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HomeMy WebLinkAbout2000-04-04; City Council; 15679; South Agua Hedionda Interceptor SewerCllrir OF CARLSBAD -AGENDA BILL ‘.__.. AB# ls,b’7? MTG. 4/04/00 DEPT. ENG TITLE- L APPROVAL OF AN OVERSIZING REIMBURSEMENT AGREEMENT WITH CYPRESS VALLEY, LLC, FOR THE CONSTRUCTION OF SOUTH AGUA HEDIONDA CITYATTY. ’ INTERCEPTOR SEWER REACHES SAHT2B 8, SAHT2C CMWD PROJECT NO. 92-406, PROJECT NO. 35631 CITY MGRS RECOMMENDED ACTION: Adopt Resolution No. 2000-105 for approval of an Oversizing Reimbursement Agreement with Cypress Valley, LLC, for the Construction of South Agua Hedionda Interceptor Sewer Reaches SAHT2B & SAHT2C; CMWD Project No. 92-406, Project No. 35831. ITEM EXPLANATION: The Cypress Valley, LLC, is the owner/developer of Calavera Hills Villages Q and T, which are CT 83-19 and CT 83-32, respectively. To provide sewer service for these tracts Cypress Valley, LLC, constructed reaches SAHT2B and SAHT2C of the South Agua Hedionda Interceptor Sewer. These sewer pipelines extend from the intersection of El Camino Real and Cannon Road northeasterly to Lake Calavera. The pipelines consists of 3,703-feet of IO-inch diameter PVC pipe and 3,686-feet of 12-inch diameter PVC pipe. The pipe size required to convey the sewer flow for Calavera Hills is IO-inch diameter. Cypress Valley, LLC, has agreed to construct the sewer pipelines with a reimbursement agreement to pay for oversizing from IO-inch diameter to 12-inch diameter plus the costs to acquire necessary easements and a groundwater dewatering permit and monitoring. ENVIRONMENTAL IMPACT: A Mitigated Negative Declaration was issued for SAHT2B & SAHT2C on June 30, 1998 under EIA 98-04 by the Planning Director. FISCAL IMPACT: The total cost for the work covered by the sewer reimbursement agreement is sixty one thousand eighty two dollars ($61,082). Funds in the amount of $70,000 are appropriated in the Fiscal Year 1999/2000 Capital Improvement Program from the Sewer Benefit Zone Fee program. Following is a summary of the project costs: OVERSIZING COST FOR AGUA HEDIONDA INTERCEPTOR SEWER REACHES SAHTZB AND SAHT2C I Over Sizing Cost of Sewer Pipeline Cost of Easements Dewatering Permit Fee Dewatering Monitoring Overhead Cost TOTAL COST Existing Appropriation ADDITIONAL APPROPRIATION $25,802 f ’ Ez $I!$52 $3,728 $61,082 $70,000 -o- ’ EXHIBITS: 1. 2. 3. Location Map for Interceptor Sewer reaches SAHT2B and SAHT2C. Reimbursement agreement. Resolution No. 2000-105 and its attachment, Exhibit “A”, for Approval of an Oversizing Reimbursement Agreement with Cypress Valley, LLC, for the Construction of South Agua Hedionda Interceptor Sewer Reaches SAHT2B & SAHT2C, CMWD Project No. 92-406, Project No. 35831. c PROJECT NAME PROJECT EXHIBIT SOUTH AGUA HEDIONDA INTERCEPTOR SEWER NUMBER REACHES SAHTZB & SAHTZC 92-406 I AWN BY:SCOTJ EVANS. CARLSBAD ENGINEERING DEPT - Exhibit 2 . . t AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF OVERSIZED SEWER LINES AND PAYMENT OF OTHER COSTS FOR SOUTH AGUA HEDIONDA INTERCEPTOR SEWER REACHES (SAljTPB AND SAHT2C) IN CONJUNCTION WITH CALAVERA HILLS VILLAGES VILLAGES Q & T CITY OF CARLSBAD TRACTS 83-19 AND 83-32 This Agreement For ..Reimburtiement Of Costs For Construction Qf Sewer Main Improvements In ‘Conjunction With Calavera Hills Villages Q ’ & i’j”‘dated as of ._ ‘G., , 2000, (“Agreemen?), is made at Carlsbad, California, between CYPRESS VALLEY, LLC a Delaware limited liability Company (CYPRESS), and the CITY OF CARLSBAD, (“City”) with reference to the following recitals: RECITALS . A. Cypress is the record owner of certain real property located in the City of Cadsbad, California, more particularly described on Exhibit “A” attached hereto and made a part hereof (CALAVERA HILLS). The Calavera Hills consists of st3ve&i vill&~, as designated on Exhibit “A”. As used herein, the term ‘Village” shall refer, as ind@at+* $6 one or more of such Villages so designated on Exhibit “A.” L. B. All of the Villages of Calavera Hills, are herein referred to collectively as the “Calavera Hills Project.” Cypress is the developer of the Calavera Hills Project. C. The City Council of City approved the Final Maps and Subdivision Agreements for Tracts 83-19 & 83-32 (Vill&ges Q & T) on Juty 7, 1992. ‘. D. Cypress has advanced on behalf of City the cost of right 0; way acquisition, Regional Water Quality Control Board permits and constructing of oversized sewer facilities consistent with the Sewer Master Plan, hereinafter collectively referred to as the Sewer Work. E. City will utilize funds collected. from Sewer Benefit Area ‘D” and “E” fees to reimburse the costs advanced hereunder by Cypress. . F. City and Cypress recognize- tha< ihe Sewer Work exceeds the infrastructure otherwise required of Cypress as required by the Sewer Master Plan. Cypress agrees to construct or cause the construction of the Sewer Work provided the City agrees to reimburs’e Cypress as set forth in this Agreement. G. City and Cypress desire to enter into a reimbursement agreement which covers the Reimbursable Work contemplated by the construction of the Sewer Work. 03/l 3/00 3 H. The Sewer Work shall include the following improvements, as set forth on Exhibit “B”. (1) Oversizina of Sewer Mains. (2) Aoolication and monitorina of Dewaterina Permit. (3) Purchase of Easements for City. (4) Definition of “Sewer Work”. The various items of construction, described in subsections (l), (2) and (3) above are hereinafter collectively referred to as the “Sewer Work”. (5) Estimated Cost of Sewer Work. City shall reimburse Cypress in the manner described in Section 4 below for the total costs advanced by Cypress for the Sewer Work. The Total Cost and the Reimbursable Cost for each of the items of Sewer Work is currently estimated to be as follows: Item Description Total Cost &imbursable q$sf .: ;, 1 Oversizing of Sewer Mains $25802.00 $25802.00 2 Dewatering Permit $16552.00 $16,522.00 3 Right-of-Way Acquisition $15,000.00 $15,000.00 T$tal Cost of Wark w7,$$4.00 $5?,354.00 NOW THEREFORE, the good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the partie,s hereto agree as follows: 1. The Recitals are true and correct. 2. SATISFACTION OF OBLIGATION. Cypress’ agreement to perform the Sewer Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements regarding the Calavera Hills Project with respect to the Sewer Work. 3. CYPRESS OBLIGATIONS. (a) In consideration of City’s reimbursement and other undertakings as set forth herein, Cypress agrees to construct and install the Sewer Work. @I Cypress shall complete all work no later than three (3) years from the effective date of the Agreement. Work completed before the effective date of this Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement. 2 03/13/00 (c) Cypress shall use the complete set of City approved plans, specifications, and other design documentation for the Sewer Work. (4 By entering into this Agreement, Cypress waives any and all potential constitutional (Nollan/Dolan) objections relating to the Sewer Work. 4. DISTRICT OBLIGATIONS. (a) The District shall reimburse Cypress an amount (the “Reimbursement Amount”) equal to (i) the cost of the Sewer Work (the “Actual Total Cost of all items of Sewer Work identified in Recital “H” of this Agreement”), plus, (ii) an overhead allocation of four percent (4%) of the Actual Total Cost ($ 2,294.OO) in lieu of other reimbursement for Cypress’ cost incurred for salary and benefits for staff of Cypress’ home offices, supervision above the level of on-site superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds, insurance and bond premiums, expenses for meetings with and presentations to governmental agencies which issue permits or otherwise regulate project approval, (collectively, the “Overhead Costs”), plus, (iii) an additional two and one-half percent (2.5%) of the Actual Total Cost ($1,434) for construction administration, engineering design, construction fees and permit fees advanced by Cypress, soils engineering, pipeline surveying, staking, and other incidental costs. The Actual Total Cost shall include all costs associated with the installation of the Sewer Work. Total : Actual Total 4% Oveihead 2.5% Additional Reimbursable cost Allocation cost $57,354.00 $2,294.00 cost $ 1,434 $61,082.00 04 City agrees to reimburse Cypress for the Sewer Work as described in Section 5 and 6 below. 5. ACCOUNTING OF COSTS. (a) When an item of the Sewer Work has been completed, as described in Section 5(e) below, Cypress shall present City with a complete and detailed accounting of the costs and expenses advanced by Cypress in connection with the Sewer Work. Upon its receipt of a written request therefor from City, Cypress will allow an audit of such costs and expenses to be prepared at Cypress’ expense by certified public accountants specified by City. (b) Cypress has submitted costs to the City and the City agrees that the request is fair and reasonable. 3 03/13/00 5 (cl During the performance of any Reimbursable Sewer Work, Cypress shall retain detailed payment records for all items for Reimbursable Sewer Work, for use by City in auditing any subsequent requests by Cypress. Cypress’ requests for reimbursement (each a “Reimbursement Request”) shall include contracts, invoices, 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 Work. Reimbursable Requests may be submitted in stages upon completion of any item of the Sewer Work in conformance with Section 5 (e). (d) Cypress shall send one copy of each contractor invoice to the “Deputy City Engineer” of the City of Carlsbad together with an invoice for all other components of the Reimbursement Amount. The Deputy City Engineer shall consider and approve the request pursuant to this Agreement. If the Deputy City Engineer objects to any items comprising the Reimbursement Amount, the Deputy City Engineer shall notify Cypress within ten (10) days of receipt of all invoices forwarded by Cypress. Failure to notify Cypress shall be deemed the Deputy City Engineer’s approval of such invoices. In the event the Deputy City Engineer does object, Cypress and the Deputy City Engineer shall meet to discuss the disputed amount (at which time Cypress shall make available all of the Work Documentation) and attempt to resolve the matter through good-faith negotiation. W Prior to the submission to the Deputy City Engineer of the final invoices, Cypress shall obtain necessary or appropriate lien releases from the Contractor, and shall obtain from the City of Carlsbad, and any and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Sewer Work and the ability to put the Sewer Work into use. The date Cypress receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Sewer Work (the “Completion Date”). Cypress may submit its accounting and requests for payment (Section 5)) at any time. Any delay by Cypress in such submittals shall not prejudice Cypress’ rights, but shall delay day-for-day the time in which the City must take any responsive action. (9 Nature of Reimbursable Costs. Notwithstanding the foregoing, if Cypress disputes the Deputy City Engineer’s determination of reimbursable costs or believes that sum established by the Deputy City Engineer is not consistent with the specific provisions of the Agreement, then Cypress may elect to (i) appeal the Deputy City Engineer’s decision to the City Council (and thereafter, at Cypress’ option, a Court 4 03/13/00 b _- of proper jurisdiction) for final determination, or (ii) submit the dispute for the review and recommendation of a neutral and independent civil engineer qualified in engineering, design and construction and mutually approved by City and Cypress; provided, however, said engineer’s recommendation shall be non-binding and shall not preclude Cypress from thereafter appealing the Deputy City Engineer’s decision as described in item ( i ) above. 6. CITY’S PAYMENT OF REIMBURSEABLE EXPENSES. City shall pay Cypress the Reimbursement Amount for its costs (as approved pursuant to Section 5, above) within 30 days after the City’s acceptance of the Sewer Work, or execution of this Agreement which ever is later. 7. MISCELLANEOUS. (a) DisDutes: Claims: If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shatl be used to resolve and question of fact or interpretation not formally 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 Cypress or the City’s City Manager (City Manager). 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 City Manager, 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 of the City of Carl&ad. 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 seeking remedies available to them at law. (b) Jurisdiction. Cypress agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. (cl Obliaations and Benefits Not Runnina With Land; No Third Partv Beneficiaries. This Agreement shall bind and inure to the benefit of the parties and their respective successors and assigns. However, it shall not run with the land or be recorded, and all payments due from the City shall be made to Cypress or such 5 03/13/00 assignee as Cypress designates in writing. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto; the parties hereto expressly disclaim any such third-party benefit. (d) Notice. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have 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, addressed as follows: If to Cypress: Cypress Valley, LLC Attention: Mr. James Ondler 2727 Hoover Avenue National City, California 91950 Telephone: (619) 336-3735 Facsimile: (619) 336-3112 If to city: City of Carlsbad Attention: Mr. Lloyd Hubbs, Public Works Director 1635 Faraday Avenue Carlsbad, California 92008 Telephone: (760) 602-2730 Facsimile: (760) 602-8562 or to such other address or to such other person as any party shall designate to the others for such purpose in the manner set forth above. 03 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. (9 Governina Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California., (9) Comolete Aareement. This agreement contains the entire agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. (h) Amendment. This agreement may be amended by a written instrument executed by City and Cypress (including for this purpose any successors of Cypress, to the extent of their ownership of real property with Calavera Hills Project), except that no amendment regarding the provisions for reimbursement to Cypress shall be valid unless executed by Cypress Valley, LLC. 6 03/l 3/00 4 -.. (0 Term. This Agreement shall be effective as of the date hereof, and shall terminate on the earlier of (i) the date the City fully reimburses Cypress the Reimbursement Amount, or (ii) January 1.2015. 0) 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. (k) Attornev’s Fees. In the event of any litigation to enforce the provisions of this Agreement, the prevailing party in such litigation shall be entitled to recover from the losing party, its expenses, attorney’s fees, including attorney’s out of pocket expenses, and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. (1) Payments to Cvoress. Any payments to Cypress by City hereunder shall be made payable to Cypress Valley, LLC and shall be forwarded to the following address, or to such other address as Cypress specifies in writing to the City Manager of City: c/C Cypress Valley, LLC Attention: Mr. James Ondler 2727 Hoover Avenue National City, California 91950 0-N Citv Authoritv: City warrants, represents and agrees that it has the legal authority to collect the funds that it will use to reimburse Cypress. City further warrants, represents and agrees that it has the legal authority to pay these funds to Cypress. These warranties, representations and agreements are a material inducement to Cypress to enter into this Agreement. In the event City lacks legal authority to collect the fees necessary to pay Cypress, City shall pay the amount due Cypress out of other funds at the same rate as if it had collected the fees. ill III Ill Ill Ill Ill Ill 7 03/l 3/00 _- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. Executed by DEVELOPER this 15-6 day of Executed by CITY this day of ,200o. DEVELOPER: CYPRESS VALLEY, LLC, a Delaware llmited liability company By: McMillin Companies, LLC, a Delaware limited liability company Its: Manager ‘bpJ MlT-LH6LL,\I,~,=-P~~~. (print name/title) (sign here)- CIN: GIN OF CARLSBAD, a Municipal Corporation of the State of California MAYOR Date: ATTEST: LORRAINE M. WOOD, City Clerk (Proper notarial acknowledgment of execution of DEVELOPER must be attached.) (Chairman, president or vice-president and secretary or 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 that officer(s) signing to bind the corporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute the instrument.) APPROVED AS TO FORM: Ronald R. Ball City Attorney By: Assistant City Attorney CMWD 8 03/l 3/00 h STATE OF CALIFORNIA ss. COUNTY OF SAN DIEGO 1 On 311 YOO , before me, Dawn B. Mendoza, Notarv Public personally appeared Don Mitchell and Thomas A. Fuller , 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. This area for offacial notabel seal Title of Document Aaree for Reimb of Costs for Const. - Calavera Tracts 83-19 & 83-32 Date of Document No. of Pages Other signatures not acknowledged Notary Fmn-2 McMillin Companies EXHIBIT “A” LEGAL DESCRIPTION CALAVERA HILLS -VILLAGES Q AND T ALL OF CARLSBAD TRACT NO. 83-32, CALAVERA HILLS VILLAGE Q, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12950 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 16,1992 AND ALL OF CARLSBAD TRACT NO. 83-19, CALAVERA HILLS VILLAGE T, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12951 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 16.1992 EXHIBIT”B” January 11, 1999 * June 23. I999 (Revised) Mr. William Plummer, District Engineer Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, CA. 92008 Via U. S. Mail RE: Request for cash reimbursement for District expenses paid by Cypress Valley, LLC Calavera Hills Sewer Outfall District sheet numbers: 92-406 SAHTZC and SAHTZA Dear Bill, As you are aware, Cypress Valley, LLC (LLC), as developer of Calavera Hills project, has advanced certain payments and expenses in conjunction with the installation and completion of the above referenced District project. The District has agreed to reimburse the LLC in cash for the incurred expenses and payments. These expenses and payments are detailed below: Additional cost for oversizing of sewer line from lo” to 12” per attached bid tabulation: 3,686 If @ $ 7/lf = $25,802 Purchase of easement from Carlsbad Unified School District 5,100 Purchase of easement from Robertson Family Trust 2,400 Purchase of easement from Brian and Gary Robertson 500 Purchase of easement from State of California CalTrans 1,000 Purchase of easement from Carlsbad Ranch Homeowners Association 6,000 Dewatering Permit fee paid to Regional Water Quality Control Board 1,000 Dewatering Permit al5plication and monitoring by GeoSoils, Inc. 15.552 TOTAL DEVELOPER EXPENSES ELGIBLE FOR CASH REIMBURSEMENT $57,354 Construction is complete except for the asphalt work. The LLC is interested in receiving the reimbursement upon completion and acceptance of the sewer installation work. Your cooperation and assistance in this matter is appreciated. Should you have any questions or if you need more information, please call. Very truly yours, CYPRESS VALLEY, LLC McMillin Companies, LLC 5Ianaging Member Donald A. Mitchell Project Engineer Development Engineering encl H:\data\engnring\DMITCHEL\WORD\Ch_CMWDswrreimreqrev.doc 13 ,-- a .z: E c:liim(ljiliilii21i~m z” a.iiWlJJWiiiigiEW t ~m-Nh~00~0000 B .gy 3 E “““~~“8CJ8 c: m-m- T-- ; T- iz 3; UI - 1 RESOLUTION NO. 2000-105 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, FOR APPROVAL OF AN OVERSIZING REIMBURSEMENT AGREEMENT WITH CYPRESS VALLEY, LLC, FOR THE CONSTRUCTION OF SOUTH AGUA HEDIONDA INTERCEPTOR SEWER REACHES SAHT2B 8, SAHT2C, CMWD PROJECT NO. 92-406, PROJECT NO. 35831. 6 WHEREAS, the Cypress Valley, LLC, designed and constructed the South Agua 7 Hedionda Interceptor Sewer Reaches SAHT2B and SAHT2C; and 8 WHEREAS, the Cypress Valley, LLC, has requested the City Council approval of an 9 Oversizing Reimbursement Agreement (attached hereto marked Exhibit “A” and incorporated by 10 this reference) pursuant to Section 66486 of the Government Code for the construction of said 11 improvements within easements; and 12 WHEREAS, the City Council will reimburse the Cypress Valley, LLC, for the cost of 13 oversizing the sewer pipeline above lo-inch diameter, and the easements and the dewatering 14 permit and monitoring; and 15 WHEREAS, the Planning Director determined that the requested action is in compliance 1s with Mitigated Negative Declaration issued on June 30,1998, under EIA 98-04; and 17 WHEREAS, the total cost for the oversizing is $61,082 and adequate funds exist in the 18 Sewer Benefit Fee program to pay for the oversizing costs contained in the reimbursement 19 agreement, and were appropriated previously with,the 1999/2000 Capital Improvement Program. 20 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 21 California, as follows: 22 1. That the above recitations are true and correct. 23 Ill 24 I// 25 Ill 26 Ill 27 Ill 28 Ill II 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 oversizing reimbursement agreement by and between the Cypress Valley, LLC, and the City of Carlsbad is hereby approved and the Mayor is authorized and directed to sign said agreement on behalf of the City Council. PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 4th day of April , 2000 by the following vote, to wit: AYES: Council Members Lewis, Hall, Finnila, Nygaard and Kulchin AI-TEST: *bz- i3%aNE M. WOOD, City Clerk (SEAL) lb ,’ iT ,* I .I i f! May 5,200O TO: DEPUTY PUBLIC WORKS DIRECTOR PLUMMER FROM: City Attorney cvwff- CALAVERA HILLS VILLAGES Q&T REIMBURSEMENT AGREEME F-- This memo follows up on our meeting and phone conversations related to the above referenced agreement which was approved by the City Council on April 4, 2000. As I indicated, our office is unable to approve the document as to form based upon language related to District obligations contained in Paragraph 4 of the Agreement. At our meeting on May 1, I provided you with proposed changes to Paragraph 4 and the remainder of the agreement. You have indicated that those changes are acceptable to your Department. An agenda bill will need to be prepared for the Council to approve a revised reimbursement agreement. Aareement Chanqes With regard to further amendments to the Agreement, as I indicated in my phone message of May 4, 2000, the document will need to be revised to account for Council approval of the original document. Please insert the following provisions into the revised agreement: Recitals “I. On April 4,2000, the City Council of the City of Carlsbad approved, but did not execute, an agreement with Cypress setting forth terms and conditions for reimbursement. J. City and Cypress desire to rescind the agreement approved on April 4, 2000 and replace it, in its entirety, with this Agreement.” Bodv of Agreement In addition to the new recitals, in the body of the agreement please move the existing Paragraph One- Recitals, to a new Paragraph Eight- Recitals. -The new Paragraph One should read as follows: “1. April 4. 2000 Aoreement. By executing this Agreement, the parties hereby agree to immediately rescind the agreement approved by the Carlsbad City Council on April 4, 2000 and replace it, in its entirety, with this Agreement.” Resolution Chanaes r Along with the agreement, similar reference to this revision will need to be made in the new authorizing resolution. The following recitals should be inserted after the second Whereas clause: Recitals “WHEREAS, by Resolution No. 2000-l 5, on April 4,200O the City Council of the City of Carlsbad approved, but did not execute, an agreement with Cypress setting forth terms and conditions for reimbursement; and WHEREAS, the City desires to rescind Resolution No. 2000-15; and WHEREAS, the City and Cypress desire to rescind the agreement approved on April 4, 2000 and replace it, in its entirety, with the attached Oversizing Reimbursement Agreement.” In addition to the above changes, the following needs to be inserted into the body of the resolution after Paragraph One. “2. That Resolution No. 2000-15 adopted on April 4, 2000 is hereby rescinded. 3. That the agreement approved by the Carlsbad City Council on April 4,2000, entitled “Agreement for Reimbursement of Costs for Construction of Oversized Sewer Lines and Payment of Other Costs for South Agua Hedionda Interceptor Sewer Reaches (SAHT2B and SAHT2C) in Conjunction with Calavera Hills Villages Villages Q & T City of Carlsbad Tracts 83-19 and 83-32” is rescinded and shall be replaced, in its entirety, with the attached Oversizing Reimbursement Agreement.” With the above changes, existing Paragraph Two should become Paragraph Four. Finally, I am returning to you the two original agreements that are to be rescinded. Thank you for your assistance in making these changes. Please, contact me should you have any questions or if you wish to discuss this matter further. Deputy City Attorney afs attachment c: Public Works Director w/o attachment City Clerk w/o attachment