HomeMy WebLinkAbout2019-07-23; Municipal Water District; ; Reimbursement Agreement with Lennar Homes of California, Inc. for a Pressure Reducing Station Adjacent to Poinsettia Lane between Cassia Road and Skimmer Court, Carlsbadmanager may recommend to the Board that a reimbursement agreement be executed between
a contributor (Developer) and CMWD providing for the repayment of off-site improvements.
This reimbursement agreement is only for the PRS and excludes reimbursement for the water
pipeline on the new section of Poinsettia Lane between Cassia Road and Skimmer Court. The
new water pipeline on Poinsettia Lane is required by the Developer and not eligible for
reimbursement, per CMWD Ordinance 45, Article VI, Section 15.
Fiscal Analysis
The total estimated cost to complete the improvements provided in the reimbursement
agreement is $323,060, which includes costs for both design and construction of the PRS. The
estimate, as defined in the reimbursement agreement, is for illustrative purposes only, and the
actual reimbursable costs are subject to the conditions provided in the agreement. The
agreement requires the Developer to comply with CMWD's bidding, contracting and change
order procedures. Since bids for the contract have not yet been received, a 20% contingency
has been added to the agreement's estimated costs for the total reimbursable cost for
improvements. Sufficient funds have been appropriated in the CIP Project No. 5045 for
reimbursement of the PRS costs. No additional funding is requested. A summary of the
available funds and estimated project costs are shown in the table below:
POINSETTIA LANE -CASSIA ROAD TO SKIMMER COURT, CIP PROJECT NO. 5045
Current Appropriation $600,000
Current Expenditures/Encumbrances $0
TOTAL BUDGET APPROPRIATION (FY19/20}, CIP PROJECT NO. 5045 $600,000
REIMBURSEMENT AGREEMENT WITH LENNAR HOMES OF CALIFORNIA, INC. FOR A
PRESSURE REDUCING STATION ADJACENT TO POINSETTIA LANE (Exhibit A in Agreement)
Estimated Reimbursable Design and Construction Costs (Exhibit A of $323,060
Agreement)
Contingency $64,612
TOTAL REIMBURSABLE COSTS FOR IMPROVEMENTS $387,672
REMAINING BALANCE $212,328
ADDITIONAL APPROPRIATION NEEEDED $0
Next Steps
The reimbursement agreement will be executed. The Developer will follow the procedure
identified in the reimbursement agreement to bid the PRS project; award the contract to the
lowest responsive, responsible bidder; request change orders; and request reimbursement of
the PRS construction. The PRS will be constructed per the plans and specifications, and
reimbursement payments to the Developer will be made subject to the auditing and approval
requirements included in the reimbursement agreement.
July 23, 2019 Item #4 Page 2 of 34
Environmental Evaluation (CEQA)
On March 14, 2017, City Council adopted Resolution No. 2017-043 approving the Poinsettia 61
project and certifying the Environmental Impact Report (EIR) 15-03 including the errata,
candidate findings of fact, and the Mitigation Monitoring and Reporting Program.
The PRS is within the scope of the adopted EIR for Poinsettia 61 and there are no substantial
changes to the project. Therefore, no additional California Environmental Quality Action (CEQA)
analysis is required.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and was available for public
viewing and review at least 72 hours prior to the scheduled meeting date.
Exhibits
1. CMWD Resolution.
2. Location Map.
July 23, 2019 Item #4 Page 3 of 34
RESOLUTION NO. 1618
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD
MUNICIPAL WATER DISTRICT (CMWD BOARD), AUTHORIZING EXECUTION
OF A REIMBURSEMENT AGREEMENT WITH LENNAR HOMES OF CALIFORNIA,
INC. FOR A PRESSURE REDUCING STATION ADJACENT TO POINSETTIA LANE
BETWEEN CASSIA ROAD AND SKIMMER COURT, CARLSBAD TRACT NO. CT
14-10 {POINSETTIA 61), CAPITAL IMPROVEMENT PROGRAM (CIP) PROJECT
NO. 5045.
WHEREAS, the CMWD Board of the City of Carlsbad, California has determined that it is
necessary and desirable to expand CMWD's recycled water system by constructing a Pressure Reducing
Station (PRS) to interconnect the existing 375 hydraulic gradeline (HGL) pressure zone at Skimmer Court
with the 550 HGL pressure zone at Cassia Road for improved system reliability and maintainability; and
WHEREAS, the 2012 Water Master Plan recommends installing a PRS to connect the above-
mentioned pressure zones; and
WHEREAS, on March 14, 2017, the City Council adopted Resolution No. 2017-043 approving the
Poinsettia 61 project and certifying the Environmental Impact Report (EIR) 15-03 including the errata,
candidate findings of fact, and the Mitigation Monitoring and Reporting Program; and
WHEREAS, Lennar Homes of California, Inc. (Developer) of Poinsettia 61, CIP Project No. 5045,
is constructing a new section of roadway connecting Poinsettia Lane between Cassia Road and Skimmer
Court; and
WHEREAS, as part of Poinsettia 61, Developer is required to install a 12-inch diameter water
pipeline along the new property frontage from Cassia Road to Skimmer Court; and
WHEREAS, CMWD has requested that the Developer install a PRS on the new water pipeline to
interconnect the existing 375 HGL pressure zone at Skimmer Court with the 550 HGL pressure zone at
Cassia Road; and
WHEREAS, the Developer is eligible for reimbursement for work that exceeds the infrastructure
otherwise required for the Poinsettia 61 project and CMWD has prepared a Reimbursement Agreement
for eligible costs incurred for design and construction of the PRS; and
WHEREAS, sufficient funds have been appropriated in the CIP Project No. 5045 for
reimbursement of the PRS costs.
July 23, 2019 Item #4 Page 4 of 34
EXHIBIT I
NOW, THEREFORE, BE IT RESOLVED by the CMWD Board of the City of Carlsbad, California, as
follows:
1. That the above recitations are true and correct.
2. That the president of the Board is hereby authorized and directed to execute the
Agreement for Reimbursement of Costs for the Design and Construction of a PRS
Adjacent to Poinsettia Lane in an amount not to exceed $387,672, attached hereto as
Attachment A.
PASSED, APPROVED AND ADOPTED at a Special Meeting of the Board of Directors of the
Carlsbad Municipal Water District on the 23rd day of July, 2019, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher, Hamilton.
NAYS:
ABSENT:
None.
None.
July 23, 2019 Item #4 Page 5 of 34
ATTACHMENT A
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE DESIGN AND CONSTRUCTION OF A PRESSURE REDUCING
STATION ADJACENT TO POINSETTIA LANE
Between
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
AND
LENNAR HOMES OF CALIFORNIA, INC.,
a California Corporation
AGREEMENT FOR REIMBURSEMENT OF COSTS
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July 23, 2019 Item #4 Page 6 of 34
FOR THE DESIGN AND CONSTRUCTION OF A PRESSURE
REDUCING STATION ADJACENT TO POINSETTIA LANE
This Agreement for Reimbursement of Costs for the design and construction of a pressure
reducing station adjacent to Poinsettia Lane (defined below), dated as of April 29, 2019
("Agreement") is made at San Diego County, California, by and between the CARLSBAD
MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District
Act of 1911 , and Subsidiary District of the City of Carlsbad ("District"), and LENNAR HOMES OF
CALIFORNIA, INC., a California corporation ("Developer"), with reference to the following
recitals:
RECITALS
A. Developer is developing certain real property commonly known as POINSETTIA 61,
("Project") located in the City of Carlsbad, California (the "City"), more particularly
described as Carlsbad Tract No. 14-10, which Project is part of the larger development
commonly referred to as "Poinsettia Lane".
B. The Planning Commission of the City of Carlsbad adopted Resolution No. 7224 which
recommended City Council certify the Environmental Impact Report EIR 15-03, including
the approval of Candidate Findings of Fact and a Mitigation Monitoring and Reporting
Program, on February 1, 2017.
C. The Planning Commission of the City of Carlsbad adopted Resolution No. 7225 which
recommended approval of General Plan Amendment GPA 14-06, Zone Change ZC 14-04
and Local Coastal Program Amendment LCPA 14-06, on February 1, 2017.
D. The Planning Commission of the City of Carlsbad adopted Resolution No. 7226 which
recommended approval of Carlsbad Tract Map CT 14-10, Planned Development Permit
PUD 14-12, Site Development Plan SOP 14-15, Costal Development Permit CDP 1434,
Hillside Development Permit HOP 14-07, and Habitat Management Plan Permit HMP 14-
04, on February 1, 2017.
E. The City Council of the City adopted Resolution No. 2002-110, which recommended
approval of the Engineer's Report, declared the City's intention to update and modify the
fees for Bridge and Thoroughfare District No. 2 (Aviara Parkway -Poinsettia Lane),
adopted the Mitigated Negative Declaration, set the date, time, and place for a public
hearing on the proposed update and modification of such fees, and approved a deposit of
funds for Bridge and Thoroughfare District No. 2, on April 9,2002, approving the Project.
F. The Project approvals require Developer to design and construct certain public
improvements more particularly described as a PRESSURE REDUCING STATION
("Public Improvements"), as further depicted and/or described on the Plans (defined
below).
G. District has requested and Developer has agreed to design and construct the Public
Improvements concurrently with other Project improvements.
H. District and Developer acknowledge that Government Code Section 66485, Carlsbad
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Municipal Code section 20.16.041, and District Ord. No. 45 allow the City and District to
require a sub-divider to construct improvements benefiting property outside the
subdivision; and Government Code Section 66486 requires a reimbursement agreement
for such improvements. The parties intend that this Agreement satisfies the requirements
of Government Code Section 66486.
I. A preliminary estimate of cost for design and construction of the Public Improvements
has been prepared and attached hereto as Exhibit "A" and made part hereof by this
reference. The parties to this Agreement acknowledge that Exhibit "A", which was
prepared by Developer, is for illustrative purposes only and that all costs are subject to
audit and approval pursuant to the terms of this Agreement.
NOW, THEREFORE, District and Developer agree as follows:
1. Recitals. The Recitals, above, are true and correct and incorporated herein by this
reference.
2. Satisfaction of Obligation. Developer's agreement to construct the Public
Improvements, as set forth herein, and the actual construction thereof, shall fully
satisfy and constitute compliance with all requirements regarding the Project solely
with respect to the Public Improvements.
3. General Developer Obligations .
. (a) In consideration of District's reimbursement for the Public Improvements and
other undertakings as set forth herein, Developer agrees to cause the
construction of the Public Improvements, which work shall include the
following improvements, as shown on Poinsettia Lane Improvement Plan CT
14-10, dated September 27, 2018 prepared by O'Day Consultants, Inc. (the
"Plans") and as shown in the attached Exhibit "B", which are incorporated
herein by this reference:
PRESSURE REDUCING STATION
The Public Improvements shall include all necessary valves and
appurtenances, including those necessary to connect the Public
Improvements to the District's infrastructure.
(b) Developer shall cause the construction of the Public Improvements
substantially in compliance with the District-approved Plans and specifications
and in compliance with the current edition of the Green Book.
(c) Developer shall cause construction of all Project Requirements at Developer's
cost. Project Requirements includes the Public Improvements, plans,
specifications, and all legal requirements, codes, ordinances, standards,
Green Book, and Carlsbad Engineering Standards pertaining to this project.
( d) It shall be the responsibility of Developer to observe and follow the
requirements of District for retention of records and the submittal of information
in connection with the Public Improvements, as specified in this Agreement.
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(e) Developer shall comply with District's bidding, contracting, and change order
procedures, which are as follows:
(i) If bidding on the Public Improvements will be open to any qualified bidder,
Developer shall advertise each notice inviting bids in at least one newspaper
of general circulation in the City of Carlsbad. The first posting/publication of
notice shall be at least ten (10) days before bid opening. Such notice shall be
published for at least ten (10) consecutive days or for at least two (2)
consecutive times in a weekly newspaper in the City of Carlsbad. Developer
shall, in addition, advertise in consecutive editions in either the "Daily
Construction Service" or "The Green Sheet" for a period of not less than one
(1) week. Proof of publication shall be sent to the District's contact listed in
Item 11 -Notices.
(ii) Where the notice inviting bids will only be sent to a list of pre-qualified
bidders, a minimum of three (3) bidders shall be pre-qualified based on
criteria reviewed and approved by the District's contact listed in Item 11 -
Notices.
(iii) The notice inviting bids must clearly state the time, date, and place for the
submission of bids. These dates and times must be strictly adhered to unless
changed by addendum. The notice inviting bids and any addenda shall be
sent to the District's contact listed in Item 11 -Notices.
(iv) The request for bids shall state that the successful bidder shall be required to
furnish a performance and warranty bond equal to one hundred percent
(100%) of the amount bid and a labor and materials bond equal to one
hundred percent (100%) of the amount bid. In lieu of these bond
requirements, Developer may permit securities or cash to be substituted
therefore. Providers of architectural, engineering, and land surveying
services shall not be required to post bonds nor any substitute collateral
contemplated hereby.
(v) The request for bids shall require bidders to furnish a certificate of insurance
for commercial general liability, automobile liability, and workers
compensation.
(vi) If significant changes to plans, specifications, or request for bids require the
issuance of an addendum in the last five (5) working days of the bidding
period, the bid opening date shall be extended to allow bidders a minimum of
five (5) working days from receipt of the addendum to accommodate the
change. As used in this subsection and subsection 3(e)(ix), "working days"
means weekdays other than federal holidays and days which FDIC-insured
banking institutions in California are authorized or required to be closed for
business
(vii)The minimum period between issuance of the notice inviting bids and bid
opening is four (4) weeks.
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(vi ii) Developer shall conduct the "LIVE" bid opening at a location open to the
respective bidders. Sealed bids will be required to be submitted on or before
the specified date and time and will be publicly opened and the bidder's
name and total bid announced at the bid opening in the presence of any
respective bidders who have elected to attend.
(ix) Developer shall open all bids in the presence of any respective bidders who
have elected to attend and shall rank all bids from the lowest to the highest
bid amount, based upon costs for the Public Improvements. Developer shall
prepare a summary analysis of all bids and provide its findings regarding the
bid award to the District Engineer within five (5) working days of the date
such award is made. The summary analysis shall include: (a) an itemized
summary of all bids received; (b) a certificate executed by an authorized
representative of Developer stating that all bidders received the same set of
bid documents and any addenda issued, there are no pending disputes over
the bidding procedures, all applicable binding, insurance, and licensing
requirements have been met, and the bid was made without connection with
any collusion or fraud; and (c) a copy of the selected bid proposal for award.
(x) Developer shall retain the original documentation for all bids received for a
minimum of three (3) years after bid award.
(xi) Developer shall award all contracts to the lowest responsive, responsible
bidder within sixty (60) days after bid opening with concurrence of the District
Engineer, and shall authorize the contractor to proceed with the work within
sixty (60) days after award.
(xii) Developer shall not authorize the contractor to begin construction until the
following documentation has been submitted to, and approved by, the
District Engineer: (a) copies of the signed bid documents for the construction
of the Public Improvements; (b) copies of all insurance certificates for the
Developer and contractor; and (c) a written statement to certify and declare,
under penalty of perjury, that the bid documents and bidding procedures
were prepared and followed in accordance with the requirements of this
Agreement. Upon written approval from the District Engineer, the Developer
may issue the notice to proceed to the contractor.
(xiii) Developer shall schedule and conduct a pre-construction meeting prior to
the beginning of construction of the Public Improvements. Developer shall
invite the design engineer, District Engineer, contractor, inspector, and any
other interested parties.
(xiv) If Developer desires that any change order be included in the Reimbursable
Amount (defined below), Developer shall, prior to undertaking such work,
obtain the written approval of the District's Project Inspector as to the need to
perform the work in order to satisfactorily complete the construction of the
Improvements. The Project Inspector's approval shall be documented in
writing . If Developer undertakes such work prior to obtaining the Project
Inspector's written acknowledgment, Developer assumes the risk that the
costs for such change order may not be included in the Reimbursable
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Amount.
(xv) Contracts for the construction of the Public Improvements shall provide for
payments of prevailing wages by all contractors and subcontractors for all
work performed. Developer shall include the following provisions in the
contract for construction of the Public Improvements (which may incorporate
non-substantive changes to account for proper defined terms being used
therein):
The general prevailing rate of wages for each craft or type of
worker needed to execute the Contract shall be those as
determined by the Director of Industrial Relations pursuant to
the sections 1770, 1773, and 1773.1 of the Labor Code.
Pursuant to section 1773.2 of the Labor Code, a current copy of
applicable wage rates is on file in the Office of the City Engineer
of the City of Carlsbad. The Contractor to whom the Contract is
awarded shall not pay less than the said specified prevailing
rates of wages to all workers employed by him or her in the
execution of the Contract.
The Prime Contractor shall be responsible for insuring
compliance with provisions of section 1777 .5 of the Labor Code
and section 4100 et seq. of the Public Contracts Code,
"Subletting and Subcontracting Fair Practices Act." The City
Engineer is the City's "duly authorized officer" for the purposes
of section 4107 and 4107.5.
The provisions of Part 7, Chapter 1, of the Labor Code
commencing with section 1720 shall apply to the Contract for
work.
A contractor or subcontractor shall not be qualified to bid on, be
listed in a bid proposal, subject to the requirements of Section
4104 of the Public Contract Code, or engage in the performance
of any contract for public work, unless currently registered and
qualified to perform public work pursuant to Section 1725.5.
This project is subject to compliance monitoring and
enforcement by the Department of Industrial Relations.
The Prime Contractor and all subcontractors shall comply with
Section 1776 of the Labor Code, which generally requires
keeping accurate payroll records, verifying and certifying payroll
records, and making them available for inspection. Contractor
shall require all subcontractors to comply with Section 1776.
(xvi) Revisions to the Plans shall be reviewed and approved by the District
Engineer or City Engineer in accordance with the City's
Subdivision/Development Plan Check procedures.
(f) Developer shall warranty all work for one (1) year after recordation of the
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District-issued notice of completion and any faulty work or materials discovered
during the warranty period shall be repaired or replaced by Developer, at its
expense. Twenty-five percent of the faithful performance bond shall be retained
as a warranty bond for the one-year warranty period. Developer shall replace or
repair any such defective work in a manner satisfactory to the District Engineer,
after notice to do so from the District Engineer, and within the time specified in
the notice. If Developer fails to make such replacement or repairs within the time
specified in the notice, District may perform this work and Developer's
contractor's sureties shall be liable for the cost thereof.
4. General District Obligations. District shall reimburse Developer in an amount hereinafter
called the "Reimbursable Amount", which will be equal to the sum of the following costs
and expenses:
(a) The actual costs incurred for design and engineering services to prepare the
Plans, which shall not exceed 10 percent of the construction cost, exclusive
of change orders. Costs associated with design and engineering services
shall be limited to the preparation of plans and specifications, geotechnical
investigation, utility investigation and field survey associated with the portion
of reimbursable improvements.
(b) The actual costs incurred pursuant to construction contract(s) including any
change orders acknowledged as contemplated by Section 3(e)(xiv)
(c) An allowance equal to 4 percent of the construction contract costs, exclusive of
change orders, to cover Developer's construction management and
administrative expenses above the level of construction superintendent.
(d) An allowance equal to 1 percent of the construction contract costs to cover the
allocable portion of the premiums paid by Developer for improvement bonds
and payment and performance bonds for the Public Improvements.
(e) An allowance equal to 1.8% of the construction contract costs to reimburse the
Developer for the allocable portions of premiums paid by Developer for blanket
general liability insurance coverage.
5. Submittal and Audit of Reimbursable Amounts.
(a) Developer shall retain detailed payment records for all Reimbursable Amounts.
(b) Developer may submit requests for Reimbursable Amounts (each a
"Reimbursement Request") separately for each construction segment.
(c) Each Reimbursement Request shall include the following documentation as
applicable:
(i) Copies of the signed construction contract and all approved change
orders;
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(ii) A letter from the Developer certifying that the construction contractor and
all subcontractors have complied with the Labor Code prevailing wage
provisions on construction of the Public Improvements.
(iii) A printed spreadsheet together with a digital copy on disc, using
Microsoft Excel, showing all eligible and non-eligible costs for each
contractor, subcontractor, or vendor by bid item with the unit price bid,
estimated quantity, actual quantity, total bid amount, change order
amount, amount invoiced, cumulative amount invoiced, and retained
amount of 5%. A summary sheet of all costs shall be included with each
Reimbursement Request compared to the budget for each item of work
and cross-reference to the voicer and canceled check number.
(iv) Copies of invoices, electronic pay voucher spreadsheet, vouchers,
canceled checks (front and back), bank wire payments (e.g., Automatic
Clearing House or ACH payments), or other evidence of payment to
support the Reimbursement Request.
(v) Copies of all quantity vouchers or certificates approved by the Project
Inspector.
(vi) Itemized breakdown of all other Reimbursable Amounts allowed under
this Agreement.
(vii)For the final Reimbursement Request after Project completion,
Developer shall provide in addition to the items above: a copy of the
District-issued and recorded notice of completion; copies of all final
mechanics lien releases from each contractor, subcontractor or vendor;
and a copy of the approved as-built plans that incorporate all approved
changes.
(d) Each Reimbursement Request may be processed and audited for District by a
reputable consulting engineer selected by District ("Auditing Engineer"). The
costs of the Auditing Engineer shall be paid directly by District. Developer is
responsible for assembling reimbursement documents with digital files in an
organized manner that is easily discernible using logs, bookmarks, file naming
conventions, and/or folder structures.
(e) The Auditing Engineer shall review all Reimbursement Requests and the
documentation submitted in connection therewith and shall within thirty (30)
days thereafter issue to District a report ("Audit Report") either recommending
acceptance of Developer's Reimbursement Request or specifying with
particularity any items or amounts not recommended to be approved. The
Audit Report shall include copies of all original supporting documentation as
supplied by Developer. If the Auditing Engineer objects to only a portion of a
Reimbursement Request, he or she shall recommend rejecting payment on
the objectionable portion.
6. Payment of Reimbursable Amounts.
(a) Upon receipt and review of the Audit Report, the Public Works Director may
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reject any additional cost claim that is not eligible under this Agreement or for
which supporting documentation was not provided. If the Public Works Director
rejects payment on any cost claim comprising the Reimbursement Request,
the Public Works Director shall notify Developer within thirty (30) days after the
District's receipt of the Audit Report.
(b) Upon the Public Works Director's approval of an Audit Report, the District
Engineer shall mail a copy of the Audit Report together with a transmittal letter
to the Developer indicating District concurrence with the Audit Report and
approving the total amount of Reimbursable Amounts.
(c) Upon receipt of the approved Audit Report and transmittal letter, Developer
may submit an invoice to District requesting payment in the amount or
Reimbursable Amounts approved in the transmittal letter.
(d) In the event that Developer and the Public Works Director cannot agree on the
amount or eligibility of a claimed expense, the dispute procedures in Section 7
· shall be followed.
(e) Upon receipt of Developer's invoice in conformance with the approved Audit
Report, the District Engineer shall process the invoice for payment in
accordance with District invoice payment procedures. Resolution of any
disputed costs or items of work shall not delay processing of an invoice that
has been properly submitted by Developer for reimbursement of costs that
were deemed eligible for reimbursement by the Public Works Director.
(f) District shall be entitled to rely on the authenticity of all supporting data,
documents, representations, and certifications provided by Developer without
independent verification.
(g) Developer and District agree that the City's General Fund is not part of this
Agreement. The District has reserved funding in its "Capital Improvement
Program" for this project with funding supplied from water connection fees.
7. Disputes/Claims. If a dispute should arise regarding line performance or interpretation of
this Agreement, the following procedures 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 Public Works
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 Public Works Director or principal of Developer, upon receipt, shall reply to
the letter, including a recommended method of resolution within ten ( 10) days. If the
recommended resolution is unsatisfactory to the aggrieved party, the aggrieved party
may request an informal conference to informally resolve the disagreement. The informal
conference shall be held within fourteen (14) days of the request. If an informal
conference is not requested or if an informal conference fails to resolve the dispute, a
letter outlining the dispute shall be forwarded to the District Board of Directors for
resolution through the office of the Executive Manager. 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
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parties involved, although nothing in this procedure shall prohibit the parties from
seeking remedies available to them at law.
8. Indemnification. Other than the performance of design professionals services, Developer
shall defend, indemnify, and hold harmless the District and its officers, agents,
departments, officials, and employees ("Indemnified Parties") from and against all
claims, losses, costs, damages, injuries, expense, and liability of every kind that arise
out of or relate to, directly or indirectly, in whole or in part, any services performed under
this Agreement by Developer or Developer's agents, any subcontractor, anyone directly
or indirectly employed by them, or anyone they control. Notwithstanding the foregoing,
Developer's duty to defend, indemnify, and hold harmless shall not include any claims or
liabilities arising from the negligence or willful misconduct of the Indemnified Parties.
With respect to the performance of design professional services, to the fullest extent
permitted by law (including, without limitation, California Civil Code section 2782.8),
Developer shall require its design professional to indemnify and hold harmless District,
its officers and employees, from all claims, demands, or liability that arise out of or relate
to the negligence or willful misconduct of Developer's design professional or the design
professional's officers or employees.
9. Insurance. Developer will obtain and maintain for the duration of the Agreement and any
and all amendments, insurance against claims for injuries to persons or damage to
property which may arise out of or in connection with performance of the services by
Developer or Developer's agents, representatives, employees or subcontractors. The
insurance will be obtained from an insurance carrier admitted and authorized to do
business in the State of California. The insurance carrier is required to have a current
Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of
California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest
Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the
National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
9.1 Coverage and Limits.
Developer will maintain the types of coverage and minimum limits indicated below, unless
the City of Carlsbad Risk Manager approves a lower amount. These minimum amounts of
coverage will not constitute any limitations or cap on Developer's indemnification obligations
under this Agreement. District, its officers, agents and employees make no representation
that the limits of the insurance specified to be carried by Developer pursuant to this
Agreement are adequate to protect Developer. If Developer believes that any required
insurance coverage is inadequate, Developer will obtain such additional insurance
coverage, as Developer deems adequate, at Developer's sole expense. The full limits
available to the named insured shall also be available and applicable to District as an
additional insured.
9.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. If the submitted
policies contain aggregate limits, general aggregate limits will apply separately to the
work under this Agreement or the general aggregate will be twice the required per
occurrence limit.
9.1.2 Automobile Liability. (if the use of an automobile is involved for Developer's work for
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District). $1,000,000 combined single-limit per accident for bodily injury and property
damage.
9.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if
Developer has no employees and provides, to District's satisfaction, a declaration stating
this.
9.1.4 Professional Liability. Errors and omIssIons liability appropriate to Developer's
profession with limits of not less than $1,000,000 per claim. Coverage must be
maintained for a period of five years following the date of completion of the Public
Improvements.
9.2 Additional Provisions. Developer will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
9.2.1 District will be named as an additional insured on Commercial General Liability which
shall provide primary coverage to District.
9.2.2 Developer will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
9.2.3 This insurance will be in force during the life of the Agreement and any extensions of
it and will not be canceled without ten (10) days prior written notice to District sent by
certified mail pursuant to the Notice provisions of this Agreement.
9.3 Providing Certificates of Insurance and Endorsements. Prior to District's execution of
this Agreement, Developer will furnish certificates of insurance and endorsements to
District.
9.4 Failure to Maintain Coverage. If Developer fails to maintain any of these insurance
coverages, then District will have the option to declare Developer in breach, or may
purchase replacement insurance or pay the premiums that are due on existing policies
in order to maintain the required coverages. Developer is responsible for any payments
made by District to obtain or maintain insurance and District may collect these payments
from Developer or deduct the amount paid from any sums due Developer under this
Agreement. Prior to the District declaring Developer in breach, it shall provide Developer
with written notice of the applicable failure together with a reasonable opportunity to cure
the same.
9.5 Submission of Insurance Policies. District reserves the right to require, at any time,
complete and certified copies of any or all required insurance policies and endorsements.
10. Assignment of Contract. Developer shall not assign this contract or any part thereof or
any monies due thereunder without the prior written consent of District, which approval
shall not be unreasonably withheld.
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
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July 23, 2019 Item #4 Page 16 of 34
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 shown below. Notices required
to be given to Developer shall be addressed as follows:
LENNAR HOMES OF CALIFORNIA, INC
Attention: Project Manager
15131 Alton Parkway, Suite 365
Irvine, CA 92618
Telephone: (949) 349-8000
Notices to District shall be delivered to the following:
CARLSBAD MUNICIPAL WATER DISTRICT
Attention: General Manager
5950 El Camino Real
Carlsbad, CA 92008
Telephone: (760) 438-2722
Each party shall notify the other promptly of any changes of address that would
require any notice delivered hereunder to be directed to another address.
12. Transfer by Developer. The obligations and benefits of this Agreement shall not be
transferred upon sale of the Project.
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.
16. Amendment. This Agreement may be amended by a written instrument executed by
District and Developer except that no amendment regarding the provisions for
reimbursement to Developer shall be valid unless executed by both Developer and
District.
17. Term. This Agreement shall be effective as of the date first above written, and shall
terminate at the expiration of the warranty on the reimbursable improvements.
18. 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.
19. Severability. The invalidity or unenforceability of any provision of this Agreement, as
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July 23, 2019 Item #4 Page 17 of 34
determined by a court of competent jurisdiction, shall in no way affect the validity or
enforceability of any other provision hereof.
[SIGNATURE PAGE FOLLOWS]
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July 23, 2019 Item #4 Page 18 of 34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first above written.
LENNAR HOMES OF CALIFORNIA,
INC.,
a California corporation
By:
Name:
Its:
By:
Name: ________ _
Its:
CARLSBAD MUNICIPAL WATER
DISTRICT,
a Public Agency organized under the
Municipal Water District Act of 1911 and a
Subsidiary Distric of e Cit of Carlsbad,
Californi
By:
Name: all
Its: President
AT;f"EST ~ !Q-KULzl[~ ~ BARBARA ENGLESON, Secmry
(Proper notarial acknowledgment of execution by Developer must be attached.
Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution
certified by the secretary or assistant secretary under corporate seal empowering the
officer(s) signing to bind the corporation.)
APPROVED AS TO FORM:
CELIA A. BREWER, General Counsel
By:
-Signature Page-
July 23, 2019 Item #4 Page 19 of 34
EXHIBIT A
PRELIMINARY COST ESTIMATE
-Exhibit A -1-
July 23, 2019 Item #4 Page 21 of 34
EXHIBIT A
DESIGN AND CONSTRUCTION COST ESTIMATE
Poinsettia 61 Project
City of Carlsbad
550 PZ / 375 PZ Potable Water PR Station
· GR2017-0799
PUD 14-12 SOP 14-15
Project No. C.T. 14-10
Drawing No. 507-2
Prepared by: Dexter Wilson Engineering, Inc.
June 7, 2019
I Item I
DESIGN COSTS
Engineering Design -Pressure Reducing Station
Survey (Est.)
Geotechnical (Est.)
SUBTOTAL
CONSTRUCTION COSTS
Site Work, Sidewalk, Relief Valve Drain System
Excavation and Vault
Cla-Val Hydraulic Control Valves
Mechanical / Piping
Electrical / Instrumentation
SUBTOTAL
SUBTOTAL
Contin gency, 15% Construction Cost
TOTAL
Cost
$ 15,260
$ 10,000
$ 8,000
$ 33,260
$ 25,000
$ 60,000
$ 22,000
$ 45,000
$ 100 ,000
$ 252,000
$ 285,260
$ 37,800
$ 323,060
I
\ \ARTIC\Docs\663-057\Bond Estimate for PR Station\2019-06-07 Poinsettia 61 Design & Construction Cost
Estimate Exhibit A.xlsx/Sheetl
July 23, 2019 Item #4 Page 22 of 34
EXHIBIT B
PLANS
-Exhi bit B -1-
July 23, 2019 Item #4 Page 23 of 34