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HomeMy WebLinkAbout2002-03-05; City Council; Resolution 2002-0621 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO, 2002-062 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AND AUTHORIZING EXECUTION OF AN AGREEMENT FOR REIMBURSEMENT OF COSTS WITH THE TERRACES AT SUNNY CREEK, LLC, FOR THE ENGINEERING AND CONSTRUCTION COSTS OF THE PALMER WAY SEWER PIPELINE EXTENSION, PROJECT NO. 35391. WHEREAS, The Terraces at Sunny Creek, LLC, is developing The Terraces at Sunny Creek Development; and WHEREAS, The Terraces at Sunny Creek, LLC, has requested City Council approval of an agreement for reimbursement for the design and construction of the Palmer Way Sewer Extension (attached hereto, marked Exhibit "2" and incorporated by this reference); and WHEREAS, The Terraces at Sunny Creek, LLC, has constructed the Palmer Way Sewer Extension; and WHEREAS, Public Works engineering staff has audited the submitted cost by The Terraces at Sunny Creek, LLC, for the design and construction of the Palmer Way Sewer Pipeline Extension and concurs in the amount requested for reimbursement; and WHEREAS, the available appropriation in the Capital Improvement Program is fifty three thousand one hundred twenty and 211100 dollars ($53,120.21) and the developer has requested twenty nine thousand nine hundred thirty eight dollars ($29,938), therefore, there are sufficient Sewer Replacement funds available in the project account; and WHEREAS, a Mitigated Negative Declaration was prepared for the project and the Planning Director approved the Palmer Way Sewer Pipeline Extension Mitigated Negative Declaration on August 18, 1999 as part of EIA 97-05; and WHEREAS, a copy of the Mitigated Negative Declaration is filed at the City Planning Department. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. Ill Is 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. That the reimbursement agreement by and between The Terraces at Sunny :reek, LLC, and the City of Carlsbad is hereby approved and the Mayor is authorized and lirected to sign said agreement on behalf of the City Council. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council leld on the x day of MARCH , 2002 by the following vote, to wit: AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, Hall AI RECORDING REQUESTED BY WHEN RECORDED MAILTO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad, CA 92008 SPACE ABOVE THIS LINE FOR RECORDERS USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE PALMER WAY SEWER EXTENSION DESIGN AND CONSTRUCTION Between CITY OF CARLSBAD, a Municipal Corporation AND THE TERRACES AT SUNNY CREEK, a Limited Liability Company Rev. 11/15/01 -1 - AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE PALMER WAY SEWER EXTENSION DESIGN AND CONSTRUCTION COST THIS REIMBURSEMENT AGREEMENT (hereinafter the "Agreemenf') is entered into as of M&&cr+ 7 am, by and between THE TERRACES AT SUNNY CREEK, LLC, a California partiership ("Developer") and the CITY OF CARLSBAD, a municipal corporation of the State of California ("City"), with reference to the following Recitals: RECITALS more particularly described on Exhibit "A attached hereto and made a part hereof A. Developer is the record owner of certain real property located in City which is ("the Terraces Development"). The Terraces Development consists of a residential area of CT 83-36, as designated on Exhibit "A". As used herein, the term "Planning Area" shall refer, 172 homes, 50 affordable housing units, and a commercial site, referred to as Lot 11 of as indicated, to both the commercial center and the residential area. The various Planning Areas as shown on Exhibit "A" either are, or will become, separate legal parcels in accordance with the applicable legal requirements of the State of California and City. cause conveyance of record title to the Planning Areas, to other persons pursuant to 8. Upon their creation as separate legal parcels, Developer intends to convey or contractual commitments not related to this Agreement. Any further development activity with respect to any of the Planning Areas will be the responsibility of the respective transferees. C. Developer filed a separate application for tentative subdivision map and site of certain development approvals received from the City of Carlsbad. including without development plan with respect to the Planning Area. The Terraces Development is the subject limitation: Tentative Subdivision Map (CT 96-02. EIR 98-01, AC 96-01, SP 19O(B), LFMP 87-158, SDP 97-02), Planned Unit Development Permit (PUD 96-02), and Hillside Development Permit (HDP 96-02), all approved by the City Council, Resolution No. 98-337 on November 17, 1998. which included specific reference to Planning Commission Resolution No. 4288 through 4295 recommending approval of the Terraces Development with conditions and approved by the Planning Commission on July 1, 1998. D. The various approvals referred to in Recital 'C" of this Agreement are collectively referred to herein as the "Terraces Development Approvals." E. A condition for approval of the Tentative Map (CT 96-02) for Developer's portions the Terraces Development to El Camino Real. of Condition 7 and Finding I requires the Developer to construct a sewer line within portions of the City to require a subdivider to construct improvements benefiting property outside the F. City and Developer acknowledge that Government Code Section 66485 allows subdivision; but Section 66486 requires City to enter into a reimbursement agreement for such improvements. The Parties intend that this Agreement satisfy the requirements of Government Code Section 66486. Rev. 11/15/01 -2 - the Palmer Way Sewer Extension, which lies outside of the Terraces Development. The Sewer G. Developer has advanced on behalf of City the cost of construction and design of Palmer Way Sewer Extension consists of 751 lineal feet of 8" pipeline with access holes from the intersection of Palmer Way and Cougar Drive to Foxtail Loop per City Drawing No. 361-68 (hereinafter "Sewer Work"). H. City will utilize Sewer Replacement Fund to reimburse the costs advanced hereunder by Developer for the Sewer Work. described below for the total costs advanced by Developer for the Sewer Work. The total cost and the Reimbursable Cost for the Sewer Work is currently estimated to be as follows: I. Estimated Cost of the Sewer. City shall reimburse Developer in the manner ESTIMATED COST FOR DESIGN AND CONSTRUCTION OF THE PALMER WAY SEWER EXTENSION Development only. The Terraces cost equals 50% of total. Rev. 1111 5/01 -3 - which is hereby acknowledged, the parties hereto agree as follows: 1. RECITALS. The Recitals are true and correct. NOW, THEREFORE, the good and valuable consideration, the receipt and sufficiency of 2. SATISFACTION OF OBLIGATION construction thereof, shall fully satisfy and constitute full compliance with all requirements Developer's agreement to install the Sewer Work, as set forth herein, and the actual regarding the Sewer Work. 3. DEVELOPERS OBLIGATIONS a) In consideration of City's reimbursement and other undertakings as set forth herein, Developer agrees to design, construct and install the Sewer Work. b) Developer shall complete all work no later than one (1) year from the effective date of this Agreement. Work completed before the effective date of this Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement. specifications, and other design documentation for the Sewer Work. c) Developer shall use the complete set of City approved plans, d) It shall be the responsibility of Developer to observe and follow the the Sewer Work as specified in this Agreement. requirements of City for retention of records and the submittal of information in connection with e) By entering into this Agreement, Developer waives any and all potential constitutional (NollanlDolan) objections relating to the Sewer Work. 4. CITY OBLIGATIONS (a) City shall reimburse Developer an amount (the "Reimbursement Amount") equal to: (i) the actual Total Cost for reimbursement for design and construction; plus (ii) an allowance for overhead as described in Section 6 (9 below, and (iii) credit to the City for water pipeline easement cost. The actual Total Reimbursable Cost shall include all costs associated with the installation of the Sewer Work noted in Recital "K" of this Agreement. The Total Reimbursable Amount is currently estimated to be as follows: (b) City agrees to reimburse Developer for Reimbursable Sewer Work as described in Sections 6 and 7 below. Rev. 11/15/01 -4- 5. REIMBURSABLE SEWER WORK (a) With respect to all hard costs of construction comprising the Sewer Work, Developer shall solicit bids from three reputable contractors. Non-Reimbursable Work includes any sewer pipeline and appurtenance design andlor construction per City Drawing No. 361-68; excluding that previously defined as "Sewer Work". Reimbursable Sewer Work may be bid together with Non Reimbursable work for that portion of the Sewer Work Improvements which are being bid by such contractor. Upon agreement of a contract amount for the Sewer Work, the costs thereof shall be allocated among the categories consistent with Recital "I". The parties agree that the Recital "I" is a fair allocation of the costs under such contract as among the categories of Reimbursable Sewer Work. Costs shown in Recital "I" are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement. (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, 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 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. 6. AUDIT OF REIMBURSABLE EXPENSES (a) Expenses for Reimbursable Sewer Work (including without limitation overhead and the allowance permitted under clause 6(9 below "Overhead Cost") 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: for City by a reputable consulting engineer selected by City ("Auditing Engineer"). The costs of (b) All Developer's Reimbursement Requests will be processed and audited the Auditing Engineer shall be paid directly by City. (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 to Developer by Contractor, to the City's Public Works Director ("Director"), together with an invoice for all other components of the Reimbursable 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. Rev. 11/15/01 -5 - (e) City's reimbursement obligations hereunder shall be based upon the the allowances specified in 6(f) below). actual costs incurred by Developer in performing Reimbursable Work (including overhead and (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: Developer for improvement and/or payment and performance bonds relating to the construction (i) An allowance to cover the allocable portion of premiums paid by of Sewer Work are included in (iii) overhead expense. Developer for blanket liability insurance coverage is included in (iii) overhead expenses. (ii) An allowance to cover the allocable portion of premiums paid by eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead (iii) An amount fixed at six and one-half percent (6-1/2%) of the expenses incurred by Developer including for salary and benefits, for staff of Developer's home office. purchasing department expenses, project supervision, general corporate legal and accounting fees and other normal overhead expenses incurred by Developer, including the expenses described in subsections (f)(i) and (f)(ii) above. (9) Prior to the submission to the Director of all invoices, Developer shall obtain necessary or appropriate lien releases from the contractor. and shall obtain from 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 (the "Completion Date"). (h) All change orders shall be subject to approval by both the City and order which is allocated to Reimbursable Work. In making such decisions, the parties shall be Developer. At the time of approval, the parties shall also determine the portion of the change guided by the principle that if a change order is necessary due to changed circumstances or oversight in original design, or if it is required in order to perform the applicable portion of the standard engineering and construction practice applicable to the improvements, then the Sewer Work Improvements in an orderly, reasonable and prudent manner according to the allocation of the portion to Reimbursable Work should be in proportion to the allocation as between Reimbursable Work in Recital "K" table for that portion of the Sewer Work. 7. PAYMENT OF REIMBURSABLE EXPENSES (a) Payment of Reimbursable Expenses shall be made, within thirty (30) days after the Auditing Engineer's determination on any such Reimbursement Request (or determination pursuant to Section 8 if applicable). (b) City shall not unreasonably withhold acceptance of the Sewer Work. Rev. 11/15/01 -6 - (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. (d) Payment of reimbursable expenses shall be made from the City’s Sewer Replacement Fund. 8. DISPUTESICLAIMS. 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 (IO) days. If the resolution thus obtained 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 from seeking remedies available to them at law. binding upon the parties involved, although nothing in this procedure shall prohibit the parties 9. ASSIGNMENT OF AGREEMENT. Developer shall not assign this Agreement or any part thereof or any monies due thereunder without the prior written consent of the City. 10. 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 specified herein. Notices required to be given to Developer shall be addressed as follows: The Terraces at Sunny Creek, LLC Attention: Mr. Chris Dahrling 2006 Palomar Airport Road, Suite 11 3 Carlsbad, CA 92008 Telephone: (760) 931-8181 Facsimile: (760) 931-8509 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Public Works Director Carlsbad, CA 92008 1635 Faraday Avenue Telephone: (760) 602-2730 Facsimile: (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. -7 - Rev. 1111 5/01 11. TRANSFER BY DEVELOPER. The obligations and benefits of this Agreement shall not be transferred upon sale of the Terraces at Sunny Creek Development. counterparts, each of which when so executed and delivered shall be deemed to be an original 12. COUNTERPARTS. This Agreement may be executed in any number of and all of which counterparts taken together shall constitute one and the same instrument. 13. 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. between the parties with respect to the subject matter contained herein, and supersedes all 14. COMPLETE AGREEMENT. This Agreement contains the entire agreement negotiations, discussions, and prior drafts with respect to this subject matter. 15. AMENDMENT. This Agreement may be amended by a written instrument executed by City and Developer (including for this purpose any successors of Developer, to the extent of their ownership of real property within The Terraces at Sunny Creek Development); except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by Developer. shall terminate on the earlier of (i) the date the City fully reimburses Developer the 16. TERM. This Agreement shall be effective as of the date first above written, and Reimbursement Amount, or (ii) January I, 2015. 17. 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Rev. 11/15/01 -8 - Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity 18. SEVERABILITY. The invalidity or unenforceability of any provision of this or enforceability of any other provision hereof. executed as of the date first above written. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be THE TERRACES AT SUNNY CREEK George Szabo, Jr./President ATJEST: George Szabo, Jr./Secretary (print name and title of signatory) (Proper notarial acknowledgment of execution by Developer must be attached. treasurer must sign for corporations. Otherwise, the corporation must attach a resolution Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant signing to bind the corporation.) certified by the secretary or assistant secretary under corporate seal empowering the officer(s) APPRO D AS TO FORM: Y ;;Jy- Depu I yA rney -9 - Rev. 11115/01 -10 - Rev. 11/15/01 LOCATION MAP PROJECT NAME: PROJECT NUMBER: EXHIBIT PALMER WAY SEWER CP 35391 PIPELINE EXTENSION 'A'