HomeMy WebLinkAboutSDP 01-05; Calavera Hills II LLC; 2004-0009350; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
District Secretary
CARLSBAD MUNICIPAL
WATER DISTRICT
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Please record this document
At no fee as it is to the benefit
Of the Carlsbad Municipal
Water District (Gov. Code [6103]
DOC # 2004-0009350
OfFICIFtL RECORDS SM DIE# MIUNTY RECORDER'S OFFICE GREGORY J. SHITH? COMTY RECORDER FEES: 0.00
SPACE ABOVE THIS LINE FOR RECORDERS USE
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE
CONSTRUCTION OF SEWER PIPELINE IMPROVEMENTS
WITHIN CALAVERA HILLS VILLAGE Y
SITE DEVELOPMENT PLAN 01-05
Between
CITY OF CARLSBAD
AND
CALAVERA HILLS II, LLC
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AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE
CONSTRUCTION OF SEWER PIPELINE IMPROVEMENTS
WITHIN CALAVERA HILLS VILLAGE Y
(CALAVERA HILLS II, LLC)
SITE DEVELOPMENT PLAN 01 -05
This Agreement for Reimbursement of Costs for the Construction of Sewer Pipeline
Improvements within Calavera Hills Village Y (SDP 01-05), dated as of -Dee+-nw %r>c , 2003 ("Agreement") is made at San Diego County, California, by and between the'ClTY OF CARLSBAD ("City"), and CALAVERA HILLS II, 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 II, 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 II, College Boulevard/Cannon Road Extensions project, including a Carlsbad Tract Number (CT00-02), a Planned Unit
Development Permit (PUD), and Site Development Plan (SDP 01-05). 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 sewer pipelines in Calavera
Hills Village Y (SDP 01-05) 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 City asked the Developer
to install an 8-inch diameter sewer pipeline extension and other improvements in SDP 01-05,
referred to as the "Sewer Work" and described more particularly in Section 3 (a) below.
E. The City and Developer recognize that the Sewer 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 Sewer Work and the City agrees to reimburse Developer as set forth in this Agreement.
City and Developer acknowledge that Government Code Section 66485 allows
the City to require a sub-divider to construct improvements benefiting property outside the
subdivision; and Government Code Section 66486 requires the City to enter into a
reimbursement agreement for such improvements. The parties intend that this agreement
satisfies the requirements of Government Code Section 66486.
F.
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals above are true and correct and incorporated herein by
this reference.
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2. Satisfaction of Obliqation. Developer's agreement to perform the Sewer 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 Sewer Work.
3. General Developer Obliqations.
In consideration of the City's reimbursement and other undertakings as
set forth herein, Developer agrees to cause the construction of the Sewer
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. 414-3, Sheets
1 through 3, prepared by the City (the "Plans") and as shown in the
attached Exhibit "A" which is incorporated herein by this reference;
(i) Exhibit "A", sewer pipeline, construction of 265 lineal feet of an 8-inch diameter PVC pipe in the private street general utility
easement and a separate sewer easement within Village Y.
The Sewer Work shall include all necessary manholes and
appurtenances, including those necessary to connect the Sewer Work to
the City's pipeline in Village Y.
Any portion of the Sewer Work completed before the effective date of this Agreement shall be included as a part of the Sewer Work for reimbursement, subject to the other provisions of this Agreement.
Developer shall cause the construction of the Sewer Work in compliance
with the City-approved plans and specifications, and other design documentation incorporated herein by reference for the Sewer 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 (Nollan/Dolan) relating to the Sewer Work improve men ts .
It shall be the responsibility of the Developer to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Sewer Work Improvements, as specified in this Agreement.
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.
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4. Citv Obliqations.
Description
Construction
5.
Total Blank& Estimated
Cost 1 Allowance Insurance Reimbursable Construction Overhead Liability Total
5% 1.8% cost
$28,671 $1,433 $516 $30,620
(a) The City shall reimburse Developer an amount (the "Reimbursement
Amount") equal to: (i) the actual Total Cost for reimbursement for
construction of the Sewer Work; plus (ii) an allowance for overhead and
blanket liability insurance as described in Section 6 (9 below. The actual Reimbursable Amount shall include all costs associated with the installation of the Sewer Work noted in the attached Exhibit "B" which is incorporated herein by reference. The Reimbursable Amount is currently estimated to be $30,620 calculated as follows:
of 8-inch sewer pipeline and appurtenances
City agrees to reimburse Developer for Reimbursable Sewer Work as
described in Sections 6 and 7 below. (b)
Reimbursable Sewer Work.
(a) With respect to all hard costs of construction comprising the Sewer Work Improvements, Construction Manager shall obtain a construction cost from the current underground utility contractor employed by Developer for
Village Y improvements. Upon award of a contract amount for the Sewer
Work, the costs thereof shall be allocated among the categories
consistent with the method and process used in Exhibit "B. The parties
agree that the spreadsheet attached hereto as Exhibit "B is a fair
allocation of the costs under such contract as among the categories of
Reimbursable Sewer Work. Costs shown in Exhibit "B" are subject to
modification through change orders pursuant to Paragraph 6(h) of this
Ag reement.
(b) During the performance of any Reimbursable Sewer Work, Developer
shall retain detailed payment records for all items of Reimbursable Sewer
Work, for use by City in auditing subsequent reimbursement requests
by Developer. Developer's requests for reimbursement (each a
"Reimbursement Request") shall include copies of plans, specifications,
contractor quote, contracts or purchase order, change orders, invoices,
payment slips, copies of canceled checks, lien releases and other
documentation reasonably required by City to evidence the completion and payment for each item of Reimbursable Sewer Work. Reimbursement Requests may be submitted monthly in arrears, as identified in Section 6 (a) below, by Developer for each segment of
work.
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6. Audit of Reimbursable Expenses.
(a) Expenses for Reimbursable Sewer 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 City by a reputable consulting engineer selected by City ("Auditing Engineer"). The costs of the Auditing Engineer shall be paid directly by City from Project Funds.
(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 City 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) City'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 subsection (f) below).
(f) Notwithstanding anything herein to the contrary, and without limitation
and in addition to the Reimbursable Work, City 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:
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(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 Sewer Work.
(b) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage fixed at one and eight tenths percent (1.8%).
Before Developer submits all invoices to Director, Developer shall obtain
necessary or appropriate lien releases from the Contractor, and shall
obtain from the City 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 Sewer Work Improvements (the "Completion Date").
All change orders shall be subject to approval by the City. 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 may be
necessary due to changed circumstances or oversight in original design,
or it is required in order to perform the applicable portion of the Sewer
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 of any change order to Reimbursable Work shall be in proportion to the allocation between Reimbursable Work in Exhibit "B for that portion of the Sewer Work Improvements.
7. Payment 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 City shall not unreasonably withhold acceptance of the Sewer Work
Improvements .
(c) Developer and City 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. Disputes/Claims. 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
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resolution within ten (1 0) days. If the recommended resolution is unsatisfactory
to the aggrieved party, a letter outlining the dispute shall be forwarded to the City
Council for their resolution through the office of the City Manager. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law.
9. Successors: Covenant to Run with Real ProDerW. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the
Developer and City and shall run with the real property and create an equitable
servitude upon the real property. After City acceptance of Reimbursable Sewer
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, City 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
City.
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: (619) 336-3673 Fax: (619) 336-3010
Notices to City shall be delivered to the following:
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.
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12. Transfer bv Developer. The obligations and benefits of this Agreement shall not
be transferred upon sale of the Property.
13. 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 one and the same instrument.
14. Governinq 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. Complete Aqreement. 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 City and Developer except that no amendment regarding the provisions for reimbursement
to Developer shall be valid unless executed by both the Developer and the City.
17. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on January 1,2005.
18. No Third Partv 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.
Ill
Ill
Ill
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19. Severability. 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 Ill LLC, a California
Limited Liability Company
By: McMlLLlN COMPANIESl LLC, a Delaware Limited Liability Company
By:
CITY OF CARLSBAD, a municipal
By:
(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, City Attorney
BY: -%4h 'd&
puty City Attorney
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1 STATE OF CALIFORNIA }ss.
COUNTY OF SAN DIEGO 1
On 1211 8/03 , before me, Ann M. Futo, Notaw Public personally appeared
Don Mitchell and Brian J. Milich , personally known to me to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same in
their authorized capacities, and that by their signatures on the instrument the persons or the
entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal. n
Signature LVb*
This area for offiaal notarial seal
Title of Document
Date of Document
Other signatures not acknowledged
Aqreement for Reimbursement of Costs for the Construction of Sewer
No. of Pages
Notary Form2 McMillin Companies
EXHIBIT A
- CALAVERA HILLS PHASE I1 BOUNDARY
~
WOODSTOCK SEWER PIPELINE EXTENSION
LOCATlON MAP VILLAGE "Y" CARLSBAD TRACT MS 02-09
AW BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. 10/3/02 C: \CAPITAL \PlUMMER\B7&CINO4.DWC
.-
1 EA $850.00 EA $850.00 Modify and Connect to Existing
Manhole I
EXHIBIT B
5
6
CALAVERA HILLS MASTER PLAN PHASE II
SEWER QUANTITIES AND COST ESTIMATE
VILLAGE Y (SDP 01-05)
Conflicts with Dry Utilities 265 LF $8.25/LF $2,186.25
Conflict with rock in Street 265 LF $29.84/LF $7,907.60
I 1 I8"PVC (SDR35) I 265 LF I $26.95 /LF I $7,141.75 I
7
8
r- -2 I Manholes Der S-I
Conflict with Water Pipeline 200 LF $8.28/LF 1,656.00
Use of Breaker for Hard Rock 14 LF $1 79.78JLF $2,516.92
I 2 EA I $2,080 EA I $4,160.00 I
9 Additional Rock Bedding 265 LF I $4.50/LF $1 ,I 92.50
I 4 I Install 8" Sewer End Cap I 1 EA I $60.00EA I $60.00 I
Construction Cost
5 I Surveying L.S.
$27,761.02
$1,000.00
Rev. 1 1101 100