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HomeMy WebLinkAboutA20-05 CostCo reimbursement realign Calle JoaquinREIMBURSEMENT AGREEMEN T FOR REALIGNMENT OF CALLE JOAQUIN SOUT H THIS REIMBURSEMENT AGREEMENT (this "Agreement") is made an d entered into this 255day of February , 2005, by and among the CITY OF SA N LUIS OBISPO, a charter city and municipal corporation of the State of California, herei n referred to as "City", COSTCO WHOLESALE CORPORATION, a Washingto n Corporation, herein referred to as "Costco". A.Costco desires to construct a new retail building comprised o f approximately 140,000 square feet located on Parcel 2 of Parcel Map SLO-00-041 , commonly known as 1540 Froom Ranch Way, in the City of San Luis Obispo, County o f San Luis Obispo State of California (the "Costco Project"). The Costco Project an d proposed development by others at 1500 and 1521 Froom Ranch Way are referred t o herein as the "Shopping Center Project ." B.The City has undertaken, pursuant to the California Environmental Quality Act ("CEQA"), the required analysis of the environmental effects which would be cause d by the Shopping Center Project and has determined those mitigation measures which wil l eliminate, or reduce to an acceptable level, those of the environmental impacts whic h may be so mitigated, has adopted findings of overriding considerations for those of th e impacts that cannot be so mitigated, and has certified the Final Environmental Impac t Report (the "FEIR"), with those mitigation measures and findings of overriding considerations, pursuant to City Resolution No . 9502 (2003 Series). Mitigation measure TR1mm-2a has been modified by an Addendum to the FEIR, adopted by City Counci l Minute Order of November 16, 2004 . C.The City has found in connection with its review and consideration of thi s Agreement that no subsequent or supplemental Environmental Impact Report i s necessary or required under CEQA because the terms and conditions of this Agreemen t are consistent with and within the scope of and contemplated by the FEIR and th e Addendum thereto as required for implementation of the mitigation measures thereunder . D.Specifically with regard to Calle Joaquin South, the subject matter of thi s Agreement, the FEIR concluded that the current configuration whereby Calle Joaqui n South and the Highway 101 southbound on-ramp share an intersection at Los Osos Valley Road would result in that intersection operating at Level of Service `LOS")E during the PM peak and Saturday peak hours when traffic from the Costco Project wa s added to the existing conditions and at LOS F when traffic from the combined Shoppin g Center Project was added to existing conditions . The mitigation measure to resolve thi s impact is to realign Calle Joaquin South to a position on Los Osos Valley Road opposit e the existing Calle Joaquin North (the "Calle Joaquin Realignment"), with a subsequen t traffic study of the actual traffic after Costco opens to be conducted when Parcels 1 and 3 are to be developed, which study is to determine if additional measures may be required . For purposes of this Agreement, it is understood that the term "Calle Joaqui n Realignment" includes related work necessary to the realignment, including without 420-or limitation, relocation of the Motel 6 driveway and frontage improvements and an y wetlands mitigation required by the Army Corps of Engineers as a condition of issuanc e of a permit allowing the Calle Joaquin Realignment (the "Wetlands Mitigation"). E.The City has established a Los Osos Valley Road/Highway 10 1 interchange sub-area traffic impact fee program to assess costs of improvements specifie d in that program (the "Interchange Improvements") to projects that develop on propertie s within that sub-area (the "Benefited Properties"). The Benefited Properties ar e designated on the Reimbursement Map and Rate Sheet attached as Exhibit A hereto , which exhibit is incorporated by reference herein . Pursuant to that program, the Cit y determined that the Costco Project's assessment is $910,000 .00 (the "Costco Sub-Are a TIF"). F.The Calle Joaquin Realignment qualifies as part of the Interchang e Improvements, and it is anticipated that the costs to be incurred in connection with th e Calle Joaquin Realignment will exceed the Costco Sub-Area TIF . Therefore, the City ha s agreed that the amount by which the costs of acquiring right of way, designing, obtainin g permits for, and constructing the Calle Joaquin Realignment, including any wetland s mitigation necessary for the Calle Joaquin Realignment, exceeds the Costco Sub-Are a TIF shall be reimbursed from Sub-Area TIF fees collected from other Benefite d Properties (the "Reimbursement Payments"). H . Costco shall receive the Reimbursement Payments from the Sub-Area TI F fees assessed against and actually collected by the City from owners of the Benefited Properties, and City agrees to administer the Reimbursement Payments as set fort h herein : NOW, THEREFORE, for good and valuable consideration, the receipt an d adequacy of which are hereby acknowledged, it is agreed as follows : 1 .Costs of the Calle Joaquin Realignment and Wetlands Mitigation . (a)Design and Permitting Costs .Costco has submitted, and the Cit y approves, the design, permitting and acquisition costs incurred or quantified to date fo r the Calle Joaquin Realignment in the amount shown on line 24 of the Calle Joaquin Off - Site Reimbursement Agreement Costs Spreadsheet attached hereto as Exhibit B (th e "Spreadsheet"). Additionally, Costco anticipates incurring future costs for such purposes the amount shown on line 36 of the Spreadsheet . Line Items 28 through 31 ar e maximum amounts not to be exceeded for reimbursement purposes, except pursuant t o mutually-approved change orders as provided in Section 2 below . Line Item 32 is a maximum amount not to be exceeded, subject only to the contingency amount in Lin e Item 35 and the limited change orders provided in Section 2 below . Line Item 33 is fo r fees to City consultants advanced by Costco for future reimbursement from the City i n Reimbursement Payments, and the City is in control of the amounts to be expended b y these consultants . 2 (b)Acquisition Costs . (i)The parties acknowledge that Line Item 18 of th e Spreadsheet is an amount for acquisition of right of way based on an appraisal of interest s to be acquired from one affected landowner and is subject to adjustment beyond th e control of the City or Costco . (ii)The lands required for the Calle Joaquin Realignment fro m another affected landowner are designated as wetlands and would not be available for us e for right of way or for development by the landowner without mitigation for the los t wetlands . That landowner has agreed to provide lands for wetlands mitigation elsewhere so that the land required for the Calle Joaquin Realignment is developable . That landowner also has agreed to accept a value per square foot for the right of way acquire d for the Calle Joaquin Realignment as determined by future negotiation between the Cit y and such landowner, at a full fee value of not to exceed Five Dollars ($5 .00) per squar e foot, less the costs incurred under Line Item 3 and any portions of Line Items 6 and 7 attributable to Line Item 3 to construct the wetlands mitigation, and less the amount o f Line Item 53 for monitoring the wetlands mitigation . Costco and the City shall arrang e for any resulting net amount to be compensated to said landowner in the form of Sub - Area TIF credits ("Sub-Area TIF Credits") rather than cash . (iii)Accordingly, acquisition costs are based on the assumptio n that all other interests may be acquired through property exchanges and construction o f replacement improvements, without payment of monetary compensation ; if this is not possible, acquisition may require eminent domain actions . The parties also acknowledge that acquisition costs of properties acquired through eminent domain may be subject to increase and that on-going acquisition and permitting work and possible design revision s also shall increase the foregoing amount . (c)Mitigation Monitoring.The net total of the Reimbursemen t Payments, per Line Item 43 of the Spreadsheet is based on the further assumption tha t the Army Corps of Engineers (ACOE) will approve the City undertaking and perfornin g all mitigation monitoring required in connection with the Calle Joaquin Realignment . I f the ACOE approves the City performing the mitigation monitoring, Costco shall pay fo r any bond required by the ACOE, as indicated at Line Item 23 of the Spreadsheet, wit h the City being the obligor whose performance is assured by the bond . The parties understand that if the ACOE does not approve the City as the person responsible fo r such monitoring, Costco will be required to retain consultants to perform the monitoring , and Costco or its consultant(s) shall be the obligor under the bond . Furthermore, i f Costco is required to retain consultants, the Reimbursement Payments would b e expected to increase by the amounts shown on Line 55 if fairy shrimp are determined t o be present and by the amounts shown on Lines 53 if no fairy shrimp mitigation i s required . These amounts are estimates and would be subject to determination in th e same manner as the Wetlands Budget as provided in Section 1(d) below and to chang e orders as provided in Section 2 below . 3 (d)Construction Costs .Costco has submitted to the City's Publi c Works Department, and the City approves,the construction budget provided by Costc o to construct the Calle Joaquin Realignment in the amounts shown as Line Items 2 and 4 on the Spreadsheet (and applicable portions of Line Items 6 and 7) (the "Calle Joaquin Construction Budget") and the estimate shown as Line Item 3 (and applicable portion s of Line Items 6 and 7) to construct the Wetlands Mitigation (the "Wetlands Estimate"). Upon obtaining a construction budget prepared by the licensed general contractor(s ) contracted or to be contracted by Costco to construct the Wetlands Mitigation (th e "Wetlands Construction Budget"), Costco shall present the same to the City . If th e Wetlands Construction Budget varies by more than 5% from the Wetlands Estimate, i t shall be treated as a change order proposal by Costco to the City . The partie s acknowledge that each of the Budgets also may be subject to subsequent change orders , which, if approved by Costco and the City pursuant to Section 2 below, shall result i n adjustment of the respective Budget . 2 .Change Order Procedure .Following determination of the Wetland s Budget pursuant to Section 1 above, there shall be no increase in cost from the respectiv e Calle Joaquin Construction Budget (Line 2) and Wetlands Budget amounts or from th e Line Item 36 amount unless the increase is reflected in a change order approved b y Costco and City or excepted from such approval pursuant hereto . The only change orders excepted from City approval are (a) those in which Costco shifts cost savings from on e line item of a component of a Budget to another line item, and (b) those for which Costc o does not seek reimbursement from the City . Furthermore, Costco and the City Enginee r together may approve a cost change order (as opposed to a design change order) if th e cost increase is Twenty-Five Thousand Dollars ($25,000) or less and the net total of th e change orders theretofore approved does not exceed applicable contingency and inflatio n factors from Lines 6 and 7 of the Spreadsheet . Costco and the City Administrativ e Officer together may approve a cost change order (as opposed to a design change order ) if the cost increase is One Hundred Thousand Dollars ($100,000) or less and the net tota l of the change orders theretofore approved does not exceed applicable contingency an d inflation factors from Lines 6 and 7 of the Spreadsheet . Any change order in excess o f $100,000 or in excess of the applicable amounts from Lines 6 and 7 shall be submitted to the City Council for its consideration . If Costco is prepared to approve a change orde r not excepted from City approval pursuant to the foregoing, Costco shall submit th e change order proposal to the City for approval with a categorization of those change s necessitated by unforeseen conditions and those necessitated by City-initiated conditions . 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 othe r than unforeseen conditions or City-initiated changes . The City shall accompany an y rejection with a written statement of the basis therefor . To the extent the change orde r does not require City approval of a design revision, Costco may proceed with the wor k covered by the change order pending City approval of the change order, or even afte r City rejection of the change order, but Costco shall do so at its own risk to the extent tha t the City raises valid objections to the change order proposal . Any change order that i s submitted to the City for approval shall be deemed accepted if not accepted or rejected b y 4 the City within ten (10) days of such submittal, however, any change order submitted t o the City Council for consideration shall be deemed accepted if not accepted or rejected b y the City Council within fifteen (15) days of such submittal . 3.Collection of Sub-Area TIF Fees.At the time the City first issues a building permit or any discretionary permit, approval or license for each Benefite d Property after the date of this Agreement, the City shall collect the Sub-Area TIF fe e from the owner of such Benefited Property, except to the extent Sub-Area TIF Credits ar e applied to Benefited Properties or the City accepts in-kind improvements that otherwis e would be funded at some point under the Sub-Area TIF in lieu of Sub-Area TIF fees . Such Sub-Area TIF fee shall be the amount for each Benefited Property indicated on th e Reimbursement Map and Rate Sheet, attached hereto as Exhibit A, adjusted i n accordance with Section 4 below . To any extent that the cost of in-kind improvement s accepted by the City in lieu of Sub-Area 'I'1F fees exceed the Sub-Area TIF fees require d of the party providing such improvements and such party may be reimbursed from futur e collection of Sub-Area TIF fees, such party's reimbursement shall be subordinate to th e Reimbursement Payments under this Agreement . 4.Appreciation Factor .Without limiting any right of the City otherwise t o modify the Sub-Area TIF program,the Sub-Area TIF fees for each Benefited Propert y (other than the Costco Sub-Area TIF), the Sub-Area TIP Credits, and the Reimbursemen t Payments shall be adjusted by multiplying the outstanding balance of each of them as o f the date of adjustment by the percentage change in the Consumer Price Index for Urba n Consumers, All Items, All Urban Consumers (CPI-U) for the San Francisco-Oakland-Sa n Jose Region (1982-1984=100) presently published by the United States Department o f Labor, Bureau of Labor Statistics (the "Index"), calculated by determining the ratio of th e latest value for the Index published prior to the date the Sub-Area TIF fee is to b e collected or the Sub-Area TIF Credit or Reimbursement Payment is to be made and th e value for the Index as of (i) the date of City approval of the Sub-Area TIF fee program, i n the case of each Sub-Area TIF fee, and (ii) the date of completion of the Calle Joaqui n Realignment, in the case of the Sub-Area TIF Credits and the Reimbursement Payments . In the event the Index shall hereafter be converted to a different standard reference bas e or otherwise revised, the determination of the percentage increase shall be made with the use of such conversion factor, formula or table for converting the Index as may b e published by the Bureau of Labor Statistics or, if said Bureau shall not publish the same , then with the use of such conversion factor, formula or table as may be published by Prentice Hall, Inc ., or, failing such publication, by any other nationally recognize d publisher of similar statistical information . In the event the Index and/or a conversio n factor shall cease to be published, then, for the purposes of this Agreement, there shall b e substituted for the Index such other index as Costco and the City shall agree upon . 5.Time of Reimbursement .City shall disburse the Reimbursemen t Payments to Costco within thirty (30) days of receipt of Sub-Area TIF fees . The Reimbursement Payments shall be the first priority application of all Sub-Area TIF fees collected until the Reimbursement Payments and the appreciation factor thereon pursuan t to Section 6 hereof have been paid in full, and only then shall any of the Sub-Area TI F 5 fees be used for other aspects of the Interchange Improvements . Notwithstanding an y other provision of this Agreement, if for any reason City has not theretofore disbursed t o Costco any Reimbursement Payments that were to have been collected and disbursed t o Costco in accordance with this Agreement during a calendar year, City shall disburs e such amounts to them by December 31 of that year . The foregoing notwithstanding, fina l payment of the Reimbursement Payments and the handling of any claims arising out of a dispute as to reimbursements shall, irrespective of the dollar amount on any such claim , be subject to Sections 20104 a seq.of the California Public Contract Code, or thei r successor provisions . 6.Right to Reimbursement ; Assignment Thereof .The right to receive Reimbursement Payments shall be personal to Costco and shall continue notwithstandin g the subsequent sale or transfer by Costco of any portion or all of its Benefited Property , unless Costco expressly in writing assigns its right to Reimbursement Payments to som e other person or entity, either in connection with the sale or transfer of Benefited Property or independently of any real property transfer . The right to designate the application o f the Sub-Area TIF Credits shall be personal to the landowner to whom they initially are granted and shall continue notwithstanding the subsequent sale or transfer of any of suc h landowner's Benefited Properties ; provided, however that the Sub-Area TIF Credits ma y be applied only against Sub-Area TIF fees of Benefited Properties ; and provided furthe r that such landowner s shall have the right to assign all or any portion of the Sub-Area TIF Credits to the transferee in connection with the sale or other transfer of any of thei r Benefited Properties by providing City with thirty (30) days written notice of suc h assignment . Costco shall have no obligation to monitor City's collection of Sub-Are a TIF fees from the Benefited Properties . Costco hereby directs that Reimbursemen t Payments due it shall be payable to and mailed its address for notice set forth below or t o such address as it may specify from time to time . The assignment of Reimbursemen t Payments and Sub-Area TIF Credits shall be subject to prior written approval by the City , which approval shall not be unreasonably withheld, denied, conditioned or delayed . 7.Notices .Any notice or other communication hereunder shall be in writin g and shall be hand delivered or sent by United States registered or certified mail, postage prepaid, return receipt requested, addressed to the appropriate party at its address set fort h below, or at such other address as such party shall have last designated by notice to th e other parties . The same shall be deemed given when delivered or three days afte rmailing; provided, however, that if any such notice or other communication shall also b e sent by telecopy or fax machine, such notice shall be deemed given at the time and on th e date of machine transmittal if the sending party receives a written send verification on it s machine and forwards a copy thereof with its mailed or courier delivered notice o r communication. The addresses for notices are as follows : If to City :City of San Luis Obisp o 990 Palm Street San Luis Obispo, CA 93401-324 9 Attention :City Administrative Office r Fax No .:(805) 781-740 9 6 If to Costco:Costco Wholesale Corporation 999 Lake Drive Issaquah, WA 9802 7 Attention :Legal & Real Estate Departmen t Fax No :(425) 313-811 4 With a Copy to :Berg & Parker LL P 4 Embarcadero Center, Suite 140 0 San Francisco, CA 9411 1 Attention :David B . Franklin Fax No .:(415) 397-9449 8.Attorneys Fees .In the event any party hereto brings or commence s litigation for a declaration of the rights of the parties under this Agreement, for injunctiv e relief, or for an alleged breach or default of this Agreement, or any other action arisin g out of this Agreement, the prevailing party in any such action shall be entitled to a n award of reasonable attorneys' fees and any court costs incurred in such action o r proceeding, in addition to any other damages or relief awarded, regardless of whethe r such action proceeds to final judgment . 9.Entire Agreement ; No Oral Modifications .This Agreement and th e exhibits hereto constitute the final and complete agreement and supersede all prio r correspondence, memoranda or agreements . This Agreement cannot be changed o r modified other than by a written agreement executed by all of the parties . 10.Successors Bound .The provisions of this Agreement shall extend to, bin d and inure to the benefit of the parties hereto and their respective personal representatives , heirs, successors, and assigns .. 11.Governing Law..This Agreement shall be governed by and construed i n accordance with the laws of the State of California . 12 Counterparts .This Agreement may be executed in more than on e counterpart, each of which shall be deemed an original, and all of which together shal l constitute one and the same instrument. 13.Severability .If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remaining terms and provisions of thi s Agreement shall not be affected thereby, but each remaining term and provision shall b e valid and enforced to the fullest extent permitted by law . 14.Cantions .The captions of this Agreement are inserted solely fo r convenience of reference only and do not define, describe or limit the scope or intent of this Agreement or any term hereof . [SIGNATURES BEGIN ON NEXT PAGE] 7 THIS AGREEMENT is executed as of the date and year first above written . CITY : CITY OF SAN LUIS OBISP O .A oper, Ci y Cler k APPROVED AS TO FORM : an P . Lowell, City Attorney COSTCO : COSTCO WHOLESALE CORPORATIO N a Washington c o By : Its : RICH RD J . OLI N V .P./Asst . Secretary. 8 STATE OF CALIFORNIA ) )s s COUNTY OF SAN LUIS OBISPO ) On February 25, 2005,before me Audrey Hooper,City Clerk, personally appeared Ken Hampian,(City Administrative Officer), CITY OF SAN LUIS OBISPO, personally known to m e (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/ar e subscribed to the within instrument and acknowledged to me that he/she/they executed the sam e in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrumen t the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument . WITNESS my hand and official seal . Signature (This area for official City Seal .) EXHIBIT A REIMBURSEMENT MAP AND RATE SHEET TRANSPORTATION IMPACT FEE S LOS OSOS VALLEY ROAD/US 101 INTERCHANGE SUB AREA FEE S LOVR Sub-Area Fee Current Discounted City-Wide City-Wide LOV R Land Use Basis TIF TIF (1)Interchange Tota l Retail Very High (2) Per 1,000 sq ft $2,353 $1,988 $18,500 $20,48 8 Retail High Per 1,000 sq ft 2,353 1,988 9,260 11,24 8 Retail Strip Per 1,000 sq ft 2,353 1,988 6,620 8,608 Retail Specialty Per 1,000 sq ft 2,353 1,988 6,370 8,35 8 Retail Auto Per 1,000 sq ft 2,353 1,988 4,150 6,I3 8 Retail Medium Per 1,000 sq ft 2,353 1,988 3,780 5,76 8 Hotel Per room 692 585 1,217 1,80 2 Single Family Residential Per dwelling unit 1,491 1,260 927 2,18 7 Multi-Family Residential Per dwelling unit 1,323 1,118 569 1,68 7 Other (3) Per ADT/PM trip 139/ADT 117 2,186/PM trip Total!Frip 1.Discounted at 15 .5% to reflect portion of the COVR/US 1.01 interchange in the City-wide TIF program . 2.Use is for fast food type commercial without drive thru facilities . 3.ADT : Average Daily Trip. EXHIBIT B CALLE JOAQUIN OFF-SITE REIMBURSEMENT AGREEMENT COST S SPREADSHEET Cane Joaquin Off- `e Reimbursement Agreemt : Costs Spreadshee t Exhibit B A B 1 Construction Related Costs Amoun t 2 Calle Joaquin Realignment construction $1,564,582.0 0 3 Wetland construction (Boysen Ranch site)$97,877.0 0 4 PGE & SBC Utility Construction $22,000 .0 0 5 Construction Subtotal $1,684,459.0 0 6 7%Construction Contingency $117,912 .1 3 7 3% Inflation Factor $54,071 .1 3 8 Construction Total $1,856,443 .0 0 9 1 0 11 Soft Cost s (Billed To Costco To Date)Amoun t 12 Berg & Parker $120,184 .50 _ 13 MulvannyG2 Architecture $26,119 .00 14 Morro Group $71,952 .0 3 15 Cannon Associates (Civil Engineering Services, Planning & Permitting Services)$453,282 .07 16 Property Acquisition Consultants (City)$3,055 .09 17 Property Acquisition Consultants for private offers (Costco)$31,387 .50 18 Property Acquisition (Hansen parcel)$186,000 .0 0 19 Rick's Tree Service $11,600 .0 0 20 City of San Luis Obispo permit $125,834 .00 21 Ca . Dept. of Fish & Game : Streambed Alteration Agreement/Operation of Law Letter $1,400 .0 0 22 Ca . Regional Water Quality Control Board : Section 401 permit (Water Quality)$4,523 .0 0 23 ACOE Wetland Bond $15,562 .5 0 24 Total $1,050,900 .00 2 5 26 27 Soft Costs (Estimated Future Expenses to ACOE Permit Issuance) "Not to Exceed " Amount 28 Berg & Parker $20,000 .0029MulvannyG2 Architecture $8,800 .00 30 Morro Group $22,019 .75 31 Cannon Associates (Civil Engineering Services, Planning & Permitting Services)$7,000 .00 32 Cannon Associates (Civil Engineering Construction Administration Services)$73,000 .0 0 33 Property Acquisition Consultants (City)$49,944 .9 1 34 Construction Subtotal $180,764 .6 6 35 7% Construction Contingency (applies to Line 31 only)$5,110 .0 0 36 Total $185,875 .00 37 38 39 Total of Above Costs $3,093,218.0 0 40 41 Less TIF Obligation to City $910,000 .0 0 _42 43 Net Reimbursement Amount $2,183,218 .00 C :\DOCUME-l\slouseALOCALS-1\Temp\SLO Reimbursement Exhibit 01-27-05 02/04/200 5 Page 1 of 2 Cane Joaquin Off .`e Reimbursement Agreemt Costs Spreadsheet Exhibit B A B _44 Fairy Shrimp Mitigation Construction & Mitigation Amoun t 45 Fairy Shrimp mitigation construction (unknown site)$70,000 .00 46 Fairy Shrimp 5-yr . post construction monitoring $65,000 .00 47 Total $135,000 .00 48 49 Calle Joaquin Wetland Mitigation Monitoring Amoun t _50 Wetland 5•yr . post construction monitoring $40,210.0 0 51 3-year monitoring of revegetation in temp. disturbed wetland area of the Celle Joaqui n right-of-way realignment._$9,000 .0 0 52 Calle Joaquin wetland impact monitoring during construction $18,000 .0 0 53 Total $67,210 .00 54 55 Total of Future Soft Cost s (Additional Reimbursements it cost required to be incurred by Costco - Lines 47 &53) I $202,210 .00 C:\DOCUME-11 slouseALOCALS-11Temp1SLO Reimbursement ExhIbi 01-27-05 02/04/2005 Page 2 of 2