HomeMy WebLinkAboutCT 00-16; OBSLP Carlsbad LLC; 2003-0210327; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
District Secretary
CARLSBAD MUNICIPAL
WATER DISTRICT
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Please record this document
At no fee as it is to the benefit
Of the Carlsbad Municipal lM Water District (Gov. Code [6103]
DOC # 2003-0210327
FEB 25s 2003 4~46 PM
rnICIf4. REm
sty( DIE!B CaRlTY REWRDER'S OFFICE GREGORY J. SHITH, W REaRDER FEES: 0.00
SPACE ABOVE THIS LINE FOR RECORDERS USE
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF RECYCLED WATER PIPELINE IMPROVEMENTS
WITHIN POlNSElTlA PROPERTIES PLANNING AREAS 2,3, AND 4
CARLSBAD TRACT CT 00-16 (WATERS END)
Between
CARLSBAD MUNICIPAL WATER DISTRICT,
a Public Agency organized under the
Municipal Water District Act of 191 1, and a
Subsidiary District of the City of Carlsbad
AND
OBSLP Carlsbad LLC
AND
WL Homes, LLC
Rev. 1 /02/01
-1 -
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF RECLAIMED WATER PIPELINE IMPROVEMENTS
WITHIN POlNSElTlA PROPERTIES PLANNING AREAS 2,3, AND 4
CARLSBAD TRACT CT 00-16 (WATERS END)
(OBSLP Carlsbad LLC and WL Homes LLC
d.b.a. John Laing Homes - South Coast Division)
This Agreement for Reimbursement of Costs for the Construction of Reclaimed Water
Pipeline Improvements within Poinsettia Properties Planning Areas 2, 3, and 4, dated as of SAbu MV / 5 , 2003 ("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 191 1, and a Subsidiary District of the City of Carlsbad
("District"), and OBSLP CARLSBAD LLC ("Developer") a Delaware Limited Liability Company,
and WL Homes, LLC, a Delaware Limited Liability Company, d.b.a. John Laing Homes - South
Coast Division ("Developer"). Both OBSLP Carlsbad LLC and WL Homes LLC are referred to
collectively herein as the Developer with reference to the following recitals:
RECITALS
A. Developer is developing certain real property commonly known as Poinsettia
Properties Planning Areas 2, 3, and 4 (the "Property"), located in the City of Carlsbad,
California (the "City"), more particularly described as Carlsbad Tract No. 00-16, filed in the
Office of the County Recorder of San Diego County on June 19, 2002, as File No.
2002-051 9005.
B. The Planning Commission of the City adopted a series of resolutions on
June 20, 2001, approving the Poinsettia Properties Planning Areas 2, 3, and 4 project.
These approvals included the following: Assignment of a Carlsbad Tract Number (CT 00-16),
and issuance of a Planned Unit Development Permit (PUD 01-01), a Site Development Plan
(SDP 00-12), and a Coastal Development Permit (CDP 00-44). All of these Planning
Commission actions were adopted and approved by the Carlsbad City Council on July 24, 2001
(City Council Resolution No. 2001 -230).
C. The Property approvals require Developer to install recycled water pipelines in
Avenida Encinas to meet the needs of the homes and apartments to be built within the Property
(the "Project Requirements").
D. In addition to completing the Project Requirements, the District asked the
Developer to install a 24-inch diameter recycled water transmission pipeline and other
improvements in Avenida Encinas, referred to as the "Water Work" and described more
particularly in Section 3 (a) below.
E. The District and Developer recognize that the Water Work exceeds the
infrastructure otherwise required of Developer in connection with its build-out of the Property.
Developer agrees to cause the installation of the Water Work and the District agrees to
reimburse Developer as set forth in this Agreement.
Rev. 1 /02/01
-2 -
F. District and Developer acknowledge that Government Code Section 66485
allows the District to require a sub-divider to construct improvements benefiting property outside
the subdivision; and Government Code Section 66486 requires the District to enter into a
reimbursement agreement for such improvements. The parties intend that this agreement
satisfies the requirements of Government Code Section 66486.
NOW, THEREFORE, the 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 perform the Water Work,
as set forth herein, and the actual construction thereof, shall fully satisfy and constitute
compliance with all requirements regarding the Property solely with respect to the Water Work.
3. General Developer Obligations.
In consideration of the District's reimbursement and other undertakings
as set forth herein, Developer agrees to cause the construction of the
Water Work, by and through its general contractor, Watt Residential
Construction, Inc. ("Construction Manager"), which work shall include
the following improvements, as shown on City Drawing No. 403-1,
Sheets 1-7, dated August 19, 2002, prepared by PBS&J Consultants
(the "Plans") and as shown in the attached Exhibits "A" and "B" which are
incorporated herein by this reference:
(i) Construction of approximately 2,101 lineal feet of 24-inch
diameter steel (384 HGL) recycled water transmission pipeline in
Avenida Encinas north of Poinsettia Lane.
The Water Work shall include all necessary valves and appurtenankes,
including those necessary to connect the Water Work to the District's
pipelines in Avenida Encinas.
Any portion of the Water Work completed before the effective date of this
Agreement shall be included as a part of the Water Work for
reimbursement, subject to the other provisions of this Agreement.
Developer shall cause the construction of the Water Work in compliance
with the District-approved plans and specifications, and other design
documentation, as referenced within the project specifications on pages
30 and 31 for the Water Work.
Developer shall cause construction of all Non-Reimbursable Work at
Developer's cost.
By entering into this Agreement, Developer waives any and all potential
constitutional objections (Nolan/Dolan) relating to the Water Work
improvements.
Rev. 1 /02/01 -3 -
(f) It shall be the responsibility of the Developer to observe and follow the requirements of District as defined within the Project's specifications for
retention of records and the submittal of as-built plans, payroll records,
and other required documentation in connection with the Water Work
Improvements, as specified in this Agreement.
(9) Prevailing Wage. Pursuant to the California Labor Code, the director of the Department of Industrial Relations has determined the general prevailing rate of per diem wages in accordance with California Labor
Code, section 1773 and a copy of a schedule of said general prevailing
wage rates is on file in the office of the City Engineer, and is incorporated
by reference herein. Pursuant to California Labor Code, section 1775,
contractor shall pay prevailing wages for any laborers building the Water
Works. Contractor shall post copies of all applicable prevailing wages on
the job site.
4. General District Obliqations.
(a) The District shall reimburse Developer an amount (the "Reimbursement
Amount") 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
associated with the installation of the Water Work noted in the attached
Exhibits "B" and "C" which are incorporated herein by reference.
The Total Reimbursement Amount is currently estimated to be $495,460, calculated as follows:
5.
(b) District agrees to reimburse Developer for Reimbursable Water Work as
described in Sections 6 and 7 below.
(c) The Parties agree that all reimbursements made to Developer, pursuant
to this Agreement, shall be made only to WL Homes LLC, a Delaware
limited liability company, d.b.a. John Laing Homes - South Coast
Division.
Reimbursable Water Work.
(a) With respect to all hard costs of construction comprising the Water Work
Improvements, Construction Manager shall solicit bids from a minimum of
three reputable contractors. Reimbursable Water Work may be bid together with Non-Reimbursable work for that portion of the Water Work Improvements which are being bid by such contractor. Upon award of a
contract amount for the Water Work, the costs thereof shall be allocated among the categories (YJnitsll) consistent with the method and process used in Exhibit "C." The parties agree that the spreadsheet attached hereto as Exhibit "C is a fair allocation of the costs under such contract as among the categories of Reimbursable Water Work. Costs shown in Exhibit "C" are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement.
Rev. 1 /02/01 -4 -
3
(b) During the performance of any Reimbursable Water Work, Developer
shall retain detailed payment records for all items of Reimbursable Water
Work, for use by District 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 District to evidence the
completion and payment for each item of Reimbursable Water Work.
Reimbursement Requests may be submitted monthly in arrears,
as identified in Section 6 (a) below, by Developer for each segment of
work.
6. Audit of Reimbursable Expenses.
(a) Expenses for Reimbursable Water Work (including without limitation
overhead and the allowance permitted under clause (f) below) are
referred to herein collectively as "Reimbursable Expenses." Developer
shall be entitled to submit requests for Reimbursable Expenses monthly
in arrears, and separately for each construction segment.
(b) All Developer's Reimbursement Requests will 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 from Project Funds.
(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 District 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 8
below.
(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) District'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 (f) below).
Rev. 1 /02/01
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Notwithstanding anything herein to the contrary, and without limitation
and in addition to the Reimbursable Water Work, District specifically
agrees that each of the following shall be deemed Reimbursable
Expenses:
(i) An amount fixed at five percent (5%) of the eligible costs for
Reimbursable Water 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, bid
solicitation, general corporate legal and accounting fees and other
normal overhead expenses incurred by Developer, including:
(a) 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 Water
Work.
(b) An allowance to cover the allocable portion of
premiums paid by Developer for blanket liability
insurance coverage.
Before Developer submits all invoices to Director, Developer shall obtain
necessary or appropriate lien releases from all contractors, and shall
obtain from the District 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 such final lien
releases, approvals, and certificates shall be deemed the date of
completion of the Water Work Improvements (the "Completion Date").
All change orders shall be subject to approval by the District. At the time
of approval, the parties shall determine the portion of each change order
that 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 Water Work Improvements identified in
Exhibit "C", 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 Water Work Improvements in an
orderly, reasonable and prudent manner according to the standard
engineering and construction practice applicable to the improvements.
7. Payment of Reimbursable Expenses.
(a) Payment of Reimbursable Expenses ("Credit") shall be made, within sixty
(60) days after the Auditing Engineer's determination on any such
Reimbursement Request (or determination pursuant to Section 8 if
applicable). The Parties agree that all reimbursements made to
Developer, pursuant to this Agreement, shall be made only to WL Homes
LLC, a Delaware limited liability company, d.b.a. John Laing Homes -
South Coast Division.
Rev. 1 /02/01 -6 -
(b) The District shall not unreasonably withhold acceptance of the Water
Work Improvements.
(c) Developer and District 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.
8. 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
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, a letter outlining the dispute shall be forwarded to the District's Board of Directors for their resolution through the
office of the Executive Manager. The District's Board of Directors may, but is not obligated to
resolve the dispute. If the District's Board of Directors considers the dispute, and directs a
solution, the action of the District's Board of Directors shall be binding upon the parties
involved, although nothing in this procedure shall prohibit the parties from seeking remedies
available to them at law.
9. 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 Developer and District and shall run with the real property and create an equitable servitude upon the real
property. Upon the application of the Credit referred to in Section 7(a) for each respective Unit
and after District acceptance of District Improvements, 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 the respective Units and the equitable servitude hereby created shall automatically terminate as to each of said respective Units. Upon the request of Developer, District shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that each said Unit is 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 Developer.
10. Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District.
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 shown below. Notices required to be given to Developer shall be addressed as follows:
IHP Investment Fund Ill, L.P. WL Homes, LLC d.b.a. John Laing Homes
OBSLP Carlsbad LLC - South Coast Division Attn: Douglas C. Neff & Arnette McCrimmon Attention: Steve Kabel & Terry Crowther 19800 Mac Arthur Blvd., Suite 700 895 Dove Street, Suite 11 0 Irvine, CA 9261 2 Newport Beach, CA 92660 Telephone: (949) 851 -2121 Telephone: (949) 476-9090 Fax: (949) 851 -8284 Fax: (949) 476-9898
Rev. 1 /02/01
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Notices to District shall be delivered to the following:
CARLSBAD MUNICIPAL WATER DISTRICT
c/o City of Carlsbad
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
FAX: (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.
12. Transfer bv DeveloDer. The obligations and benefits of this Agreement shall not
be transferred upon sale of the Property.
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. Governinq 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 the Developer and the
District.
17. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on November 30, 2004.
18. 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.
Rev. 1 /02/01
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.
OBSLP Carlsbad LLC CARLSBAD MUNICIPAL WATER DISTRICT,
By: 7LL 22-
(sign here)
AnEST:
6?TG s. wCR\MrnN u. P.
(print name and title of signata*)
WL Homes, LLC, a Delaware limited liability company d.b.a. John Laing Homes - South Coast-Division
By:
(print name and title of signatory) u
(Proper notarial acknowledgment of execution by Contractor 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:
RONALD R. BALL, General Counsel
-9 - Rev. 1 /02/01
f
State of California 1
On MA A before me, ILL DTh )fl?fl, Notary
_. Public, DersonaN~appeyed fir y\ E 6 l??P [7r"+@m, ". >n
allv known to mor proved to me on the basis of satisfactory evidence to be the
whoG 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.
-10 - Rev. 1 1 /01/00
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 0~ a”pe } SS.
personally appeared Getfvcy c. %C.IYW~~ ab&. SfcUC \ ,
@personally known to me
proved to me on the basis of satisfactory
evidence
1 Name(s) of Signer($
I to be the person(s) whose name(s) dare
~
subscribed to the within instrument and
acknowledged to me that b&sk/they executed
the same in +is#wr/their authorized
capacity(ies), and that by ki4Hterltheir
signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)
acted, executed the instrument.
~
~
I WITNESS my hand and official seal.
Place Notary Seal Above
” V Signature of Notary Publlc
i OPTlONA L
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
1 Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer’s Name:
0 Individual
0 Corporate Officer - Title(s):
0 Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
C Other:
Signer Is Representing:
0 1999 National Notary Assmiallon * 9350 De Solo Ave.. P.O. Box 2402 * Chalsworlh, CA 91313-2402 w.na1lonalnotaryorg Prod. No. 5907 Reorder: Call Toll-Free 1-800-876-6827
- LOCATION MAP
1.
2.
NAME: ENClNA BASlN WATER RECLAlMATlON PROGRAM PROJECT PHASE /I PROJECT CWRF PlPELlNE TO NUMBER "D" TANKS REACH 2 38871-A A
WW BY: SCOV EVANS, CARLSAD ENGINEERING DEFT. 10/15/02 C: \CAPITAL\~~BA~ER\JB871-A.DM:
EXHIBIT "8"
WATERS END-AVENIDA ENCINAS NORTH OF POINSETTIA LANE
24 INCH STEEL (384 HGL) TRANSMISSION
CITY OF CARLSBAD
RECYCLED WATER PIPELINE QUANTITY TAKE-OFF
ITEM. ' ,, ' '" .- " -. ,; Q&$W,flES...., (( " . .. - 'UNIT I SHEET 3 I SliiET4 I TOTAL
24" CML&TC Steel Pipe LF I 1,050 I 1,051.19 1 2,101.19
Notes:
(1) The quantities shown above are from Drawing No. 403-1, Sheets 3 and 4, City dated 8/19/02.
EXHIBIT B
Sheet 1 of 1
EXHIBIT "C"
WATERS END-AVENIDA ENCINAS NORTH OF POINSETTIA LANE
24 INCH STEEL (384 HGL) TRANSMISSION
RECYCLED WATER PIPELINE IMPROVEMENTS
REIMBURSEMENT FOR CONSTRUCTION
place
3. Furnish and install shoring complete and in place LS $8,300
4. Furnish traffic control complete and in place LS $5,600
5. Provide for and furnish saw cut, removal and disDosal of asphalt. replacement of LS $29.065 I temporaw patch at Avenida Encinas. and oermanent Datch at connection in . ., I I Poinsettia Lane complete and in place '
Alternate Itermsc.
A. Provide a credit for saw cut, removal, disposal and replacement of a ternDorary I
, e-. " , - - - ../ ."~. *&.',,S.~ -~ - -1 ,-
paving at Avenida Encinas in the event pavement is n'ot in place at time of pipe
installation
.I
EXHIBIT C
Sheet 1 of 1