HomeMy WebLinkAbout01-050 CC ResolutionRESOLUTION NO. 01-50
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TEMECULA APPROVING THAT CERTAIN AGREEMENT
ENTITLED "REIMBURSEMENT AGREEMENT FOR
WINCHESTER ROAD/DIAZ ROAD TRAFFIC IMPROVEMENTS
BETWEEN CITY OF TEMECULA AND MS TEMECULA II, LLC"
THE CITY COUNCIL OF THE CITY OF TEMECULA HEREBY RESOLVES AS
FOLLOWS:
Section 1. The City Council of the City of Temecula does hereby find,
determine and declare that:
a. MS Temecula II, LLC ("Developer") is the owner of approximately
31 acres real property located east of Winchester Road between Dendy Parkway and
Remington Avenue, Temecula California.
b. On November 15, 2000, the Planning Commission of the City of
Temecula adopted Resolution No. 2000-034 approving Planning Application No. 2000-
0335 (the "Project").
c. Condition 45 of the Resolution provides that prior to issuance of
the certificate of occupancy, the Developer is required to construct certain public works
improvements consisting of the construction and installation of traffic signals at the
intersection of Winchester Road and Diaz Road as described in the Agreement
("Improvements"). The Improvements are necessary for the development of Project.
d. City and Developer have studied the nature of the Improvements
and the contribution of the Project to the need for the Improvements. City and
Developer have negotiated Developer's fair sharo contribution to the construction of the
Improvements. As a result of these negotiations, City and Developer have concluded
that Developer's fair share of the cost of constructing the Improvements shall be forty
three thousand two hundred fifty two dollars and 86/100 ($43,252.86). Developer's fair
share amount is the Traffic Signal Component of the City's Development Impact Fee for
the Project. Developer and City each acknowledge and agree that the Project contains
four hundred eleven thousand nine hundred thirty two square feet (411,932) of building
area. The parties further agree that the Traffic Signal Component of the DIF for the
Project is the building area multiplied by $.105, the Traffic Signal Component rate, for a
total of $43,252.86.
e. Developer and City estimate that the cost of the Improvements
should be one hundred seventy three thousand, nine hundred sixty one dollars
($173,961.00) but recognize that economic conditions at the time of bidding and
construction conditions could alter the accuracy of the estimate.
R:/Resos2001/Resos 01-50 1
f. Developer has offered to construct the Improvements provided
Developer is reimbursed by the City for its share of the improvements. It is
uneconomical and impractical for the City to bid the Improvement work separately from
the development and other improvement work being undertaken by Developer in the
area due to conflict between contractors and disruptions to traffic flow due to
uncoordinated construction activities.
Section 2. The City Council hereby approved that certain agreement entitled
"Reimbursement Agreement For Winchester/Diaz Road Traffic Improvements Between City of
Temecula And Ms Temecula II, LLC" and authorizes the Mayor to execute the Agreement on
behalf of the City in substantially the form attached hereto as Exhibit A.
Section 3.
matter required by law.
The City Clerk shall certify to the adoption of this Resolution in the
PASSED, APPROVED AND ADOPTED by the ~1 of the City of Temecula this
12th day of June, 2001.
~C~~__~ ,~-~ ~3~f¥"C~)merch e re, Mayor
~. iSusan,~/' J°n~.s, CMC, Ci~Clerk
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, CMC, City Clerk of the City of Temecula, California, do hereby certify
that Resolution No. 01-50 was duly and regularly adopted by the City Council of the City of
Temecula at a regular meeting thereof held on this 12th day of June, 2001, by the following vote:
AYES: 4 COUNCILMEMBERS:
NOES: 0 COUNCILMEMBERS: None
ABSENT: 1 COUNCILMEMBERS: Pratt
ABSTAIN: 0 COUNCILMEMBERS: None
Naggar, Roberts, Stone, Comerchero
ity Clerk
R:/Resos2001/Resos 01-50 2
EXHIBIT A
WINCHESTER/DIAZ ROAD TRAFFIC SIGNAL
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT FOR WINCHESTER
ROAD/DIAZ ROAD TRAFFIC SIGNAL IMPROVEMENTS BETWEEN
THE CITY OF TEMECULA AND MS TEMECULA II, LLC
THIS REIMBURSEMENT AGREEMENT is entered into and effective as of
June 12, 2001 by and between the City of Temecula, a municipal corporation ("City"), and MS
Temecula II, LLC, a Delaware limited liability company ("Developer"). In consideration of the
mutual promises and benefits described herein, the parties hereto agree as follows:
1. Recitals. This Agreement is made with respect to the following facts
and purposes, which each of the parties hereto agree are true and correct:
1.1 Developer is the owner of approximately 31 acres of real property
located east of Winchester Road between Dendy Parkway and Remington Avenue,
Temecula California, which is legally described on Exhibit A, Legal Description of
Developer's Property.
1.2 On November 15, 2000, the Planning Commission of the City of
Temecula adopted Resolution No. 2000-034 approving Plarming Application No. 2000-
035 (the "Project").
1.3 Condition 45 of the Resolution provides that prior to issuance of
the certificate of occupancy, the Developer is required to construct traffic signal
improvements at the intersection of Diaz Road and Winchester road which are described
in Exhibit B, Traffic Signal Improvements/Construction Cost Estimate (hereafter
"Improvements"). The Improvements are necessary for the development of Project.
1.4 City and Developer have studied the nature of the Improvements
and the contribution of the Project to the need for the Improvements. City and Developer
have negotiated Developer's fair share contribution to the construction of the
Improvements. As a result of these negotiations, City and Developer have concluded that
Developer's fair share of the cost of constructing the Improvements shall be forty-three
thousand, two hundred fifty-two dollars and 86/100 ($43,252.86). Developer's fair share
amount is the Traffic Signal Component of the City's Development Impact Fee for the
Project. Developer and City each acknowledge and agree that the Project contains four
hundred eleven thousand, nine hundred thirty-two square feet of building area. The
parties fitrther agree that the Traffic Signal Component of the DIF for the Project is the
building area multiplied by $.105, the Traffic Signal Component rate, for a total of
$43,252.86. Developer will receive a credit against the DIF for the Project in the amount
of $43,252.86.
1.5 Developer and City estimate that the cost of the Improvements
should be one hund,'ed seventy-three thousand, nine hundred sixtyrc~ne dollars
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May 31,2001
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($173,961.00), but the parties recognize that economic conditions at the time of bidding
and construction conditions could alter the accuracy of the estimate.
1.6 Developer is ready to begin construction of the Project. It is
uneconomical and impractical for the City to bid the Improvement work separately from
the development and other improvement work being undertaken by Developer in the area
due to conflict between contractors and disruptions to traffic flow due to uncoordinated
construction activities.
1.7 The parties now desire to set forth the terms of the City's
reimbursement of the costs of a portion of the Improvements.
2. Construction of Improvements. Developer shall construct and install
the Improvements in accordance with plans and specifications approved by the Director of
Public Works (the "Director") and subject to the terms of this Agreement.
3. Allocation of Costs of Improvements. City shall pay to Developer a
sum equal to the actual costs of constructing and installing the Improvements, less the
Developer's share of forty three thousand two hundred fifty two dollars and 86/100 ($43,252.86)
as described in Section 1.4. The parties have each independently determined that this figure
reasonably apportions the responsibility of City and Developer for the costs of the Improvements
given the Developer's obligation to construct certain improvements pursuant to Condition 45 of
Planning Application No. 2000-0335.
4. Payment of Reimbursable Costs. Upon acceptance of the
Improvements by the City Council, Developer shall submit to the Director of Public Works the
actual cost of installing the Improvements and all invoices and other documentation as
reasonably required by the Director which supports the costs actually incurred. The Director
shall calculate the costs for which the Owner shall be reimbursed based upon the allocation
described in Section 3, above (the "Reimbursement Costs"). City shall pay to Developer the
Reimbursable Costs within twenty working days of acceptance of the Improvements.
5. City Obligations. In order to implement the construction of the
Improvements pm'suant to.this Agreement, City shall:
5.1 Review and approve design of the Improvements.
5.2 Obtain possession of all necessary rights of way necessary for the
construction of the Improvements.
5.3 Obtain all necessary permits for the Improvements from the
applicable public agencies.
5.4 City shall be responsible for the payment of permit fees and City
inspections of the construction o£the Improvements.
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May 31,2001
5.5 Designate a representative of the City to regularly meet with the
representatives of Developer and Developer's contractor to coordinate construction
activities and monitor progress of construction.
6. Developer Obligations.
Improvements, Developer shall:
In order to coordinate the construction of the
6.1 Construct and install the Improvements in accordance with the
plans and specifications approved by the Director of Public Works;
6.2 Obtain the bids of not less than three qualified bidders, as approved
by the Director of Public Works in advance of bidding, and award the construction
contract to the lowest bidder.
6.3 Require the contractor to pay prevailing wages for the work in
accordance with Labor Code Section 1770 et seq. and applicable regulations of the State
Labor Commissioner.
6.4 Supervise and manage the construction of the Improvements.
6.5 Designate a representative of the Developer to regularly meet with
the representatives of the City and Developer's contractor to coordinate construction
activities and monitor progress of construction.
6.6 Developer and Developer's contractors shall procure and maintain
insurance in the amounts and types set forth on Exhibit C, Insurance Requirements.
6.7 Prepare and maintain all books, records, reports and
correspondence to or from contractors, subcontractors and other persons relating to the
construction and installation of the Improvements reasonably necessary to document the
costs incurred in constructing the Improvements. Developer shall permit representatives
of the City to review and copy all books, records, reports and correspondence to or from,
or prepared by, contractors, subcontractors and other persons relating to the construction
and installation of the Improvements or which document the costs incurred in
constructing the Improvements on two (2) business day's notice to Developer. Developer
shall keep such records for a period of four (4) years from the date of acceptance of the
Improvements.
7. Notices. Any payments or notices which either party may desire to
give to the other party under this Agreement must be in writing and may be given either by (i)
personal service, (ii) delivery by a reputable document delivery service, such as but not limited
to, Federal Express, that provides a receipt showing date and time of delivery, or (iii) mailing in
the United States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later designate by
Notice:
636611.3
May 3 I, 2001
To City:
City 0fTemecula
43200 Business Park Drive
Temecula, CA 92590
Attention: Director of Public Works
To Developer:
MS Temecula II, LLC
Attention: David Simon
1999 Avenue of the Stars, Suite 2000
Los Angeles, CA 90067
Phone (310) 788-2200
With Copies to:
Kearney Real Estate Company
Attention John Bragg
4275 Executive Square, Suite 800
La Jolla, CA 92037
Phone (858) 546-2930
8. Applicable Law. The City and Developer understand and agree that
the laws of the State of California shall govern the rights, obligations, duties and liabilities of the
parties to this Agreement and also govern the interpretation of this Agreement.
9. Litigation. Any litigation conceming this Agreement shall take place
in the municipal, superior, or federal district court with geographic jurisdiction over the City of
Temecula. In the event litigation is file by one or more of the parties to this Agreement, the
prevailing party in such litigation shall be entitled to an award of reasonable attorney fees and
litigation expenses as determined by the Court.
10. Entire Agreement. This Agreement contains the entire understanding
between the parties relating to the obligations of the parties relating to apportionment and
reimbursement of the costs of the Improvements. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, relating to the reimbursement for
the costs of the Improvements are merged into this Agreement and shall be of no further force or
effect except for the Subdivision Improvement Agreement for Parcel Map No. 29895 between
the City and Developer.
11. Independent Investigation. Each party is entering into this Agreement
based solely upon the representations set forth herein and upon each party's own independent
investigation of any and all facts such party deems material.
12. Indemnification. Each party shall indemnify, protect and hold
harmless the other party, its officers, officials, employees and volunteers from and against any
and all claims, demands, losses, defense costs or expenses, or liability of any kind or nature,
636611.3
May 31,2001
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including but not limited to reasonable attorney fees and litigation costs, which the indemnified
party, its officers, agents and employees may sustain or incur or which may be imposed upon
them for injury to or death of persons, or damage to property arising out of other party's
negligent or wrongful acts or omissions in performing or failing to perform under the terms of
this Agreement, excepting only liability to the extent arising out of the indemnified party's own
negligence or wrongful conduct.
13 Authority to Execute Agreement. The person or persons executing this
Agreement on behalf of Developer and City each warrants and represents that he or she has the
authority to execute this Agreement on behalf of the Developer or City, as applicable, and has
the authority to bind Developer or City, as applicable, to the performance of its obligations
hereunder.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
15. Modification. No modification, waiver or discharge of this Agreement
shall be valid unless the same is in writing and signed by the party against which the
enforcement of such modification, waiver or discharge is or may be sought.
16. Further Assurances. Each party shall take all actions reasonably
necessary to implement the terms of this Agreement.
17. Exhibits. The following exhibits are attached to this Agreement and
each is incorporated into this Agreement as though set forth in full:
Exhibit A. Legal Description of Developer's Property
Exhibit B. Traffic Signal Improvements/Construction Cost Estimate
Exhibit C Insurance Requirements
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF TEMECULA
Jeff Comerchero
Mayor
Attest:
Susan Jones, CMC
City Clerk
Approved As to Form:
Peter M. Thorson
City Attorney
DEVELOPER
MS TEMECULA II, LLC, a Delaware limited
liability company
By:
Name:
Title:
By:
Name:
Title:
636611.3
May 31,2001
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EXHIBIT A
LEGAL DESCRIPTION OF DEVELOPER'S PROPERTY
636611.3
May 22, 2001
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EXHIBIT B
TRAFFIC SIGNAL IMPROVEMENTS/CONSTRUCTION COST ESTIMATE
636611.3
May 22, 2001
EXHIBIT B
Traffic Signal Improvements / Construction Cost Estimate
Winchester and Diaz
Hard Costs
0614-00100
0614-00110
0614-006S0
0614-01310
0614-02580
0614-02810
0614-02810
0614-02810
0614-50000
General Conditions
Insurance
Temporary Barricades
Construction Staking
Striping & Signs
Traffic Signal
Interline Conduit
Handicap Ramps & Barricades
Contractor's 0 H & P
$ 5,000
$ 1,215
$ 1,000
$ 1,000
$ 16,383
$ 114,364
$ 3,360
$ 10~500
$152,820
5.0% $ 7~641
$160,461
160,461
Soft Costs
Design / Engineering
Oversight / Management Fees
TOTAL COSTS
$ 8,700
$ 4~800
$ 13,500
$ 13,500
$173,961
EXHIBIT C
INSURANCE REQUIREMENTS
Developer shall procure and maintain for the duration of the contract insurance against
claims for injuries to persons or damages to property which may arise from or in connection with
the performance of the work hereunder by the Developer, its agents, representatives, or
employees.
1 M_Minimum Scope of Insurance. Coverage shall be at least as broad as:
1.1 Insurance Services Office Commercial General Liability form No. CG 00 01 11
85 or 88.
1.2 Insurance Services Office Business Auto Coverage form CA 00 01 06 92
covering Automobile Liability, code 1 (any auto). If the Developer owns no
automobiles, a non-owned auto endorsement to the General Liability policy
described above is acceptable.
1.3 Worker's Compensation insurance as required by the State of California and
Employer's Liability Insurance. If the Developer has no employees while
performing under this Agreement, worker's compensation insurance is not
required, but Developer shall execute a declaration that it has no employees.
2 Minimum Limits of Insurance. Developer shall maintain limits on the policies described
in Subsection a. of no less than:
2.1 General Liability: Two million dollars ($2,000,000) per occurrence for bodily
injury, personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to this project/location or the general
aggregate limit shall be twice the required occurrence limit.
2.2 Automobile Liability: $1,000,000 per accident for bodily injury and property
damage.
2.3 Workers' Compensation as required by the State; Employer's Liability: One
million dollars ($1,000,000) per accidem for bodily injury or disease.
3 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City Manager. At the option of the City Manager,
either the insurer shall reduce or eliminate such deductibles or self-insured retentions as
respects the City, its officers, officials, employees and volunteers; or the Developer shall
636611.3
May 22, 2001
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4
procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
Other Insurance Provisions. The general liability and automobile liability policies are to
contain, or be endorsed to contain, the following provisions:
4.1 The City, its officers, officials~ employees and volunteers are to be covered as
additional insurers as respects: liability arising out of activities performed by or
on behalf of the Developer; products and completed operations of the Developer;
premises owned, occupied or used by the Developer; or automobiles owned,
leased, hired or borrowed by the Developer. The coverage shall contain no
special limitations on the scope of protection afforded to the City, its officers,
officials, employees or volunteers.
4.2 For any claims related to this project, the Developer's insurance coverage shall be
primary insurance as respects the City, its officers, officials, employees and
volunteers. Any insurance or self-insured maintained by the City, its officers,
officials, employees or volunteers shall be excess of the Developer's insurance
and shall not contribute with it.
4.3 Any failure to comply with reporting or other provisions of the policies including
breaches of warranties shall not affect coverage provided to the City, its officers,
officials, employees or volunteers.
· 4.4 The Developer's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
4.5 Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, cancelled by either party, reduced in
coverage or in limits except after thirty (30) days' prior written notice to the City
by certified mail, return receipt requested, has been given to the City.
4.6 Insurance shall be placed with insurers with a current A.M. Best's rating of no less
than A:VII, unless otherwise acceptable to the City. Self insurance shall not be
considered to comply with these insurance requirements.
4.7 Developer shall furnish the City with original endorsements effecting coverage
required by this clause. The endorsements are to be signed by a person authorized
by that insurer to bind coverage on its behalf. The endorsements are to be on
forms provided by the City. All endorsements are to be received and approved by
the City before work commences. As an alternative to the City's forms, the
Developer's insurer may provide complete, certified copies of all required.
" i~surai/Ce p01i~i~s~ ihcl~ding endorsements effecting the coverage required by
these specifications.
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May 22, 2001
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