HomeMy WebLinkAboutBressi Gardenlane LLC; 2007-06-14;AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF ADDITIONAL RIGHT TURN LANE
ON EAST BOUND PALOMAR AIRPORT ROAD AT MELROSE DRIVE
CT 00-06 / BRESSI RANCH
Between
CITY OF CARLSBAD,
a Municipal corporation
AND
Bressi Gardenlane, LLC,
a Delaware Limited Liability Company
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF EAST BOUND RIGHT TURN LANE
ON PALOMAR AIRPORT ROAD AT MELROSE DRIVE
CARLSBAD TRACT 00-06 (BRESSI RANCH)
This Agreement for Reimbursement of Costs for the Construction of the East bound Right Turn
Lane on Palomar Airport Road, at Melrose Drive (CT 00-06 / Bressi Ranch), dated as of
/M^daucL JjjiJLjw^ j. 2007 ("Agreement") is made at San Diego County, California,
by and betweeWthe CITY OF CARLSBAD, a municipal corporation ("City") and Bressi
Gardenlane, LLC ("Developer") (collectively, the "Parties"), with reference to the following
recitals:
RECITALS
A. Developer was the record owner of certain real property located in the City of
Carlsbad, California ("Bressi Ranch CT 00-06") more particularly described on Exhibit "A"
attached hereto and made a part hereof, and Exhibit "B", shown for reference purposes only.
The Bressi Ranch Property is a 585.1 Acre Master Planned Subdivision split into multiple
neighborhoods and further into subsequent subdivisions and development.
B. Developer filed application for Tentative Map (CT 00-06) and related approvals
with respect to Bressi Ranch, ("Project"). The Project is the subject of certain development
approvals received from City, including without limitation: EIR 98-04, GPA 98-03, ZC 98-04,
SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06, all incorporated and
approved by City of Carlsbad Ordinances NS 634, NS 635, and City Council Resolution 2002-
205, and Planning Commission Resolutions 5201 thru 5205 inclusive.
C. Findings and Conditions of Approval for EIR, Mitigation and Monitoring Report,
LFMP Zone 17, and CT 00-06 requires the Developer to pay a proportionate share of right turn
lane on Palomar Airport Road at Melrose Drive.(Intersection Improvements). Said Findings and
Conditions states that Developer may enter into a reimbursement agreement prior to
recordation of the Final Map.
D. City has designed and proposes to construct improvements to Palomar Airport
Road and Melrose Drive ("City Improvements") which include among other improvements the
Intersection Improvements. Developer wishes to pay the City the Developer's fair share of
construction costs of the Intersection Improvements to be constructed by the City, estimated at
twenty -five percent (25%) of the proposed construction of City Improvements as detailed in the
cost estimate prepared by the City and shown in Exhibit "C", attached hereto and made a part
hereof,
E. Developer has deposited with the City the sum of $64,256.75 representing
Developer's estimated fair share cost of the design and construction of Intersection
Improvements ("Developer Deposit").
F. The Parties intend that upon completion of the City Improvements, the City will
perform an audit to determine the Developer's actual fair share cost of Intersection
Improvements. If the actual fair cost of the Intersection Improvements exceeds the Developer
Deposit, then Developer will pay to City the difference between the actual fair share cost and
the Developer Deposit. If the actual fair share cost of the Intersection Improvements is less than
the Developer Deposit then the City shall refund to Developer an amount equal to the difference
in cost between the Developer Deposit and actual fair share cost.
G. The Parties intend that the design and construction of the Intersection
Improvements and this Agreement shall satisfy the requirements of EIR 98-04, GPA 98-03, ZC
98-04, SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06 as such condition
relates to the Intersection 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. Intersection Improvements. The proposed Intersection Improvements are
further described on Drawing No. 400-8H of the improvement plans for City Improvements,
sheet 35, on file with the City Engineer and incorporated by this reference .
3. City Obligations.
(a) City agrees that the Developer Deposit, this Agreement and City
construction of the City Improvements, satisfies conditions and findings of EIR 98-04, GPA 98-
03, ZC 98-04, SUP 99-03, SUP 01-01, MP 178, LFMP 17 HDP 99-06 and CT 00-06 as such
findings and conditions relates to Intersection Improvements.
(b) City agrees to refund to Developer an amount
equal to the difference in cost between the Developer Deposit and actual fair share cost of the
Intersection Improvements, as determined by an audit performed by the City after completion of
City Improvement, if such audit determines that the Developer's actual fair cost of Intersection
Improvements is less than the Developer Deposit. Any such refund shall be made by the City
within sixty (60) days of completion of the audit.
4. Developer Obligations.
(a.) Developer has deposited with the City the sum of $64,256.75
representing Developer's estimated fair share contribution for the cost to construct Intersection
Improvements.
(b.) Developer agrees to pay to City an amount equal to the difference
between the Developer's actual fair share cost to construct Intersection Improvements, as
determined by an audit performed by the City after completion of City Improvements, and
Developer Deposit, if such audit determines that the Developer's actual fair cost of Intersection
Improvements is more than the Developer Deposit. Any such payment to City shall be made by
the Developer within thirty (30) days of written request to make such payment.
5. Audited Fair Share Work.
(a.) City shall retain detailed payment records for all items of work
during the design and construction of the City Improvements, for use by City in preparing the
audit of the Developer's actual fair share cost of Intersection Improvements. This audit shall be
made available to the Developer, for review, for a period of no less than thirty (30) days prior to
the commencement of the thirty (30) day grace period by which payment is due per section 4.
(b.) above.
(d) City's refund or Developer's payment obligations hereunder shall
be based upon the actual costs incurred by City in performing the design and construction of
the Intersection Improvements.
6. 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
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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 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)
working days. If the resolution thus obtained 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.
7. Successors: Covenant to Run with Real Property. This Agreement and
the covenants contained herein shall be binding upon and inure to the benefit of the Developer
and City and shall run with the real property and create an equitable servitude upon the real
property. After City reimbursement to Developer, the provisions of this Agreement shall no
longer apply to, and the same shall no longer be or constitute an equitable servitude against or
run with the land and the equitable servitude hereby created shall automatically terminate.
Upon the request of Developer, City shall execute and deliver to Developer, in recordable form,
any further documents and/or instruments reasonably necessary to evidence that Project is
thereafter fully released and free from the provisions of this Agreement, provided that the cost
of preparing and recording such documents and/or instruments shall be paid by Developer.
8. Assignment of Agreement. The Developer shall not assign this
Agreement or any part thereof or any monies due thereunder without the prior written consent
of the City.
9. 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:
Bressi Gardenlane, LLC
1525 Faraday Ave., Suite 300
Carlsbad, CA 92008
Telephone: (760)918-7765
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Public Works/Engineering Department
Attention: Public Works Director
1635 Faraday Ave
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.
10. Counterparts. 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.
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11. Governing Law and Venue. This Agreement shall be interpreted and
enforced under the laws of the State of California, and venue shall reside in San Diego County,
California.
12. 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.
13. Amendment. This Agreement may be amended by a written instrument
executed by City and Developer.
14. Term. This Agreement shall be effective as of the date first above written,
and shall terminate on the earlier of (i) the date the City refunds to Developer the surplus
Developer Deposit, (ii) the Date the Developer pays to City the difference in the amount
between Developer Deposit and the actual audited amount of Developer's fair share cost of the
Intersection Improvements or (ii) January 1, 2009. Upon completion of the Work covered by
this Agreement, if requested by Developer, City agrees to execute any document deemed
necessary to remove this Agreement from title. Developer to bear all costs associated with
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preparation, processing and recording of documents to remove this Agreement from title.
Notwithstanding same, this Agreement shall no longer encumber the project once developer
receives the reimbursement amount.
15. Severabilitv. 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.
Bressi Gardenlane, LLC,
A Delaware Limited Liability Company
By: Lennar/LNR Camino Palpmar, LLC,
A Delaware Limited Liability Company,
It's Administrator
By: Lennar Homes of California, Inc.
A California Corporation,
Its Manager
1525 Faraday Ave., Suite 300
Carlsbid, CA 92008
By:
CITYO
corpon
ATTEST:
^(b/dtQfb ATJORRAiNE M. WOOD
City Clerk
>x
i Bone, Assistant Secretary
(Proper notarial acknowledgment of execution by Contractor must be attached.
Chairman, President or vice-president and secretary, 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 the officer(s)
signing to bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL^ity Attorney
BY: AS V^Jf V-^r^i
'eputy City Attorney
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State of California
County of _77
before me,
-to
u v Notary
t.sati8lac d -to be the
On
Public, personally appeared
personally known to me
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.
State of California
County of *5'<\n PlCao
j__^_m-at <» "> • "i*JUDITH A. MEYNCKE &
Commission # 1435841 |
P| Notary Public - California |
San Diego County I"
My Comm. Expires Aug 23,2007!
On_
Public, pers
before me,
ally appeared Steude Lewis &JL-II ,
Notary
X personally known to me or proved to me on the basis of satisfactory evidence 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.
KELLEY WAYNICK
Commission » 1507477
Notary Public - California
^ - San Diego County
My Comm. Expires Aug 14. 2008
• •••HI . m . ^,
Rev. 11/29/06
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