HomeMy WebLinkAboutCT 00-16; WL Homes LLC; 2005-0288022; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY
WHEN RECORDED MAILTO:
City Clerk
CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA 92008
DOC # 20054288022 I llllllll Ill 11111 lllll11lllllll1 Ill11 11111 lllll1lll1 IIIII IIIII 1111 Ill1
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APR 07,2005 4:46 PM
OFFICIAL RE CURDS SAN DIEGO COUNT'I'HECORDER'S OFFICE
GREGDRY --- - J. SMITH,. COUNTY RECORDER
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PAGES: 12
SPACE ABOVE THIS LINE FOR RECORDER'S USE
RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
WITHIN POINSETTIA PROPERTIES PLANNING AREAS 2, 3, AND 4
THE CONSTRUCTION OF 21-INCH DIAMETER INTERCEPTOR SEWER PIPELINE
CARLSBAD TRACT CT 00-16 (WATERS END)
Between
CITY OF CARLSBAD,
a Municipal Corporation
And
WL Homes, LLC
Rev. 1/26/05
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RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF THE INTERCEPTOR SEWER PIPELINE
WITHIN POINSETTIA PROPERTIES PLANNING AREAS 2, 3, AND 4
WL Homes LLC
(d.b.a. John Laing Homes - South Coast Division)
CARLSBAD TRACT CT 00-16 (WATERS END)
This Ratification of Agreement for Reimbursement of Costs for the Construction of the
ewer Pipeline within Poinsettia Properties Planning Areas 2, 3, and 4, dated as of
by and between the CITY OF CARLSBAD, a municipal corporation of the State of California
("City"), and WL Homes, LLC, a Delaware Limited Liability Company, d.b.a. John Laing Homes - South Coast Division ("Developer"). WL Homes LLC is referred to as the Developer with
reference to the following recitals:
3 , 2005 ("Agreement") is made at San Diego County, California,
RECITALS
A. Developer has developed a 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 design and construct sewer
facilities to the satisfaction of the Deputy City Engineer. Proposed public facilities shall be
reflected in the project public improvement plans.
D. City and Developer acknowledge that Government Code Section 66485 allows
the City to require subdivider to construct improvements benefiting property outside the
subdivision; but Section 66486 requires City to enter into a reimbursement agreement for such
improvements. The Parties intend that this Agreement satisfies the requirements of California
Government Code Section 66486.
E. The City requested and Developer as a subdivider consistent with Government
Code Section 66485 and Section 66486 has agreed, to construct approximately 667 lineal feet
of 21-inch diameter sewer pipeline, referred to as the "Reimbursable Sewer Work".
Rev. 1/26/05
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NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals above are true and correct and incorporated herein by
this reference.
2. Satisfaction of Obliaation. Developer's agreement to perform the Reimbursable
Sewer 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
Reimbursable Sewer Work.
3. General Developer Obliaations.
In consideration of the City's reimbursement and other undertakings as
set forth herein, Developer has caused the construction of the
Reimbursable Sewer Work, by and through its general contractor, Watt
Residential Construction, Inc. ("Construction Manager"), which work
included the following improvements, as shown on City Drawing No. 396-7,
sheets 8 and 9 and sheets referencing their location; dated May 6, 2002,
prepared by Project Design Consultants (the "Plans") and as shown in
the attached Exhibit "A" which are incorporated herein by this reference:
(i) Construction of approximately 667 lineal feet of 21-inch diameter
sewer pipeline in PVC, SDR-35, in and near Sand Shell Avenue.
The Sewer Work includes all necessary pipelines and access holes
including those necessary to connect the Sewer Work to the City's
existing pipelines as shown on the plans.
Any portion of the Reimbursable Sewer Work completed before the
effective date of this Agreement shall be included as a part of the
Reimbursable Sewer Work for reimbursement, subject to the other
provisions of this Agreement.
Developer shall have caused the construction of the Reimbursable Sewer
Work in compliance with the City-approved plans and specifications, and
other design documentation, as referenced within the plans.
Developer shall have caused the construction of all Non-Reimbursable
Sewer Work at Developer's cost. Non-Reimbursable Sewer Work shall
include all sewer work as shown on the plans except for the
Reimbursable Sewer Work.
Together, Reimbursable Sewer Work and Non-Reimbursable Sewer
Work shall be referred herein as the "Sewer Work".
By entering into this Agreement, Developer waives any and all potential
constitutional objections (Nollan/Dolan) relating to the Reimbursable
Sewer Work improvements.
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(9) It shall be the responsibility of the Developer to have observed and follow the requirements of City as defined within the Project's plans for retention
of records and the submittal of as-built plans, payroll records, and other
required documentation in connection with the Reimbursable Sewer Work
Improvements, as specified in this Agreement.
Reimbursement for Construction of 5% Overhead
(h) Pursuant to California Labor Code, section 1775, contractor shall have
paid prevailing wages for any laborers building the Reimbursable Sewer
Works. Contractor shall post copies of all applicable prevailing wages on
the job site. 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.
Estimated Total
4. General Citv Obliaations.
$1 06,210.00 $5,310.50 I
(a) The City 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 (9 below. The actual Total Reimbursable Construction Cost shall include all costs associated with the installation of the Reimbursable Work noted in the
attached Exhibits "B'l which is incorporated herein by reference.
The Total Reimbursement Amount is currently determined to be
$1 11,520.50 calculated as follows:
$1 11,520.50
(b) City agrees to reimburse Developer for Reimbursable Sewer 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.
5. Reimbursable Sewer Work.
(a) Reimbursable Sewer Work may have been bid together with Non-
Reimbursable Sewer Work for that portion of the Sewer Work
Improvements which are being bid by such contractor. The costs "Sewer
Work shall be allocated among the categories ("Units") consistent with the method and process used in Exhibit "B." The parties agree that the spreadsheet attached hereto as Exhibit "B" is a fair allocation of the costs
under such contract as among the categories of Reimbursable Sewer
Work. Costs shown in Exhibit "B" are subject to modification through
change orders pursuant to Paragraph 6(h) of this Agreement.
Rev. 1/26/05
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(b) During the performance of any Reimbursable Sewer Work, Developer
shall retain detailed payment records for all items of Reimbursable Sewer
Work, for use by City in auditing subsequent reimbursement requests by
Developer. Developer's requests for reimbursement (each a
"Reimbursement Request") shall include copies of plans, specifications,
engineer's cost estimates, bids received, contracts, change orders,
invoices, payment slips, canceled checks (front and back), lien releases
and other documentation reasonably required by City to evidence the
completion and payment for each item of Reimbursable Sewer Work.
Reimbursement Requests may be submitted monthly in arrears,
as identified in Section 6 (a) below, by Developer for each segment of
work.
6. Audit of Reimbursable Expenses.
(a) Expenses for Reimbursable Sewer Work (including without limitation
overhead and the allowance permitted under clause (9 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 City by a reputable consulting engineer selected by City or by City
staff ("Auditing Engineer"). The costs of the Auditing Engineer shall be
paid directly by City 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 City and Developer a report either accepting
Developer's submittal or specifying with particularity any reimbursement
items or amounts not approved. Any reimbursement items or amounts
not approved by the Auditing Engineer may be further pursued by
Developer using the dispute resolution provision of Section 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) City's reimbursement obligations hereunder shall be based upon the
actual costs incurred by Developer in performing Reimbursable Work
(including overhead and the allowances specified in (9 below).
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Rev. 1/26/05
IO
7.
(9 Notwithstanding anything herein to the contrary, and without limitation
and in addition to the Reimbursable Sewer Work, City 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 Sewer Work, exclusive of this clause (9, 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
Reimbursable Sewer Work.
(b) An allowance to cover the allocable portion of
premiums paid by Developer for blanket liability
insurance coverage.
(9) Before Developer submits all invoices to Director, Developer shall obtain
necessary or appropriate lien releases from all contractors, and shall
obtain from the City and all appropriate governmental agencies,
all approvals, certificates, and other documents necessary to indicate the
completion of the Reimbursable Work, and the ability to put the Public
Improvements into use. The date Developer receives all such final lien
releases, approvals, and certificates shall be deemed the date of
completion of the Sewer Work Improvements (the "Completion Date").
(h) All change orders shall be subject to approval by City. At the time of
approval, the parties shall determine the portion of each change order that
is allocated to Reimbursable Sewer Work. In making such decisions,
the parties shall be guided by the principle that the allocation of the
portion related to Reimbursable Sewer Work should be in proportion to
the allocation for that portion of the Sewer Work Improvements identified
in Exhibit "B" provided that the change order is necessary due to:
changed circumstances or oversight in original design; or to perform the
applicable portion of the Sewer Work Improvements in an orderly,
reasonable and prudent manner according to the standard engineering
and construction practice applicable to the improvements.
Pavment 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. 1/26/05
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(b) The City shall not unreasonably withhold acceptance of the Reimbursable
Sewer Work Improvements.
(c) Developer and City agree that the City's General Fund is not part of this
Agreement, and shall not be obligated under the terms of this Agreement
nor available for reimbursement purposes.
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 (IO)
days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining
the dispute shall be forwarded to the City's Board of Directors for their resolution through the
office of the Executive Manager. The City's Board of Directors may, but is not obligated to
resolve the dispute. If the City's Board of Directors considers the dispute, and directs a solution,
the action of the City'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 Property. This Agreement and the
covenants contained herein shall be binding upon and inure to the benefit of the Developer and City 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 City acceptance of City 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, City
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 City.
11. Notices. Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and shall be deemed to have been
duly delivered upon personal delivery, or by Federal Express (or similar reputable express
delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of
the second business day after mailing by United States Certified Mail, return receipt requested,
postage prepaid, address as shown below. Notices required to be given to Developer shall be
addressed as follows:
WL Homes, LLC d.b.a. John Laing Homes - South Coast Division
Attention: Scott Nguyen
191 7 Palomar Oaks Way, Suite 200 Carlsbad, CA 92008 Telephone: (760) 448-3900 Fax: (760) 448-3901
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Rev. 1/26/05
12
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
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 Developer. 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. 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 City and Developer except that no amendment regarding the provisions for reimbursement
to Developer shall be valid unless executed by both the Developer and the City.
17. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on November 30, 2005.
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.
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Rev. 1/26/05
13
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 executed as of the date first above written.
WL Homes, LLC, a Delaware limited
JOh )Y\eilc\-dwq
(print name and title of signatory) J
By: %-
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AG@- c SC3-K @Gd.JP ~ by3AEJm (print name and title o'f signatory)
By:
(sign here)
hereto have caused this Agreement to be
n ATTEST:
LORRAINE M. W@D City Clerk
I
(print name and title of signatory)
By:
(sign here)
(print name and title of signatory)
(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
BY:
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Rev. 1/26/05
ILt
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
@personally known to me
0 proved to me on the basis of satisfactory
evidence
to be the person(s) whose name(s) Ware
subscribed to the within instrument and
acknowledged to me that he/ske/they executed
the same in RiECkerltheir authorized
capacity(ies), and that by hisCker/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 and official seal.
- & -
Signature of Notary Public
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.
Description of Attached Document
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Document Date:
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0 Corporate Officer - Title(s):
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Signer Is Representing:
0 1999 National Notary Association * 9350 De Soto Ave , PO Box 2402. Chatswolth, CA 91313-2402. www natlonalnotaryorg Prod No 5907 Reorder Call Toll-Free 1-800-876-6827
SEWER PIPELINE
DRAW BY ME. CARLSBAD ENUNEERINC MPT. 02/10/03 C: \CAD &awings\LoCAnoN YAPS\Swr Reloc Poinsettia-Avefncinas.DW
EXHIBIT “B”
COST ASSOCIATED WITH THE
INSTALLATION OF THE 21” PVC SEWER MAIN