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HomeMy WebLinkAboutCarlsbad Oaks North Partners LP; 2007-01-10;AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF ADDITIONAL RIGHT TURN LANE ON WEST BOUND FARADAY AVE. AT EL CAMINO REAL CT 97-13 / CARLSBAD OAKS NORTH Between CITY OF CARLSBAD, a Municipal corporation AND CARLSBAD OAKS NORTH PARTNERS L.P -1 - AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF WEST BOUND RIGHT TURN LANE ON FARADAY AVE AT EL CAMINO REAL CARLSBAD TRACT 97-13 (CARLSBAD OAKS NORTH) This Agreement for Reimbursement of Costs for the Construction of the West Bound Right Turn Lane on Faraday Ave. at El Camino Real (CT 97-13 / Carlsbad Oaks North), dated as of CTajtoturiA )Q , 90(T7 . 2007 ("Agreement") is made at San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation ("City") and Carlsbad Oaks North Partners, L.P. ("Developer") (collectively, the "Parties"), with reference to the following recitals: RENTALS •''*»^m% *'im$~. "'""•"•<" A. Developer is the^'tlcjord owner of certairfireaf prifterty located in the City of Carlsbad, California ("Carlsbad Oaks^.North 0f 97-13") more particularly described on Exhibit "A" attached hereto and mpde t part hereof, and Exhibit "B*, shown for reference purposes only. The Carlsbad Oaks North Property 6-a 414.0 Acre Subdivision split into 3 phases of development. B. Developer filed application for Tentative Map (CT 97-13) and related approvals with respect ito Carl$tJid Oaks North, ("Project"). The Project is,the subject of certain development approvals received from City, including without limitation: EIR 98-08, ,GPA 97-05, ZC 97-05, SP 2^1, SP 200(B), LFMP J6(AJ and CT 97-13, all incorporated and approved by City of Carlsbad Ordinances NS 645, NS 646, NS 647 and City Council Resolution 2002-298, and Planning Commission Resolution 5249. C. Condition of Approval No. 58A of Planning Commission Resolution, No. 5249 requires Developer to construct one additional northbound right turn lane at the fhtlrsection of Faraday Ave, and El Camino Real. (Intersection Improvements), Said Condition of Approval No. 58A states that Developer may enter into a reimbursement agreement prior to recordation of the Final Map-or beginning of construction to obtain a partial reimbursement of the cost of construction. , D. City has designed and proposes to construct improvements to Faraday Ave and El Camino Real ("Cly Improvements") which include among other improvements the Intersection Improvements. Developer wishes to pay the City; Developer's fair share of construction costs of the Intersection Improvements to be constructed by the City, estimated at thirty-five percent (35%) of the e^ast; leg '6f proposed corfstruction, 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 City1 the sum of $62,388.41 representing Developer's estimated fair share cost of th§sj;: 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. -2- G. The Parties intend that the design and construction of the Intersection Improvements and this Agreement shall satisfy the requirements of Planning Commission Resolution No. 5249 condition 58(A) 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. 429-9 of the improvement plans for City Improvements, sheets 4, 5, and 11, on file with the City Engineer and incorporated by this reference . 3. City Obligations. : >: J ;' (a) City agreesfihatthe-DevelopirDeposit, this Agreement and City construction of the City Improvements, satisfies-Condition of Approval No. 58(A) of Planning Commission Resolution No. 5249 as sucrfcondition relates to Intersection Improvements. (bj City agrees to refund to^jp^joper an amount equal to the difference in cost between the Developer Deposit and aduat fair share cost of the Intersection Improvements, as determined by an audit performed bythe City after completion of City Improvement, if sucrnaudit determines that the Developer's actual fair cost of Intersection Improvements is less ttian 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 $62,388.41 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 audjt 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. r*- v..°--~ <-:j'H^-n_ .*,%.-" X? - '• • 4. Audited Fair Share Work. , .."::* (a.) City shall;retain;detailed, payment;rreoo|dfe for all items of work during the design and construction 6ftthe Cijy Improvements,-.for use^ by City in preparing the audit of the Developer's actual fair share post'of intersection Improvements. (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. -3- 5. Disputes/Claims. If a dispute should arise regarding the performance or interpretatjon 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 binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 6. Successors: Covenant to Run vintrtlRieal 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 autbmafically 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. 7. Assignment of ^Agreement. The Developer shall not assign this Agreement or any part thereof or any monies due thereunder without the prior writteh consent of the City. 8. Notices. Unless otherwise specifically prpvjjdecl herein, aj!;| notices, demands or other communications given hereurider shall be in writipd^indisriaiVbe '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: CARLSBAD OAKS NORTH PARTNERS, LP.; 3575 Kenyon Street San Diego, CA 92110 P.O: Box 8036 San Diego, CA 921,38 Telephone: (619)223-1663 Notices to City shall be delivered to the following: , vi 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. -4- 9. 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. 10. 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. 11. 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. 12. Amendment. This Agreement may be amended by a written instrument executed by City and Developer. •,. , • - *,„•••<*•• *• _, "" ! + s 1 3. Term. This _ Agreement 'stialf b^WeMfe;£lf ,of the date first above written, and shall terminate on the earlier $f (If, 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, 2008. 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 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. in in HI -5- 14. 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. CARLSBAD OAKS NORTH PARTNERS L.P. A California Limited Partnership (print name and title of signatory) By: PftfS (sign here) Idicg TLHat*** tj/|€fc ft (print name and titre cosignatory) Bv: (sign here) (print name and title of signatory) CITY/JfCARLSBAD, a corpprsflipn of the St^fi of gaiiTornia *LORRA4NE IvTwOOD City Clerk •* »v"4,*,V' (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, President or vice-pres,ideht 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: eputy City Attorney -6- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT >^X3<v<^X3<5<3<5<^CX^^x^x^«6^X3X>X^C<^^ State of California Countv of San Die8° On December 7, 2006 before me }ss. Paula Banner, Notary Public Date Name and Title of Officer (e.g., "Jane Doe, Notary Public") personally appeared Genevieve Tchang Frost and Theodore Tchang ' si^CSSiSk*. R^ULA HARMER 1 jj£3y&k Comrriteton # 1652769 IcrJjgeSg Notalv PubMc " CaHtomta J^KftH/ Son Dtego County1 ^•^MyComm. Expire* Mar 19. 2010 Place Notary Seal Above Name(s) of Signer(s) 5 personally known to me D 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 1 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. WITNESS-rnySqand and official seal. JZ^26^&~ dhs~*r^^_ Signature of Notary Public 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 Title or Tvpe of Document: Agreement of Reimbursement of Costs Document Date: Sianer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer s Name: Number of Pages: ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^H RIGHT THUMBPKINl ^^^H ^•HIJ^^^HHHJ^^^^^^^^^^^^^^^^^^^^^^^^^^^^H OF SIRNFR ^^^H 5 ±±1 Officer - ™** Secretary and Vice President D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: !F3<&2*&2ty3(jf2t&?*s&jfX#?«^^ © 1999 National Nolary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.or9 Reorder: Call Toll-Free 1-800-876-8827 State of California County of fQ On -Januar £-007 before me, A. Notary personally known tojinepoF _ 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 _ .; Notary PuMc-CoMbmia On ..... .Public, personally appeared Claude Lewis before me,Notary 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 instalment. WITNESS my hand and official seal. Rev. 11/29/06 -7-