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HomeMy WebLinkAboutCalvary Chapel North Coast; 2009-09-24;4 RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF THE AVIARA PARKWAY AND CAMINO DE LAS ONDAS TRAFFIC SIGNAL FOR NORTH COAST CALVARY CHAPEL MINOR SUBDIVISION 04-02 (MS 04-02) Between CITY OF CARLSBAD, a Municipal corporation AND CALVARY CHAPEL - NORTH COAST, a California non-profit corporation -1- 8 RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF THE AVIARA PARKWAY AND CAMINO DE LAS ONDAS TRAFFIC SIGNAL FOR NORTH COAST CALVARY CHAPEL MINOR SUBDIVISION 04-02 (MS 04-02) This Ratification of Agreement for Reimbursement of Costs for the Construction of the Aviara Parkway and Camino de las Ondas Traffic Signal for North Coast Calvary Chapel Minor Subdivision 04-02 (MS 04-02), dated as of S&Pt ZV , 2009 ("Agreement") is made at San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation ("City") and Calvary Chapel - North Coast, a California non-profit corporation ("Developer") (collectively, the "Parties"), with reference to the following recitals: RECITALS A. Developer is the record owner of certain real property located in the City of Carlsbad, California ("the North Coast Calvary Chapel Property") more particularly described on Exhibit "A" attached hereto and made a part hereof, and Exhibit "B", shown for reference purposes only. The North Coast Calvary Chapel Property is comprised of three (3) separate legal parcels in accordance with the applicable legal requirements of the State of California and the City of Carlsbad. B. Developer filed separate applications for Tentative Parcel Map (MS 04-02) and related approvals with respect to the North Coast Calvary Chapel Property, ("Project"). The Project is the subject of certain development approvals received from City, including without limitation: Tentative Parcel Map (MS 04-02) incorporated into and approved by Deputy City Engineer letter dated January 27, 2005, Zone Change (ZC 04-12), General Plan Amendment (GPA 04-16), Local Coastal Program Amendment (LCPA 04-12), all incorporated and approved per City Council Ordinance Number NS-737 and City Council Resolution Number 2005-009 on January 11, 2005 ("City Approvals"), Conditional Use Permit (CUP 04-05), Hillside Development Permit (HDP 04-01), Coastal Development Permit (CDP 04-03), and Site Development Plan (SDP 04-02), all incorporated and approved by Planning Commission Resolution Nos. 5788, 5789, 5790 and 5791 on November 17, 2004. C. Condition of Approval No. 15E of Tentative Parcel Map approval MS 04-02 requires Developer to design and construct a traffic signal at the intersection of Aviara Parkway and Camino de las Ondas (Traffic Signal Improvements). Said Condition of Approval No. 15E states that Developer may enter into a reimbursement agreement prior to recordation of the parcel map to obtain reimbursement of the City's fifty percent (50%) share of the construction cost. D. Developer has bonded for the construction of the Traffic Signal Improvements. City will enter into this Agreement with Developer so that Developer can obtain the City's fifty percent (50%) share reimbursement for the Traffic Signal Construction from the General Capital Construction Fund. E. The Parties intend that the design and construction of the Traffic Signal Improvements and this Agreement shall satisfy the requirements to install the Traffic Signal Improvements in accordance with Condition of Approval No. 15E of Tentative Parcel Map approval MS 04-02, which is on file with the City Engineering Department. -2- F. The Parties recognize that the Traffic Signal Improvements exceed the improvement conditions of the Project. Developer agrees to accept the Traffic Signal Improvements provided that City agrees to reimburse Developer for fifty percent (50%) of their construction cost. NOW, THEREFORE, the District and Developer agree as follows: 1. Recitals. The Recitals, above, are true and correct and incorporated herein by this reference. 2. Traffic Signal Improvements. The Traffic Signal Improvements are further described on Drawing No. 429-5B of the improvement plans, sheets 1 and 3 of 3 attached hereto and incorporated by reference as Exhibit "C". 3. General City Obligations. (a) City agrees that this Agreement, a Subdivision Improvement Agreement executed between the Parties, City procedures, and construction of the Traffic Signal Improvements, satisfy Condition of Approval No. 15E of Tentative Parcel Map MS 04-02. (b) City agrees to reimburse Developer for fifty percent (50%) of the actual construction cost of the Traffic Signal Improvements. 4. General Developer Obligations. (a) It shall be the responsibility of Developer to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Traffic Signal Improvements, as specified in this Agreement. (b) By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Traffic Signal Improvements. (c) The general prevailing rate of wages, for each craft or type of worker needed to execute the contract, shall be those as determined by the Director of Industrial Relations pursuant to the Section 1770, 1773 and 1773.1 of the California Labor Code. Pursuant to Section 1773.2 of the California Labor Code, a current copy of applicable wage rates is on file in the office of the City Engineer. The contractor to whom the contract is awarded shall not pay less than the said specified prevailing rates of wages to all workers employed by him or her in the execution of the contract. 5. Reimbursable Work. (a) The "Reimbursable Work" is defined as the total actual cost of labor and materials to construct the Traffic Signal Improvements as defined in Sections 5, 6, and 7 of this Agreement of which these costs will be reimbursed to Developer at the City's fifty percent (50%) share. The expenses subject to reimbursement shall be determined in accordance with Section 5 of this Agreement. (b) During the performance of any Reimbursable Work, Developer shall retain detailed payment records for all items of Reimbursable Work, for use by City in auditing subsequent reimbursement requests by Developer. Developer's requests for -3- reimbursement (each a "Reimbursement Request") 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 and payment for each item of Reimbursable Work. Reimbursement Requests may be submitted only after City has formerly accepted the Traffic Signal Improvements, in accordance with item 6.(g) below. 6. Audit of Reimbursable Expenses. (a) Expenses for Reimbursable Work (including without limitation overhead and the allowance permitted under clause (e) below) are referred to herein collectively as "Reimbursable Expenses". (b) All Developer's Reimbursement Requests will be processed and audited for City by a reputable engineer selected by City (Auditing Engineer). Any costs of the Auditing Engineer shall be paid directly by Developer. (c) The Auditing Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within thirty (30) days thereafter issue to City and Developer a report either accepting Developer's submittal or specifying with particularity any reimbursement items or amounts not approved. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution provision of Section 8 below. (d) City's reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing Reimbursable Work (including overhead and the allowances specified in (e) below). (e) Notwithstanding anything herein to the contrary, and without limitation and in addition to the Reimbursable Work, City specifically agrees that each of the following shall also be deemed Reimbursable Expenses: (i) An amount to cover the actual allocable portion of premiums paid by Developer for improvement, development, material and/or performance bonds relating to the construction of the Traffic Signal Improvements. (ii) An amount to cover the actual allocable portion of premiums paid by Developer for blanket liability insurance coverage relating to the construction of the Traffic Signal Improvements. (iii) An amount fixed at seven percent (7%) of the eligible costs for Reimbursable Work, exclusive of this clause (e), to compensate for overhead expenses incurred by Developer including salary and benefits for staff of Developer's home office, purchasing department expenses, project supervision, legal relating to this Agreement or the Reimbursable Work and accounting fees and other normal overhead expenses incurred by Developer. (iv) The costs of the Auditing Engineer. (f) With each Reimbursement Request, Developer shall forward one copy of each invoice submitted to Developer by Contractor, to the City Public Works Director ("Director"), together with an invoice for all other components of the Actual Cost not otherwise -4- reflected on the Contractor's invoice. The Director shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set forth in Sections 5, 6, and 7 of this Agreement. If the Director objects to any items comprising the Reimbursement Amount, the Director shall notify Developer within thirty (30) working days of receipt of all invoices forwarded by Developer. Failure to so notify Developer shall be deemed the Director's approval of such invoices. In the event the Director does object, Developer and the Director shall meet to discuss the disputed amount (at which time Developer shall make available all of the Work Documentation) and attempt to resolve the matter through good-faith negotiation. (g) Prior to the submission to the Director of all invoices, Developer shall obtain necessary or appropriate lien releases from the Contractors), and shall obtain from City any and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Reimbursable Work, and the ability to put the Traffic Signal Improvements into use. The date Developer receives all such final lien releases, approvals, and certificates shall be deemed the date of completion of the Traffic Signal Improvements (the "Completion Date"). 7. Payment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made in cash, check, or money order within sixty (60) days after the Auditing Engineer's determination on any such Reimbursement Request. (b) City shall not offset Developer's entitlement to reimbursement under this Agreement against any other obligation of any person. (c) Reimbursable Expenses for items of Reimbursable Work paid for by Developer in advance of construction of the Traffic Signal Improvements (such as engineering, City fees, interim traffic control plan, traffic signal easements and construction mobilization) may be submitted for reimbursement with the Reimbursement Request. (d) City shall not unreasonably withhold acceptance of the Traffic Signal Improvements. (e) Developer agrees that the only source of reimbursement funds available to Developer are from the General Capital Construction Fund, and that the City's General Fund or any other City funding source shall not be obligated under the terms of this Agreement nor available for reimbursement purposes. 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 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 -5- binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 9. 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. 10. 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. 11. 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: NORTH COAST CALVARY CHAPEL 7188 Avenida Encinas Carlsbad, CA 92009 Telephone: (760) 929-0029, Ext. 122 Notices to City shall be delivered to the following: CITY OF CARLSBAD Public Works/Engineering Department 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. 12. 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. 13. 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. -6- Jl 14. 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. 15. Amendment. This Agreement may be amended by a written instrument executed by City and Developer. 16. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the date the City fully reimburses Developer the Reimbursement Amount. Upon completion of the Work covered by this Agreement, if requested be Developer, City agrees to execute any document deemed necessary to remove this Agreement from title. Developer to bear all costs associated with 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. 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. -7- J4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CALVARY CHAP&L - NORTH COAST, a California jnof£hrofr{ \orporation (sign here) (print name and title of signatory) By:,:Q4 / S*tgft herey (print name and title of signatory) By: (sign (print name^and title of signatory) CITY OF CARLSBAD, a municipal corporatiefriyof the State /ok California AV LEWIS, Mayor ATTEST: LxU>^>^7Vg- LORRAINElfl. WOOti City Clerk (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, City^Attorney BY: Deputy City Attorny -8- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of CbQi On Date personally appeared before me,ft QTA,2x; Here Insert Name and Title of the Officer flTX ff • Name(s) of Signer{s) "LETICI'A'ROSALES "I COUMJ1810023 mNOTARY PUBLIC-CALIFORNIA JJJSAN DIEGO COUNTY .MY COVM. EXP. AUG. 18,2012 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person© whose name© is^Jr&jsubscribed to the within instrument and acknowledged to me that hfi/sbe^fji^ executed the same in-bie/her/tjfiejr authorized capacity(ies), and that by his/het^ffiijr signature®) on the instrument the person^ or the entity upon behalf of which the person(g£)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my handjrjd official seal. LSignature. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document : Rah-f I roil' on ofTitle or Type of Document; Document Date: MUCu C.\ fc Number of Pages: Signer(s) Other Than Named Above:/In (34&(JZ-' Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing:. RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 * www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 State of California County of On before me, , Notary Public, personally appeared 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. State of California County of On before me, , Notary Public, personally appeared Claude Lewis 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. Rev. 11/01/00 -9- EXHIBIT A PARCELS 1, 2 AND 3 OF MINOR SUBDIVISION 04-02, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 20249, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 4, 2007. Rev. 11/01/00 -10- PROPOSED TRAFFIC SIGNAL CITY OF OCCANSIDC HIGHWAY VICINITY MAP NOT TO SCALE SITE NOT JO SCALE PROJECT NAME WORTH COAST CALVARY CHAPEL PROJECT NUMBER MS04-02 EXHIBIT B ENGINEERING DEPT. 11/10/05 C:\DEVELOPUENT PROJECTS\US\US04-02.DWG Exhibit "C" Sheets 1 and 3 of 3 of Drawing No. 429-5B included herein by reference.