HomeMy WebLinkAbout2003-08-19; City Council; 17286; Reimbursement Agmt for Interceptor SeweriB# 17.786
ITG. 8/19/03
IEPT. ENG
Trunk 1 E Sewer Construction
RECOMMENDED ACTION:
$1,217,295.48
Adopt Resolution No. 2003-221 to approve and authorize execution of a reimbursement
agreement with the Terraces at Sunny Creek for South Agua Hedionda Interceptor Sewer, Trunk 1 E, Project No. 3828.
Overhead 8 6.5%
ITEM EXPLANATION:
79.124.21
The Terraces at Sunny Creek, LLC is the Developer of “The Terraces” project (CT 96-02). The South Agua Hedionda Interceptor Sewer, Trunk 1 E (Trunk 1E) begins at the intersection of El Camino Real and Jackspar Drive and extends north approximately 1,000-feet in Rancho Carlsbad Drive, then easterly approximately 3,200 lineal feet to its terminus near the Sunny Creek
Road crossing of Agua Hedionda Creek. The Developer designed Trunk 1E through a reimbursement agreement in the amount of $1 06,300, which was approved by the City Council on April 4, 2000 under Agenda Bill 15,680. Upon completion of design, the Developer then constructed
the South Agua Hedionda Interceptor Sewer, Trunk lE, which is part of the City’s Sewer Master
Plan, as a condition of CT 96-02 project approval, which included 4,157 lineal feet of 18-inch diameter pipe. The Trunk 1E sewer improvement plans are shown on City Drawing No. 361-6E,
Sheets 1 through 11, dated April 15, 2001. The Developer completed the sewer work described above in 2003 without benefit of a reimbursement agreement. Staff now recommends that the Council reimburse the Developer for the completed sewer work by approving the attached
reimbursement agreement with the Developer.
Trunk 1E benefits CT 96-02 and existing and proposed developments outside CT 96-02.
Government Code Section 66485 allows the City to require a subdivider to construct improvements benefiting property outside the subdivision and Government Code section 66486 requires the City to enter into a reimbursement agreement for such improvements.
ENVIRONMENTAL REVIEW:
The Planning Director reviewed the South Agua Hedionda Interceptor Sewer, Reaches SAHTI E (i.e., Trunk 1E) and SAHTIF, and gave the projects a Mitigated Negative Declaration, dated August 18, 1999 as part of EIA 97-05 and this was certified by the City Council on April 4, 2000 in
Agenda Bill 15,680.
FISCAL IMPACT:
The total cost for the sewer work covered by the reimbursement agreement is shown in Table 1, and will be paid from the Sewer Benefit Area C, D, E, and F fee funds.
TABLE 1 SOUTH AGUA HEDIONDA INTERCEPTOR SEWER, TRUNK 1E
The total costs in Table 1 was included in the budget amount for work estimated for Sewer Benefit Areas C, D, E, and F, which was updated and approved by the City Council on September 17,2002 under Ordinance No. NS-642.
I
Page 2 of Agenda Bill No. l7, 286
Trunk 1E conveys wastewater to the proposed Cannon Road Lift Station, which will pump the
wastewater through a recently constructed forcemain in Cannon Road. The Cannon Road Lift
Station and forcemain are financed by the City of Carlsbad through fees paid to Sewer Benefit
Areas C, D, E, and F. Therefore, fees and interest earned in Sewer Benefit Areas C, D, E, and F will
be used to pay the City first for the cost of the sewer work required to construct the Cannon Road
Lift Station and forcemain, including any advances to these sewer benefit areas. Any funds
remaining after the City has been paid will then be paid to the Developer under terms of this
reimbursement agreement. To date, the Sewer Replacement Fund has advanced $5.3 million to the
Sewer Benefit Area C, D, E, and F fund for the Cannon Road Lift Station and forcemain.
It is estimated that at buildout of development in Sewer Benefit Areas C, D, E, and F, there will be
sufficient funds available in the Sewer Benefit Area Fee Fund to appropriate the funds needed to
reimburse the Terraces at Sunny Creek, LLC for the expenses incurred in constructing the
South Agua Hedionda Interceptor Sewer, Trunk 1 E pipeline improvements.
EXHIBITS:
1. Location Map - Diagram of Reimbursable Improvements South Agua Hedionda Interceptor
Sewer, Trunk 1 E.
2. Resolution No. 2003-221 to approve and authorize execution of a reimbursement
agreement with the Terraces at Sunny Creek, LLC for South Agua Hedionda Interceptor
Sewer, Trunk 1 E.
3. Reimbursement Agreement.
DEPARTMENT CONTACT: William Plummer, (760) 602-2768, bplum @ci.carlsbad.ca.us
LOCATION MAP I
I I I NAME SOUTH AGUA HEDIONDA I EXHIBIT
I
I
DATE ann003 NAME LRosu FILE C \GIS\ArcVtewProject\Plummer\SewerLocMaps\SAH~lntSwrT~nkl E mxd
INTERCEPTOR SEWER, TRUNK I E I
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
RESOLUTION NO. 2003-221
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, TO APPROVE AND AUTHORIZE
EXECUTION OF A REIMBURSEMENT AGREEMENT WITH THE
TERRACES AT SUNNY CREEK, LLC FOR THE SOUTH AGUA
HEDIONDA INTERCEPTOR SEWER, TRUNK 1E.
WHEREAS, the Terraces at Sunny Creek, LLC, is the Developer of “The Terraces”
(CT 96-02) project; and
WHEREAS, as a condition of approval of CT 96-02, an 18-inch diameter sewer pipeline
was constructed outside and through CT 96-02 as part of the City’s South Agua Hedionda
Interceptor Sewer. The pipeline begins at the intersection of El Camino Real and Jackspar Drive
and extends approximately 700 feet in Rancho Carlsbad Drive, then easterly approximately
3,500 lineal feet to its terminus near the Sunny Creek Road crossing of Agua Hedionda Creek;
and
WHEREAS, the Terraces at Sunny Creek, LLC has requested the City Council’s approval
Df a reimbursement agreement for the costs of constructing the South Agua Hedionda Interceptor
Sewer, Trunk 1 E improvements; and
WHEREAS, an Environmental Impact Report (EIR 98-01) was approved for CT 96-02,
including utilities by the City Council on November 17, 1998; and
WHEREAS, the total reimbursable cost for the sewer pipeline improvements of the
South Agua Hedionda Interceptor Sewer, Trunk 1 E is $1,296,419.69; and
WHEREAS, it is estimated that at buildout of development in Sewer Benefit Areas C, D, E,
and F, there will be sufficient funds available in the Sewer Benefit Area Fee Fund needed to
*eimburse The Terraces at Sunny Creek, LLC for the South Agua Hedionda Interceptor Sewer
Trunk 1 E pipeline improvements.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
Zalifornia, as follows:
1. That the above recitations are true and correct.
71
Yf
If
If
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 between the City of Carlsbad, and
The Terraces at Sunny Creek, LLC for the reimbursement of costs for the South Agua Hedionda
Interceptor Sewer, Trunk 1 E improvements, attached as Exhibit “A is hereby approved and the
Mayor is authorized to execute said agreement on behalf of the City.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council
held on the 19th day of AUGUST , 2003 by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Packard
UTEST:
-0RRAINE M.
Page 2 of 2 of Resolution No. 2003-221
(SEAL)
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF THE
SOUTH AGUA HEDIONDA INTERCEPTOR SEWER, TRUNK 1E
THIS AGREEMENT FOR REIMBURSEMENT (hereinafter the "Agreement") is entered
into as of &GUS 7 a/ , 2003, by and between THETERRACES AT SUNNY
CREEK, LLC a Limited Liability Corporation ("Developer") and the CITY OF CARLSBAD,
a municipal corporation of the State of California ("City"), with reference to the following
Recitals:
RECITALS
A. Developer was the record owner of certain real property located in City which is
described on Exhibit "A" attached hereto and made a part hereof ("the Terraces Development").
The Terraces Development consists of a residential area of 172 homes with 50 affordable
housing units, as designated on Exhibit "A."
B. The Terraces Development is the subject of certain development approvals
received from the City of Carlsbad, including without 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.
The various approvals referred to in Recital "C" of this' Agreement are collectively C.
referred to herein as the "Terraces Development Approvals."
D. A condition for approval of the Tentative Map (CT 96-02) for Developer's portions
of Condition 7 and Finding 1 required the Developer to construct a portion of the South Agua
Hedionda sewer trunk line 1E (SAHTlE) within portions of the Terraces Development to
El Camino Real as shown on Exhibit "A.
E. Developer has advanced, on behalf of City, the cost of construction for 4,157
lineal feet of the SAHT1 E, which lies outside of the Terraces Development. The SAHTlE begins
at the intersection of El Camino Real 'and Jackspar Drive and extends northerly approximately
700 feet in Rancho Carlsbad Drive, then easterly approximately 4,000 lineal feet to its terminus
near the Sunny Creek Road crossing of Agua Hedionda Creek hereafter, the "Sewer Work as
shown on Exhibit "A.
F. A Sewer Benefit Area (SBA) fee program was approved under City Council
Resolution No. 91-21 to fund sewer system improvements in Sewer Benefit Areas C, D, E, and
F, see Exhibit "B." . City will utilize funds from Sewer Benefit Area Fees collected from Sewer
Benefit Areas C, D, E, and F to reimburse the costs advanced hereunder by Developer for the
Reimbursable Sewer Work.
G. The Developer completed the Sewer Work construction prior to January 2002
and therefore the Sewer Work is exempt from the prevailing wage requirements of Senate Bill
No. 975.
2
H. Developer completed the Sewer Work without benefit of an agreement, and the
parties desire to reimburse Developer for the completed Sewer Work consistent with the terms
of this Agreement, and the Developer hereby requests reimbursement from City pursuant to the
Subdivision Map Act for the cost of having constructed the Sewer Work consistent with the
terms of this Agreement.
I. City and Developer acknowledge that the construction of SAHTlE has been
completed and accepted by the City. And that the line items and dollar figures for the Sewer
Work as set forth in Exhibit “C” represent the actual costs of the construction of SAHTlE.
City has or will promptly issue its Notice of Completion for the SAHTI E.
J. City and Developer acknowledge that Government Code Section 66485 allows
the City to require a subdivider to construct improvements benefiting property outside the
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 California
Government Code Section 66486.
NOW, THEREFORE, the parties hereto agree as follows:
1. RECITALS. The Recitals above are true and correct, and are incorporated herein
by reference.
2. The Parties hereby ratify the Sewer Work already p.erformed by the Developer
without the benefit of this Agreement.
3. SATISFACTION OF OBLIGATION. Developer‘s agreement to install the
Sewer Work, as set forth herein, and the actual construction thereof, shall fully satisfy and
constitute full compliance with all requirements regarding the Sewer Work.
4. DEVELOPER’S OBLIGATIONS
(a) In consideration of City’s reimbursement and other undertakings as set
forth herein, Developer agreed to construct, and install the Sewer Work as shown on City
Drawing No. 361-6E, sheets 1 through 11, dated April 15, 2001, Prepared by Manitou
Engineering Company (the “Plans”). Developer used the complete set of City approved plans,
specifications, and other design documentation for the Sewer Work.
(b) It shall be the responsibility of Developer to observe and follow the
requirements of City for retention of records and the submittal of as built plans, payroll records
and other required documentation in connection with the Sewer Work as specified in this
Agreement.
. (c) By entering into this Agreement, Developer waives any and all potential
constitutional (Nollan/Dolan) objections relating to the Sewer Work.
3
5. CITY OBLIGATIONS
(a) City shall reimburse Developer an amount (the "Reimbursement Cost")
equal to: (i) the actual total reimbursable construction cost; plus (ii) an allowance for overhead
as described in Section 6 (f) below. The actual total reimbursable construction cost shall include
all costs described in paragraph 5. The Approved Reimbursable Amount is as follows:
6. REIMBURSABLE SEWER WORK
(a) With respect to all hard costs of construction comprising the Sewer Work,
Developer has solicited bids from three reputable contractors. Non-Reimbursable Work includes
any sewer pipeline and appurtenance design and/or construction per City Drawing No. 361 -6E;
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. The parties agree that Exhibit "B" describes a fair allocation of
the costs under such contract as among the categories of Reimbursable Sewer Work.
Reimbursable Sewer Work shall not include Sewer Work done for the benefit of Developer
exclusively.
(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.
7. AUDIT OF REIMBURSABLE EXPENSES
(a) Expenses for Reimbursable Sewer Work (including overhead and the
allowance permitted under clause 6(f) below "Overhead Cost") are referred to herein collectively
as "Reimbursable Expenses."
(b) All Developer's Reimbursement Requests will be processed and audited
for City by City staff or 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 9 below.
4
(d) With each Reimbursement Request, following 30-day review by Auditing
Engineer, the Auditing Engineer shall forward one copy of each invoice submitted by Developer
from Contractor, to the City's Public Works Director ("Director"), together with an invoice for all
other components of the Actual Cost not otherwise reflected on the Contractor's invoice.
The Director shall confirm and approve the Reimbursement Amount based upon the
components of Actual Costs and Overhead Costs set forth in Section 5 of this Agreement. If the
Director objects to any items comprising the Reimbursement Amount, the Director shall notify
Developer within thirty (30) days of receipt of all invoices forwarded by Developer. Failure to so
notify Developer shall be deemed the Director's approval of such invoices.
(e) City's reimbursement obligations hereunder shall be based upon the
actual costs incurred by Developer in performing Reimbursable Work (including overhead and
the allowances specified in 6(f) below).
(f) Notwithstanding anything herein to the contrary, and without limitation
and in addition to the Reimbursable Work, City specifically agrees that each of the following
shall be deemed Reimbursable Expenses:
(i) An 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.
(ii)
iii)
An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage is included in (iii) overhead expenses.
An amount fixed at six and one-half percent (6-1/2%) of the eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead expenses incurred by Developer including for salary and benefits, for staff of Developer's home
office, purchasing department expenses, project supervision, 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 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 the City. At the time of
approval, the City 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 the allocation of the portion related to Reimbursable Work should be in proportion to the
allocation for that portion of the Sewer Work Improvements identified in Exhibit "B", provided
that the 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.
5
7. PAYMENT OF REIMBURSEMENT AMOUNTS
(a)
(b)
The City shall not unreasonably withhold acceptance of the Sewer Work
Improvements.
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.
(c) The City of Carlsbad shall collect all its normal sewer fees from
developers upon its issuance of all building permits without credit or offset for any of the Sewer
Work. Payment of Reimbursement Amounts under this Agreement shall not be reduced for fees
or charges that may be payable to the City as a condition of obtaining permits for the development of any portion of the Terraces at Sunny Creek. City shall not offset Developer's entitlement to reimbursement under this Agreement against any obligation of any person.
(d) The parties acknowledge that the Sewer Work is part of a system which includes the South Agua Wedionda Interceptor Sewer Drainage Basin, and that the payment of Reimbursement Amounts will come from funds collected and disbursed as set forth in Paragraph 8 below.
8. REIMBURSEMENT PROCEDURE. For purposes of this Paragraph 8, the
following definitions shall apply:
"ApDroved Reimbursement Amount" shall mean the amount of reimbursable
expenses incurred by Developer or other developers to construct sewer conveyance system
improvements pursuant to reimbursement agreements executed with City, as audited and
approved by City; including without limitation, as to Developer, Reimbursement Amounts
(as defined in Section 4(a) above) approved by City.
"Sewer Benefit Area Fees" shall mean the fees originally established by City
Resolution No. 91 -21 and updated periodically for the purpose of collecting funds to construct or
to reimburse developers for constructing sewer conveyance system improvements.
"South Aqua Hedionda Interceptor Sewage Drainaae Basin" or "Sewaqe
Drainaqe Basin" shall mean the area identified by the City of Carlsbad Master Plan of
Sewerage, prepared by Wilson Engineering, dated January 1992, consisting of Sewer Benefit
Areas C, D, E, and F, as described in City Resolution No. 91-21.
"South Aqua Hedionda Interceptor Svstem" or the "Interceptor Svstem" shall
mean the sewer conveyance system improvements, including South Agua Hedionda lift station,
force main, interceptors, trunk sewers, and other improvements and appurtenant work,
as identified by the City of Carlsbad Master Plan of Sewerage, prepared by Wilson Engineering,
dated January 1992, to serve developments in South Agua Hedionda Interceptor Sewage
Drainage Basin.
"South Aqua Hedionda Sewer Benefit Area Fee Fund" or the "Fee Fund"
shall mean a subfund of the City of Carlsbad Sewer Benefit Area Fee Fund for depositing
Sewer Benefit Area Fees collected from developments in the South Agua Hedionda Interceptor
Sewage Drainage Basin.
6
Procedure for Reimbursement
(a) City shall deposit in the Fee Fund all Sewer Benefit Area Fees collected
from developments in the Sewage Drainage Basin (i.e., Sewer Benefit Areas C, D, E and F)
and not previously expended.
(b) City shall construct, or cause to be constructed, the South Agua
Hedionda lift station, force main, interceptor, and such other improvements and appurtenant
work of the Interceptor System as are required to convey sewage from the western terminus of
an interceptor constructed by Developer as part of the First Segment Sewer, to the eastern
terminus of an existing interceptor in Cannon Road east of Interstate 5. City shall complete
these improvements no later than December 2005, using the balance of the Fee Fund and such
other funds as City may advance to the Fee Fund, provided City obtains all required permits and
environmental review approvals.
(c) Developer shall submit its Reimbursement Request to City for
construction cost of SAHT1 E. City shall review such Reimbursement Request and determine
the respective Approved Reimbursement Amount.
(d) The City's reimbursement to the Developer for the SAHTlE shall come
from the Fee Fund. Twice a year, on June 30 and on December 31 ("Distribution Dates"),
City shall distribute the then current balance as of the previous May 31 and November 30,
respective of the Fee Fund as follows:
(i) First, to City to repay any advance by City to the Fee Fund which
has not previously been repaid.
(ii) Second, to Developer and other developers of Interceptor System
improvements who have executed reimbursement agreements with the City, in proportion to
each developer's cumulative total of Approved Reimbursement Amounts.
(iii) If the proportional distribution of the Fee Fund balance to any developer would exceed the balance of reimbursement payable to that developer, then only the
balance shall be paid, and the developer's Approved Reimbursement Amount shall be removed
from calculation on subsequent Distribution Dates. Any undistributed balance in the Fee Fund
shall be distributed to developers with outstanding balance of reimbursement payable,
in proportion to cumulative total of Approved Reimbursement Amounts.
(e) If on any Distribution Date the pro rata distribution of the Fee Fund
described in paragraph (d) would exceed the balance of reimbursement payable to any
developer, then only the balance shall be paid and the developer's Approved Reimbursement
Amount shall be removed from calculation on subsequent Distribution Dates. The excess of
calculated pro rata distribution and the balance of reimbursement payable shall be distributed to
remaining developers with outstanding balance of reimbursement payable, in proportion to
cumulative total of Approved Reimbursement Amount.
9. 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
7
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.
10. 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.
11. NOTICES. Unless otherwise specifically provided herein, all notices, demands,
or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of
the second business day after mailing by United States Certified Mail, return receipt requested,
postage prepaid, address as 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 1 13 Carlsbad, CA 92008 Telephone: (760) 931 -81 81
Facsimile: (760) 931 -8508
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 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.
TRANSFER BY DEVELOPER. The obligations and benefits of this Agreement
shall not be transferred upon the sale, assignment, exchange or exchange of the Terraces at
Sunny Creek Development.
12.
13. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument.
14. 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.
15. 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.
8
16. 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.
17. 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 1,2030.
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.
18.
9
19. Severability. The invalidity or unenforceability of any provision of this Agreement,
as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof.
executed as of the date first above written.
IN WITNESS WHEREOF, the partie
ATTEST:
George Szabo, Jr./Secretarv
(print name and title of signatory)
(Proper notarial &knowledgment of execution by Developer must be attached.
Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporation. Otherwise, the corporation must attach a resolution certified
by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to
bind the corporation).
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
10
State of California
County of
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.
State of California )
)
County of 1
On before me, , Notary
Public, personally appeared Claude Lewis
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.
11
SOUTH AGUA HEDIONDA
INTERCEPTOR SEWER, TRUNK 1 E
I
E 8/7/2003 NAME LRosu FILE C \GIS\ArcViewProject\PIummenSewerLocMaps\SAH~lniSwrTrunkl E mxd
EXHIBIT B
CARLSBAD
SEWER BENEFIT AREAS
N
NOT TO SCALE
I] A; B; G; H; J; L; M
IATE. 8/11/2003 NAME LRosu FILE C \GIS\ArcViewProiect\MarkBisku~\SBA\SewerBenefi~reaO~-l1-03 mxd
.. .
PAGE 1
. .. .-
.. . .. .. .
OF 4
EXHIBIT C
m'
"*,
--
N .-
HHU H*H *t"""
d c -.
I d e I c) 0
CCLL QPau 2-2 e e 0000
LLL swi 000
L e E L a r - 5 c 'L 0
N m ... .. .. . ._
.. ... .i
.. ._
. ,. . .-
PAGE 2 OF 4
... ...
..... ....._ .. ~~. y- *-.> ... i_ .... > : .. . . I.:. , ., ...... .... ... ........... I.. .. .... ... -.
.. ' .. ....
EXHIBIT C
X al QI G
). E
rr F. *
Y)H Hw
w *+cr,
Y E 2
ki z t i3 .m
c
s 8 e!
m
U E
5 F
0
N 8
F
Y,
0 8 $4
Y,
8 0
L
2L
5
c m
rn 3 h
n
L a3
i
0
-0
-
m
mi 8
*(I, Y,
l4 0 5 C 3 B
e W
L h
..
.. PAGE 3 OF 4
2 Y m
2 n 0 5 Q
rf 8 N
0
r- N
z
H
0
0) 9
R
w
UI m p? 0 a
e 0
L a
a 3 3 rz
00
FN ni
Y,H
P
. ---
.. .
..
EXHIBIT C
.
I
-ai '4 I u
.. d
W f r ,3
PAGE 4 OF 4