HomeMy WebLinkAbout2000-06-06; Municipal Water District; 478; Reimbursement Agreement - Kelly Land Company,-
CARLSBAD MdNlCIPAL WATER DISTRICT i AGENDA BILL
AB# 4-78 TITLE* -- APPROVE AND AUTHORIZE EXECUTION OF
REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY
MTG. 6/06/00 FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE
IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 2)
DEPT. ENG CMWD PROJECT NO. 88-602, CITY PROJECT NO. 35341
I RECOMMENDED ACTION:
Adopt Resolution No. 107 0 to approve and authorize a reimbursement agreement with Kelly Land Company for oversizing water and recycled water pipeline improvements within Cannon Road West (Reach 2), CMWD Project No. 88-602, City Project No. 35341.
I ITEM EXPLANATION:
The Kelly Land Company is constructing a portion of Cannon Road referred to as Cannon Road West (Reach 2). This reach extends approximately from the intersection of Faraday Avenue with Cannon Road easterly to the intersection of El Camino Real with Cannon Road. Kelly Land Company is constructing Reach 2 in two phases referred to as Segment 1 and Segment 2.
The Kelly Land Company is also the developer of property along Reach 2 and is required to install an 8-inch diameter potable water pipeline and an 8-inch diameter recycled water pipeline in Cannon Road Reach 2 for proposed land development projects. However, the master plan for the water and recycled water system calls for construction of a 16-inch diameter potable water pipeline and a 24-inch diameter recycled water pipeline in Cannon Road Reach 2 to serve additional areas. District Ordinance No. 26 provides for a reimbursement agreement on facilities greater in size than what is required to serve the development. Kelly Land Company has agreed to construct the oversized pipeline improvements through a reimbursement agreement.
The plans and specifications for the potable water and recycled water pipelines in Cannon Road Reach 2 were prepared by the District on Improvement Drawing 333-2GE dated October 21, 1998. The engineer’s estimate for the project cost of Reach 2 is $1,027,506. Four (4) contractors submitted bids to the Kelly Land Company to perform the Segment 1 work. The lowest responsible bidder was Erreca in the amount of $299,938. Erreca is also the low bidder on Segment 2 in the amount of $483,808.
I ENVIRONMENTAL REVIEW:
The Planning Director has determined that the requested action is consistent with prior CEQA review. The project was reviewed in the Cannon Road Reach 1 Environmental Impact Report, the Kelly Ranch Environmental Impact Report, and the Mitigated Negative Declaration for Reach 2. Significant environmental impacts identified by those CEQA documents were determined to be mitigable to levels of less than significant. Permits from the resource agencies have been obtained.
I FISCAL IMPACT: . L
The pipelines to be constructed under Cannon Road West Reach 2 are part of an overall project referred to as “Cannon Road Transmission Main”. Funds for the overall project were appropriated based on constructing a 16-inch water pipeline and a 24-inch recycled water pipeline in Cannon Road from LEG0 Drive east to El Camino Real. However, two changes were made affecting the project appropriation. First, in 1998, additional pipelines were installed extending west to Avenida Encinas. This was done to avoid impacting Cannon Road in the future from the freeway interchange to LEG0 Drive. These additional pipelines were built by Caltrans through a change order to their Cannon Road/l-5 interchange project. The pipelines installed by Caltrans were funded by the Cannon Road Transmission Main appropriation. Second, construction of the pipelines across the Agua Hedionda bridge, near El Camino Real, were higher in cost than originally estimated because of the need for special ductile iron pipe fittings. As a result of these two changes, an additional appropriation of $786,457 is required from the Water Connection Fee fund. Following is a summary of the project costs.
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, Page 2 of Agenda Bill No. Lz 7 r
PROJECT COST FOR CANNON ROAD WATER AND RECYCLED WATER
TRANSMISSION MAINS - AVENIDA ENCINAS TO EL CAMINO REAL ._ ‘_ : !,’ ,. _: ” $, __ ” A&~$ ;’ ’ ,DyfCRIPTION’ ‘: <a ;> __ : :: .I<: : TOT& [I i’l , ,_ cos* j;: jj :
Engineering Design Cost - Planning Systems (Environmental) $12,544
- Kleinfelder (Geotechnical) $9,220
- Daniel Boyle Engineering (Final Design & Amendments) $23,435 - O’Day Consultants (Preliminary Design, Final Design & Amendments) $81,804
Engineering Total $127,003
Reimbursement Cost for Oversizing to Carlsbad Ranch Co. (AB 14,821; a-04-98) $459,279
Construction of Cannon Road West Reach 1 by City of Cartsbad (AB 14,911; 10-27-98) $593,591
Reimbursement Cost to Caltrans (AB 15,010; 1-12-99) $657,078
JkJmbursement Cost for Oversizing to Kelly Land Company $1,027,506
!;fOiALiPROJECT COST, ‘: ;, <.:I ” ‘, ,, _‘! ‘i ,’
3 EXISTING’i4PPROPRIATION y CANNON’ ROAD WES~:iRANSMlSSlON~~MAIN:- :’ :: ’ I’
; $2,864#57i
$2,078,000
ADDlTlONAL APPROPRIATION .!, , : ‘_ < !_ ‘: ;> 1, : > G; ‘t’ $7&?6;457~
EXHIBITS:
1. Location Map for Cannon Road West Transmission Main.
2. Reimbursement agreement between Kelly Land Company and the Carlsbad Municipal Water
District.
3. Resolution No. I(390 to approve and authorize execution of reimbursement
agreement with Kelly Land Company for oversizing of water and recycled water pipeline improvements in Cannon Road West (Reach 2), CMWD Project No. 88-602,
Project No. 35341.
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I HEDIONDA LAGOON I I I \-‘ CITY4 I
NOT TO SCALE
I REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY
I
.N’ ~-~BEFi
FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE m - - - - 1 IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 21
PROJECT NAME i PROJECT 1 EXHIBIT
!
DOE ^ 2000-03~0087
JUL 0711 2OOQ 3:56 PM
RECORDING REQUESTED BY:
Kelly Land Company
WHEN RECORDED, PLEASE MAIL TO:
8282 OfFICIfu RECIXDS !BN DIEGS CWNTY ltEUll?DER’S OFFICE
City Clerk
City of Carlsbad 1200 Carisbad Village Drive
Carlsbad, California 92008
Please record the documents at no fee as it is to the benefit of the District
(Gov. Code [6103].
Space above this line for Recorder’s Use
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR OVERSIZING
WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS
WITHIN CANNON ROAD WEST (REACH 2)
CMWD PROJECT NO. 88-602
THIS AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF
WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS WITHIN CANNON ROAD
WEST (REACH 2) dated as of June, 15 ,2000, (“Agreement”), is made at
Carlsbad, California, between KELLY LAND COMPANY, a Delaware corporation (“Kelly”), and
the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal
Water District Act of 1911, and a Subsidiary District of the City of Carlsbad, (“District”), with
reference to the following recitals:
RECITALS
A. Certain real property located in the City of Carlsbad, California, is more
particularly described on Exhibit “A” attached hereto and made a part hereof (the”Kelly Ranch”).
The Kelly Ranch consists of several Villages, as designated on Exhibit “B.” As used herein, the
term “Village” or “Planning Area” shall refer, as indicated, to one or more of such Villages so
designated on Exhibit “B.” The various Villages as shown on Exhibit “B” either are, or will
become, separate legal parcels in accordance with the applicable legal requirements of the State
of California and the City of Carlsbad (“City”).
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B. Kelly is the record owner of the Kelly Ranch, except for Village E of which Shea
Homes (“Shea”) is the record owner.
C. Upon their creation as separate legal parcels, Kelly intends to convey or cause
conveyance of record title to Villages B, C, F, K and L, respectively, to other persons or agencies
pursuant to contractual commitments not related to this Agreement. Any further development
activity with respect to any of Villages B, C, F, K or L will be the responsibility of the respective
transferee. Village A is already a separate legal parcel, any obligations for water and recycled
water improvements in connection with the development of Village A will be addressed in
connection with processing the separate development proposals for Village A, and this
Agreement will not address such matters in connection with Village A. Village B will be deeded
by Kelly to the State of California acting by and through the Department of Fish and Game,
Wildlife Conservation Board. All of the Villages of the Kelly Ranch, other than Villages A, B, C, F,
K and L, are herein referred to collectively as the “Kelly Ranch Project.” Kelly is the developer of
the Kelly Ranch Project.
D. Kelly filed a separate application for tentative subdivision map and site
development plan with respect to Village E (the “E Project”). The E Project is the subject of
certain development approvals received from the City of Carlsbad (the “E Project Approvals”),
including without limitation: Tentative Subdivision Map (CT 96-07), Planned Unit Development
Permit (PUD 97-04), Hillside Development Permit (HDP 96-l 3) and Coastal Development Permit
(CDP 96-l 3), all approved by City Council Resolution No. 98-68 on April 7,1998 which included
specific reference to Planning Commission Resolution No. 4225 recommending approval of the E
Project with conditions and approved by the Planning Commission on January 21, 1998. The
final map for the E Project (Final Map No. 13715) was recorded in the Official Records of San
Diego County on December 31, 1998. Shea purchased the E Project from Kelly by deed
recorded on September 22,1998 in the Official Records of San Diego County.
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E. Kelly has filed a separate application for a General Plan Amendment, Rezoning,
LCP Amendment, Hillside Development Permit, Coastal Development Permit and a master
tentative map (the “Tentative Map” or “TM”) with respect to Villages, D, F, G, H, I and J, as well
as K and L. Villages K and L are being processed merely to create them as legal parcels, and
the Master Tentative Map intended is to note that further mapping of parcels K and L,
respectively, will be required prior to any development of them. Kelly has also filed a proposed
amendment to the Zone 8 Local Facilities Management Plan (the “LFMP Amendment”). In
addition, Kelly has filed or intends to file a separate application for approval of a site development
plan with respect to Village J, a planned development permit with respect to Village I and a site
development plan for Villages D, G and H.
F. On April 7,1999, the Planning Commission of the City of Carlsbad recommended
approval of the Kelly Ranch Project Core Approvals with a series of resolutions which included,
without limitation, approval of: Certification of Final Supplemental Environmental Impact Report
(EIR 98-05) General Plan Amendment (GPA 97-07), Zone Change (ZC 97-07) Zone Code
Amendment (ZCA 99-03) Local Coastal Program Amendment (LCPA 97-09), Master Plan
Amendment (MP 174(B)), Amendment to Local Facilities Management Plan for Zone 8 (LFMP
87-08(B)), Tentative Map (CT 97-16) Hillside Development Permit (HDP 97-17) Coastal
Development Permit (CDP 97-43) and Planned Unit Development Permit (PUD 99-02). All of
such Planning Commission actions were adopted and approved by the City Council of City on
May II, 1999, by Council Resolution No. 99-162 and City Council Ordinance Nos. NS-482,
NS-483 and NS-484.
G. One of the conditions of approval for the Tentative Map (CT 96-07) for the
E Project, condition 53(c) of Planning Commission Resolution No. 4255, requires Kelly to
construct a portion of the improvements, including all utilities (“Cannon Road West
Improvements”), in accordance with Improvement Drawing 333-26 prepared by
O’Day Consultants dated February 19, 1998 (“Cannon Road West Plans”), from the westerly
boundary of the E Project (also identified as Station 99+00 on Improvement Drawing 333-2G)
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easterly to El Camino Real including modifications to the intersection of El Camino Real and
Cannon Road (“Condition 53(c)“).
H. The various approvals referred to in Recitals D, E, F, and G are collectively
referred to herein as “Kelly Ranch Project Approvals.”
I. On December 15, 1998, the City Council approved the Reimbursement
Agreement for the construction of Reach 2 of Cannon Road West from Faraday Avenue to
El Camino Real (“Cannon Road Reach 2”) between City and Kelly covering reimbursable work
for road and drainage facilities (“Prior Road Reimbursement Agreement”). This Agreement is
intended to augment and complement the Prior Road Reimbursement Agreement, and will be
further augmented in the future by a separate South Agua Hedionda Interceptor Sewer
Reimbursement Agreement.
J. Other portions of condition 53 of the conditions of approval for the Tentative Map
(CT 96-07) for the E Project require Kelly to construct water and recycled water pipelines and
appurtenances within portions of Cannon Road Reach 2 and El Camino Real. The construction
of the water and recycled water pipelines and appurtenances are collectively referred to herein
as the “Water Work.” The Water Work is to be constructed in accordance with Improvement
Drawing 333-2GE prepared by O’Day Consultants dated October 21, 1998 (“Water Work
Plans”).
K. District and Kelly desire to provide for construction of the Water Work
simultaneously with Cannon Road Reach 2, in the location generally shown on Exhibit “C.”
L. The Water Work shall include the Potable Water Improvements and the Recycled
Water Improvements, as set forth on Exhibit “D.”
1) “Potable Water Improvements” shall mean the improvements described in
this Section K.1, and will be composed of the following two segments:
a) The first segment (“Potable First Segment”) to be constructed
simultaneously with the “First Segment” (as defined in the Prior Road Reimbursement
Agreement) of Cannon Road West Improvements including:
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0) A potable water pipeline consisting of approximately
186 lineal feet of 16-inch ductile iron water pipeline in Cannon Road.
(ii) A potable water pipeline in Cannon Road from El Camino
Real to Station 99+00, consisting of over sizing approximately 2,397 lineal feet of 8-inch PVC
C900 pipeline and appurtenances to 16-inch CML&C steel pipeline and appurtenances.
W The second segment (“Potable Second Segment”) to be
constructed simultaneously with the “Second Segment” (as defined in the Prior Road
Reimbursement Agreement) of Cannon Road West Improvements:
(0 A potable water pipeline in Cannon Road from Station
99+00 to the west boundary of Kelly Ranch, consisting of over sizing approximately 2,640 lineal
feet of 8-inch PVC C900 pipeline and appurtenances to l&inch CML&C steel pipeline and
appurtenances.
2) “Recycled Water Improvements” shall mean the improvements described
in this Section K.2, and will be composed of the following two segments:
a) The first segment (“Recycled First Segment”) to be constructed
simultaneously with the “First Segment” (as defined in the Prior Road Reimbursement
Agreement) of Cannon Road West Improvements including:
(0 A recycled water pipeline consisting of approximately
174 lineal feet of 24” ductile iron recycled water pipeline in Cannon Road; and
(ii) A recycled water pipeline in Cannon Road from El Camino
Real to Frost Avenue, consisting of over sizing approximately 1,261 lineal feet of 8-inch PVC
C900 pipeline and appurtenances to 24-inch CML&C steel recycled water pipeline and
appurtenances.
b) The second segment (“Recycled Second Segment”) to be
constructed simultaneously with the “Second Segment“ (as defined in the Prior Road
Reimbursement Agreement) of Cannon Road West Improvements including:
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(0 A recycled water pipeline in Cannon Road from Frost
Avenue to the west boundary of Kelly Ranch, consisting of over sizing approximately 3,900 lineal
feet of 8-inch PVC C900 pipeline and appurtenances to 24-inch CML&C steel recycled water
pipeline and appurtenances.
3) The Potable First Segment and the Recycled First Segment are referred to
herein collectively as the “First Segment.” Notwithstanding any other provision of this
Agreement, the First Segment also includes three pipelines located in the Cannon Road bridge
crossing Agua Hedionda Creek: approximately 198 linear feet of 24-inch pipe, approximately
216 linear feet of 1 g-inch pipe and approximately 216 linear feet of 8-inch pipe, all of TR-FLEX
DIP, associated DIP TR-FLEX bends, and other appurtenances (herein identified as item 1.5 in
Exhibit “D,” and referred to herein as the “Bridge Pipeline Rework”). The Potable Second
Segment and the Recycled Second Segment are referred to herein collectively as the “Second
Segment.”
M. District and Kelly recognize that the Water Work exceeds the infrastructure
otherwise required of the Kelly Ranch Project in that the pipeline sizes are greater than what is
required of the development. Kelly agrees to construct or cause the construction of the Water
Work, provided the District agrees to reimburse Kelly on a progress payment basis as set forth in
this Agreement. For the purposes of this Agreement, the Water Work includes Reimbursable
Water Work and Kelly Project Requirement Water Work. “Kelly Project Requirement Water
Work” is that portion of the Water Work which could be required by the District as conditions of
the Kelly Ranch Project. “Reimbursable Water Work” shall mean the difference in the total cost
for over sizing specific work items which would be required for the Kelly Ranch Project only
(i.e. the Kelly Project Requirement Water Work) and is measured by the difference between the
cost of the Water Work and the cost of the Kelly Project Requirement Water Work. The
Reimbursable Water Work amount shall be as set forth on Exhibit “D,” subject to modification
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asset forth in this Agreement. A line item description of the specific work items included within
the category of Reimbursable Water Work and Kelly Project Requirement Water Work is
included within Exhibit “D” attached hereto and incorporated herein by this reference.
N. Kelly has requested reimbursement from the District pursuant to the Subdivision
MapAct and District Ordinance No. 26 for the cost of constructing the Water Work.
0. District and Kelly acknowledge that Government Code Section 66485 allows the
City of Carlsbad to require a sub-divider to construct improvements benefiting property outside
the subdivision; but Section 66486 requires the District to enter into a reimbursement agreement
for such improvements. The parties intend that this agreement satisfy the requirements of
Government Code Section 66468.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
1) Recitals. The Recitals are true and correct.
2) Satisfaction of Obliqation. Kelly’s agreement to perform the Water Work
as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full
compliance with all requirements regarding the Kelly Ranch Project with respect to the Water
Work.
3) Kellv Obliaations.
a) In consideration of Districts reimbursement and other
undertakings as set forth herein, Kelly agrees to construct and install the Water Work.
W Kelly shall complete all Water Work no later than four (4) years
from the effective date of the Agreement. Water Work completed before the effective date of this
Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement.
c) Kelly shall use the complete set of District approved plans,
specifications, and other design documentation for the Water Work as modified by District
approved change orders and approved field changes made for the Bridge Pipeline Rework.
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d) By entering into this Agreement, Kelly waives any and all potential
constitutional (NollanlDollan) objectives relating to the Water Work.
4) District Obliqations.
a) District shall make available for Kelly’s use the complete set of
plans, specifications, geotechnical reports, and other design documentation for the Water Work.
b) District agrees to reimburse Kelly for the Reimbursable Water
Work as described in Section 5 and 6 below. Invoices for each progress payment request shall
include: the “Reimbursement Amount” equal to (i) the cost of the Reimbursable Water Work (the
“Actual Cost”), r>lus (ii) an overhead allocation of four percent (4%) of the Actual Cost in lieu of
other reimbursement for Kelly’s cost incurred for salary and benefits for staff of Kelly’s 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 government agencies which issue permits or otherwise
regulate project approval, (collectively, the “Overhead Costs”). The Actual Cost shall include all
costs associated with the installation of the Water Work and includes allowances for soils
compaction testing, pipeline surveying, staking, and other incidental costs as set forth on
Exhibit “D.”
5) Contractor Budqet: Invoices.
a) District acknowledges that Kelly has sold the E Project and is under
contract to sell other portions of the Kelly Ranch Project to merchant builders. It is
acknowledged that Kelly shall be entitled to cause the Water Work to be bid, contracted, bonded
commenced and constructed by one or more of its successors, and that it may cause the
construction of the First Segment and the construction of Second Segment by separate
successors. To the extent that Kelly causes a successor to post the bonds required for the First
Segment and/or Second Segment, Kelly shall be entitled to exoneration and cancellation of its
own bond which has been so replaced. For purposes of this entire Section 5 (except for the next
succeeding grammatical paragraph), the term “Kelly” shall mean and include not only the original
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signing party to this Agreement, but also such successors who participate in the bidding,
contracting, bonding, and construction of one or more of such segments.
It is further acknowledged that, notwithstanding that Kelly arranged or arranges for
such construction of the Water Work by one or more successors, the obligations of the District
for reimbursement shall be to Kelly, and any such reimbursement payments shall be made by
District to Kelly. It shall be the responsibility of Kelly to cause any successor who is constructing
all or any portion of the Water Work to observe and follow the requirements of District for
retention of records and the submittal of information in connection with the Water Work, as
specified in this Agreement.
W The parties acknowledge that the contract for the First Segment of
the Water Work has already been issued and that such work is underway, and that the line items
and dollar figures for the First Segment as set forth in Exhibit “D” are correct, subject to
modification by change orders pursuant to Paragraph 5(g) of this Agreement.
With respect to all hard costs of construction comprising the Second Segment,
Kelly shall solicit bids from three reputable contractors. Reimbursable Water Work shall be bid
together with Kelly Project Requirement Work for the Second Segment. Upon mutual selection
by District and Kelly of the contractor for the Second Segment, and agreement upon a contract
amount such Segment, the costs thereof shall be allocated among the categories consistent with
the method and process used in Exhibit “D,” in the respective proportions set forth therein as
between Kelly Project Requirement Water Work and Reimbursable Water Work. The parties
agree that the spreadsheet attached hereto as Exhibit “D” is a fair allocation of the costs for the
Second Segment under such contract as among the categories of Reimbursable Water Work
and Kelly Project Requirement Water Work. Costs for the Second Segment shall be subject to
modification through change orders.
cl During the performance of any Reimbursable Water Work, Kelly
shall retain detailed payment records for all items for Reimbursable Water Work, for use by
District in auditing any subsequent reimbursement requests by Kelly. Kelly’s monthly requests
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for reimbursement (each a “Reimbursement Request”) shall include copies of change orders
(if new), invoices, payment slips, canceled checks (front and back), lien releases and other
documentation reasonably required by District to evidence the completion and payment for each
item of Reimbursable Water Work (“Work Documentation”). Reimbursement Requests may be
submitted monthly in arrears by Kelly.
d) Exhibit “D” sets forth the preliminary cost estimates for the
Reimbursable Water Work for the Second Segment. The parties acknowledge that Exhibit ‘D”,
which was prepared by Kelly’s engineers, is for illustrative purposes only and that all costs are
subject to further detail pursuant to clause (b) above as well as to audit for eligibility for payment
in accordance with the procedures of this Paragraph 4.
e) With each Reimbursement Request, Kelly shall forward one copy
of each invoice submitted to Kelly by Contractor, to the engineer employee designated for this
purpose by the District (“Public Works Director”), together with an invoice for all other
components of the Actual Cost not otherwise reflected on the Contractor’s invoice. The Public
Works Director shall confirm and approve the Reimbursement Amount based upon the
components of Actual Costs and Overhead Costs set forth in Section 3(b) of this Agreement. If
the Public Works Director objects to any items comprising the Reimbursement Amount, the
Public Works Director shall notify Kelly within ten (10) days of receipt of all invoices forwarded by
Kelly. Failure to so notify Kelly shall be deemed the Public Works Director’s approval of such
invoices. In the event the Public Works Director does object, Kelly and the Public Works Director
shall meet to discuss the disputed amount (at which time Kelly shall make available all of the
Work Documentation) and attempt to resolve the matter through good-faith negotiation.
9 Prior to the submission to the Public Works Director of the final
invoices, Kelly shall obtain necessary or appropriate lien releases from the Contractor, and shall
obtain from the City of Carlsbad, the District, and any and all appropriate governmental agencies,
all approvals, certificates, and other documents necessary to indicate the completion of the
Water Work and the ability to put the Potable Water Improvements and the Recycled Water
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Improvements into use. The date Kelly receives all such lien releases, approvals, and
certificates shall be deemed the date of completion of the Water Work (the “Completion Date”).
cl) All change orders shall be subject to approval by both the District
and Kelly. At the time of approval, the parties shall also determine the portion of the change
order which is allocated to Reimbursable Water 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 Water Work in an orderly, reasonable and prudent manner according to the
standard engineering and construction practice applicable to the Water Work, then the allocation
of the portion to Reimbursable Water Work should be in proportion to the allocation as between
Reimbursable Water Work and Kelly Project Requirement Water Work in Exhibit “D” for that
portion of the Water Work.
6) Payment of Reimbursable Exoenses.
a) Payment of each Reimbursement Amount shall be made, in cash,
within sixty (60) days after the Public Works Director’s determination on any such
Reimbursement Request (or determination pursuant to Paragraph 7 (a) if applicable.
W Any disputed Reimbursement Amount that is ultimately agreed or
determined to be payable shall be paid to Kelly within thirty (30) days after any settlement with or
award to Kelly.
cl The City of Carlsbad shall collect all its normal fees upon its
issuance of all building permits. Payment of Reimbursement Amounts under this Agreement
shall not be reduced for fees or charges that may be payable as a condition of obtaining permits
for the development of any Village of Kelly Ranch. District shall not offset Kelly’s entitlement to
reimbursement under this Agreement against any obligation of any person.
4 Notwithstanding any other provision of this Agreement, payment for
the Bridge Pipeline Rework shall be governed by the provisions of this Paragraph 5(d). Upon
receipt of the invoice from the general contractor for the Bridge Pipeline Rework, Kelly shall
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submit to District a Reimbursement Request with respect to such Bridge Pipeline Rework
requesting payment of the invoice amount. District shall pay Kelly the amount of such invoice
within 30 days of receipt of such Reimbursement Request, provided that the Bridge Pipeline
Rework has been installed, tested and approved by the District. District shall not unreasonably
delay the testing and approval of such Bridge Pipeline Rework.
7) Miscellaneous.
4 Disoutes; 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 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 of Kelly or the Public Works Director. A
copy of such documented dispute shall be forwarded to both parties involved along with
recommended methods of resolution. The Public Works 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 through the office of the Executive Manager to the Board of Directors of
District for their resolution. The Board of Directors may, but is not obligated to resolve the
dispute. If the Board of Directors considers the dispute, and directs a solution, the action of the
Board of Directors shall be binding upon the parties involved, although nothing in this procedure
shall prohibit the parties seeking remedies available to them at law.
b) Successors: Covenant to Run with Real Propertv. This Agreement
and the covenants contained herein shall be binding upon and inure to the benefit of the
successors, heirs, assigns and transferees of Kelly and District shall run with the real property
(other than Villages A and B) and create an equitable servitude upon such real property. Upon
their creation as separate legal parcels, the provisions of this Agreement shall no longer apply to,
and the same shall no longer be or constitute an equitable servitude against or run with the land
as to Villages C, F, K and L, and the equitable servitude hereby created shall automatically
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terminate as to each of said Villages. Upon the request of Kelly, District shall execute and
deliver to Kelly, in recordable form, any further documents and/or instruments reasonably
necessary to evidence that said Villages C, F, K and L are thereafter fully released and free from
the provisions of this Agreement, provided that the cost of preparing and recording such
documents and/or instruments shall be paid by Kelly.
c) Transfer bv Kellv. The obligations and benefits of this Agreement
shall be transferred upon sale of Kelly Ranch Project as specified herein. As used in this
Agreement, “Kelly” shall mean the owner (or owners) of the real property which comprises the
Kelly Ranch Project, except as to any real property for which residential permits have been
issued, and EXCEPT THAT THE ENTITLEMENT TO REIMBURSEMENT PURSUANT TO THIS
AGREEMENT SHALL IN ALL EVENTS REMAIN WITH KELLY LAND COMPANY. In
accordance with the provisions of Section 4(a) of this Agreement and upon written notice to
District pursuant to Paragraph 7(d), all obligations and responsibilities of this Agreement shall
move to the new owners of the real property which comprises the Kelly Ranch Project except as
qualified by the preceding sentence; and, as to the E Project the parties acknowledge that all
such obligations and responsibilities are moved concurrently herewith to Shea as the successor
to Kelly Land Company with respect to the E Project except as qualified by the preceding
sentence.
d) Unless otherwise specifically provided herein, all notices, Notice.
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:
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If to Kelly: Kelly Land Company C/O Hillman Properties West, Inc.
2011 Palomar Airport Road, Suite 112
Carlsbad, California 92008
Attention: Scott Medansky Telephone: (760) 931-q 190
Facsimile: (760) 931-7950
With a copy to:
Sheppard, Mullin, Richter, & Hampton LLP
Attorneys at Law
Nineteenth Floor
501 West Broadway
San Diego, California 92101-3598
Attention: Christopher B. Neils
Telephone: (619) 338-6500
Facsimile: (619) 234-3815
If to District: Carlsbad Municipal Water District
c/o City of Carlsbad Engineering Department
1635 Faraday Avenue
Carlsbad, California 92008-7314
Attention: Mr. Lloyd Hubbs, PublicWorks Director
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.
e) 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 Govemino Law and Venue. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California, and venue shall reside in
San Diego County, California.
9) Complete 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.
t-0 Amendment. This Agreement may be amended by a written
instrument executed by District and Kelly (including for this purpose any successors of Kelly, to
14
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the extent of their ownership of real property within Kelly Ranch Project), except that no
amendment regarding the provisions for reimbursement to Kelly shall be valid unless executed
by Kelly Land Company.
0 Term. This Agreement shall be effective as of the date hereof, and
shall terminate on the earlier of(i) the date the District fully reimburses Kelly the Reimbursement
Amount, or (ii) January 1,2015.
j) 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) 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.
“KELLY” “DISTRICT”
KELLY LAND COMPANY, a Delaware, n
. WOOD, Secretary
(SEAL)
(Proper notarial acknowledgment of execution by Kelly Land Company must be attached.)
(President or vice-president and secretary or assistant secretary must sign for corporations. If only one
officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary
under corporate seal empowering that ofticer to bind the corporation.)
APPROVED AS TO FORM:
\
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829”/
EXHIBIT “A”
LEGAL DESCRIPTION
PARCEL 1
PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, FILED JUNE 1.1998, IN THE OFFICE OF THE COUNTY RECORDER OF
SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS.
PARCEL 2
A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, AS
DESCRIBED IN GRANT DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, RECORDED
NOVEMBER 13,1962, AS FILE NO. 193941 OF OFFICIAL RECORDS.
TOGETHER WITH THAT PORTION OF LOT “F” OF RANCH0 AGUA HEDIONDA, IN THE CllY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP
THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
NOVEMBER 16,1896, AS DESCRIBED IN QUITCLAIM DEED TO MARVIN H. SIPPEL AND LUCIA
CAROLINE SIPPEL, CO-TRUSTEES OF THE SIPPEL IRREVOCABLE FAMILY TRUST, RECORDED
DECEMBER 29,1983, AS FILE NO. 83-475227 OF OFFICIAL RECORDS.
PARCEL 3
A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDS, IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896,
DESCRIBED AS PARCEL “A” OF CERTIFICATE OF COMPLIANCE WITH CONDITIONS, RECORDED
SEPTEMBER 27,1996, AS FILE NO. 1996-0489998 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS.
PARCEL 4
A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 832, FILED
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896,
DESCRIBED AS PARCEL “A” OF CERTIFICATE OF RECORDED AUGUST 28,1998, AS FILE NO.
1998-0550155 OF OFFICIAL RECORDS.
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EXHIBIT “D”
WATER AND RECYCLED WATER IMPROVEMENTS IN CANNON ROAD REACH 2
Prepared 2/l 7/00
Cost Summary
Kelly Project Oversizing
Requirement Reimbursable Total Cost
1.0 SEGMENT 1 -WATER
1.1 GENERAL CONTRACT [I]
Wl .l El Camino Real
W1.2 Cannon Road
Subtotal
$9,020 $8,677
258,687 291,261
267,708 299,938
$17,698
549,948
567,645
1.2 NON-GENERAL CONTRACT
1.2.1 Soils Engineering (2%)
1.2.2 Bond Premiums (2%)
1.2.3 Other Incidental Costs (2%)
Subtotal
Total -- General and Non-general Contracts
11,353
11.353
5,354 5,999
5,354 5,999
5,354 5,999
16,062 17,996
283,770 317,934
11,353
34,059
601,704
1.3 Overhead (4%) 11,351 12,717 24,068
1.4 Contingency (10%) [2] 29,512 33,065 62,577
1.5 Water and Recycled Water Pipes
at Agua Hedionda Bridge [3]
1.6 Additional Water Improvements at ECR [4]
0 165,000 165,000
100,000 100,000
Total - Segment 1 324,633 628,717 953,350
2.0 SEGMENT 2 -WATER
2.1 GENERAL CONTRACT [5]
W2.1 Cannon Road 155,048 328,861 483,909
2.2 NON-GENERAL CONTRACT
2.2.1 Soils Engineering (2%)
2.2.2 Bond Premiums (2%)
2.2.3 Other Incidental Costs (2%)
Subtotal
Total - General and Non-general Contracts
6,577 9,678
6,577 9,678
6.577 9.678
3,101
3,101
3,101
9,303
164,351
19;732 29;035
348,592 512,944
2.3 Overhead (4%) 6,574
2.4 Contingency (10%) [2] 17,093
Total - Segment 2 188,018
TOTAL -SEGMENTS 1 & 2 $512,650
13,944 20,518
36,254 53,346
398.790 586,807
$1,027,506 $1,540,157
1. Segment 1 general contract, adjusted for Change Orders Nos. 1 through 8.
2. 10% of general and non-general contracts and overhead costs.
3. Installation of special pipes at Agua Hedionda Bridge.
4. Potable and recycled water line extensions in El Camino Real.
5. Segment 2 proposed general contract per selected bid.
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STATE OF CALIFORNIA)
> ss.
COUNTY OF 3 jc &‘a >
, before me jw m , personally appeared
r and u, personally known
to me (or proved to me on the basis of satisfactory evidence) to Ibe the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity (ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
WITNESS my hand ad official seal.
(SEAL)
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RESOLUTION NO. 1090
A RESOLUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD) TO APPROVE AND AUTHORIZE REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS IN CANNON ROAD WEST (REACH 2), CMWD PROJECT NO. 88-802. PROJECT NO. 35341.
WHEREAS, Kelly Land Company is developing property along Cannon Road West
(Reach 2); and
WHEREAS, Kelly Land Company is required to construct eight inch diameter potable
water and recycled water pipelines in Cannon Road West (Reach 2) but the District requires that
these pipelines be oversized to a l&inch diameter pipeline and 24-inch diameter pipeline,
respectively; and
WHEREAS, Kelly Land Company is willing to construct the oversized potable water
and recycled water pipelines by a reimbursement agreement for an estimated cost of
$1,027,506; and
WHEREAS, the Planning Director reviewed this project and issued a Mitigated Negative
Declaration and permits have been obtained; and
WHEREAS, the existing appropriation for the project is $2,078,000 and an additional
appropriation is required in the amount of $786,457; and
WHEREAS, the additional appropriation in the amount of $786,457 shall be obtained from
the Water Connection Fee fund.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Carlsbad Municipal
Water District (CMWD) of the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the reimbursement agreement by and between Kelly Land Company and
Carlsbad Municipal Water District is hereby approved and the President is authorized and
directed to sign said agreement on behalf of the Board of Directors.
Ill
Ill
Ill
Cl”
.
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3. That the additional appropriation in the amount of $786,457 is hereby approved to
be obtained from the Water Connection Fee fund.
PASSED, APPROVED AND ADOPTED at a special meeting of the Carlsbad Municipal
Water District held on the 6th day of June, 2000 by the following vote, to wit:
AYES: Board Members Lewis, Hall, Finnila and Nygaard
NOES: N
AlTEST:
* (SEAL)