J Attorsie{in Fact
=-Trustee c: ~_µe:rdian or Conservator
lJ Other: ___ ___,.,_ __________ _
Signer Is Repre~ting: _________ _
/ /
Signer's Name: ____________ _
□ Corporate Officer -Title(s): ______ _
□ Partner - I J Limited I] General
□ Attorney in Fact
□ Guardian or Conservator
(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, STA TE OF CALIFORNIA.
ROBERTSON RANCH PAVING REIMBURSEMENT AGREEMENT 9
... ,..._
~
ALL AMERICAN
--ASPHALT--
TCIIIIIOl,IIIIC.
EXHIBIT "B"
Cost Estimate
ALL AMERICA:S ASPHALT
ALL AMERICAN AGGREGATES
t.'ivlNht.tUNO -(.'ONll<l'\l: I Ote.5 -,\Sl'H'\Lf f'A\,lN(i
P.O. ROX 22!'1. OJRO'-"· CA V:,!,-;"8-l~N
ir:·.o\ll!t::Om"RAt:fORS l.K."f.N:S!i.112~;'1m-A lJIR IJIWJ(l(J(tl.•I
~ .........
725 W T-a Clillftly lld, Slit •-..... ,... ..
Olallgt.CA-.., ..,.._ __
ao... .... Gllllda~-ClrOIOdlllld ........ _........, ..... -· --........ ~ .... ........
1
l r 1C.G111111a-o..11r(lndlldeSc.-a-r....-J27.315JID SF $1.42 ..... , ... .,
2 T..-c0:dldFOr2"MIMGllllda~ UIO lS $ll,43L•
l Glllldao..llrMalallllJ"Ole.a,.tJC. 1Q,IIIO.eoSF $US
4 llllaCOidldFOr,......J"IC.Qllda~ UIO r,r $S,500.IO
s ..-..~2S(lldullllc.-a1---J27.JU,GD SF to.l2 .... • •> 6 a-ea LS' 0Mw IC.ClpTo-(Tdl .. a.eact 181,502.tlD SF tcUO
~
7 a-ear Ml J" 0◄w Gltlld ao.e,-,To-crcia ._ l!,,82..GOSF .... ll
c.me.:t~
I a.aFOr.JIT/JC.lnl-.cll.....--..-..... -.. ~SF (SUIO)
~Dull,ga-e-OdltWQlll
9 .......... ToGnde 12..00fACJf $9IL.OO
10 .......... ,,..0111 2ll.OO fA(Jt $9IL.OO
11 ....... To ..... UIO fACJf $l,8IIOJIO ,.... ............ ,~
,.... .....
$464.1S7.JO
$11.431.41
$1]5, ...
'5,5IID.GD
$IOl,NOM
$Q.15IUD
$4.6115.96
($41,m..GO)
-.-.00
$11,0DOJIO
$l,8IIOJIO
~
Tablllill~ $716,U:Z.74 ...... • Nal....,onone __ _...._....,._
• 1Np,lllng ............... 9ldll0 ..... 7 ...... -l'IIIIMlltl .... A£. ,.,_......,...,...,..... ........... .................. Qllla-.ll)IDlll.,_._,.TIIM...._
• Nol 111111 lln ~l-17
ACIC9'lma cetll'lal ...
111e lbM ptm.., ----• .nl cianNans-llllBlllallfy .............
........ atrlllllld-..,..,
•• 9 • , . ............ ..... , ' TC 9 l ........Mdlllt
t51·7l6-11DO
...... u
..... .,.
RR WEST PAVINU REIMBURSEMENT AUREEMENT JO