HomeMy WebLinkAboutAvila Ranch - Infrastructure Reimbursement AgreementINFRASTRUCTURE REIMBURSEMENT AGREEMENT
Private
(Avila Ranch Vesting Tentative Tract Map 3089)
This Infrastructure Reimbursement Agreement ("Agreement") is entered into this &dday
Of Ili V-' V_' , 2019 (the "Effective Date"), by and between the City of .San Luis Obispo,
a municipal corporation and charter city ("City") and Avila Ranch, LLC, a California limited
liability company ("Avila Ranch!). The City and Avila .Manch are sometimes hereinafter
referred to individually as a "party" and collectively as "parties."
RECITALS
A. WHEREAS, on September 17, 2017, the San Luis Obispo City Council certified the Final
Environmental Impact Report; approved the Avila Ranch Development Plan, Airport Area
Specific flan Amendment 1318-2015, General Plan Amendment 1319-2015, Vesting
Tentative Tract Map 3089 ("VTTM"), Ordinance 1638 (2017 Series) approving a rezone
of the Avila Ranch property and Ordinance 1369 (2017 Series) approving Development
Agreement 201.7-1. ("Development Agreement'.), and formation of a Community Tacifities
District (collectively "Project");- and
B. WHEREAS, the Project is subject to various City requirements and conditions of
approval, including but not limited to, those of the VTTM, the Development Agreement,
and the Avila Ranch Final Environmental Impact Report (SCH # 2015081034); and
C. WHEREAS, the Project creates a fractional demand for certain transportation
improvements ("Transportation tniprovements")7 not included in the City's Transportation
Impact Fee Program and Avila Ranch :has agreed to construct these Transportation
Improvements subject to :reimbursement from other properties benefiting from the
improvements ("Benefitted Properties" or individually, `Benefitted Property") for that
portion of the cost of the Transportation Improvement exceeding the pro rata share of the
Transportation Improvement attributable to the Property ("Reimbursable Costs') ; and
D. WHEREAS, Exhibit C to the Development Agreement identifies the Transportation
Improvements to be constructed by Avila Ranch subject to reimbursement from the
Benefitted Properties and Avila Ranch's fair share of 'each Transportation Improvement
based on the Project's pro rata share :of the capacity of the Transportation Improvements;
and
WHEREAS, the Benefitted Properties, the Transportation Improvements subject to
reimbursement from Benefitted Properties, and the proportionate share subject to
reimbursement are identified in- Exhibit A to this Agreement;
E. WHEREAS, Section 5.04.2(g) of the Development Agreement provides that the City shall
Enter into a reimbursement agreement with the developer which provides for the
1
reimbursement of all excess costs and expenses incurred by Avila Ranch in constructing
infrastructure beyond its fair share in accordance with Government Code section 66485 et
seq. and section 16.20.110 of the City's Municipal Code; and
F. WHEREAS, Section 5.05.3(a) of the Development Agreement provides that the City shall
reimburse, or provide for the reimbursement ,by other -landowners or developer, the actual
hard and soft costs associated with Avila Ranch's funding or construction of that portion
of any improvement that is attributable to a project or area other than the Project or Project
property; and
G. WHEREAS, because Avila Ranch is paying for the construction and/or installation of the
Transportation Improvements, with the development of the Project,. Developer is eligible
to be reimbursed for the Reimbursable Costs, to the extent and on the terms and conditions
set forth in this Agreement.
AGREEMENT
Subject to the terms and conditions set forth below, the parties agree as follows:
1. Recitals. The above recitals are true and correct. The recitals set forth: above, and
all defined terms set forth in such recitals and in the preamble preceding the recitals,
are hereby incorporated into this Agreement as though set forth :in full.
2. `Perm. Pursuant to Section. 5.05.3(g) of the Development Agreement the term of this
Agreement shall be fifteen (15) years from date of termination of the Development
Agreement, or until all Reimbursable Costs have been fully reimbursed, whichever is
sooner.
3. Construction of Transportation Improvements. Avila Ranch shall construct the
Transportation Improvements in substantial conformance with the Project's
Transportation Improvement Plans approved by the City ("Approved Plans"), any
approved alterations thereto directed by the City Engineer or staff.
4. Reimbursable Costs.
a. The Transportation Improvements and each of the Benefitted Properties' prorated
share of the Reimbursable Costs are shown on Exhibit A, attached hereto and
incorporated herein by this reference. Subject to Section 6 of this Agreement, the
City shall reimburse Avila Ranch for the actual Developer Costs determined in
accordance with Section 8 and this Agreement, together with the Applicable
Annual Rate of Inflation, which shall- be Construction Cost Index. "Developer
Costs" means the actual cost of designing, permitting and constructing each of the
Transportation Improvements adopted in Table B-2 of the Development
Agreement and listed in Exhibit A to this Agreement. Developer Costs shall
include the cost of all right-of-way acquisitions secured by Avila Ranch, if any,
including the legal, accounting, project management, and costs of such rights of
way acquisition. Developer Costs shall include eligible Developer hard .and soft
2
costs. Soft costs shall include Developer's legal, accounting, and engineering costs.
b. Exhibit A shows the current estimated prorated shares of the cost of the
Transportation Improvements, considering the current development potential of the
Benefitted Properties. The amount of the Reimbursable Cost for any Benefitted
Property may be adjusted based on the actual development proposed for that
property, changes in baseline conditions, or to account. for any right of way or
improvements that are contributed or constructed by the 'Benefitted Property. The
list of Benefitted Properties and proportional share allocated to each shown in
Exhibit A shall be modified if and when the City determines additional- properties
benefit from one or more of the Transportation Improvements: If City determines
additional properties benefit from one or more of the Transportation -
Improvements, the City shall require those properties to pay a .prorated share of
documented Reimbursable Costs in accordance with Section 6 of this Agreement.
C. Within fifteen days of execution of this Agreement, the City agrees to implement a
collection mechanism that ensures collection of funds from benefitted properties
consistent with each property's obligation to pay its prorated share, estimated
based on current development potential in Exhibit. B, or as such share may be
required to be adjusted based upon the actual development proposed on any
Benefitted Property_ To the extent permitted by law, the City further agrees to
record a notice of this agreement against the Benefitted Properties.
5. Benefitted Proerties. City and Avila Ranch agree that the Transportation Improvements
significantly benefit the Benefitted Properties because the Transportation Improvements
are improvements that the City would require the individual Benefitted Properties to
install as conditions of improvement, and/or would otherwise be necessary conditions of
approval: or environmental mitigations to allow development of the Benefitted Properties
at their maximum development potential. The prorated allocation of costs to each of the
Benefitted Properties is based on the developable, but currently undeveloped, acreage of
each Benefitted Property. In the case of vacant properties, 100 percent of the acreage is
counted; in the case of underdeveloped properties 50 percent of the acreage is counted;
and, in the case of properties that have substantial constraints such, as flood plains; steep
slopes, etc., the net developable acreage is counted. The allocated cost for each Benefitted
Property was determined using the zoning for each property and the corresponding
adopted Trip Generation Rate for each land use in Table A-2 of the City's Capital
Facilities Fee Nexus Study, as shown in Exhibit B.
6. Reimbursement.
a. Subject to the terms and conditions hereof, City will require the Benefitted
Properties to pay a prorated share of the documented Reimbursable Costs, as
shown in Exhibit A; or a proportional fraction of the share if: (i) the Benefitted
Property grants any right of way or constructs improvements which decrease the
Benefitted Property's demand for or impact on any of the improvements as shown
in Exhibit A; (ii) the Benefitted Property is proposed and approved to be
3
developed at less than the developable acreage on which the prorated share
reflected herein for the Benefitted Properties was calculated; (iii) the land use or
zoning designation of the property is proposed and approved to be changed; (iv)
the baseline conditions change in a manner which renders the traffic impacts of
development within the Benefitted Property to be less than estimated in Exhibit A;
or (v) other circumstances arise which legally prohibit the City from imposing the
fee. Similarly, in the event the Benefitted Properties are proposed and approved to
be developed in a manner that results in a demand for Transportation
Improvements greater than reflected in the prorated shares herein, the City will
amend the prorated shares accordingly and will collect amounts from the
Benefitted Properties commensurate with the demands- and impacts of the
development actually approved. For Benefitted Properties within the City's
jurisdiction, the City shall require payment of the prorated shares of the
Reimbursable Costs as a condition of any discretionary entitlement or approval,
including Architectural Review Committee (whether administrative, quasi-judicial,
or legislative) on which such a condition legally may be imposed, and payment
shall be -required prior to issuance of building permits. For properties in the
County's jurisdiction, City will require Benefitted Properties to pay their prorated
share of documented Reimbursable Costs as a condition of annexation- City shall
not be required to reimburse Avila Ranch more money than it actually collects.
Any amount of Reimbursable Costs City collects within a calendar quarter shall be
sent to Avila Ranch within thirty (30) days following the end of such calendar
quarter, subject to the provisions of Section 6b. All reimbursements shall be by
check or warrant made payable to: Avila Ranch, LLC and mailed to
Avila Ranch, LLC
Attn: Andy Mangano
3596 Broad Street, :Suite 104
San Luis Obispo, CA 93401
b. If any owner or developer of one or more of the Benefitted Properties pays all or a
portion of the Reimbursable Costs under protest, City shall not be required to make
reimbursements under this Agreement until: the limitation period, under
Government Code section 66020 for instituting court action to seek a refund of
such .funds .paid under protest has .passed, and no court action ("Action") has been
instituted. If an Action is instituted seeking refund of funds paid under protest, or
to prevent City from collecting such funds, or challenging any provision of this
Agreement, City shall not pay :such funds to Avila Ranch until the Action has, been
finalized and the authority of City to collect such funds and reimburse Avila Ranch
has been sustained_ City shall promptly notify Avila Ranch in writing of the
Action. City shall reasonably support Avila Ranch's efforts to participate as a
party to the Action, to defend the Action or settle the Action. Furthermore, City
shall have the right to turn over the defense of the Action to Avila Ranch. If,
within fifteen (15) days of City mailing a notice in compliance with Section 15
below requesting that Avila Ranch defend the Action, Avila Ranch fails to
undertake the defense of the Action at Avila Ranch's sole cost and expense, City
may stipulate to return of the funds so paid under protest, to cease collecting such
funds, or enter into any other settlement of the Action acceptable to City, and Avila
Ranch shall lose any right to reimbursement under this Agreement of the amount
contested in the Action. Avila Ranch shall reimburse City for its costs and
attorneys' fees incurred in defense of the. Action, including reasonable payment for
legal services performed by the City's _City Attomey, and for any liability City
incurred in the Action, and such costs, fees and liability shall not be Reimbursable
Costs. In addition, if City fails to impose. a requirement upon development_ projects
proposed by owners or developers of the Benefitted Properties, to pay their
-respective prorated share of the Reimbursable Costs, as specified in Exhibit A or as
determined by the Director under Section 4 of this Agreement, or fails to collect
such funds; Avila Ranch may exercise all of its legal rights to collect such: funds-
from the Benefitted Properties.
7. Bids for Installation of Transportation Improvements In order to assure the Benefitted
Properties that the costs of construction of the Transportation Improvements are
reasonable, prior to commencing construction of the Transportation Improvements, Avila
Ranch shall obtain at least three (3) non -collusive bids for construction of the
Transportation Improvements, and provide copies to City. Avila Ranch is not required to
accept any particular bid. However, when Avila Ranch provides City with evidence of
actual posts under Section 8, Avila Ranch must provide an explanation of its reasons for
selecting one of the higher bids if the difference between the bids is greater than 10%
and/or above the engineer's estimate set forth in Exhibit A. City may require such
explanation but may not delay reimbursement to question Avila Ranch's explanation. As
part of the bid packages both contractor and Avila Ranch shall provide Non -Collusion
Affidavits in a form approved by the City Attorney.
8. .Proof and Due :Date of Reimbursable Costs.
a. At the time of contract award for each Transportation Improvement, City shall
provide Avila Ranch and, the contractor with a detailed, description of the nature.
and extent of bills, invoices, contracts, and other documentary evidence necessary
for reimbursement of Reimbursable Costs CDocumentation of Costs'). All
submittals shall clearly show costs eligible for reimbursement pursuant to this
Agreement. City shall approve payment of Reimbursable Costs within sixty (60)
days of receipt of Documentation of Costs unless additional information is
requested pursuant to section 8b below.
b. If within sixty (60) days of submission of invoices and other documentation, City
notifies Avila Ranch, in writing, that the additional Documentation of Costs is
required, Avila Ranch shall respond: to such, notice within sixty (60) days. If Avila.
Ranch complies with the request for additional Documentation of Costs, City may
request additional information only insofar as it relates to the additional
documentation provided_
C. If the Director disapproves any of Avila Ranch's claimed costs, the Director shall
meet and confer with Avila Ranch to resolve the dispute. If the Parties do not
meet to resolve the dispute within thirty (30) days of the Director's invitation to
meet and confer, the Director shall have ultimate authority to determine the
amount subject to reimbursement.
d. If final Reimbursable Costs should increase or decrease pursuant to change orders
or other cost modifications allowed in this Agreement, the parties shall meet and
confer within five (5) days of Avila Ranch .notifying the City of the change to
reach agreement on allocation of costs and may be modified in accordance with
this Agreement. Developer and the City Engineer, together, may approve a change
order if the total Reimbursable 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.
9. Reduction of Reimbursable Costs by Other Reimbursements. Avila Ranch may enter into
agreements with other property owners or developers of the Benefitted Properties or
others, addressing Avila Ranch's right to reimbursement resulting from Avila Ranch's
oversizing or construction of Transportation Improvements that will benefit
development of those other properties. To the extent Avila Ranch enters into such
agreements or receives payment or consideration from others for costs that are
otherwise "Reimbursable Costs" under this Agreement, such payments or consideration
will be credited against the Reimbursable Costs otherwise due Avila Ranch under this
Agreement. Notwithstanding the foregoing, Avila Ranch has no obligation to attempt
to pursue reimbursement from other property owners or developers of the Benefitted
Properties.
10. Indemnification. Avila Bch agrees to indemnify, defend and hold. City, its officials,
agents, employees and contractors, harmless from any expense, liability or claim for death,
injury, loss, damage or expense (including attorney's fees and costs) to persons or property
which may arise or is any way related to: City's attempt to collect the Reimbursable Costs
pursuant to the terms of this Agreement, Avila Ranch's construction of the Transportation
Improvements, or Avila I click's• perforce under this Agmemcatr ar, that of its,
contractors or agents; or from Avila Ranch's failure to pay prevailing wages for the
construction of the Transportation Improvements or comply with applicable provisions of
the Labor Code; or any litigation or Action under Section 6- or Section 7. Notwithstanding
the foregoing, Avila Ranch shall 'have no: darty to: indemnify City for any expense, Yiabilfty
or claim for death, injury, loss, damage or expense to persons or property which may arise
from the sole negligence or willful misconduct of City, officials, agents, employees and
contractors. In the -event A-Mla Ranch fails to..provide;suchz defense ,to °City, Avila Ranch
s1W1 be friable ate the Ui+ty io ails aftmey'.s fees.aad fitigatima cots anowwd to .defend itself
beginning on the sixteenth (16th) day from the date of the City's notice and request for a
defense.
6
11. Entire Agreement/Amendment. This Agreement represents the entire integrated
agreement between the City and. Avila Ranch regarding the private reimbursement
for the Transportation Improvements, and supersedes all prior negotiations,
representations or agreements, either written or oral, but expressly does not supersede the
letter agreement executed between the City and Avila Ranch on April 3, 2018 relating; to
the Transportation Impact Fee, LOVR Subarea Fee, and fee credits, the Development
Agreement or .any public Reimbursement Agreement. This Agreement may be amended
only by a written instrument signed by both City and Avila. Ranch.
12. GovernineLaw and Venue. The interpretation and implementation of this Agreement
shall be .governed by the law of 'California, except for those provisions preempted by
federal law. However, the laws. of the State of California shall not be applied to the
extent that they would require or allow the court to use the laws of another state or
jurisdiction. The parties agree that all actions or proceeding arising out of or relating to
the Agreement shall be tried and litigated only in the County of San Luis Obispo or
the United States District Court for the Central District of California.
13. Severability. Invalidation of any provision contained herein or the application thereof
to any person or entity by judgment or court order shall in no way affect any of the
other covenants, conditions, restrictions, or provisions hereof, or the application
thereof to any otherperson or entity, and the same shall remain in full force and effect.
14. CougWgpaz�ts. This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed an original and all of which together shall constitute one
and the same instrument.
15. Notices. All notices, demands, invoices, or written communications to the parties
required or permitted hereunder shall be in writing and delivered personally or by U.S.
mail, postage prepaid, to the following addresses or such other address as the parties
may designate in accordance with this section:
City Director Public Works 919 Palm Street
San Luis Obispo, CA 93401
With a copy to: City Attorney 990 Palin Street
San Luis Obispo, CA 93401
Avila Ranch: Avila Ranch, LLC
Attn: Andy Mangano
3596 Broad Street, Suite 104
San Luis Obispo 93401
With a copy to: Leslie Z. Walker
Thomas Law Group
7
'v
P
455 Capitol Mall, Suite 801
Sacramento, CA 95.814
lwalker(,thomaslaw.com
16. Interpretation/Ambiguity. This Agreement was negotiated by the Parties, with the
advice and assistance of their respective counsel, and shall not be construed in favor of
or against either Party, regardless of who may have drafted it or any of its terms. Any
rule of construction to the effect that ambiguities are to be resolved against the drafting
party shall not be applied in interpreting this Agreement.
17. Assignment. Avila Ranch shall not assign, transfer or convey any of its rights, duties or
obligations under this Agreement without the prior written approval of City. City shall
not unreasonably withhold approval of any assignment. Any other assignment shall be
null and void.
18. Authority to Execute. Both City and Avila Ranch do covenant that each individual
executing this agreement on behalf of each party is a person duly authorized and
empowered to execute Agreements for such party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the first date
written above.
ATTEST:
City Clerk
Aviia Rancb
City OF SAN LUIS OBISPO a rntnticipal
N.
This page is intentionally left blank.
Exhibit A",
Reimbtuwmmi. Costs and Allocation to Benefitted. Properties -
10
n�=TH
aoavc
a.ao
nomF�u�
„a�a��fn
•r
�a
x.
C
2�
x�
2
2
2 g
n
s
n n
o•
S
pin
��
<�
.l
�12
-• i
'�
ge
3
s
N W•N
---
_
----
ppµ p
W 'e
;C �0.
i
s N
ul
m ra
A fp'{I
OI•
( �
el
L yFT
iF
K
y�
4 111
1� 2'
x .�.
11�.
2e
Iv—
,01
' {O V
'�'
!
1
411
M'
IN Ai
�
•;i p
SC
N
b
IR
v
N
N
2
00
3
el. o
.I
.� Lam. 'oM�
��
�
I
k -
r
.
.:� =•
'r. r
�1. �y..�'
ta iV V
—
N Ip+
iN
Vi N
N
Vi N
ui
N W
N ui
N N
M
w •N
N ..Y
W'
V ip
� ro
O
1
.I i
•.
r'
1'.
'.:
r
r� A:
p
•O o.
�
Sa
W W
iD •
N
N N
N N
M H
N Ono
w
O W
M nn
b r
N N
10
N N
N N
N
t�/+�
O
P VFv
fn��n
•';a:
x S
tppop� Q. m.
-
IW
A
N
N N
N N
N
vl NI
N N
N N
N N
N N
N—
N
1G
m �
—
'
iW •M
a Y
n•
..�
.
�
�W m
1� W
N 1
N •V+.
N
N N
N vl
u5 lw
w sg
m�.10o
r.
3 m