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HomeMy WebLinkAboutCT 00-02; Calavera Hills II LLC; 2002-1155691; Reimbursement Agreement/Release@- WHEN RECORDED MAIL TO: RECORDING REQUESTED BY District Secretary CARLSBAD MUNICIPAL \ WATER DISTRICT 'fi Carlsbad, CA 92008 1200 Carlsbad Village Dr. Please record this document At no fee as it is to the benefit Of the Carlsbad Municipal Water District (Gov. Code [6103] OFFICIAL RECORDS Scw DIE@ CDUNTY RECORDER'S OFFICE FEES: 0.00 GREGORY J. S#ITH, COUNTY RECORDER SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RECYCLED AND DOMESTIC WATER PIPELINE IMPROVEMENTS WITHIN CALAVERA HILLS MASTER PLAN PHASE II COLLEGE BOULEVARD/CANNON ROAD EXTENSIONS CARLSBAD TRACT CT 00-02 Between CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 191 1, and a Subsidiary District of the City of Carlsbad AND CALAVERA HILLS II, LLC -1 - Rev. 1 /02/01 7 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RECYCLED AND DOMESTIC WATER PIPELINE IMPROVEMENTS WITHIN CALAVERA HILLS MASTER PLAN PHASE II COLLEGE BOULEVARD/CANNON ROAD EXTENSIONS (CALAVERA HILLS II, LLC) CARLSBAD TRACT CT 00-02 This Agreement for Reimbursement of Costs for the Construction of Recycled Water and Domestic Water Pipeline Improvements within Calavera Hills Master Plan Phase II, College Boulevard/Cannon Road Extensions, dated as of D&c€mt3ER 4 , 2002 ("Agreement") is made at San Diego County, California, by and between the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 191 1, and a Subsidiary District of the City of Carlsbad ("District"), and CALAVERA HILLS 11, LLC ("Developer") a California corporation, with reference to the following recitals: RECITALS A. Developer is developing certain real property commonly known as Calavera Hills Master Plan Phase 11, and the College Boulevard Cannon Road Extensions (the "Property"), located in the City of Carlsbad, California (the "City"), more particularly described as Carlsbad Tract No. 00-02. B. The Planning Commission of the City adopted a series of resolutions on January 2, 2002, approving the Calavera Hills Master Plan Phase 11, College BoulevardCannon Road Extensions project, including a Carlsbad Tract Number (CT00-02), a Planned Unit Development Permit (PUD), and a Site Development Plan (SDP). All of these Planning Commission actions were adopted and approved by the Carlsbad City Council on January 15, 2002 (City Council Resolution No. 2002-01 6). C. The Property approvals require Developer to install recycled water and domestic water pipelines in College Boulevard Reach B and C and within Cannon Road Reach 3 to meet the needs of the homes and apartments to be built within the Property (the "Project Requirements"). D. In addition to completing the Project Requirements, the District asked the Developer to install a 16-inch and 12-inch diameter recycled water transmission pipeline, a 16-inch and 12-inch diameter domestic water pipeline, pressure reducing stations, and other improvements in College Boulevard and Cannon Road, referred to as the "Water Work" and described more particularly in Section 3 (a) below. E. The District and Developer recognize that the Water Work exceeds the infrastructure otherwise required of Developer in connection with its build-out of the Property. Developer agrees to cause the installation of the Water Work and the District agrees to reimburse Developer as set forth in this Agreement. F. District and Developer acknowledge that Government Code Section 66485 allows the District to require a sub-divider to construct improvements benefiting property outside the subdivision; and Government Code Section 66486 requires the District to enter into a reimbursement agreement for such improvements. The parties intend that this agreement satisfies the requirements of Government Code Section 66486. Rev. 1 /02/01 -2 - 0 NOW, THEREFORE, the District and Developer agree as follows: 1. Recitals. The Recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obliqation. Developer's agreement to perform the Water Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Property solely with respect to the Water Work. 3. General DeveloDer Obliaations. In consideration of the District's reimbursement and other undertakings as set forth herein, Developer agrees to cause the construction of the Water Work, by and through its general contractor, Corky McMillin Construction Services, ("Construction Manager"), which work shall include the following improvements, as shown on City Drawing No. 390-9, Sheets 37 through 41, prepared by O'Day Consultants, and Drawing No. 404-7, Sheets 1 through 33, prepared by Daniel Boyle Engineering, (the "Plans") and as shown in the attached Exhibits "A" and "B" which are incorporated herein by this reference: (i) Exhibit "A', recycled water pipeline, oversizing of approximately 3,280 lineal feet of a 8-inch diameter PVC pipe to a 12-inch diameter PVC pipe (550 HGL) in College Boulevard Reach "C", constructing approximately 2,306 lineal feet of 16-inch diameter PVC pipe (384 HGL) in College Boulevard Reach "B, and constructing approximately 3,880 lineal feet of 16-inch diameter PVC pipe in Cannon Road Reach 3. (ii) Exhibit "B', domestic water pipeline, constructing approximately 1,809 lineal feet of 16-inch diameter PVC pipe (490 HGL) in College Boulevard Reach "B, constructing approximately 544 lineal feet of 12" PVC (255 HGL) in College Boulevard Reach "B", constructing approximately 3,891 lineal feet of 12-inch diameter PVC pipe (375 HGL) in Cannon Road Reach 3, and two pressure reducing stations. The Water Work shall include all necessary valves and appurtenances, including those necessary to connect the Water Work to the District's pipelines in College Boulevard and Cannon Road. Any portion of the Water Work completed before the effective date of this Agreement shall be included as a part of the Water Work for reimbursement, subject to the other provisions of this Agreement. Developer shall cause the construction of the Water Work in compliance with the District-approved plans and specifications, and other design documentation incorporated herein by reference for the Water Work. Developer shall cause construction of all Non-Reimbursable Work at Developer's cost. By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Water Work improvements. Rev. 1 /02/01 -3 - (f) It shall be the responsibility of the Developer to observe and follow the requirements of District for retention of records and the submittal of information in connection with the Water Work Improvements, as specified in this Agreement. (9) Prevailing Wage. Pursuant to the California Labor Code, the director of the Department of Industrial Relations has determined the general prevailing rate of per diem wages in accordance with California Labor Code, section 1773 and a copy of a schedule of said general prevailing wage rates is on file in the office of the City Engineer, and is incorporated by reference herein. Pursuant to California Labor Code, section 1775, contractor shall pay prevailing wages. Contractor shall post copies of all applicable prevailing wages on the job site. 4. General District Obliaations. (a) The District shall reimburse Developer an amount (the "Reimbursement Amount") equal to: (i) the actual Total Cost for reimbursement for construction; plus (ii) an allowance for overhead as described in Section 6 (f) below. The actual Reimbursable Amount shall include all costs associated with the installation of the Water Work noted in the attached Exhibits "C" and "D" which are incorporated herein by reference. The Reimbursable Amount is currently estimated to be $1,713,107, calculated as follows: >,> ~ Description Reimbursement for Construction of 16-inch recycled water pipelines, and oversizing of a 8-inch to a 12-inch recycled water pipeline for Construction of 16-inch and 12- inch Domestic Water Pipelines, and Dressure reducing stations I TOTAL'COST I $1,583,059 $858,545 $1,71'3;107 (b) District agrees to reimburse Developer for Reimbursable Water Work as described in Sections 6 and 7 below. -4 - Rev. 1 /02/01 5. Reimbursable Water Work. (a) With respect to all hard costs of construction comprising the Water Work Improvements, Construction Manager shall solicit bids from a minimum of three reputable contractors. Reimbursable Water Work may be bid together with Non-Reimbursable work for that portion of the Water Work Improvements, which are being bid by such contractor. For the recycled water pipelines and appurtenances the Construction Manager shall include in the project specifications a requirement that each bidder takes affirmative steps prior to the bid opening to assure that minority business enterprise (MBE) and women business enterprise (WBE) are used whenever possible as sources of supplies, construction and services. A good-faith effort must be performed by each bidder to obtain a MBE or WBE in compliance with State Water Resources Control Board required Code Provisions. Upon award of a contract amount for the Water Work, the costs thereof shall be allocated among the categories consistent with the method and process used in Exhibits "C" and "D". The parties agree that the spreadsheet attached hereto as Exhibits "C' and "D" is a fair allocation of the costs under such contract as among the categories of Reimbursable Water Work. Costs shown in Exhibits "C" and "D" are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement. (b) During the performance of any Reimbursable Water Work, Developer shall retain detailed payment records for all items of Reimbursable Water Work, for use by District in auditing subsequent reimbursement requests by Developer. Developer's requests for reimbursement (each a "Reimbursement Request") shall include copies of plans, specifications, engineer's cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by District to evidence the completion and payment for each item of Reimbursable Water Work. Reimbursement Requests may be submitted monthly in arrears, as identified in Section 6 (a) below, by Developer for each segment of work. 6. Audit of Reimbursable ExDenses. (a) Expenses for Reimbursable Water Work (including without limitation overhead and the allowance permitted under clause (f) below) are referred to herein collectively as "Reimbursable Expenses.'' Developer shall be entitled to submit requests for Reimbursable Expenses monthly in arrears, and separately for each construction segment. (b) All Developer's Reimbursement Requests will be processed and audited for District by a reputable consulting engineer selected by District ("Auditing Engineer"). The costs of the Auditing Engineer shall be paid directly by District from Project Funds. -5 - Rev. 1 /02/01 (c) The Auditing Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within thirty (30) days thereafter issue to District and Developer a report either accepting Developer's submittal or specifying with particularity any reimbursement items or amounts not approved. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution provision of Section 8 below. (d) With each Reimbursement Request, following 30-day review by Auditing Engineer, the Auditing Engineer shall forward one copy of each invoice submitted by Developer from Contractor, to the City's Public Works Director ("Director"), together with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor's invoice. The Director shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set forth in Section 5 of this Agreement. If the Director objects to any items comprising the Reimbursement Amount, the Director shall notify Developer within thirty (30) days of receipt of all invoices forwarded by Developer. Failure to so notify Developer shall be deemed the Director's approval of such invoices. (e) District's reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing Reimbursable Work (including overhead and the allowances specified in (f) below). (f) Notwithstanding anything herein to the contrary, and without limitation and in addition to the Reimbursable Work, District specifically agrees that each of the following shall be deemed Reimbursable Expenses: (i) An amount fixed at five percent (5%) of the eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead expenses incurred by Developer including for salary and benefits, for staff of Developer's home office, purchasing department expenses, project supervision, bid solicitation, general corporate legal and accounting fees and other normal overhead expenses incurred by Developer, including: (a) An allowance to cover the allocable portion of premiums paid by Developer for improvement and/or payment and performance bonds relating to the construction of Water Work. (b) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage. -6 - Rev. 1/02/01 Before Developer submits all invoices to Director, Developer shall obtain necessary or appropriate lien releases from the Contractor, and shall obtain from the District and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Reimbursable Work, and the ability to put the Public Improvements into use. The date Developer receives all such final lien releases, approvals, and certificates shall be deemed the date of completion of the Water Work Improvements (the "Completion Date"). (h) All change orders shall be subject to approval by the District. At the time of approval, the parties shall determine the portion of each change order, which is allocated to Reimbursable Work. In making such decisions, the parties shall be guided by the principle that a change order maybe necessary due to changed circumstances or oversight in original design, or it is required in order to perform the applicable portion of the Water Work Improvements in an orderly, reasonable and prudent manner according to the standard engineering and construction practice applicable to the improvements. The allocation of the portion to Reimbursable Work shall be in proportion to the allocation between Reimbursable Work in Exhibits "C" and "D" for that portion of the Water Work Improvements. 7. Pavment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made, within sixty (60) days after the Auditing Engineer's determination on any such Reimbursement Request (or determination pursuant to Section 8, if applicable). (b) The District shall not unreasonably withhold acceptance of the Water Work Improvements. (c) Developer and District agree that the City's General Fund is not part of this Agreement, and shall not be obligated under the terms of this Agreement nor available for reimbursement purposes. 8. DisDutedClaims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the principal of Developer or the Director. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the Board of Directors for their resolution through the office of the Executive Manager. The District's Board of Directors may, but is not obligated to resolve the dispute. If the Board of Directors considers the dispute, and directs a solution, the action of the District's Board of Directors shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. Rev. 1 /02/01 -7 - 13 9. Successors: Covenant to Run with Real Property. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the Developer and District and shall run with the real property and create an equitable servitude upon the real property. After District acceptance of Reimbursable Water Work, the provisions of this Agreement shall no longer apply to, and the same shall no longer be or constitute an equitable servitude against or run with the land, and the equitable servitude hereby created shall automatically terminate as to each of said respective Units. Upon the request of Developer, District shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that each said Unit is thereafter fully released and free from the provisions of this Agreement, provided that the cost of preparing and recording such documents and/or instruments shall be paid by Developer. 10. Assiqnment of Contract. The Developer shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District. 11. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as shown below. Notices required to be given to Developer shall be addressed as follows: CALAVERA HILLS II, LLC Attention: Mr. Don Mitchell 2727 Hoover Avenue National City, CA 91950 Telephone: (61 9) 336-3673 Fax: (61 9) 336-301 0 Notices to District shall be delivered to the following: CARLSBAD MUNICIPAL WATER DISTRICT c/o City of Carlsbad Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 12. Transfer bv DeveloDer. The obligations and benefits of this Agreement shall not be transferred upon sale of the Property. 13. CounterDarts. 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 one and the same instrument. Rev. 1 /02/01 -0 - 14. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 15. Comdete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 16. Amendment. This Agreement may be amended by a written instrument executed by District and Developer except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by both the Developer and the District. 17. Term. This Agreement shall be effective as of the date first above written, and shall terminate on January 1,2010. 18. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity, which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. -9 - Rev. 1 /02/01 19. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. CALAVERA HILLS II, LLC, a California Limited Liability Company By: McMlLLlN COMPANIES, LLC, a Delaware Limited Liability Company ITS MANAGING MEMBERS By: q?h vM sign here) DoAl HIKH-€U, v. f? (print name and,pe.of spdory) By: 3 (sign here) CARLSBAD MUNICIPAL WATER DISTRICT, ATTEST: mi$- Z&/L.45/ w (print name and title of signatory) (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary] assistant secretary] CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: . puty General Counsel -10 - Rev. 1 /02/01 1.6 State of California 1 On O~fO~lfi 3% 3=100& ep$y me, , Notary personally known to me or I/ proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. Public, personally appeared -&Id P’? I t // -11 - Rev. 1 1 /01/00 \7 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California On d~!hhfLaf, Date 20oA before me, ,!AIL dkkq& d0hy %bi~c, personally appeared &d mi khilI lid &L?~rifl Name(s) of Signer(s) f. h 11 /I d~ Name and Title of O@er (e.g.. "he Doe. Notary @IC") 0 personally known to me uproved to me on the basis of satisfactory evidence to be the person(s) whose name@) */are subscribed to the within instrument and acknowledged to me that heCekelthey executed the same in hkdh/their authorized capacity(ies), and that by "rtheir signature@) on the instrument the person@), or the entity upon behalf of which the person(s) acted, executed the instrument. Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer@) Other Than Named Above: Capacity(ies) Claimed by Signer 0 Corporate Officer - Title(s): 0 Partner - 0 Limited 0 General 0 Guardian or Conservator Signer Is Representing: 0 1999 National Notaw Associalton - 9350 De Solo Ave., P.O. Box 2402 * Chatsworth, CA 9131 3-2402 * w.nationalnotary.org Prod. No. 5907 Reorder: Call Toll-Free 1-800476-6827 EXHIBIT A 1 I I I CALAVERA HILLS PHASE I1 BOUNDARY PROPOSED IMPROVEMENTS CANNON ROAD REACH 3 AND COLLEGE BOULEVARD REACH B & C RECYCLED WATER PIPELINES LOCATION MAP EXHIBIT B CALAVERA HlLLS PHASE I1 BOUNDARY PROPOSED IMPROVEMENTS CANNON ROAD REACH 3 AND COLLEGE BOULEVARD REACH B & C DOMESTIC WATER PIPELINE LOCATION MAP EXHIBIT C CALAVERA HILLS MASTER PLAN PHASE II COLLEGE BOULEVARD/CANNON ROAD EXTENSION RECYCLED WATER REIMBURSABLE QUANTITIES - COLLEGE BOULEVARD REACH C , ITEM TOTAL COST UNIT COST””’ QUANTITIES DESCRIPTION’ ’ ’ ” 1 $1,800 $600/EA 3 EA Oversize 8” to 12” Gate Valve Flg x PJ per 3 $23,970 $1 O/LF 2,397 LF Oversize 8 to 12” PVC C900 (CI 200) 2 $7,064 $8/1f 883 LF Oversize 8” to 12” PVC C900 (CI 150) 4 Oversize 8 to 12 Gate Valve PJ X PJ per 2 EA $600/EA $1,200 W13 & W16 W13 & W16 5 Total Amount for College Boulevard Reach C Recycled Water = $35,734 $500 , $500/EA 1 EA Oversize 8 to 12 End Cap per W 15 6 $1,200 $600/EA 2 EA Oversize 8 to1 2” Cross Flanged per W15 COLLEGE BOULEVARD REACH B CANNON ROAD REACH 3 Total Cost for Recycled Water = $773,754 EXHIBIT D CALAVERA HILLS MASTER PLAN PHASE II COLLEGE BOULEVARDKANNON ROAD EXTENSION DOMESTIC WATER REIMBURSABLE QUANTITIES CANNON ROAD REACH 3 ITEM I DESCRIPTION I QUANTITIES I ' UNIT COST ' 1' ' TOTAL COST''" 1 I Perform Exploratory excavations for I LS I Lump Sum I $7,000 underground utilities - 2 $272,370 $7O/LF 3,891 LF 12 PVC c-900 (CI 200) 3 $1 8,000 Lump Sum LS Connect Ex 16" to Ex 14" on west side of Total Cost for Domestic Water = $809,305