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Home My WebLink AboutDAVIS/WALTERS/GADCO CARLSBAD GATEWAY; 1988-05-09;* e 1200 ELM AVENUE TELEI CARLSBAD, CALIFORNIA 92008 (619) 4: Office of the City Clerk MitQ df @#rlBb#b May 9, 1988 Great American Development Company 600 B Street, Suite 700 San Diego, CA 92101 Attn: Jeff Gabriel, Vice-president Re: SDP 84-5 - Reimbursement Agreement for Median Construction The Carlsbad City Council, at its meeting of May 3, 1988, adopted Resolution No. 88-143, approving an agreement between the City of Carlsbad and Davis/Walters/GADCO Carlsbad Gateway. In accordance with your request, enclosed is a fully executed original agreement for your records. Also enclosed is a copy of the resolutior which approved the agreement. 5%5* Deputy City Clerk Encs . 0 a '.L *% ' AGREEMENT FOR REIMBURSEMENT OF COST OF ENGINEERING AND CONSTRUCTION OF EL CAMINO REAL MEDIAN -323s THIS AGREEMENT is entered into this ,& day of 1988, by and between Davis/Walters/GADCOmlsbad Gate California general partnership, herein referred to as the "Developer" and the City of Carlsbad a municipal corporation of the State of California, hereinafter referred to as the lqCity". RECITALS WHEREAS, the Developer has entered into a secured Developme Improvement Agreement, dated h~~ -44 /%zl , for construction of median improvements in El Camino Real between Faraday and Cougar Drive, hereinafter referred to as the "Medie as shown on Drawing Nos. 273-3, Sheets 10, 11 and 12; and WHEREAS, pursuant to City Resolution No. 9223, conditional1 granting partial occupancy for Carlsbad Gateway Center (SDP 84- 5), the City agreed that a reimbursement agreement shall be prepared for the purpose of reimbursing the Developer for the costs associated with constructing the Median at its own expens in excess of its proportionate share of the costs based on line frontage along El Camino Real; special median or other fees levied against frontage propertie: along the affected portion of El Camino Real, against those properties and in those proportions as set forth in Exhibit llA1l hereto ; WHEREAS, said reimbursement shall be made by the City from WHEREAS, Developer is now prepared to proceed with NOW, THEREFORE, in consideration of the mutual promises 1. Reimbursement. construction of the Median; contained herein, the parties agree as follows: City agrees to impose as a condition of development to the extent lawful and within its municipal powers, on each of t other El Camino Real median frontage properties identified on Exhibit *lA't hereto a fee representing each property's pro- portionate share of the "Median Costs" as hereinafter defined plus a ten percent (10%) administrative fee to the City. These fees shall be collected by City and when so collected shall be distributed as follows: Each proportionate shares of Median Cc to Developer and the ten percent (10%) administrative fee to Ci which amount shall be deemed a fair and equitable percentage fc administrative purposes. In the event any other frontage property owner pays its proportionate share of Median Costs directly to Developer, then Developer shall notify the City 3/7/88 0 * ..I Engineer of such payment and that property be relieved of its obligation to pay said ten percent (10%) fee as and for administrative costs. The City agrees to pay Developer such amounts collected within thirty (30) days of their receipt. Th agreement shall remain in effect until the earlier of (a) the remaining reimbursement amount has been fully satisfied or (b) twenty (20) years from the execution of this Agreement. The Ci shall have no liability of any kind or nature whatsoever to Developer in the event the fees so imposed pursuant to this par graph are not collected for any purpose including the inad- vertence or negligence of its officers or employees, subsequent legislation, removing the City's power to so impose such fees c court order or otherwise. In the event of litigation challengi the lawfulness of this Agreement or the fee imposed by the Cith as a result of this Agreement on any other median frontage property owner, Developer agrees to defend City and to save and hold it harmless from any and all costs, including defense cost and judgments against it or incurred by it. Developer shall be notified immediately of any such claim and/or threatened actior and shall have the unilateral right to waive reimbursement, to select legal counsel and to defend, settle, compromise and/or litigate any such claim or action. 2. Median Costs and Annual Adjustment. 2.1 "Median Costs" as used herein shall include, but E not limited to, costs for design, administration of constructic contracts, and actual construction of the Median. Design and administration costs shall be established as Developer's actual out-of-pocket expenses paid to outside third parties and Developer shall provide reasonable proof thereof to the satisfaction of the City Engineer. copies of all invoices and payments to City and shall be based upon actual quantities of contract items constructed in accordance with the plans and specifications and contract unit prices. Contract unit prices shall not exceed the amounts list in the City of Carlsbad secured Development Improvement Agreeme referenced in the Recitals above. 2.2 "Median Costs" shall be documented by submitted 2.3 Developer, as soon as practicable following completion of the Median, will submit to the City Engineer an accounting of all Median Costs incurred for the Median. Said Median Costs shall be used for any reimbursements made during calendar 1988. Provided however, commencing January 1, 1989 ax each January 1 thereafter, the Median Cost shall be increased based on any increases in the Construction Cost Index for the I Angeles/San Diego area, (1913 equal 100) published by the Engineering News Record ("CCI'') using the monthly index publisl immediately prior to January 1, 1988 as the "base index" and ti monthly index published immediately prior to each subsequent calendar year as the "comparison index". In no event shall tht Median Cost as adjusted annually be less than that calculated 1 -2- 3/7/88 m 0 -. .. the preceding calendar year. The parties agree and acknowledge that this method of indexing Median Costs using the CCI is fair and equitable to Developer and to the other contributing partie: as it will most nearly reflect the actual costs of construction as may exist from time to time. In the event the CCI is discontinued, than the City and Developer shall reasonably agrei on a substitute index or method of indexing for delayed future reimbursement payments. 3. Personal to Developer. The parties acknowledge and agree that the reimbursemen rights and entitlements provided for herein shall be personal ti the Developer and such rights shall not, unless expressly assigned in writing by Developer, innure to the benefit of futu owners or transferees of all or any part of the Carlsbad Gatewa Center (SDP 84-5) project. 4. Miscellaneous. 4.1 A demand upon, payment or notice required or permitted to be given by one party to the other shall be in writing and shall be deemed effective (a) on personal delivery, on the second business day after mailing by certified or registered United States mail, postage pre-paid, return receipt requested or (b) on the succeeding business day after mailing b Express Mail or after deposit with a commercial delivery servic of general use, all postage or fees pre-paid and addressed to t parties at the addresses below: If given to Developer: Mr. Jeff Gabriel Carlsbad Gateway Center c/o Great American Development 600 B Street, Suite 700 San Diego, California 92101 City Engineer City of Carlsbad 2075 Los Palmas Drive Carlsbad, California 92009 Company If given to City: Notice of change of address shall be given by written notice in the manner set forth in this paragraph. among the parties hereto pertaining to subject matter hereof, 2 all prior and contemporaneous agreements, representations and understandings of the parties hereto or the written are hereby supersede and merged herein. No supplement, modification or amendment of this Agreement shall be binding unless in writing and executed by the parties hereto. 4.2 This Agreement constitutes the entire agreement -3- 3/7/80 e e ,. 4.3 This Agreement shall be construed in accordance wi and governed by the laws of the State of California. This Agreement shall be deemed made and entered into in San Diego County, which shall also be deemed to be the sole proper venue for any action or proceeding relating to the Agreement. connection with this Agreement, the party prevailing in such action shall be entitled to recover from the other party all of its costs of action including reasonable attorneys fees as determined by the court, in addition to any other damages or remedies as to which said party is entitled. necessary to execute additional documents or other writings in order to perform this Agreement and in connection with determining the final Median Costs and/or the periodic adjustments thereto. City and Developer hereby agree to cooperate with each other by executing such other documents or taking such other action as may be reasonably necessary to provide for reimbursement of the Median Costs and for completio of the construction of the Median. 4.4 In the event any action shall be instituted in 4.5 Developer and City acknowledge that it may be 4.6 Neither party may, voluntarily or by operation of law, assign or otherwise transfer any of its rights of obligations under this Agreement without obtaining the prior written consent of the other party hereto, which consent will n be withheld unreasonably. Except as set forth in Paragraph 3 above, this Agreement shall be binding on the successors and assigns of the parties hereto. Agreement on the day and year first written above. IN WITNESS WHEREOF, the parties hereto have executed this CITY OF CARLSBAD, A Municipal Corporation of the City of Carlsbad DEVELOPER DAVIS/WALTERS/GADCO CARLSBAD GATEWAY, a California General Partnership BY: GREAT AMERICAN DEVELOPMENT C a California corporation, ge B~: partner (see attached signat General Partner -4- 3\7/88 0 * ** SIGNATURE PAGE TO AGREEMENT FOR REIMBURSMEENT OF COST OF ENGINEERING AND CONSTRUCTION OF EL CAMINO REAL MEDIAN By: DAVIS/WALTERS/GADCo Carlsbad Gateway, a California General Partnership By: GREAT AMERICAN DEVELOPMENT COMPANY, a California Corporation, eneral Partner STATE OF CALIFORNIA 1 COUNTY OF SAN DIEGO 1 ) ss. , 1988, before me, the i -_. On G,pLtP undersigned, !! Notary Public in and for said State, personall appeared ,(,Q i I I i &*WS e. I_ Q Lt-t L’, and <; C-fi c c CL ro/Ld , personally known t me or proved to me on the basis of satisfactory evidence to b th d the with as and American Development Company, a General Partner of DAVIS/WALTERS/GADCo CARLSBAD GATEWAY, a California general partnership, and acknowledged to me that t corporation executed it on behalf of DAVIS/WALTERS/GADCo CARLSBAD GATEWAY. WITNESS my hand and official seal. 4 i/ CCTW ;x: by 2d $ I e m APPROVED AS TO FORM: ATTEST : AGO 0 7RWR -5- 3/7/00 " e 0 ._- -* EL CAMINO REAL MEDIAN ISLAND ASSESSMENT 1. A.P. No. 209-041-23 1.610 Acres 370.01' Frontage 9.55' R.W. Daniels, Jr. c/o Daniels Cablevision 5720 El Camino Real Carlsbad, CA 92009 Henry and Iisuko Yada 5538 El Camino Real Carlsbad, CA 92208 Davis/Walters/GADCo Carlsbad Gateway c/o Mr. William Davis 1400 N. Bristol St. Suite 245 Newport Beach, CA 92660 Robert Delorm 2421 Dunstan St. Oceanside, CA 92054 Ralph and Hope Wrisley 690 Elm Avenue, Apt. 203 Carlsbad, CA 92008 Ross J. and Mabel L. 5392 El Camino Real Carlsbad, CA 92008 Ross J. and Mabel L. 5392 El Camino Real Carlsbad, CA 92008 Carlsbad Pacific Business Center c/o The Koll Co. 7330 Engineer Road San Diego, CA 92111 Carlsbad Pacific Business Center c/o The Koll Co. 7330 Engineer Road San Diego, CA 92111 William T. and Agnes 744 Marsolan Avenue Solana Beach, CA 92075 Gordon B. and Mission Diego Associates (1/2) 1500 Via Arco Palos Verdes Estates, CA 90274 2. A.P. NO. 209-041-05 0.970 Acres 198.44' Frontage 5.12 3. A.P. NO. 209-040-34 15.660 Acres' 900.78' Frontage 23.25 4. A.P. No. 209-040-24 11.000 Acres 221.68' Frontage 5.72 5. A.P. No. 209-040-23 2.710 Acres 40.59' Frontage 1.0: 6. A.P. NO. 209-060-56 2.000 Acres 161.10' Frontage 4,2: Barber 7. A.P. No. 209-060-57 1.220 Acres 41.75' Frontage 1.0 Barber 0. A.P. NO. 212-062-15 1.520 Acres 203.43' Frontage 5.2 9. A.P. No. 212-062-16 5.570 Acres 380.76' Frontage 9.8 10. A.P. NO. 212-020-22 0.950 Acres 9$.90' Frontage 2.: HihoPicR 11. A,P. NO. 212-020-23 53.660 Acres 1256.96' Frontage 32. Juliana M. Fox (1/2) Exhibit "A" Page 1 CJ~ e I, - 0 I. i Median Island Assessment - Easterly of El Camino Real 1. 370.01' Frontage = 9.55% 2. 198.44' Frontage = 5.12% 3. 900.78' Frontage = 23.25% 4. 221.68' Frontage = 5.72% 5. 40.59' Frontage = 1.05% 6. 164.10' Frontage = 4.23% 7. 41.75' Frontaqe = 1.08% Total 1937.35' Frontage = 50.00% Median Island Assessment - Westerly of El Camino Real 8. 203.43' Frontage = 5.24% 9. 380.76' Frontage = 9.81% 10. 98.90' Frontage = 2.55% 11. 1256.96' Frontage = 32.40% Total 1940.05' Frontage = 50.00% Exhibit "A" Page 2 of m -7c aT a/ Jd- e CRLATAMERKAN DEVELOPMENTCOMPANY April 1. 1988 Mr. Dan Clark Engineering Department CITY OF CARLSBAD 2075 Las Palmas Drive Carlsbad, CA 92009-4859 Dear Dan: Pursuant to our discussion, I am enclosing two originals of Reimbursement Agreement for the construction of the median Carlsbad Gateway. Let me know what City Council session this w be heard at and whether attendance by principals of partnership and/or legal counsel is required. Please have one returned to my office after full execution. JG:sp Enclosures cc: Fred Walters # Ron Rouse 600 B STREET, SUITE 700 SAN DIEGO, CALIFORNIA 92101 (619) 231-6442 -_