HomeMy WebLinkAboutReimbursement and Impact Fee Credit Agreement for Prado Road Extension Costsclay of
$an WIS OBISPO
MEMORANDUM
February 28, 2013
TO: City Clerk
Via: City Attorney, Attn: Claudia
Return to: Public Works Development Review
FROM: Hal Hannula, Supervising Civil Engineer
SUBJECT: Reimbursement and Impact Fee Credit Agreement for Prado Road Extension
All,
We are transmitting herewith, 4 signed originals of the agreement. This will be a linear routing
to the City Attorney for Approval as to Form and then on to the City Clerk for the Mayoral
signature and attestment. This agreement was approved by the City Council on February 19,
2013 with public hearing item PH2 and Resolution No. 10424 authorizing the Finance Director
to an interfund loan for purposes of constructing a portion of Prado Road. It is not clear whether
a copy, of this signed document should also be forwarded to Finance to initiate any 'infernal
processes. Please forward back'the 3 remaining signed copies to our office for circulation,back
to the applicant. Call if there is some other processing questions or changes. Thanks, Hal
REIMBURSEMENT AND IMPACT FEE CREDIT AGREEMENT
FOR PRADO ROAD EXTENSION COSTS
This Agreement is made on c e,4_ , 2013, by and between the City of San Luis
Obispo and ResCal SLO 193, LLC ("Developer'-"').
Recitals
A. WHEREAS, on October 12, 2004, the San Luis Obispo City Council adopted the
Margarita Area Specific Plan by City Council Resolution Number 9615; and
B. WHEREAS, on March 7, 2006, the City Council adopted Resolution No. 9776 (2006
Series) approving Vesting Tentative Tract Map No. 2342; and,
C. WHEREAS, Chapter 2.3 of the City's General Plan Land Use Element identifies the
Margarita Area as a Residential Expansion Area intended to accommodate San Luis
Obispo's planned residential growth for the near future; and,
D. WHEREAS, Section 5.7.2 of the Margarita Area Specific Plan states that
establishing the east -west connection of Prado Road between Broad Street and
Higuera Street at the earliest possible stage is a goal of the Specific Plan since
construction of Prado Road will facilitate housing development in the Margarita
Area; and,
E. WHEREAS, Section 5.7.2 of the Margarita Area Specific Plan and the Vesting
Tentative Tract Map No. 2342 Condition of Approval l.g. provide that the City will
consider a reimbursement agreement to help distribute and pay the costs of
designing, permitting and constructing portions of Prado Road; and,
F. WHEREAS, the Developer is responsible for completing design, permitting and
construction of portions of Prado Road that are beyond its fair share, are necessary
for orderly development of the Margarita Area and are contained in the MASP public
financing program; and,
G. WHEREAS, Pursuant to condition 1 e of Resolution No. 9776, the City reserves the
right and the Property Owner, either current or future, shall not oppose the formation
of a community facilities district or other such financing mechanism that would fund
any final project costs, for the construction of Prado Road Extension that are not
contained in the Margarita Area Specific Plan Impact Fee estimates.; and,
H. WHEREAS, the City has determined that the most efficient, expedient, and effective
approach to coordinate the construction of Prado Road concurrent with the housing
development Tract 2342 is for the Developer to construct Prado Road in
conformance with the City approved Delivery Plan of Prado Road; and,
I. WHEREAS, Section 66485 et seq. of the Subdivision Map Act authorizes a local
ordinance requirement that improvements installed by the subdivider for the benefit
of the subdivision shall contain supplemental size, capacity, number, or length for
1
the benefit of property not within the subdivision, and that those improvements be
dedicated to the public; and
J. WHEREAS, the City adopted Chapter 16.20. of San Luis Municipal Code in 2006
to require physical improvements including supplemental capacity for subdivisions
consistent with Section 66485 et seq. of the Subdivision Map Act; and,
K. WHEREAS, Chapter 16.20 of the San Luis Municipal Code was adopted to specify
the conditions and eligibility for reimbursement and this agreement meets these
requirements, provided that, if this Agreement is determined to be in conflict with
Chapter 16.20 of the San Luis Municipal Code, then San Luis Municipal Code shall
prevail; and,
L. WHEREAS, the City of San Luis Obispo has adopted Chapter 16.20 of the San Luis
Obispo Municipal Code to set forth the procedure and conditions for physical
improvement standards and procedures, including the reimbursement of costs
whenever improvements are required to be installed adjacent to property other than
that being developed or in greater size or capacity than required for the development
of the property under consideration; and,
M. WHEREAS, Section 9.6.1 and 9.7.2 of the Margarita Area Specific Plan and the
Conditions of Approval for Tract 2342 identified a reimbursement agreement as one
instrument to reimburse developers for costs to construct public facilities in excess of
those necessary to accommodate project requirements and,
N. WHEREAS, Section 9.6.1 of the Margarita Area Specific Plan identified
development impact fee credits and other impact fees (interfund loans) as potential
mechanisms to fund such public infrastructure improvements and their
reimbursements; and,
O. WHEREAS, the City's Economic Development Strategic Plan's (adopted October
16, 2012) primary goal is creation of head -of -household jobs through developing
strategies for infrastructure, focusing on promising growth sectors, and expediting
desired economic activity; and,
P. WHEREAS, Section 3.1 of the Economic Development Strategic Plan designates the
Business Park zone of the Margarita Area as accommodating professional -service,
research, and light manufacturing jobs that can support local households; and,
Q. WHEREAS, Sections 1.4 and 1.5 of the Economic Development Strategic Plan call
for exploring financing strategies for infrastructure that address timing/costs and
ensure that that new development is responsible for infrastructure costs only to the
extent there is a nexus between infrastructure requirements and project impacts; and,
R. WHEREAS, Section 1.9 of the Economic Development Strategic Plan contains a
strategy to work with developers that are willing to install infrastructure beyond the
new development's "fair share' requirement as an expedient way to provide new
infrastructure in the City's Expansion Areas; and,
REIMBURSEMENT AND IMPACT FEE CREDIT 2 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
S. WHEREAS, the Economic Development Strategic Plan made findings that, in the
City's expansion areas, there are limited "shovel ready" sites for new construction
due to the scale and cost of required public infrastructure and that key opportunity
sites need to be subdivided and/or lack infrastructure. These constraints add to the
time and complexity to bring projects online and have resulted in limited built office
and business park space large enough to accommodate the expansion of some
companies currently in the City and companies looking to relocate to the area.
T. WHEREAS, a report prepared by the Goodwin Consulting Group estimated that the
total jobs created by the buildout of the MASP to be approximately 7,081.5 and
472.1 new ongoing jobs at buildout; and
U. WHEREAS, Developer has constructed a drainage detention basin as required by the
VTTM Conditions of Approval and the Margarita Area Specific Plan at its sole
expense. The basin has been designed specifically to include surplus capacity
available for other parcels located in the Margarita Area Specific Plan as well as
drainage from the Prado Road improvements with the intent that said parcels and
roadway will be allowed to use such basin and, that Developer shall be reimbursed
with fair share contributions when other benefitting parcels develop, including the
Prado Road improvements as defined in this agreement; and,
V. WHEREAS, it is in the interest of orderly development that parcels in the Margarita
Area Specific Plan be able to connect to this drainage detention facility and that the
Developer recover a proportion of actual costs from other owners in the Margarita
Area Specific Plan for constructing the detention basin and related facilities, in
excess of its project needs; and,
W. WHEREAS, the construction of Prado Road and the internal roadway network for
Vesting Tentative Tract Map No. 2342 will provide access to adjacent parcels and it
is in the interest of public health and safety and orderly development to provide
reasonable access to these parcels prior to the City accepting Prado Road
improvements into the maintained City system; and,
X. WHEREAS, the Goodwin Report, dated January 4, 2013, has determined that the
allocated Fair Share of Prado Improvements for VTTM 2342 is $731,643 and
specifically $534,856 for the residential component of Tr 2342. The Report also
identified the cost of the initial phase(s) of Prado to be constructed by Developer are
significantly in excess of that Fair Share. As an inducement for Developer to
construct desired improvements in excess of its fair share, City concludes it is
appropriate to accelerate repayment to Developer through the allocation of impact
fee credits from VTTM Nos. 2342, and from other residential and non-residential
properties in the Margarita Area benefitting from the improvements.
Y. WHEREAS, the Prado Road Extension is to be designed and constructed in phases
as defined in this Agreement, the Delivery Plan, and Conditions of Approval La-f.
Prado Road adjacent to Tract 2342 has been designed at Developer's expense, and
plan checked and approved by the City. It is the intent of this Agreement to credit or
REIMBURSEMENT AND IMPACT FEE CREDIT 3 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
reimburse developer for all of the related design expenses. Final design of portions
of Prado Road at the easternmost edge of the Western Enclave will require additional
coordination with adjacent property owners as part of development of Tract 2353;
and,
Z. WHEREAS, if this Agreement is determined to be inconsistent with the Conditions
of Approval, the Conditions of Approval shall prevail; and
AA. WHEREAS, the City of San Luis Obispo has determined that the Prado Road
Improvements must be undertaken by Developer in Phases as defined in this
Agreement and according to the Delivery Plan.
BB. WHEREAS, Exhibit "A" to the Agreement and attached hereto provides the plan
schematic for the initial phase of construction (Segment A) as defined in this
Agreement and approved and permitted by the City, which are incorporated herein
by reference; and
CC. WHEREAS, Exhibit "A" to the Agreement and attached hereto provides conceptual
plans for subsequent phases of Prado Road Improvements as defined in the
Agreement and to be constructed by Developer or others; and,
DD. WHEREAS, in connection with obtaining a building permit for each business park,
office, single-family, multi -family unit, or other allowed land use within the
Margarita Area Specific Plan, Margarita Area Specific Plan owners and/or
developers are required to pay certain City-wide Transportation Impact Fees and
Margarita Specific Plan Area Add -On Traffic Fees and Park In -Lieu (?) Fees to the
City of San Luis Obispo; and
EE. WHEREAS, in order to induce the Developer to incur the Developer Costs (a
schedule of which, is attached hereto and incorporated herein by reference as Exhibit
"B") the City of San Luis Obispo agrees to issue to the Developer Eligible Fee
credits or, as needed, reimbursement as established in this Agreement and authorized
under Section 16.20.110 of the City of San Luis Obispo Municipal Code with an
intent to compensate Developer for actual Developer Costs of Prado Road in excess
of its fair share. A schedule specifying the Eligible Fees for the construction of
single family units is attached as Exhibit "C".
FF. WHEREAS, Developer has or will post a payment and performance bond, or other
security, as may be reasonably approved by the Public Works Director and Finance
Director ("Segment A Security Bond"), in the amount sufficient to secure
Developer's obligation to design and construct Segment A of the Prado Road
Improvements for VTTM 2342. After completion of Segment A improvements, City
agrees to release the Segment A Bonds in accordance with the City Municipal Code;
and,
GG. WHEREAS, The City has found in connection with its review and consideration of
this Agreement that no subsequent or supplemental Environmental Impact Report is
REIMBURSEMENT AND IMPACT FEE CREDIT 4 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
necessary or required under CEQA because the terms and conditions of this
Agreement are consistent with and within the scope of and contemplated by the
FEIR adopted for the MASP and VTTM's as required for implementation of the
mitigation measures thereunder; and
HH. WHEREAS, an east -west connection between South Higuera and Broad Street has
been formal City policy since the early 1960's when it was included in the City's
first General Plan; and
II. WHEREAS, several Environmental Impact Reports have been certified that included
Prado Road extension, including the 1994 Land Use and Circulation Elements, the
2000 Amendment to the Circulation Element, and the Airport and Margarita Specific
Plans. These EIR's have analyzed the impacts associated with adding the road to the
circulation system and Circulation Element and its current alignment. Project
specific impacts were addressed in each environmental documents prepared for
Vesting Tract Maps. The impending EIR for the Land Use and Circulation Elements
will look at the entire circulation network and consider the current alignment and
inclusion of Prado Road.
Based on the foregoing, the parties agree as follows:
AGREEMENT
1. Terms. The foregoing recitals are deemed by both parties to be a material part of this
Agreement and are incorporated herein and binding on the parties by this reference.
2. Capitalized terms used in this Agreement will have the following meanings:
(a) "Agreement" means this agreement as executed by the Developer and the
City of San Luis Obispo.
(b) "Bonds" means a guaranty by a surety company acceptable to the City,
securing that if a contractor fails to perform the work required to comply with the approved Prado
Road Plans, the surety company will complete the work.
(c) "City "means the City of San Luis Obispo, a municipal corporation.
(d) "Conditions of Approval ("COA")" means the required Developer actions as
shown in Resolution 9776 as adopted by the City of San Luis Obispo on March 7, 2006 and as
modified on September 28, 2011 and revisions, if any, as adopted by Council on February 19tn,
2013.
(e) "Developer" means ResCal SLO 193, LLC, a Delaware limited liability
company.
(f) "Developer Costs" means those costs specified in Exhibit `B" related to the
estimated cost of designing, permitting and constructing the Prado Road Improvements which shall
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
include the costs of the Goodwin Consulting Group Margarita Area Specific Plan analysis, and all
right-of-way acquisitions secured by Developer, if any. These costs shall not exceed $2,120,250
unless they are decreased or increased, based upon the actual costs of construction after bidding or
for cost changes established in this Agreement with prior approval by the City Engineer, or as
authorized based upon Section 8 of this Agreement.
(g) "Eligible Fees" means the estimated Impact Fees for Tract 2342 that are
eligible for credit or to reimburse the Developer for the actual costs of constructing road
infrastructure, which are in excess of the Project's fair share as specified herein. Eligible Fees are
limited to Margarita Area Add On Transportation Impact Fees and Margarita Area Specific Plan
Add On Park Impact Fees as specified in Exhibit "C" for buildout of single family homes,
multifamily homes and business park properties in VTM 2342. No City Impact Fees or Connection
Fees not specifically included herein as Eligible Fees, as described above, shall be available for
credit or reimbursement. "Non Eligible Fees" All city impact fees or connection fees not
specifically included as Eligible Fees as describe above. Non Eligible fees include, but are not
limited to, Citywide Transportation Impact Fees for all other MASP projects..
(h) "Impact Fees" means fees as defined under Section 66000 (b) of the
California Government Code that were adopted by the City of San Luis Obispo and which apply to
the proposed development in the Margarita Area Specific Plan.
(i) "Plan Fees" means all Inspection and Processing Fees imposed by the City in
its review of the Prado Road Plans and Prado Road Improvements.
0) "VTTM" means "Vesting Tentative Tract Map". VTTM No. 2342 was
approved by Resolutions 9776 on March 7, 2006.
(k) "Margarita Area Specific Plan ("MASP")" means the specific plan adopted
by the City of San Luis Obispo on October 12, 2004 by City Council Resolution Number 9615.
(1) "Segment A" is that portion of Prado Road designated as Segment A of the
Delivery Plan and shall consist of street frontage improvements including curb, gutter, sidewalk,
parkway landscaping, two 12-foot travel lanes, and a 5-foot bike lane/shoulder on the north side of
Prado and a 5-foot bike lane/shoulder on the south side of Prado. Segment A shall also include all
storm drainage, water, sewer and dry utilities per plan along its frontage along with a stub of
necessary utilities to the south side of Prado Road. and the improvements will include a transition
from the "Serra Meadows Road" entrance of Tr 2342 to the existing paved road section on the south
side of Prado Road.
(m) "Segment D" and "Segment E"consists of those portions of Prado Road
designated as Segment D and Segment E, respectively, of the Delivery Plan, a component of the
Prado Road Improvements, which is the street widening to accommodate up to 2 lanes and various
infrastructure, past the roundabout to east of the westerly most entry to VTTM 2353. These
segments of improvements will be constructed as part of development of Tract 2353 and may be
subject to their own reimbursement agreement with the City.
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
(n) "Prado Road Plans" means plans and commensurate physical improvements
approved by the City of San Luis Obispo to construct Segment A of Prado Road as required by this
Agreement, the VTTMs for Tract 2342 as depicted in Exhibit "A".
3. City Obligations. In consideration of Developer's agreement to design and
construct the Prado Road improvements, the City agrees:
(a) To cooperate and work with Developer to promptly secure all necessary
rights -of -way at Developer's cost.
(b) Upon Developer's completion (both full and partial) of the Prado Road
improvements as specified in the approved Prado Road Plans, and upon notification to the City, the
City shall inspect Prado Road improvements to determine compliance with approved Prado Road
Plans, engineering standards, and COAs. The City's inspection shall determine if there has been
substantial conformance with approved Prado Road Plans, engineering standards and the conditions
of approval of VTTM 2342. The City agrees that satisfactory completion of Segment A shall
constitute substantial conformance with COA La-h of VTTM 2342. If the City determines that the
Prado Road Improvements do not meet the requirements of the approved Prado Road Plans,
engineering standards, and/or Agreement, then the City will provide written notice to Developer and
Developer will have sixty (60) days to correct or make substantial progress on addressing identified
deficiencies. If, after sixty (60) days, the deficiencies are not addressed and the City, at its sole
discretion, has determined that no substantial progress has occurred to address identified
deficiencies, the City can use the Bond to correct any deficiencies. If the City determines that the
Prado Road Improvements meet the requirements of the approved Prado Road Plans, engineering
standards, and Agreement, then the City shall take action within forty-five (45) days to accept Prado
Road improvements into the City's maintained street system.
(c) To promptly provide credit against Eligible Fees due from Developer for
reimbursement to Developer for its Developer Costs pursuant to this Agreement, subject to the
terms and limitations set forth in this Agreement.
(d) To pay itself with fees paid for Inspection and Processing Fees ("Plan Fees")
for the costs of inspecting the construction of Prado Road Improvements and for costs to review and
approve Prado Road Plans and specifications for Segment A, with these Plan Fees capped at
($148,350). as specified in Exhibit `B.". This amount reflects a credit for previous plan review fees
collected from the prior applicant for Tr 2342 that processed plans and specifications for a different
Prado Road delivery project.
(e) To promptly release the Segment A Bond when Segment A is completed,
promptly release the Segment D Bond when Segment D is completed, and promptly release the
Segment E Bond when Segment E is completed.
(f) To inspect Prado Road improvements, review Prado Road Plans and approve
said plans, provided they are in compliance with approved conditions and engineering standards.
4. Developer Obligations. In consideration of City's entering into the Agreement,
Developer agrees to:
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
(a) To construct the Segment A Prado Road Improvements according to the
approved plans or according to change orders approved pursuant to this agreement.
(b) Acquire all necessary rights -of -way, as specified in condition COA 1 c, to
construct Segment A of the Prado Road Improvements consistent with the approved Prado Road
Plans. If the Developer is unable to secure all necessary rights -of -way after demonstrating that the
Developer has reasonably exhausted negotiations, Developer shall pay the City's costs to acquire all
necessary rights -of -way and shall be reimbursed with credits against Eligible Fees. If the City is
unable to acquire said rights -of -way or if the City Council ultimately decides not to pursue
acquisition, the City will work with the developer to modify Prado Road plans accordingly.
(c) Complete construction of Segment A, per approved plans, prior to occupancy
of the 31st unit within Tract 2342 or within twelve (12) months of issuance of the first building
permit (except for model homes), whichever occurs first, or within such longer period of time to
which both parties subsequently may agree in writing.
(d) Allow adjacent property owners to connect to the sub -regional basin,
provided that adjacent property owners pay Developer an amount not to exceed the actual real
property and construction costs incurred by Developer for the construction, maintenance and
operation of the detention basin. The sub -regional ponding basin is essential to provide adequate
drainage in the Western Enclave and to support planned residential development. The City agrees
prior to approving a project that has been designated to drain into said facility; it will give
Developer notice of said approval and any alternative drainage proposals in conflict with the
concept of the sub -regional basin.
(e) Reasonably allow vehicles for the purposes of construction requiring access
to APN's 053-022-016 (King), 053-44 1-001 (Davis), 053-441-002(L. Martinelli), and 053-441-003
(A. Martinelli), to travel on Prado Road and internal roads constructed on VTTMs prior to the
City's acceptance of Prado Road and the internal roads at no cost until such time as Prado Road and
internal roads located on VTTM's are accepted into the City's maintained Road system, at which
time they will be open to the public. Such access shall not interfere with Developer's construction
of the Project and will be subject to reasonable requirements as agreed upon by the property owners.
5. Terms of Construction. The parties agree that time is of the essence as to the
installation of the Prado Road Improvements. To that end, the following obligations and procedures
govern timing of the installation of the Prado Road Improvements:
(a) The Segment A Prado Road Improvements shall be completed in a timely
manner established in Section 4(C) above, all in a good and workmanlike manner, in accordance
with the Agreement and the approved Prado Road Plans, engineering standards, and COAs. The
City shall reconcile the amount of Eligible Fee credits, compared to the Developer Costs actually
incurred by Developer pursuant to this Section, within sixty (60) days after Segment A of the Prado
Road Improvements are complete and accepted by the City as specified in this Agreement, in
accordance with the Prado Road Plans, engineering standards, and this Agreement; and
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
(i) The City Engineer has verified the Developer Costs, based on
documentation of actual costs incurred to be provided to the City by Developer, and approved the
Prado Road Improvements, as provided in Section 4 of this Agreement. The City shall have sole
determination to reasonably determine eligible costs for fee credit and reimbursement.
(b) The Developer may request in writing that the City extend the milestones
established in this Agreement ("Milestone Completion Event(s)") due to circumstances beyond
Developer's control including:
(i) City submission of a substantial change order for the Prado Road
Improvements; or
(ii) The City's or Developer's inability to obtain the necessary rights -of -
way to construct the Prado Road Improvements; or
(iii) The City's processing time to revise the approved Prado Road Plans,
if the City chooses to revise the scope of the Prado Road Improvements; or
(iv) Any City permitting delays, or if clearances or approvals are not
promptly issued by any federal, state, regional or local agency; or
(v) If any Force Majeure event, as provided in Section 10 of this
Agreement, occurs.
(vi) If through no act or omission of the City, Developer does not comply
with the Milestone Completion Event(s), City shall notify Developer, in writing that Developer has
not complied with the Milestone Completion Event(s). If Developer does not cure this failure to
satisfy the Milestone Completion Events within thirty (30) days, City shall withhold issuance of
certificates of occupancy and fee credits or reimbursement until Developer complies with the
Milestone Completion Events.
6. Proof of Developer Costs,• Limits. Developer is entitled to fee credits and
reimbursements of documented Developer Costs for the Prado Road Improvements, as verified by
the City Engineer. It is intended that both City and Developer expenses shall be cost controlled and
limited in completing improvements to Prado Road. In no event shall the Developer Costs eligible
for reimbursement for Segment A exceed $1,131,265 of the available Eligible Fees from VTTM
2342. As shown in Exhibit C, the differential between the Developer Costs and Eligible Fees for
the residential component of VTTM 2342 is $1,131,265. If final Developer Costs should increase
or decrease pursuant to change orders or other cost modifications allowed in this Agreement, the
parties shall meet and confer to reach agreement on allocation of costs and may be modified in
accordance with paragraph 8.
(a) Within thirty (30) days after submittal of documentation by Developer, the
City Engineer shall verify the Developer Costs, or shall submit a request in writing to Developer for
additional information deemed necessary by the City Engineer to verify Developer Costs. Such
additional information shall be submitted by the Developer to the City Engineer within thirty (30)
days from receipt of the written request by the City Engineer.
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
(b) The City Engineer shall complete all verification and approvals of each of the
three Segments of the Prado Road Improvements within thirty (30) days after Developer has
submitted any requested additional information to the City Engineer and the submittals are deemed
"Complete" by the City Engineer. The City Engineer shall determine "Final Developer Costs" and
shall reconcile the amount of Eligible Fee credits issued with the amount of Developer Costs
actually incurred for each Segment of the Prado Road Improvements upon verification of
completion of each Segment.
(c) City shall issue further fee credits for reimbursement payments to Developer
if the City collects Eligible Fees from Developer for future multi -family or non-residential phases of
project as approved in Vesting Tentative Tract Map No. 2342. In such a situation, Developer shall
not be obligated to pay the Eligible Fees upon issuance of building permits by the City. Currently
the Developer owns adjacent Tract 2353 and it is intended that credits against Eligible Fees from
that development will also be used to reimburse Developer for advance costs in constructing
Segment A Prado Road improvements. In such a situation, Developer shall not be obligated to pay
the Eligible Fees upon issuance of building permits by the City. If Developer sells or conveys
these parcels to others, City shall collect the fees and pay to Developer quarterly such collection
after provisions in Section (d) are satisfied.
(d) City shall issue such reimbursements to Developer after it collects Eligible
Fees from other Western Enclave developers and property owners after paying any City interfund
loan obligations related to this agreement, notwithstanding any provision of any law, San Luis
Obispo Municipal Code or this reimbursement agreement. The interest rate on the interfund loan
shall be as close as administratively practical to the average rate of return for City investments
during the period of such interfund loan, as determined by the City Finance and Information
Technology Director. After repayment of the interfund loans the City then shall insure that
Developer shall be the first to receive such cash payments for reimbursement when Eligible Fees
are paid to the City by others up to the maximum reimbursement amount.
(e) The parties acknowledge that, except for right of way to be acquired for the
construction of the roundabout from the L Martinelli and Byron Davis properties, and the south side
of Prado Road across the Davis parcel, no right of way acquisition is required for the
implementation of the Delivery Plan for Segment A.
7. Fee Credits and Developer Costs. In connection with Developer's application for
building permits to be issued in connection with development of VTTM 2342, City shall not impose
or collect Eligible Fee credits for documented costs of construction, based upon the Developer
Costs. Developer shall pay all other Impact Fees in full.
In addition, the City acknowledges and agrees that issuance of some of the Eligible Fee credits may
require the City to issue loans, credits or charges, internally, from one or more City accounts to
other City accounts. Such internal City reconciliation shall have no impact upon Developer's
entitlement to receive Eligible Fee credit issuance for all of Developer's Cost as provided in Section
6 of this Agreement. Upon completion of each Segment of the Prado Road Improvements, City
shall reconcile and issue final confirmation of the amount of previously -issued Eligible Fee credits
and Developer Costs. If at the completion of any phase of development, the combination of
Eligible Fees are less than or do not equal the accumulated Developer Costs for all Phases, the
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AGREEMENT FOR PRADO ROAD EXTENSION COSTS
City's obligation to issue subsequent Eligible Fee Credits is specified in Section 6(c) of this
Agreement. If at the completion of any phase of Development, the combination of Eligible Fees are
more than or exceed the accumulated Developer Costs for Segment A, the City's obligation to issue
subsequent Eligible Fee Credits or reimbursement will be considered satisfied and this Agreement
will be considered complete, except that the Developer shall then be required to pay to the City all
remaining Eligible Fees that are greater than the costs to construct improvements as specified in this
agreement. All other Development Impact Fees shall be paid at time of the issuance of Building
Permits.
8. Scope of Agreement. This Agreement shall not be construed to limit the right of the
City to enlarge, relocate, alter or extend the Prado Road Improvements. However, it is understood
that any changes to the Prado Road Improvements may result in corresponding adjustments to the
Developer Costs and the amount of Eligible Fee credits as set forth in the Agreement.
(a) There shall be no increase or decrease in cost from the Developer Cost unless
the increase is reflected in a change order submitted by Developer and approved by the City or vice
versa. The only change orders excepted from City approval are (a) those in which Developer shifts
cost savings from one line item of a component of the Developer Costs to another line item
(excluding use of project contingency), or (b) those for which Developer does not seek
reimbursement from the City. Project line item transfers shall be reported to the City.
(b) Furthermore, Developer and the City Engineer, together, may approve a
change order if the total Developer Cost increase is Twenty -Five Thousand Dollars ($25,000) or
less and the net total of the change orders theretofore approved does not exceed the contingency
amount. Developer and the City Manager together may approve a change order if the cost increase
is One Hundred Thousand Dollars ($100,000) or less and the net total of the change orders
theretofore approved does not exceed the contingency amount. Any change order in excess of
$100,000 above the Development Costs, shall require City Council approval.
(c) The City's approval shall not be unreasonably withheld, delayed or
conditioned; provided it shall be reasonable for the City to deny any change order resulting from a
cause other than unforeseen conditions or City -initiated changes. The City shall accompany any
rejection with a written statement of the basis therefor. To the extent the change order does not
require City approval, Developer may proceed with the work covered by the change order pending
City approval of the change order, or even after City rejection of the change order, but Developer
shall do so at its own risk to the extent that the City raises valid objections to the change order
proposal. Any change order that is submitted to the City for approval shall be deemed accepted if
not accepted or rejected by the City within ten (10) working days of such submittal. Any change
order submitted that needs City Council approval shall be placed upon the first available City
Council agenda after the change order request has been deemed complete by the City Engineer.
9. Release. The Developer hereby releases and agrees to indemnify and save the City
harmless from and against any and all injuries to and deaths of persons and damage to property, and
all claims, costs, damages, demands, liability and losses howsoever the same may be caused and
whenever the same may appear, resulting directly or indirectly from the performance or
nonperformance of any work to design, construct, and/or install the Prado Road Improvements, and
also from any and all injuries to and deaths of persons and injuries to property or other interests and
REIMBURSEMENT AND IMPACT FEE CREDIT 11 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
all claims, costs damages, demands, liability and losses howsoever same may be caused and
whenever the same may appear, either directly or indirectly made or suffered by the Developer, the
Developer's agents, employees, and subcontractors, while engaged in the performance of the
construction and installation of said Prado Road Improvements. Such release and indemnification
by the Developer is in effect only for acts or omissions by Developer arising from or relating to
construction of the Prado Road Improvements up until the time the City accepts each segment of the
Prado Road Improvements, or until thirty (30) days from the time the City receives: 1)notice from
the Developer that the Prado Road Improvements are complete and 2) they are accepted by the City
as set forth in Section 3 of this Agreement, whichever occurs first.
10. Indemnification. Developer shall indemnify and hold City, its officers, employees
and agents harmless from and against any and all liability, claims, suits, actions, damages, and
causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property,
or any violation of any federal, state or municipal law or ordinance, or other cause in connection
with the acts or omissions of Developer, its employees, subcontractors, or agents, or on account of
the performance or character of construction and installation of the Prado Road Improvements.
Such indemnification by Developer shall cease upon acceptance of the Prado Road Improvements
by the City. It is understood that the duty of Developer to indemnify and hold City harmless
includes the duty to defend City as set forth in section 2778 of the California Civil Code. Within
fifteen (15) days of City's notice that it has been made a party to an action arising out of
Developer's acts or omissions under this Agreement, Developer shall provide a defense to the City
in that action. In the event Developer fails to provide such a defense to City, Developer shall be
liable to the City for its attorneys" fees and litigation costs incurred to defend itself beginning on the
sixteenth (16th) day from the date of the City's notice and request for a defense. Acceptance of
insurance certificates and endorsements required under this Agreement does not relieve Developer
from liability under this indemnification and hold harmless clause. This indemnification and hold
harmless clause shall apply whether or not such insurance policies shall have been determined to be
applicable to any of such damages or claims for damages.
11. Acceptance of the Prado Road Improvements. The Prado Road Improvements to be
constructed shall become the sole exclusive property of the City upon acceptance of said Prado
Road Improvements by the City. Developer shall notify City in writing when the Prado Road
Improvements are complete. Such notice shall be submitted to the City by personal delivery and
shall be deemed received by the City on the date of delivery. Such written notification shall include
a request that the City accept the Prado Road Improvements. The City shall accept the Prado Road
Improvements if it is determined that it was constructed consistent with the approved Prado Road
Plans, engineering standards, and Agreement within sixty (60) days from receipt of such
notification by Developer. If the City determines that the Prado Road Improvements do not meet
the requirements of the approved Prado Road Plans, engineering standards, or Agreement, then the
City will provide written notice to Developer and Developer will have sixty (60) days to correct or
make substantial progress on addressing identified deficiencies. If after sixty (60) days, the
deficiencies are not addressed and the City at its sole discretion has determined that no substantial
progress has occurred to address identified deficiencies, the City can use the performance and
payment bond to correct any deficiencies. Developer shall be responsible for securing a bond for
10% of the cost of said improvements to be held for one year, to ensure the work is adequately
guaranteed.
REIMBURSEMENT AND IMPACT FEE CREDIT 12 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
12. Legal Challenges. Nothing herein shall be construed to require City to defend any
third party claims and suits challenging any action taken by the City with regard to any procedure or
substantive aspect of the City's approval of development of the Property, the environmental
process, the proposed uses of the Property, or the approval of this Agreement. The Developer may,
however, in its sole and absolute discretion appear as real party in interest in any such third party
action or proceeding. If such legal challenge is filed, City and Developer shall meet and confer to
mutually agree upon the appropriate actions to be undertaken by the parties. If the City defends
such action or proceeding, the Developer shall be responsible to reimburse the City for whatever
legal fees and costs, in their entirety, which may be incurred by the City in defense of such action or
proceeding. In the event the City, in its sole discretion, opts to defend any such action, the City,
after consultation with Developer, shall retain such legal counsel as the City deems necessary and
appropriate. Applicant shall reimburse City in the event an award of court costs or attorney fees is
made against City in favor of any third party challenging any matter herein.
13. Force Majeure. The Term of this Agreement and the time within which Developer
shall be required to perform any act under this Agreement shall be extended by a period of time
equal to the number of days during which performance of such act is delayed unavoidably by
strikes, lock -outs, Acts of God, failure or inability to secure materials or labor by reason of priority
or similar regulations or order of any governmental or regulatory body, initiative or referenda,
moratoria, litigation filed attacking execution or performance of this Agreement, severe economic
downturn, enemy action, civil disturbances, fire, unavoidable casualties, or any other cause beyond
the reasonable control of Developer.
14. Successors and Assigns. Each and every provision of this Agreement shall be
binding and inure to the benefit of the successors in interest of the Parties hereto.
15. Term. This Agreement shall expire fifteen (15) years after the date of execution or
when Tract 2342 reimbursements and credits are complete as identified in Section 7, whichever
occurs first..
16. Integration. This is an integrated Agreement containing all of the consideration,
understandings, promises and covenants exchanged between the parties, notwithstanding the
Developer's obligations as specified in the approved Conditions of Approvals as adopted in
Resolution Nos. 9776 and 9777, approving, respectively, Vesting Tentative Tract Map Nos. 2342.
17. Construction and Interpretation. It is agreed and acknowledged by the parties that
the provisions of this Agreement have been arrived at through negotiation, and that the parties have
had a full and fair opportunity to revise the provisions of this Agreement and to have such
provisions reviewed by legal counsel. Therefore, the normal rule of construction that any
ambiguities are to be resolved against the drafting party shall not apply in construing or interpreting
this Agreement.
18. Jurisdiction. Any action by any party to this Agreement, or any action concerning a
security furnished pursuant thereto, shall be brought in the appropriate court of competent
jurisdiction within the County of San Luis Obispo, State of California, notwithstanding any other
provision of law which may provide that such action may be brought in some other location.
REIMBURSEMENT AND IMPACT FEE CREDIT 13 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
19. Choice of Law. This Agreement is made under and in all respects will be
interpreted, enforced and governed by the laws of the State of California.
20. Amendment. This Agreement cannot be altered, amended or modified in any way
without the express written consent of each party hereto or their authorized successor -in -interest.
21. Third Party Beneficiaries. Property owners, their heirs, successors and assigns, of
those properties to be benefitted by the provisions of paragraphs 4(e) and 4(f) ("Third Party
Owners") of this Agreement are intended to be third party beneficiaries of this Agreement solely as
to those two sections. As such, said Third Party Owners shall have the right, at their sole cost and
discretion, to bring an action to enforce those two sections only. Nothing in this Agreement is
intended or shall be construed to require the City to bring any action to enforce said provisions on
behalf of any Third Party Owner and the City shall not be liable to any party, beneficiary or Third
Party Owner for any costs, damages, liabilities, fees, or awards of any kind related to or arising
from the failure of a party to this Agreement to abide by or enforce the terms of paragraphs 3(f)
and/or 3(g). Except as specifically provided herein, this Agreement is made and entered into for the
sole protection and benefit of the parties and any successors or assign of the parties. No other
person shall have any right of action based upon any provisions of this Agreement.
22. Time is of Essence. Time is of the essence for this Agreement.
23. Notice. Notices under this Agreement shall be deemed given when delivered by
First Class Mail, Postage Prepaid, as follows:
City of San Luis Obispo
with a copy to:
City Clerk
990 Palm Street
San Luis Obispo, CA 93401
City Attorney
990 Palm Street
San Luis Obispo, Ca 93401
Counterparts. This Agreement may be executed in one of more
Developer:
ResCal SLO 193, LLC
Robert N. Goodman
10880 Wilshire Boulevard, Suite 1420
Los Angeles, CA 90024
with a copy to:
Allen Matkins Leck Gamble Mallory & Natsis LLP
John Condas, Esq.
REIMBURSEMENT AND IMPACT FEE CREDIT 14 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
1900 Main Street, 5th Floor
Irvine, CA 92614
24. Counterparts. This Agreement may be executed in one of more counterparts, each of
which shall be deemed an original, but all of which together shall constitute a single agreement.
25. Severability. If any one or more of the provisions contained in this Agreement shall
be found to be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not, in any way, be affected or impaired.
26. Authority. The parties hereby represent that the persons executing this Agreement
are expressly authorized to do so for and on behalf of the parties.
27. Captions. The captions of the Sections of this Agreement are for convenience and
reference only, and are not intended and shall not be construed to define or limit the provision to
which they relate.
28. Recitals and Exhibits. The Recitals first set forth herein and all Exhibits attached
hereto are incorporated in this Agreement.
REIMBURSEMENT AND IMPACT FEE CREDIT 15 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the
day and year first above written.
A7111ST:
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CITY OF SA LUIS OBISPO
By:
r ] n Marx
RESCAL SLO 1913, L a Delaware limited
liability company
By:
Name: re
Title:__ ink �rcy
REIMBURSEMENT AND IMPACT FEE CREDIT 16 of 21 February 11, 2013
AGREEMENT FOR PRADO ROAD EXTENSION COSTS
EXHIBIT "A"
DEPICTION AND SPECIFICATION OF PRADO ROAD IMPROVEMENTS
0 of 21
Exhibit B
Prado Road Segment "A" Developer Costs
2342
Bids
::;ni
Engineers Estimate
1 /25/2013
s
Quantity
Derngiltignand„Earthwork
-Sawcut
Asphalt Grind/Stockpile
LF
200.00
SF
EA
29,500.00
Demo Storm Drain
1.00
$ 27,125.00
Demo Power Poles
EA
5.00
Dem SD Culvert
EA
1.00
Relocate Siren Pole(PGE & ATT)
EA
1.00
$ 50,497.41
Demo Fence
LF
1,560.00
Misc Demolition
LS
1.00
Rough Cut/Fill
CY
12,500.00
$ 79,250.00
Rough Cut/Fill for Extended Shoulder'
CY
1,100.00
$ 5,225.00
Subgrades
SF
75,000.00
Erosion Control
Subtotal
$ 162,097.41
Hydroseed
AC
0.50
$ 29,150.00
Stabilized Construction Entrance
EA
1.00
Concrete Waste Area
EA
1.00
.Soil Stabilization
SF
50,000.00
Storm Drain inlet Protection
EA
3.00
Gravel Bags
EA
25.00
Fiber Rolls
LF
2,500.00
_
$ 10,000.00
Silt Fencing
LF
1,350.00
Erosion Control Repair (Allowance)
LS
1.00
Water Lines
Subtotal
$ 39,150.00
8" Water Lines
LF
200.00
$ 64,750.00
8" Recycled Water Mains
LF
150.00
$ 29,450.00
8" Valves
EA
6.00
20" Valve
EA
1.00
Recycled Water Service
EA
1.00
Fire Hydrants
EA
2.00
Sewer Lines
Subtotal
$ 94,200.00
8" Sewer Lines
LF
1,100.00
Sewer Manholes
EA
7.00
Sewer Tie In
EA
1.00
Storm Brains
Subtotal
$ 50,800.00
Curb Inlets
EA
3.00
Exhibit B
Prado Road Segment "A" Developer Costs
2342
Bids
Engineers Estimate
1 /25/2013
ni s
Quantity
54" HDPE SD
48" HDPE SD
LF
287.00
2,015.00
95.00
LF
48" RCP SD
LF
42" HDPE SD
LF
36" HDPE SD
LF
24" HDPE SD
LF
18" SD
LF
125.00
Headwall
LS
Misc Connectors
LS
1.00
Storm Drain Manholes
EA
3.00
Storm Drain Junction Box (Large)
EA
1.00
Storm Drain Junction Box (Medium)
EA
Subtotal 1
$ 319,265.00
Exhibit B
Prado Road Segment "A" Developer Costs
Bids
R2342
Engineers Estimate
1 /25/2013
Quantity
Street_ Improvements
Curb and Gutter
Cross Gutter
1,025.00
1,075.00
LF
_
$ 139,933.00
LF
Curbs
LF
ADA Access Ramps
EA
4.00
Street Lights
EA
4.00
Street Light Circuits
EA
4.00
Sidewalks
SF
11,500.00
Pavers
SF
3,700.00
$ 72,200.00
Street Signs
EA
21.00
$ 9,925.00
Barricade
EA
1.00
Street Striping
LS
1.00
$ 16,922.00
AC Dike
LF
900.00
$ 444,300.00
AC Paving
Tons
2,800.00
Class II Base
Tons
9,200.00
Landscnnlna_'
Subtotal
683,280.00
Irrigation Sleeves
$ 9,280.00
Irrigation Controller
20.00
16,500.00
$ 5,000.00
Water Meter
$ 564.00
'Trees
EA
$ 6,500.00
$ 66,000.00
Landscaping/Irrigation
SF
_
Soft Costs
Subtotal
$ 87,344.00
Hard Cost Subtotal
$ 1,436,136.41
Contingency @ 5%
$ 71,806.82
Estimated Hard Cost
$ 1,507,943.23
Mobilizations
LS
1.00
$ 5,000.00
Civil Engineering Full Design)
LS
1.00
$ 133,119.00
Hydrology
LS
1.00
$ 4,000.00
Landscape Architecture
LS
1.00
$ 7,912.50
Survey
LS
1.00
$ 8,500.00
Water meter connec ion ee
1.00
Soils En ineering/Material Testing
LS
1.00
$ 15,000.00
SWPP Monitorinq
LS
1.00
$ 7,500.00
Trattic Control with - al
LS
T.00
16,000.00
Bonding Fees
LS
1.75%
$ 26,389.01
Exhibit B
Prado Road Segment "A" Developer Costs
Allocated Insurance
Supervision/Construction Ovhd
Blue
Plan Check and Inspection
Credit Plan Check Fees for Prior Work
Goodwin Report
Allocated Pond Cost (see detail)
2342
Bids
Engineers Estimate
1 /25/2013
rn s
Quantity
LS
1.75%
2.25%
$ 26,389.01
LS
$ 33,928.72
$ 7,539.72
LS
0.50%
1.00
1.00
LS
$ 191,370.00
LS
$ (43,020.00)
$ 60,000.00
LS
1.00
4.30%
$ 65,260.11
Subtotal
$ 583,148.06
Contingency @ 57o
$ 29,157.40
Total Soft Costs
$ 612,305.46
Total Costs:
$ 2,120,248.69
6
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