HomeMy WebLinkAboutCT 00-22; Redeemer By The Sea Lutheran Church of Carlsbad; 2002-1096936; Reimbursement Agreement/ReleaseC' ..
RECORDING REQUESTED BY
WHEN RECORDED MAIL TO:
City Clerk
CITYOF CARLSBAD
1200 Carlsbad Village Dr,
Carlsbad, CA 92008
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT FOR REIMBURSEMENT OF
CONSTRUCTION COSTS FOR
POINSETTIA LANE, REACH C
Between
CITY OF CARLSBAD,
a Municipal Corporation
AND
REDEEMER BY THE SEA LUTHERAN CHURCH OF CARLSBAD
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AGREEMENT FOR REIMBURSEMENT OF
CONSTRUCTION COSTS FOR
POINSETTIA LANE REACH C
This Agreement for Reimbursement of Construction Costs for Poinsettia Lane Reach C,
dated as ofmp&R 4 , 2002 ("Agreement"), is made at the City of Carlsbad, San Diego
County, California, by and between the CITY OF CARLSBAD, a municipal corporation ("City")
and REDEEMER BY THE SEA LUTHERAN CHURCH OF CARLSBAD, a California
non-profit religious corporation ("Developer"), collectively ("the Parties"), with reference to the
following recitals:
A.
B.
C.
D.
E.
F.
RECITALS
Developer is in the process of developing that certain real property located in the City of
Carlsbad, California, generally shown on Exhibit "A", attached hereto and made a part
hereof, as the Redeemer by the Sea Lutheran Church of Carlsbad.
Developer filed separate applications for tentative subdivision map and related approvals
with respect to Redeemer by the Sea Lutheran Church of Carlsbad ("Project").
The Project has been granted City approvals including without limitation: Tentative Tract
Map (CT 00-22), Conditional Use Permit (CUP 00-44), Coastal Development Permit
(CDP 00-64), Hillside Development Permit (01-12), all incorporated into and approved
by City per Planning Commission Resolutions 5 122, 5 123, 5 124 and 5 132 on
January 2,2002 and Zone Change (ZC 00-10) and Local Coastal Program Amendment
(LCPA 00-13) all incorporated and approved by Council Resolution 2002-050 on
February 12,2002. (collectively the "Approvals").
The Project is located within the boundaries of Bridge and Thoroughfare District No. 2
and Developer is required to pay fees in conjunction with Bridge and Thoroughfare
District No. 2 to finance construction of Poinsettia Lane as more particularly described
therein and as required by the Approvals.
The Parties agree that the construction of Poinsettia Lane is of importance to both parties.
A portion of the Poinsettia Lane Reach C alignment generally forms the northerly
boundary of the Project and Developer is ready to grade the Project, which provides
an opportunity to closely coordinate grading of both the Project and Poinsettia Lane
Reach C.
The Developer would experience delays to the Project if the grading and installation of
drainage facilities for Poinsettia Lane Reach C is not completed concurrent with the
grading for the Project.
The Parties acknowledge that Government Code Section 66485 allows the City to require
a sub-divider to construct improvements benefiting property outside the subdivision; and
in such circumstances, Section 66486 requires the City to enter into a reimbursement
agreement for such improvements. The Parties intend that this Agreement satisfy the
requirements of Government Code Section 66486.
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G. The Poinsettia Lane Reach C is a project for which the City has collected, and will
continue to collect, funds from the developers of projects located within the boundaries of
Bridge and Thoroughfare District No. 2, and financing from other governmental sources.
For purposes of this Agreement the City's financing program and resulting funds,
are referred to herein as "Financing Program Funds."
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals are true and correct and incorporated herein by this
reference.
2. Reimbursable Work. The portion of the Poinsettia Lane Reach C improvement
project which is the subject of this Agreement is hereafter referred to as
the "Reimbursable Work." The Reimbursable Work is fully described in
"Scope of Reimbursable Work and Estimated Cost Summary" attached hereto as
Exhibit "B" and made a part hereof, and generally consists of the grading for full
width road improvements, associated drainage improvements and utility access
improvements. Reimbursable work does not include the items identified in Exhibit "B" as 'non-reimbursable', or any other expenses that the City would not
incur if the City administered the construction of Poinsettia Lane.
3. General City Obligations.
(a) City shall expedite processing of the necessary plans, specifications, and
other design and bid documentation for the Reimbursable Work.
These plans and specifications are identified as City of Carlsbad Drawing
NO. 379-6.
(b) City has obtained, all easements and rights-of-way required to complete
construction of the Reimbursable Work not located within land which
comprises the Project.
(c) City shall pay the expenses of inspections and environmental monitoring
for the Reimbursable Work directly from the Financing Program Funds
and shall provide those services directly.
(d) City and Developer have obtained, or will obtain, all required
environmental and, other permits for the Reimbursable Work. City agrees
to process any environmental and other permits related to the
Reimbursable Work which may fall under City jurisdiction in a timely
manner, and shall not unreasonably withhold or delay approval of any
other permits needed for the Reimbursable Work.
(e) City agrees to allow Developer to separately post bonds and file a Grading
and Erosion Control Agreement for Poinsettia Lane, Drawing No. 379-6,
and construct the full width grading, drainage and utility access
improvements and the Project as one construction phase.
(f) City agrees to reimburse Developer for the costs of Reimbursable Work
subject to Sections 6 and 7 below.
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4. General Developer Obligations.
Developer shall utilize a bid list with the items of work included on
“Scope of Reimbursable Work and Estimated Cost Summary”
(Exhibit “B”) in competitively bidding construction of the Reimbursable
Work as a separate contract to a licensed contractor.
As the Reimbursable Work will be paid from the Financing Program
Funds, the Reimbursable Work shall be contracted at “prevailing wages”
in accordance with SB 975 (amending Government Code Section 63036,
and Labor Code Section 1720).
By entering into this Agreement, Developer waives any and all potential
constitutional objections (Nolan/Dolan) relating to the Poinsettia Lane
improvements.
It shall be the responsibility of the Developer to observe and follow the
requirements of City for retention of records and the submittal of
information in connection with the Reimbursable Work, as specified in
this Agreement.
Developer agrees to pay for all expenses related to the grading, installation
of drainage facilities for Poinsettia Lane, described herein, that the City
would not otherwise incur if the City administered the project.
Developer agrees to construct the road bed for Poinsettia Lane Reach C to
subgrade plus or minus 0.1 feet. Subgrade is defined herein as the road
centerline grade minus 17 inches as shown on City of Carlsbad Drawing
NO. 379-6.
Developer agrees to construct the full width grading and drainage facilities
associated with Poinsettia Lane Reach C as shown on City of Carlsbad
Drawing No. 379-6, by January 1 , 2003 if grading is allowed between
October 1, 2002 and January 1 , 2003 or by June 1, 2003 if grading is
prohibited from October 1,2002 to April, 2003.
5. Bidding;: Reimbursement Requests.
(a) With respect to all hard costs of construction comprising the Reimbursable
Work, Developer shall solicit bids from three reputable contractors.
Reimbursable Work will be bid and contracted separately from
Developer’s own Project work. Upon selection of the contractor by the
Developer for each component of Reimbursable Work, and agreement
upon a contract amount for each component, the costs of the lowest
responsible bidder thereof shall be allocated as necessary among the
categories consistent with the method and process used in Exhibit “B”.
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(b) During the performance of any Reimbursable Work, Developer shall
retain detailed payment records for all items of Reimbursable 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,
contracts, change orders, invoices, payment slips, cancelled checks
(front and back), lien releases and other documentation reasonably
required by City to evidence the completion and payment for each item of
Reimbursable Work. Reimbursement Requests may be submitted monthly
in arrears, as provided in Section 6(a) below, by Developer for each
component of work as the Reimbursable Work progresses.
6. Audit of Reimbursable Expenses.
Expenses for Reimbursable Work (including without limitation
Developer's overhead and allowance permitted under Section 6(e) 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 component of Reimbursable
Work.
All Developer's Reimbursement Requests will be processed and audited
by City forces or for the City by a reputable consulting engineer selected
by City. If utilized, the costs of a consulting engineer shall be paid directly
by City from Financing Program Funds.
The City shall, within thirty (30) days from receipt, review all
Reimbursement Requests and the payment records submitted in
connection therewith and issue to the Developer a statement either (i)
approving Developer's Reimbursement Request, or (ii) specifying with
particularity the amount and reasons for any reimbursement items or
amounts not approved. Any reimbursement items or amounts not approved
may be further pursued by Developer using the dispute resolution
provision of Section 8 below.
City's reimbursement obligations hereunder shall be based upon the actual
costs incurred by Developer in contracting for the Reimbursable Work
(in addition to Developer's overhead and the allowances specified in
Section 6(e) below).
Notwithstanding anything herein to the contrary, in addition to the actual
costs for Reimbursable Work incurred by Developer, City specifically
agrees that the total of the following items shall be deemed Reimbursable
at an amount fixed at seven and three tenths (7.3) percent of the actual
costs for Reimbursable Work, (exclusive of this clause (e)) to compensate
for the allocable portion of the following expenses:
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7.
(0
(ii)
(iii)
Premiums paid by Developer for improvement and/or payment and
performance bonds (if any) relating to the Reimbursable Work,
1.5%.
Premiums paid by Developer for its blanket liability insurance as
required for the Reimbursable Work, 1.8%.
Other construction management, administrative and overhead
expenses including salary and benefits, project supervision, staff of
Developer’s home office, and general corporate legal and
accounting fees, 4.0%.
(f) Prior to the submission to the Director of all Reimbursement Requests,
Developer shall obtain necessary or appropriate lien releases from the
Contractor, 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.
Reimbursable work will be deemed complete upon the City’s receipt of all
final lien releases, approvals, certificates, and City’s approval of the
construction punch list.
(g) All change orders shall be subject to approval by the Developer. At the
time of approval, the City shall determine the portion of the change order
allocated to separate components of Reimbursable Work. In making such
decisions, the City shall be guided by the following principles as they
apply to change orders:
(i) Changed or unknown circumstances.
(ii) Oversight in the original design.
(iii) Performing work in an orderly, reasonable and prudent manner
according to standard engineering and construction practices.
Pavment of Reimbursable Expenses.
(a) Payment of Reimbursable Expenses shall be made, within thirty (30) days
after the City’s determination on any Reimbursement Request
(or determination pursuant to Section 8 if applicable).
(b) Except as noted in Section 7(a) above, payment of any Reimbursable
Expenses under this Agreement shall not be reduced for fees or charges
that may be payable as a condition of obtaining permits for the Project.
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Reimbursable Expenses for items of Reimbursable Work paid for by
Developer in advance of construction of the Reimbursable Work (such as
construction mobilization) may be submitted for reimbursement with the
first Reimbursement Request submitted for such construction component,
provided Developer has advised the City in writing in advance of
incurring the expense and provided the City with a reasonable estimate of
such expense. If this Agreement is not approved by the Parties,
any expenses incurred by Developer shall not be deemed reimbursable.
The City shall not unreasonably withhold, condition or delay acceptance
of the Reimbursable Work.
The Parties agree that the sole source of reimbursement shall be the
Financing Program Funds and that the City's General Fund is not part of
this Agreement, and shall not be obligated under the terms of this
Agreement. City represents and warrants it has sufficient Financing
Program Funds presently available to make timely reimbursements as
provided herein.
8 . Disputes/Claims. If a dispute should arise regarding the performance or
interpretation of this Agreement, the following procedure shall be used to initially
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 the other party involved along
with proposed methods of resolution that would be of benefit to both parties.
The Public Works Director, or principal, upon receipt, shall reply to the letter,
including a proposed method of resolution within fifteen (15) days. If the
proposed resolution is unsatisfactory to the aggrieved party, a letter'outlining the
dispute shall be forwarded to the City Council for their resolution through the
office of the City Manager as soon as practicable. The City Council may, but is
not obligated to resolve the dispute. If the City Council considers the dispute, and
directs a solution, the action of the City Council shall be binding upon the parties
for purposes of processing any Reimbursement Requests, provided however,
nothing in this Agreement shall prohibit the parties from seelung remedies
available to them at law or equity.
9. Assimment of Contract. The Developer shall not assign this contract or any part
thereof or any monies due hereunder without the prior written consent of the City,
which consent shall not be unreasonably withheld, delayed or conditioned.
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10. Notices. Unless otherwise specifically provided herein, all notices, demands or
other communications given hereunder shall be in writing and shall be deemed to
have been duly delivered upon personal delivery, or by Federal Express
(or similar reputable express delivery service), or by facsimile transmission with
back-up copy mailed the same day, or as of the second business day after mailing
by United States Certified Mail, return receipt requested, postage prepaid, address
as specified herein. Notices required to be given to Developer shall be addressed
as follows:
REDEEMER BY THE SEA LUTHERAN CHURCH OF CARLSBAD
Attention: Ron Mazone, Congregational President
6356 Corte Del Abeto #lo0
Carlsbad, CA 92009
Telephone: (760) 43 1-8990
FAX: (760) 43 1-8990
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Engineering Department
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.
11. 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.
12. Governing Law and Venue. This Agreement shall be interpreted and enforced
under the laws of the State of California and venue shall be in San Diego County,
California.
13. 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.
14. Amendment. This Agreement may be amended only by a written instrument
executed by City and Developer.
15. Term. This Agreement shall be effective as of the date first above written, and
shall terminate on the earlier of (i) the date the City fully pays Developer its
Reimbursement Expenses, or (ii) January 1, 2005, subject to Developer’s
satisfaction of 6(f) above.
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16. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any
rights upon any individual or entity that is not a party hereto, and the parties
hereto expressly disclaim any such third-party benefit.
17. Indemnification. Developer shall assume the defense of, pay all expenses
of defense, and indemnify and hold harmless City, its officers, agents,
and employees, against any challenges to the award of contract(s) for the
Reimbursable Work to contractor(s). Defense costs include the cost of separate
counsel for the City, if the City reasonably requests separate counsel, as well as
the payment of any fines or judgments.
18. 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.
REDEEMER BY THE SEA LUTHERAN
CHURCH OF CARLSBAD, a California
non-profit religious corporation
By :
Ron Mazae
Congregational President
ATTEST:
City Clerk
APPROVED AS TO FORM:
RONALD R. BALL, City Attorney
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
personally appeared Rob fldpoflp Name@) of Slgner(s)
sonally known to me
evidence
to be the person@ whose name@) is/=
subscribed to the within instrument and
acknowledged to me that he/sh%eyexecuted
the same in his/hedhk authorized
capacity@& and that by hisltdtbeir
signature(+on the instrument the person(sf;or
the entity upon behalf of which the person#
acted, executed the instrument.
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