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HomeMy WebLinkAbout2000-06-06; City Council; 15755; South Agua Hedionda Interceptor SewerCl1 I OF CARLSBAD -AGENDA brLL -’ 4B# 6; 755 IIITG. 6/06/00 IEPT. ENG TITLE- . APPROVAL OF A REVISED OVERSIZING REIMBURSEMENT AGREEMENT WITH CYPRESS VALLEY, LLC, FOR THE CONSTRUCTION OF SOUTH AGUA HEDIONDA INTERCEPTOR SEWER REACHES SAHTPB & SAHTPC CMWD PROJECT NO. 92-406, PROJECT NO. 35831 CITY MGFiEiSP RECOMMENDED ACTION: Adopt Resolution No. 3 000 -170 for approval of a Revised 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. lTEM 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 1 O-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. The City Council previously approved a reimbursement agreement on April 4, 2000. However, changes are required to be made to the reimbursement agreement to indicate that District obligations are actually City obligations. The original reimbursement agreement was not executed. A revised agreement has been prepared for approval by the City Council. 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’jNTERCEPTOR SEWER REACHESSAHTZB,AND SAHTZC I Over Sizing Cost of Sewer Pipeline $25,802 Cost of Easements $15,000 Dewatering Permit Fee $ 1,000 Dewatering Monitoring $15,552 Overhead Cost $3,728 TOTAL COST $61,082 Existing Appropriation $70,000 ADDITIONAL APPROPRIATION -O- Page 2 of Agenda Bill No. ! ,? ! 75 5 1. Location Map for Interceptor Sewer reaches SAHT2B and SAHT2C. 2. Reimbursement agreement. 3. Resolution No. #c)6 - t ‘70 and it s a ac tt h ment, 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. I- CITY OF CARLSEAD PROJECT NAME PROJECT EXHIBIT SOUTH AGUA HEDiONDA IA’TERCEPTOR SEWER NUMBER REACHES SAHTZB d SAHTZC 92-406 I ,.-, r ,.... r ^.^, F_... _..^...rr^,..^ ^_^_ 3 .AiT‘L3tlA” llw I RESOLUTION NO. 2c*o-170 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 & SAHT2C, CMWD PROJECT NO. 92-406, PROJECT NO. 35831. 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, by Resolution No. 2000-15, on April 4, 2000 the City Council of the City of 13 Carlsbad approved, but did not execute, an agreement with Cypress setting forth terms and 14 conditions for reimbursement; and 15 WHEREAS, the City desires to rescind Resolution No. 2000-15; and 16 WHEREAS, the City and Cypress desire to rescind the agreement approved on April 4, 17 2000 and replace it, in its entirety, with the attached Oversizing Reimbursement Agreement. 18 WHEREAS, the City Council will reimburse the Cypress Valley, LLC, for the cost of 1s oversizing the sewer pipeline above IO-inch diameter, and the easements and the dewatering 2o permit and monitoring; and 21 WHEREAS, the Planning Director determined that the requested action is in compliance 22 with Mitigated Negative Declaration issued on June 30,1998, under EIA 98-04; and 23 WHEREAS, the total cost for the oversizing is $61,082 and adequate funds exist in the 24 Sewer Benefit Fee program to pay for the oversizing costs contained in the reimbursement 25 26 agreement, and were appropriated previously with the 1999/2000 Capital Improvement Program. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, 27 California, as follows: 28 Ill 1 1. That the above recitations are true and correct. 2 3 4 5 6 7 8 9 IO 11 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 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. 4. 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. 12 13 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council 14 held on the 6th day of June , 2000 by the following vote, to wit: 15 ncil Members Hall, Finnila, Nygaard and Kulchin 16 18 ATTEST: (SEAL) 23 24 25 26 27 28 - AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF OVERSIZED SEWER LINES AND PAYMENT OF OTHER COSTS FOR SOUTH AGUA HEDIONDA INTERCEPTOR SEWER REACHES (SAHTZB AND SAHT2C) IN CONJUNCTION WITH CALAVERA HILLS VILLAGES VILLAGES Q 8, T CITY OF CARLSBAD TRACTS 83-19 AND 83-32 This Agreement For Reimbursement Of Costs For Construction Of Sewer Main Improvements In Conjunction With Calavera Hills Villages Q & T dated as of June 16 9 2000, (“Agreement”), is made at Carlsbad, California, between CYPRESS VALLEY, LLC a Delaware limited liability Company (Cypress), and the CITY OF CARLSBAD, (YCityll) with reference to the following recitals: RECITALS A. Cypress is the record owner of certain real property located in the City of Carlsbad, California, more particularly described on Exhibit “A” attached hereto and made a part hereof (CALAVERA HILLS). The Calavera Hills consists of several villages, as designated on Exhibit “A”. As used herein, the term “Village” shall refer, as indicated, to one or more of such Villages so designated on Exhibit “A.” 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 (Villages Q & T) on July 7, 1992. D. Cypress has advanced on behalf of City the cost of right of 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 that the Sewer Work exceeds the infrastructure othewise 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 reimburse 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. 1 5/8/2000 - 4 H. The Sewer Work shall include the following improvements, as further set forth on Exhibit “B”. (1) Oversizina of Sewer Mains. (2) Aoplication and monitorina of Dewaterinq Permit. (3) Purchase of Easements for Citv. (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: 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. NOW THEREFORE, the good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. April 4. 2000 Aqreement. 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. 2. Recitals. The Recitals are true and correct. 3. 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. 4. 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, 2 5/8/2000 (b) Cypress shall complete all work no later than three (3) years from the effective date of the Agreement. Sewer Work completed before the effective date of this Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement. (4 Cypress shall use the complete set of City approved plans, specifications, and other design documentation for the Sewer Work. 03 By entering into this Agreement, Cypress waives any and all potential constitutional (Nollan/Dolan) objections relating to the Sewer Work. 5. CITY OBLIGATIONS. (a) City 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 ($1,434) for construction administration, engineering design, construction fees and permit fees advanced by Cypress, soils engineering, pipeline surveying, staking, and other incidental costs. The Actual Total Cost shall include all costs associated with the installation of the Sewer Work. ,< ,. __ ‘: ,. ;. ” ‘.~&l:‘,~.‘: ;; .;:,,%;: &&i~~Cpbtal .:yg$f .$@&j~$J)he;$jd. ;.; &%~.$q$&~@@.;; :,~&.&g&lj~~5 .;;’ ” j : ,’ :.. . . $57,354.00 )@g@$@.‘. : .. &:: . ..) ,’ (g;,.,: ,;_, ,, 1: 1;. : $2,294.00 $1,434 $61,082.00 (b) City agrees to reimburse Cypress for the Sewer Work, in the method as described in Sections 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 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. 3 5/8/2000 (b) Cypress has submitted costs to the City and the City agrees that the request is fair and reasonable. w During the performance of any Reimbursable Sewer Work, Cypress shall retain detailed payment records for all Reimbursable Sewer Work items, 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). NJ) Cypress shall send one copy of each contractor invoice to the “Public Works Director” of the City together with an invoice for all other components of the Reimbursement Amount. The Public Works Director shall consider and approve the request pursuant to this Agreement. If the Public Works Director objects to any items comprising the Reimbursement Amount, the Public Works Director shall notify Cypress within ten (10) days of receipt of all invoices forwarded by Cypress. Failure to notify Cypress shall be deemed the Public Works Director approval of such invoices. In the event the Public Works Director does object, Cypress and the Public Works Director 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 Public Works Director of the final invoices, Cypress shall obtain necessary or appropriate lien releases from the Contractor, and shall obtain from the City, 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 Public Works Director determination of reimbursable costs or believes that sum established by the Public Works Director is not consistent with the specific provisions of the Agreement, then Cypress may elect to (i) appeal the Public Works Director’s decision to the City Council (and thereafter, at Cypress’ option, a Court of proper jurisdiction) for final determination, or (ii) submit the dispute for the review and recommendation of a neutral and independent civil 4 5/8/2000 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 Public Works Director’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) Disputes: Claims: If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall 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. 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. W 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. w Obliqations 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 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. 5 5/8/2000 (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. @I Counteroarts. 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 Aqreement. 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. 09 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. (0 Term. This Agreement shall be effective as of the date hereof, and shall terminate on the date the City fully reimburses Cypress the Reimbursement Amount. 6 5/8/2000 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. (9 Payments to Cv~ress. 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: CIC Cypress Valley, LLC Attention: Mr. James Ondler 2727 Hoover Avenue National City, California 91950 (m) Citv Authority: 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 Ill Ill Ill Ill Ill Ill Ill Ill Ill III Ill Ill Ill Ill Ill Ill Ill 7 5/8/2000 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. Executed by DEVELOPER this fz*k day of n Pq 2000. I Executed by CITY this 16th day of June ,200o. DEVELOPER: CITY: CYPRESS VALLEY, LLC, a Delaware limited liability company By: McMillin Companies, LLC, a Delaware limited liability company Its: Manager CITY OF CARLSBAD, a Municipal Corporation of the State of California By: TbJGJd (sign here) (print name/title) - Date: June 16, 2000 ATTEST: / I n A. ~/&&* J*tbr K f I (print name/title) 1 (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: :TJ2;3- b*J’) CMWD 8 5/8/2000 1 STATE OF CALIFORNIA COUNTY OF SAN DIEGO On 5/12/00 , 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. Signature This area for ofkial notarial seal * Title of Document Aaree for Reimb of Costs for Const. - Calavera South Aqua Hedionda Date of Document Other signatures not acknowledged No. of Pages ..-.--. -.-- I