HomeMy WebLinkAboutNorth San Diego County Transit Development Board; 1997-11-21;•'•""•V
IMPROVEMENT AGREEMENT
DATE OF AGREEMENT: NOVEMBER J^_, 1997
NAME OF DEVELOPER: NORTH SAN DIEGO COUNTY TRANSIT DEVELOPMENT
BOARD
NAME OF DEVELOPMENT: RIGHT-OF-WAY IMPROVEMENTS ADJACENT TO
CARLSBAD VILLAGE STATION PARKING LOT
IMPROVEMENT DRAWING NO(S):
ESTIMATED TOTAL COST OF IMPROVEMENTS: $156.50°
THIS AGREEMENT is made and entered into on the date stated above by and between
the City of Carlsbad, California, a Municipal Corporation of the State of California, hereinafter
referred to as "City"; the Housing and Redevelopment Commission, hereinafter referred to as
"Commission"; and the North San Diego County Transit Development Board, a public agency,
hereinafter referred to as "Board."
RECITALS
A. Board is the owner and operator of the Carlsbad Village Station (hereinafter
referred to as the "Station") in the City which is used for the provision of rail and surface public
transit services. At the request of the City the Board undertook a parking availability study which
demonstrated the need for additional parking facilities at the Station. In response to this need the
Board has proceeded with the planning and construction of an expansion of the Station parking
lot (hereinafter referred to as the "Project"); and
B. Pursuant to the February 20, 1990 agreement for the construction of the Carlsbad
Transit Center between the parties, the Board has prepared and presented to the City, for its
review and approval, plans and specifications for the construction, installation and completion of
the Project to City standards (hereinafter referred to as the "Plans"), which includes the
construction of improvements on or within a City owned right-of-way adjacent to the Station
(hereinafter referred to as the "City Right-of-Way"); and
C. The Plans have been or shall be approved by the City Engineer and are
incorporated by reference herein and made a part hereof. All references to the Plans shall include
any specifications for the Project which have been or shall be approved by the City Engineer; and
F:\CLIENTS\NCTD\JURISDIC\JHE711.3
D. As a part of the Project the Board has agreed to and will construct an additional
access to the parking lot off of State Street and across the City Right-of-Way (hereinafter referred
to as the "Third Access"); and
E. Board has agreed to comply with the certain requirements adopted by the City and
approved by the Board in the construction of the Project and land development work on or within
the City Right-of-Way and in the construction of the Third Access and, in consideration of the
approval and acceptance of said requirements by Board and in accordance with the terms and
conditions of this Agreement, City is willing to allow a portion of the Project to encroach onto the
City Right-of-Way; and
F. Board, in consideration of the City's consent to allow the Board to use and
improve a portion of the City Right-of-Way and other City facilities, desires to: (i) install and
complete at its own expense the entire Project in accordance with the Plans and (ii) assume
certain indemnity obligations vis-a-vis the City.
G. An estimate of the cost of constructing the Project according to the Plans has been
made and has been approved by City Engineer in an amount stated on Page 1, which estimate is
attached hereto, and marked Exhibit "A."
NOW THEREFORE, in consideration of the approval by City of the use of the City
Right-of-Way by Board and other valuable consideration Board and City agree as follows:
1. Board's Obligation To Construct Project In Accordance With The Plans. The Board
shall:
a. Complete construction of the Project at its own expense, in accordance with the
Plans and, as to the improvements constructed within the City Right-of-Way and which are a part
of the Third Access to the satisfaction and approval of the City Engineer, the public improvement
work described below as follows:
IMPROVEMENTS DEADLINE DATE
City Right-of-Way Improvements Within ninety days of City
authorization to work
Third Access Improvements October 1, 1998
b. Not begin construction work on the Third Access until the Plans related to the
Third Access are approved by the City Engineer;
c. Furnish the necessary materials for the completion of the construction of the
portion of the Project within the City Right-of-Way and as necessary for construction of the Third
Access in conformity with City standards and the Plans;
F:\CUENTS\NCTD\JURISDIOJHE711.3
C 3
d. Notify the City Engineer of the progress of the construction of the portion of
the Project within the City Right-of-Way and the Third Access so that the City Engineer will be
able to schedule inspections;
e. Install street name signs as shown in the Plans, if any, which conform to City
standards. If permanent street name signs have not been installed before acceptance of the
improvements by the City, Board shall install temporary street name signs according to such
conditions as the City Engineer may require. Such action shall not, however, relieve Board of the
obligation to install permanent street signs if required by the Plans;
f. Use its best efforts to complete the improvements under this contract on or
before the time limits stated in Subsection a of this Section 1, unless a time extension is granted by
the City Community Development Director in accordance with Section 19; and,
g. Acquire and/or dedicate all rights-of-way, easements and other interests in real
property required for construction of the Third Access free and clear of all liens and
encumbrances.
2. Guarantee or Warranty for One Year.
a. In addition to any other remedy in law or equity, Board shall guarantee or
warranty the work done on the portion of the Project within the City Right-of-Way and/or as a
part of the Third Access for a period of one year after final acceptance by the City Manager of the
improvements constructed within the City Right-of-Way and as a part of the Third Access against
any defective work or labor done or defective materials furnished. If within the warranty period
any work or improvement or part of any work or improvement done, furnished, installed,
constructed or caused to be done, furnished, installed or constructed by Board within the City
Right-of-Way or as a part of the Third Access fails to fulfill any of the requirements of this
Agreement or the Plans, Board shall without delay and without any cost to the City repair, replace
or reconstruct any defective or otherwise unsatisfactory part or parts of said work. Should Board
fail to act promptly or in accordance with this requirement, Board hereby authorizes City, at
City's option, to perform the work twenty (20) days after mailing written notice of default to
Board, and Board agrees to pay the cost of such work by City.
b. Should City determine that an urgency requires repairs or replacements to be
made before Board can be notified, City may, in its sole discretion, make the necessary repairs or
replacement or perform the necessary work, and Board shall pay to City the cost of such repairs.
City shall take all steps reasonably possible to notify Board of such urgency, but failure to receive
notification shall not relieve Board of the obligation to pay for the entire cost of the urgency
work.
c. Notwithstanding any other provision of this Agreement, the City is not required
to notify Board during the warranty period for any claims under the warranty and Board agrees to
honor claims presented after the warranty period for claims which arose during the warranty
period.
3. Inspection. Board shall at all times maintain proper facilities and safe access for
inspection by City inspectors of the improvements constructed within the City Right-of-Way and
as part of the Third Access and to the shops wherein any such work is in preparation. Upon
F:\CLIENTS\NCTD\JURISDIC\JHE711.3
completion of the portion of the Project within the City Right-of-Way and the Third Access the
Board shall request a final inspection by the City Engineer, or the City Engineer's authorized
representative.
4. Alteration to Improvement Plans. Board shall make no changes, alterations or additions
to the Plans without first submitting them to and obtaining City Engineer review and approval.
5. Injury to Public Improvements. Public Property or Public Utilities Facilities. Board
shall replace or repair all public improvements, public utilities and surveying or subdivision
monuments which are destroyed or damaged in the construction of the Project. Board shall bear
the entire cost of replacement or repairs of any and all public or public utility property damaged or
destroyed by reason of any work done under this Agreement, whether such property be owned by
the United States or any agency thereof, or the State of California, or any agency, or district, or
political subdivision thereof or by the City or any public or private utility corporation or by any
combination of such owners. Any repair or replacement shall be to the satisfaction, and subject to
the approval of, the City Engineer.
6. Injury to Work. Prior to dedication and acceptance of the improvements constructed
in the City Right-of-Way or as a part of the Third Access Board shall be responsible to bear the
risk of loss to any of the improvements constructed or installed. Board will be responsible for the
care, operation of, maintenance of, and any damage to such improvements. City shall not, nor
shall any officer or employee thereof, be liable or responsible for any accident, loss or damage,
regardless of cause, happening or occurring to the work or improvements specified in this
Agreement prior to the completion and acceptance of the work or improvements. All such risks
shall be the responsibility of and are hereby assumed by Board.
7. Security.
a. Board shall at all times guarantee Board's performance of this Agreement by
furnishing to City, and by maintaining, an irrevocable standby letter of credit in favor of City and
to the satisfaction of the City Director of Finance in an amount equal to the estimated cost stated
in Exhibit "A" of completing: (i) the improvements to the City Right-of-Way, (ii) the Third
Access and (iii) the warranty obligation described in Section 2.
b. Board acknowledges that said letter of credit is for the purpose of guaranteeing
to City that the Third Access will be constructed in accordance with this Agreement.
c. It shall be a condition of said letter of credit that it remain in effect and not
expire until final acceptance of the Third Access by the City Manager.
d. In the event that Board does not complete construction of the Third Access in
accordance with this Agreement by the date stated in Section 1, above, City has the right, after
thirty (30) days notice to Board, to draw upon said letter of credit in the amount necessary to
complete construction of the Third Access in accordance with the Plans. Within thirty (30) days
after completion of construction of the Third Access, City hereby agrees to return any and all
remaining funds from said letter of credit to Board.
F:\CUENTS\NCTDUURISDIC\JHE711.3
e. Said letter of credit shall be canceled and expire upon the end of the warranty
period described in Section 2 of this Agreement.
f. Upon completion of the City Right-of-Way and/or Third Access portions of the
Project the portion of the Security related to that completed portion of the Project shall be
released by the City. In addition, upon partial completion of the City Right-of-Way portion or the
Third Access portion, a part of the Security may be released by the Community Development
Director. Notwithstanding the provisions of this subsection f, in no case shall the Security be
released below twenty five percent (25%) of the cost estimate for each portion of the Project
stated in Exhibit "A" until the letter of credit is canceled in accordance with subsection e, above.
8. Default of Board.
a. "Default of the Board" shall include, but not be limited to: (i) Board's failure to
complete construction of the portion of the Project within the City Right-of-Way in accordance
with the Plans; (ii) Board's failure to cure any defect in the improvements constructed on the
portion of the Project within the City Right-of-Way; (iii) Board's failure to use its best efforts to
complete in a timely manner the construction of the Third Access in accordance with the Plans;
(iv) Board's insolvency, the appointment of a receiver, or the filing of any petition in bankruptcy
either voluntary or involuntary which Board fails to discharge within 30 days; or (v) Board's
failure to perform any other obligation under this Agreement.
b. The City reserves to itself all remedies available to it at law or in equity for
breach of Board's obligations under this Agreement. City's damages, if any, for Board's default
shall be measured by the actual cost to City of completing the required performance.
c. On a Default of the Board the City may take over construction of the portion of
the Project within the City Right-of-Way and prosecute the same to completion, by contract or by
any other method City may deem advisable, for the account and at the expense of Board; and, in
such event, City, without liability for so doing, may take possession of, and utilize in completing
the work such materials, appliances, plant and other property belonging to Board as may be on
the site of the work and necessary for completion of the portion of the Project within the City
Right-of-Way. Board agrees not to remove such property from the site.
d. In the event that Board fails to perform any obligation hereunder, Board agrees
to pay all costs and expense incurred by City in obtaining performance of such obligations,
including costs of suit and reasonable attorney's fees.
e. The failure of City to take an enforcement action with respect to a default, or to
declare a breach shall not be construed as a waiver of that defaulfbr any subsequent default of
Board.
9. Board Not Agent of City. Neither Board nor any of Board's agents or contractors are
or shall be considered to be agents of City in connection with the performance of Board's
obligations under this Agreement.
10. Other Agreements. Nothing contained in this Agreement shall preclude City from
expending monies pursuant to agreements concurrently or previously executed between the
parties, or from entering into agreements with other entities or Subdividers for the apportionment
F:\CUENTS\NCTD\JURISDICYIHE711.3
of costs of water and sewer mains, or other improvements, pursuant to the provisions of the City
ordinances providing therefore, nor shall anything in this Agreement commit City to any such
apportionment.
11. Board's Obligation to Warn Public During Construction. Until final acceptance of the
improvements constructed within the City Right-of-Way or as a part of the Third Access, Board
shall give good and adequate warning to the public for each and every dangerous condition
present in improvements, and will take all reasonable actions to protect the public from dangerous
conditions.
12. Indemnity/Hold Harmless. The City or any officer or employee thereof shall not be
liable for any injury to persons or property occasioned by reason of the acts of omissions of
Board, its officers, agents or employees, in the performance of this Agreement. Board further
agrees to protect and hold harmless City, its officers and employees from any and all claims,
demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or
omissions of Board, its officers, agents or employees in the performance of this Agreement,
including all claims, demands, causes of action, liability, or loss because of, or arising out of, in
whole or in part, the design or construction of the Project. Said indemnification and Agreement
to hold harmless shall extend to injuries to persons and damages to or taking of property
(including, but not limited to, adjacent property), resulting from the design or construction of the
Project, including, but not limited to (i) the diversion of water, (ii) the alteration of the normal
flow of surface waters or drainage, (iii) the concentration of surface waters or drainage from the
drainage system or other improvements identified on the Plans or (iv) the design, construction or
maintenance of the drainage system or other improvements identified in the Plans. Neither the
approval of the Plans, nor the inspection by the City, nor acceptance of the improvements
constructed on or within the City Right-of-Way or as a part of the Third Access shall constitute
an assumption by the City of any responsibility for any damage or taking covered by this
paragraph. City shall not be responsible for the design or construction of the Project or the
improvements pursuant to the Plans, regardless of any action or inaction taken by the City in
reviewing and/or approving the Plans, unless the particular improvement design was specifically
required by City over written objection by Board submitted to the City Engineer before approval
of the particular improvement design, which objection indicated that the particular improvement
design was dangerous and suggested an alternative safe and feasible design. The provisions of
this paragraph shall remain in full force and effect following the completion of the Project. It is
the intent of this paragraph that Board shall be responsible for all liability for design and
construction of the improvements installed or work done as part of the Project or pursuant to this
Agreement and that City shall not be liable for any nonfeasance, misfeasance or malfeasance in
approving, reviewing, checking, or correcting any plans or specifications or in approving,
reviewing or inspecting any work or constaiction.
13. Vesting of Ownership. Upon acceptance of the work on behalf of City and
recordation of the Notice of Completion, ownership of the improvements constructed within the
City Right-of-Way and the Third Access pursuant to this Agreement shall vest in City.
F:\CLffiOTS\NCTD\JURISDIC\JHE711.3
14. Time is of the Essence. Time is of the essence in this Agreement.
15. Notices. All notices required or provided for under this Agreement shall be in writing
and delivered in person or sent by mail, postage prepaid and addressed as provided in this
paragraph unless a written change of address is filed with the City. Notice shall be effective on
the date it is delivered in person, or, if mailed, two days after deposit into the U. S. Mail:
Notice to City:
Notice to Board:
City Engineer
2075 Las Palmas Drive
Carlsbad, CA 92009-4859
Manager of Capital Projects and Construction
North County Transit District
810 Mission Avenue
Oceanside, California 92054
16. Severability. The provisions of this Agreement are severable. If any portion of this
Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement
shall remain in full force and effect unless amended or modified by the mutual consent of the
parties.
17. 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.
18. Incorporation of Recitals. The Recitals to this Agreement are hereby incorporated
into the terms of this Agreement.
19. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter. All modifications, amendments, or waivers of the terms of this
Agreement must be in writing and signed by the appropriate representatives of the parties. In the
case of the City, the appropriate party shall be the Community Development Director.
NORTH SAN DIEGO COUNTY
TRANSIT DEVELOPMENT BOARD
CITY OF CARLSBAD, a municipal
corporation of the State of California
_ .
CommunityDevelo'pment Director
F:\CLffiNTS\NCTDUURISDICUHE711.3
c
HOUSING AND REDEVELOPMENT
COMMISSION OF THE CITY OF CARLSBAD
By: .
Community Developmeh\pirector
APPROVED AS TO FORM:
D. DWIGHT WORDEN
GE1
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
By:
F:\CLIENTS\NCTD\JUR1SDICUHE711.3
CARLSBAD VILLAGE PARKING LOT PROJECT
DETERMINATION OF LINE OF CREDIT AMOUNT
1) Third Access $144,000
2) Offsite Improvements 12.500
SUB-TOTAL $156,500
3) Warranty (25%) 39.125
Amount to be covered by line of credit $ 195,625
Carlsbad Village Station - parking lot expansion
Third Access to State Street
Order of Magnitude Cost Estimate
This estimate was prepared before research of the site was completed and before any
preliminary plans. It is based on the assumptions of a 24-foot street section, sidewalk on
one side, and the Sousa property having dimensions of approximately 43' by 130'.
A 25% contingency is added on the total for not yet identified items.
Mobilization
Demolition - House
Demolition - Site/Street Improvements
Remove/Haul Excess Material
Excavation, Sub-grade Preparation
4" PCC Sidewalk
Asphalt Concrete (4")
Aggregate Base (10")
Relocate 2 Large Underground Vaults
PCC Curb-n-Gutter
Street Lighting/Electrical
Signing and Striping
Landscaping
TOTAL
25% Contingency
TOTAL WITH CONTINGENCY
Amount
1
1
1
70
1
750
3600
3600
1
320
1
1
1
Unit
LS
EA.
LS
CY
LS
SF
SF
SF
LS
LF
LS
LS
LS
Unit Cost
$10,000
$7,000
S 10.000
$7.00
$6.000
$3.50
SI. 60
SI. 35
$22,000
$13.10
$17,000
$6.000
$24,000
TOTAL
S10.000
$7,000
$10,000
$500
$6,000
$2,625
$5,760
$4,860
$22,000
$4,192
$12,000
$6,000
$24,000
$115,000
$29,000
$144,000
x:\m\v\n\970908a.doc
C Carlsbad Village Station -^
Parking Lot Expansion (Revised)
Construction Cost Estimate
Offsite (Alley) Improvements
Uni1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
16
19
20
21
22
23
24
25
26
PCC Curb
Asphalt Concrete (4*)
Aggregate Bate (6")
1B" RCP
Junction Structure (Cone, collar)
Trench Resurfacing Type A
Planter Drain
4" PVC (Scried. 40)
Signing and Striping
Landscaping and Irrigation
SUBTOTAL
CONTINGENCY (5%)
TOTAL COST
si3Hr^}?fBiW
400
1,050
1.050
9
2
32
3
32
1
1
8tyi
LF
SF
SF
LF
EA
SF
EA
LF
LS
LS
$13.10
$1.60
$1.10
$80.00
$650.00
$1.60
$50.00
$14.00
$500.00
$700.00
^f||Sl!ll|K?iwp
$5.240.00
$1,660.00
$1,155.00
$720.00
$1,300.00
$51.20
$150.00
$446.00
$500.00
$700.00
$11,944.20
$555.60
$12,500.00
ALLEYCST.XLS 11/8/97