HomeMy WebLinkAboutD-1749 861 and 953 Orcutt Road, Tract 2707 Recorded 12/07/2007o
Recording Requested by
and when recorded, return to:
City Clerk
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
a
JULIE RODK
San Luis Obispo ClerktRecorder
Recorded at the request of
j Chicago Title Company
4 D O C #: 2007078654 Titles: 1 Pages: 13
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MEL
12/07/2007
8:13 AM
REIMBURSEMENT AGREEMENT
IMPROVEMENTS TO ORCUTT ROAD AND THE INTERSECTION OF
BROAD STREET
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REIMBURSEMENT AGREEMENT
IMPROVEMENTS TO ORCUTT ROAD AND THE. INTERSECTION OF
BROAD STREET
THIS REIMBURSEMENT AGREEMENT (this "Agreement ") is made and entered into
this 2nd day of October; 2007, by and among the CITY OF SAN LUIS OBISPO, a charter city
and municipal corporation of the State of California, herein referred to as "City ", and Orcutt
Associates, LLC, a California limited liability company, herein referred to as "Orcutt ".
A. On or about November 15`h, 2005, the City Council approved Vesting Planning
Application No. 151 -03 (861 and 953 Orcutt Road, Vesting Tentative Tract Map No 2707)
submitted by Orcutt (the "Development Entitlements "). Orcutt has assigned its rights in the
Development Entitlements to CityView Laurel Creek 178, L.P., a Delaware limited partnership
( "Builder "). Builder desires to construct up to 178 new homes pursuant to the Development
Entitlements approved by the City Council (the "Laurel Creek Project ").
B. The City has undertaken, pursuant to the California Environmental Quality Act
( "CEQA "), the required analysis of the environmental effects which would be caused by the
Laurel Creek Project and other projects in the area and has determined those mitigation measures
which will eliminate, or reduce to an acceptable level, those of the environmental impacts which
may be so mitigated, has adopted findings of overriding considerations for those of the impacts
that cannot be so mitigated, and has certified the Final Environmental Impact Report (the
"FEIR "), with those mitigation measures (the "Condition ") and findings of overriding
considerations, pursuant to City Resolution No. 9502 (2005 Series). Mitigation measure
TR/mm -4 was established by the City Council as follows:
TR/mm -4 Prior to issuance of occupancy permits, the project applicants shall
install, subject to approval of the Public Works Director, the following
improvements:
• Provide an additional through lane in each direction along Orcutt
Road, between Broad Street and Union Pacific Railroad right -of-
way. The alignment of Orcutt Road, with the widening, would shift
southwards near Duncan Road/Sacramento Drive and transition
northwards before the railroad tracks. This alignment was set by
City Council in 1994 (see Ordinance No. 1269). The widening of
Orcutt Road shall incorporate state and city design standards.
• Provide bicycle lanes and sidewalks in both directions and left -turn
pockets in both directions at McMillian Avenue and Duncan
Road/Sacramento Drive with the widening of Orcutt Road.
In addition, prior to issuance of occupancy permits, the applicants shall
either; 1) complete the following improvements subject to review,
inspection and permit issuance by the City, the California Public Utilities
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Commission (CPUC), and- Union Pacific Railroad, or 2) subject to
approval of the Director of Public Works, deposit a mitigation fee in an
amount equal to the estimated construction costs of said project and
request that the City become the lead entity in processing a CPUC
Encroachment Permit for said work.
Provide an additional through lane in each direction along Orcutt
Road, between Union Pacific Railroad right -of -way and Laurel
Lane.
• Provide bicycle lanes and sidewalks in both directions and left -turn
pockets in both directions at Laurel Lane with the widening of Orcutt
Road.
Prior to occupancy, the applicants will each enter into a reimbursement
agreement for costs associated with the design, permitting, inspections,
and construction of the required improvements that are beyond the scope
of each development project. Final cost estimates will be subject to prior
approval of the Director of Public Works. The amount of reimbursement
between the applicants will be determined by taking into consideration
the project's percentile contribution to overall traffic volumes along this
roadway, based upon peak hour trip estimates.
The improvements described in Recital B above are referred to as the "Laurel & Orcutt Street
Improvements ". The portion of the Laurel & Orcutt Street Improvements to Orcutt Road from
the easterly property boundary of TR 2767 to east of Laurel Lane are referred to herein as the
"Laurel & Orcutt Intersection Improvements ".
C. In addition to the Laurel & Orcutt Street Improvements, in connection with the
Laurel Creek Project and other development projects in the area the City is requiring that certain
traffic mitigation measures be taken in connection with the intersection of Broad Street and
South Street established by the City Council as TR/mm -1 (interim improvements) and TR/mm-
26 (final improvements) referred to herein as the "South & Broad Intersection Improvements ".
D. The Condition allowed Orcutt to solicit the City to complete the Laurel & Orcutt
Intersection Improvements in return for Orcutt paying a "Mitigation Fee" that would advance the
cost of the Laurel & Orcutt Intersection Improvements subject to reimbursement to Orcutt from
other developments in the area benefiting from the Laurel & Orcutt Intersection Improvements.
Orcutt requests the option of paying the Mitigation Fee for the Laurel & Orcutt Intersection
Improvements to the City in -lieu of constructing them and now seeks to enter into a
reimbursement agreement with the City whereby the City agrees that neighboring property
owners and their projects benefiting from the Laurel & Orcutt Intersection Improvements shall
be charged fees in connection with the development of their properties and projects to pay their
fair share of the cost of said improvements which fees collected from neighboring property
owners will in turn be used by the City to reimburse Orcutt a portion of the Mitigation Fee.
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E. Specifically with regard to the Laurel & Orcutt Intersection Improvements, the
City has completed public improvement plans for said work .and has submitted a draft agreement
to the Union Pacific Railroad ( "UPRR ") to construct railroad crossing improvements at Orcutt
Road. In addition, the City has appropriated partial funding for said improvements using City
Transportation Impact Fees ( "TIF ") and other grant funding that has reduced the need of the
Laurel Creek Project and neighboring property owners to pay the full mitigation costs associated
with all of the improvements to Orcutt Road.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the City and Orcutt agree as follows:
1. Payment of Mitigation Fee for Laurel & Orcutt Intersection Improvements.
Orcutt shall pay the Mitigation Fee to the City in an amount of One Million Two Hundred Fifty
Thousand Dollars ($1,250,000) for use by the City in constructing the Laurel & Orcutt
Intersection Improvements. Orcutt shall pay Two Hundred Fifty Thousand Dollars ($250,000) of
the Mitigation Fee upon the execution of this Agreement by the City. The balance of the
Mitigation Fee in the amount of One Million Dollars ($1,000,000) shall be paid at the start of
construction of the Laurel & Orcutt Intersection Improvements at the election of Orcutt by either
(a) depositing One Million Dollars ($1,000,000) into a mutually acceptable to the City escrow
account (the "Escrow Fund ") with interest on the funds so deposited to accrue for the benefit of
Orcutt, or (b) causing the issuance of a letter of credit in favor of the City in the amount of One
Million Dollars ($1,000,000) in a form and from a financial institution reasonably acceptable to
the City (the "LOC "). The City would be entitled to draw on the Escrow Fund/LOC pursuant to
the following schedule: Two Hundred Fifty Thousand Dollars ($250,000) when construction of
the Laurel & Orcutt Intersection Improvements commences, an additional Three Hundred
Seventy -Five Thousand Dollars ($375,000) when construction of the Laurel & Orcutt
Intersection Improvements are fifty percent (50 %) complete, and a final Three Hundred Seventy-
Five Thousand Dollars ($375,000) upon the earlier of (i) when the Laurel & Orcutt Intersection
Improvements are eighty percent (80 %) complete, or (ii) when the building permit for the last
unit of the Laurel Creek Project is issued by the City. In consideration of the foregoing
payments, the City agrees not to delay the issuance of any permits or certificates of occupancy
for the Laurel Creek Project due to the Condition.
2. Benefit Area. The total area of benefited property for purposes of this.Agreement
shall be deemed to be any and all parcels of land, and each of them, that lie within the
"Reimbursement Area" indicated on Exhibit "A" attached hereto and made part hereof by this
reference. All or any combination of parcels of land in the Reimbursement Area may be referred
to from time to time hereinafter as "Benefited Property" or any such parcel may be referred to
individually as a "Benefited Parcel ".
3. Maximum Reimbursement Amount. The Director of Public Works has
determined that the total amount eligible for reimbursement by the City to Orcutt shall not
exceed One Million Two Hundred Twelve Thousand Five Hundred Dollars ($1,212,500) plus the
Inflation Adjustment factor set forth in Section 9 below. This amount shall be known as the
"Maximum Reimbursable Amount" and has been determined by reducing the total Mitigation
Fee ($1,250,000) by Orcutt's pro rata fair share of the Mitigation Fee in the amount of Thirty -
Seven Thousand Five Hundred Dollars ($37,500). After reimbursement to the City for planning
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and environmental review costs, all Orcutt Area Specific Plan sub area fees actually collected by
the City for transportation purposes (not including Citywide TIF or other mitigation fees
collected from the sub area) shall be reimbursed to Orcutt until the Maximum Reimbursement
Amount has been reimbursed.
4. Collection of TIF and Pro Rata Share Fees. The City will be collecting fees from
property owners /developers in the Benefit Area. At the time the City first issues a building
permit or any discretionary permit, approval or license for each Benefited Parcel within the
Benefit Area after the date of this Agreement, the City will utilize its best efforts to recover an
appropriate pro rata share, as determined by the City in its reasonable discretion, of the.
Maximum Reimbursable Amount from the owner /developer of such Benefited Property (the
" Prorata Share ") pursuant to Section 16.20.110 of the San Luis Obispo Municipal Code, or as
that Section may be amended. It is intended that the City shall determine an appropriate Prorata
Share for each project in the Reimbursement Area in conjunction with the processing of any
applications for permits for development projects on any Benefited Parcel within the
Reimbursement Area indicated on Exhibit "A ". The City hereby agrees that all Prorata Shares
collected by the City within a fifteen (15) year period from the date of the payment of said
Mitigation Fee by Orcutt, shall be paid by the City to Orcutt (the "Reimbursement Payment "),
not to exceed the Maximum Reimbursable Amount. In the event that no development of
Benefited Parcels has occurred or is anticipated in the fifteen (15) year period following the
execution of this Agreement, Orcutt may request and the City will consider entering into a
subsequent agreement to provide for reimbursement to Orcutt from fees received from the
subsequent development of Benefited Parcels.
5. Tickell Frontage Improvements Reimbursement. On the south side of Orcutt
Road, adjacent on the west to the Laurel Creek Project, are parcels of real property located on the
southeast comer of Broad Street and Orcutt Road containing approximately 3.86 gross acres
owned by a family trust or family limited partnership of Mr. William Tickell commonly. referred
to as the "Tickell Property ", upon which a mixed used development is planned (the "Tickell
Project ") As established in the Certified EIR SCH #2004071043, Orcutt has caused Builder to
agree to make certain improvements to Orcutt Road along the frontage of the Tickell Property
for the benefit of the City and the Tickell Property and Tickell Project (the "Tickell Frontage
Improvements "), said improvements having a current estimated cost of Three Hundred Sixty
Thousand Dollars ($360,000) (the "Tickell Frontage Estimated Costs "). City agrees to allow a
credit of Two Hundred Fifty -Six Thousand Two Hundred Eighty -Seven and 96/100's Dollars
($256,287.96) against the TIF Fees otherwise payable in connection with the Laurel Creek
Project (the "TIF Credit ") in return for the construction of the Tickell Frontage Improvements by
Builder. The final actual cost of the Tickell Frontage Improvements minus the TIF Credit shall
be paid by the owner of the Tickell Property to Orcutt pursuant to Section 6 below.
6. Tickell Mitigation Fee Obligations. Along with Orcutt, the owner of the Tickell
Property was initially going to advance approximately two - thirds (2/3) of the total Mitigation
Fee in the amount of Eight Hundred Eight Thousand Eight Hundred Twenty -Four Dollars
($808,824) (the "Tickell Advance ") with Orcutt to advance Four Hundred Three Thousand Six
Hundred Seventy -Six Dollars ($403,676.00) (the " Orcutt Advance "). Pursuant to this
Agreement, Orcutt is advancing both the Orcutt Advance and the amount of the Tickell Advance
which was to be advanced by the owner of the Tickell Property. In light of the foregoing, as a
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prior to the issuance of building permits for the Tickell Project (Tentative Map No.
), the City hereby agrees to exercise its best efforts to collect from the owner of the
Tickell property that owner's pro rata share of the documented costs of the Tickell Advance and
the Tickell Frontage Improvements or, at the election of the City, to obtain written confirmation
from Orcutt that an agreement has been reached to provide for (a) the payment by the owner of
the Tickell Property to Orcutt of any sums spent on the Tickell Frontage Improvements in excess
of the TIF Credit plus Inflation Adjustment on said amount at the rate set forth in Section 9
below, and (b) the payment by the owner of the Tickell Property of the Tickell Advance to
Orcutt and the sharing between Orcutt and the owner of the Tickell Property of future
Reimbursement Payments received by Orcutt pursuant to this Agreement.
7. South & Broad Intersection Improvements. The City agrees that the Laurel Creek
Project's pro rata share of the costs of the South & Broad Intersection Improvements costs shall
be a total of One Hundred Thirty -Three Thousand Dollars ($133,000) payable prior to Final
Tract Map approval for the Laurel Creek Project.
8. Satisfaction of Off Site Traffic Mitigation Requirements. The City agrees that
upon the payment of the amounts set forth in Sections 1 and 7 above, all offsite traffic mitigation
requirements in connection with the Laurel Creek Project shall be deemed_ satisfied.
9. Inflation Adjustment. The Amount to be collected from the owner of each
Benefited Property shall be determined by first multiplying each of the percentages specified on
Exhibit A for such property by the total actual cost for the corresponding Improvement. The
sum of these products shall then increased on July 1 of each subsequent year. following the
effective date of this Agreement by the annual percentage change in the U S. Consumer Price
:Index, All Urban Consumers (or comparable successor index, if applicable) for the prior calendar
.year. In the event the Index shall hereafter be converted to a different standard reference base 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 be 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 recognized publisher of similar statistical information. In
the event the Index and/or a conversion factor shall cease to be published, then, for the purposes
of this Agreement, there shall be substituted for the Index such other index as Owner and the
City shall agree upon.
10. Time of Reimbursement. City will utilize its best efforts to disburse from time to
time the Reimbursement Payments to Orcutt within ninety (90) days of receipt of any
Reimbursement Fees. Notwithstanding any other provision of this Agreement, if for any reason
City has not theretofore disbursed to Orcutt any Reimbursement Payments that were to have
been collected and disbursed to Orcutt in accordance with this Agreement during the City's fiscal
year which ends June 30, City shall disburse such amounts to Orcutt by July 31 of that year. The
foregoing notwithstanding, final 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 et seq. of the California Public Contract Code,
or their successor provisions.
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11. Right to Reimbursement; Assignment Thereof. The right to receive
Reimbursement Payments shall be personal to Orcutt and shall continue notwithstanding the
previous or subsequent sale or transfer by Orcutt of any portion of the Benefited Property, unless
Orcutt expressly in writing assigns its right to Reimbursement Payments to some other person or
entity, either in connection with the sale or transfer of Benefited Property or independently of
any real property transfer. Orcutt may, but shall have no obligation to, monitor City's collection
of Mitigation Fees from the Benefited Properties. Orcutt shall have the right to audit the
Reimbursement Fee/Reimbursement Payment records of the City; not to exceed once per
calendar year. Orcutt hereby directs that Reimbursement Payments due it. shall be payable to and
mailed its address for notice set forth below or to such address as it may specify from time to
time.
12. Notices. Any notice or other communication hereunder shall be in writing 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 forth below, or at
such other address as such party shall have last designated by notice to the other parties. The
same shall be deemed given when delivered or three days after mailing; provided, however, that
if any such notice or other communication shall also be sent by telecopy or fax machine, such
notice shall be deemed given at the time and on the date of machine transmittal if the sending
party receives a written send verification on its machine and forwards a copy thereof with its
mailed or courier delivered notice or communication. The addresses for notices are as follows:
If to City: City of San Luis Obispo
990 Palm Street
.San Luis Obispo, CA 93401 -3249
Attention: City Administrative Officer
Fax No.: (805) 781 -7409
If to Orcutt: Orcutt Associates, LLC
12275 El Camino Real, Suite 110
San Diego, CA 92130
Attention: Randall Jenson
Fax No: (858) 523 -0832
With copy to: James Murar
4060 Campus Drive, Suite 100
Newport Beach, CA 92660
Fax No. (949) 553 -0607
With a copy to: Foley & Lardner LLP
402 West Broadway, Suite 2100
San Diego, CA 92101
Attention: Richard L. Moskitis, Esq.
Fax No. (619) 234 -3510
13. Attorneys Fees. In the event any party hereto brings or commences litigation for
a declaration of the rights of the parties under this Agreement, for injunctive relief, or for an
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alleged breach or default of this Agreement, or any other action arising out of this Agreement,
the prevailing party in each such action shall be entitled to an award of reasonable attorneys' fees
and any court costs incurred in such action or proceeding, in addition to any other damages or
relief awarded, regardless of whether such action proceeds to final judgment.
14. Entire Agreement; No Oral Modifications. This Agreement and the exhibits
hereto constitute the final and complete agreement and supersede all prior correspondence,
memoranda or agreements in connection with traffic mitigation fees regarding the Laurel Creek
Project. This Agreement cannot be changed or modified other than by a written agreement
executed by all of the parties.
15. Successors Bound. The provisions of this Agreement shall extend to, bind and
inure to the benefit of the parties hereto and their respective personal representatives, heirs,
successors, and assigns.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
17. Counterparts. This Agreement may be executed . in more than one counterpart,
each of which shall be deemed an original, and all of which together shall constitute one and the
same instrument.
18. Severability. If any term or provision of this Agreement shall, to any extent, be
held invalid or unenforceable, the rem_ aining terms and provisions of this Agreement shall not be
affected thereby, but each remaining term and provision shall be valid and enforced to the fullest
extent permitted by law.
19. Captions.. The captions of this Agreement are inserted solely for convenience of
reference only and do not define, describe or limit the scope or intent of this Agreement or any
term hereof.
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THIS AGREEMENT is executed as of the date and year first above written.
ATTEST:..
APPROVED AS TO FORM:
JoinatkarfP. Lowell, City Attorney
CITY:
CITY OF SAN LUIS OBISPO
By:
David Romero Mayor
ORCUTT:
ORCUTT ASSOCIATES, LLC
a a i rnia limitgA,4 i i company
Its: Manager
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SDCA_338045.4
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STATE OF CALIFORNIA
)SS
COUNTY OF SAN LUIS OBISPO )
On November 20, 2007, before me Audrey Hooper, City Clerk, personally appeared David F.
Romero, Mayor, CITY OF SAN LUIS OBISPO, personally known to me ar proved to m on
to be the person(Wwhose nameA) is/am-subscribed to the
within instrument and acknowledged to me that he%sheAhey- executed the same in hi&lc;4h r
authorized capacity(), and that by hidh signatureKon the instrument the person(4, or
the entity upon behalf of which the person(lj acted, executed the instrument.
WITNESS my hand and official seal. ¢ .
Signature
C" Clerk 0 ..
,
(Seal)
STATE OF CALIFORNIA )
((�� )ss.
COUNTY OFSa[ DV 0 )
U
On Navcrn ber 5 , 200 before me, �/aCP,I/ 1711�'n ,Notary Public,
personally appeared oea Mh [l cJehSo✓1,to in (ew e -to
to be the person(s) whose name�are subscribed to
the within instrument and acknowledged to me that 0 /fihe*1ey executed the same in
i authorized, capacity(ies), and that byCgh r4dieir signature(s} on the instrument the
person(W, or the entity upon behalf of which the personvacted, executed the instrument.
WITNESS my hand and official seal. cAsEV eta s�wO
COMMI"lon /► 1760266
pume - 00won"
son 01"P county I
(SEAL)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On , 200_, before me, , Notary Public,
personally appeared , personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that he /she /they executed the same in
his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
(SEAL)
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SDCA 338045.4
EXHIBIT A
REIMBURSEMENT MAP AND RATE SHEET
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SDCA_338045.4
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