HomeMy WebLinkAboutAviara Land Associates; 2001-03-19; (4)AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF SEWER PIPELINE IMPROVEMENTS WITHIN AVIARA PHASE Ill, UNIT NO. 1
Between
CITY OF CARLSBAD
And
AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP
-1 -
Rev. l/02/01
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF SEWER PIPELINE IMPROVEMENTS WITHIN AVIARA PHASE Ill, UNIT NO. 1 (AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP)
This Agreement for Reimbursement of Costs for the Construction of Sewer Pipeline
Improvements within Aviara Phase III, Unit No. 1, dated as of March 19 , 2001
(“Agreement”), is made at San Diego County, California, by and between the CITY OF
CARLSBAD, a municipal corporation (“CITY”), and AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership (“Developer”), with reference to the following recitals;
RECITALS
A. Developer owned from 1988 to 1999 a certain real property commonly known as
Aviara Phase III, Unit No. 1, located in the City of Carlsbad, California, more particularly
described as Carlsbad Tract No. 92-03, filed in the Office of the County Recorder of San Diego County on June 23,1997, as File No. 13434.
B. The Planning Commission of the City adopted a series of resolutions on December 1, 1993 approving the Aviara Phase III, Unit No. 1 project. A Mitigated Negative Declaration
dated September 14, 1993, a General Plan Amendment (GPA 93-06) a Master Plan Amendment (MP 1776), a Local Coastal Program Amendment (LCPA 92-Ol), a Tentative Tract Map (CT 92-03) and a Hillside Development Permit (HDP 92-04). All of such Planning Commission actions were adopted and approved by the City Council of the City of Carlsbad on February 8, 1994 (City Council Resolution No. 94-41).
C. The Aviara Phase Ill, Unit No. 1 project approvals require Aviara to install water, sewer and reclaimed water pipelines in Poinsettia Lane, Ambrosia Lane, and Cassia Road to meet the needs of the homes and apartments to be built within Aviara Phase Ill, Unit No. I (the “Project Requirements”).
D. The City has requested Developer to install an 8-inch diameter sewer pipeline and other improvements in Poinsettia Lane, collectively referred to as the “Sewer Work” and described more particularly in Section 3 (a) below.
E. The City and Aviara recognize that the Sewer Work exceeds the infrastructure otherwise required of Aviara in connection with its build-out of Aviara Phase III, Unit No. 1. Aviara agrees to install or cause the installation of the Sewer Work provided that the City
agrees to reimburse Aviara as set forth in this Agreement.
F. 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; but Section 66486 requires the 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. l/02/01
-2 -
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals are true and correct and incorporated herein by this reference.
2. Satisfaction of Obliaation. 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 Aviara Phase III, Unit No. 1 solely with respect to the
Sewer Work.
3. General Develooer Obliqations.
(4
03
(c)
W
@I
(9
In consideration of the City’s reimbursement and other undertakings as set forth herein, Developer agrees to install the Sewer Work, which shall include the following improvements, as shown on City Drawing No. 341-5, Sheet 7, dated November 11, 1998, prepared by P&D Consultants (the “Plans”) and as shown in the attached Exhibit “A” and “B” which is incorporated herein by
reference:
0) Construction of approximately 659 lineal feet of 8-inch diameter PVC and connection to existing in Ambrosia Lane;
The Sewer Work shall include all necessary manholes and appurtenances, including those necessary to connect the Sewer Work to the City’s pipeline in Poinsettia Lane.
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 install the Sewer Work substantially in compliance with the City-approved plans and specifications, and other design documentation 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 (Nolan/Dolan) relating to the Sewer Work improvements.
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.
Rev. i/02/01
-3 -
4. General Citv Obliqations.
(4 The City 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 Total Reimbursable Cost shall include all costs associated with the installation of the Sewer Work noted in the attached Exhibit “c” which is incorporated herein by reference. The Total Reimbursable Cost is currently estimated to be calculated as follows:
(b) City agrees to reimburse Developer for Reimbursable Sewer Work as described in Sections 6 and 7 below.
5. Reimbursable Sewer Work.
(4
W
With respect to all hard costs of construction comprising the Sewer Work Improvements, Developer shall solicit bids from three reputable contractors. 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 the method and process used in the Exhibit ‘C.” The parties agree that the spreadsheet attached hereto as Exhibit “C” is a fair allocation of the costs under such contract as among the categories of Reimbursable Sewer Work. Costs shown in Exhibit “c” are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement.
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.
Rev. l/02/01
-4-
6. Audit of Reimbursable Expenses.
(4 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:
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.
(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.
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 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 (f) below).
(9 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:
(0 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 are included in (iii) overhead expense.
-5 -
Rev. l/02/01
(9)
(h)
(ii)
(iii)
An allowance to wver the allocable portion of premiums
paid by Developer for blanket liability insurance coverage
is included in (iii) overhead expenses.
An amount fixed at five percent (5%) of the eligible costs
for Reimbursable Work, exclusive of this clause (9, 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, 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.
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 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 both the City and Developer. At the time of approval, the parties shall also determine the portion of the change order which is allocated to Reimbursable Work. In making such decisions, the parties shall
be 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 Sewer
Work Improvements in an orderly, reasonable and prudent
manner according to the standard engineering and construction
practice applicable to the improvements, then the allocation of the
portion to Reimbursable Work should be in proportion to the allocation as between Reimbursable Work in Exhibit “C” for that portion of the Sewer Work Improvements.
7. Payment of Reimbursable Expenses.
(4 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).
W The City shall not unreasonably withhold acceptance of the Sewer
Work Improvements.
(d 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.
-6 -
Rev. l/02/01
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 resolution within ten (10) 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
binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law.
9. Assignment of Contract. The Contractor shall not assign this contract
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:
Aviara Land Associates Limited Partnership Attention: Scott Medansky 2011 Palomar Airport Road, Suite 112 Carlsbad, CA 92009 Telephone: (760) 931-I 190
FAX: (760) 931-7950
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.
11. Transfer by Developer. The obligations and benefits of this Agreement shall not be transferred upon sale of Aviara Phase III, Unit No. 1.
12. 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.
-7 -
Rev. l/02/01
13. Governino 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.
14. Complete 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.
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 Aviara Phase III, Unit No. 1); except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by Developer.
16. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the earlier of (i) the date the City fully reimburses Developer the Reimbursement Amount, or (ii) January 1, 2015.
17. 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
III
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill Ill
Ill
Ill
Ill
-8 -
Rev. l/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.
AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited Partnership
Bv: Aviara Land Comoanv. a Delaware
By:
ATTEST:
riz name and title of b$natory) L k NQwibl J-~L~
(Proper notarial acknowledgment of execution by Developer 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.)
APPROV D AS TO FORM: F
-9 -
Rev. l/02/01
State of California
County of ?%A J,egj+n ;
1
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.
WITNESS my han
GINA OORr
Commission # 1235371
Notary Public - Cntifcmia f
State of California
County of
On before me,
Public, personally appeared Claude Lewis I Notary
personally known to me or 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.
WITNESS my hand and official seal.
-10 - Rev. l/02/01
SCALE: 1
POlNSEl-llA LANE
NOTE:
8” SEWER PIPELINE IS PER DWG. NO. 341-5, SHT. NO. 7.
AMMM
CT 92-3-l PHASE III, UNIT I
8” SEWER PIPELINE
--5 ,=-- /- /-
‘7
) / /
AVIARA OAKS
SCHOOL
a
EXHIBIT A
EXHIBIT “B”
AVIARA - POlNSElTlA LANE
SANITARY SEWER PIPELINE QUANTITY TAKE-OFF
CONSTRUCTION OF PIPELINE, 8/24/00
CITY OF CARLSBAD
SANITARY SEWER
8” PVC LF 659 659
MANHOLE EA 2 2
END CAP I3 1 1
Notes: (1) The quantities shown above are from Drawing No. 341-5, Sheet 7 (as-built dated 1 l/9/98). (2) The sewer limits are from the intersection of Ambrosia Lane and Poinsettia Lane to the westerly subdivision
boundary.
EXHIBIT B
Sheet 1 of 1
EXHIBIT “C”
AVIARA - POlNSElTlA LANE
SANITARY SEWER DISTRIBUTION PIPELINE
REIMBURSABLE COST: CONSTRUCTION OF PIPELINE, 1 l/02/00
CITY OF CARLSBAD
Note:
CO Contract change order
EXHIBIT C Sheet 1 of 1