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HomeMy WebLinkAboutCT 83-32; Cypress Valley LLC; 2003-0693209; Reimbursement Agreement/ReleaseDOC # 2003-0693207 RECORDING 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 Water District (Gov. Code [6103] OFFICIAL. RECORDS S4i4 DIEGO WUNTY RECORDER'S OFFICE GEGW J. WTH, CCUJNTY RECORER FEES: 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF OVERSIZED RECYCLED WATER TRANSMISSION MAIN IMPROVEMENTS WITHIN CALAVERA HILLS VILLAGES Q AND T CARLSBAD TRACT CT 83-32 AND 83-1 9 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 CYPRESS VALLEY, LLC CMrdD AB #549 May 20, 2003 Rev. 1/02/01 -1 - RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF OVERSIZED RECYCLED WATER TRANSMISSION MAIN IMPROVEMENTS WITHIN CALAVERA HILLS VILLAGES Q & T (CYPRESS VALLEY, LLC) CARLSBAD TRACT CT 83-32 AND 83-1 9 This Ratification of Agreement for Reimbursement of Costs for the Construction of Recycled Water Transmission Main Improvements within Calavera Hills Villages Q & T dated as of M&'I 223 , 2003 ("Agreement") is made at San Diego County, California, by and bitween 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 CYPRESS VALLEY, LLC ("Cypress") a Delaware limited liability company (Cypress), with reference to the following recitals: RECITALS A. Cypress is the record owner of certain real property located in the City of Carlsbad, California, more particularly described on Exhibit "A" attached hereto and made a part hereof (Calavera Hills). The Calavera Hills consists of several villages, as designated on Exhibit "A". As used herein, the term "Village" shall refer, as indicated, to one or more of such Villages so designated on Exhibit "A". B. All of the Villages of Calavera Hills, are herein referred to collectively as the "Calavera Hills Project." Cypress is the developer of the Calavera Hills Project. C. The City Council of City approved the Final Maps and Subdivision Agreements for Tracts 83-32 & 83-1 9 (Villages Q & T) on July 7, 1992. D. In addition to completing the Project requirements, the District requested Cypress to oversize the recycled water pipeline in College Boulevard and Tamarack Avenue from an 8-inch diameter pipe to a 12-inch diameter recycled water transmission main referred to as the "Recycled Water Work" and described more particularly in Section 3 (a) below. E. District and Cypress recognize that the Recycled Water Work exceeds the infrastructure otherwise required of Cypress as required by the Reclaimed Water Master Plan. Cypress agrees to construct or cause the construction of the Recycled Water Work provided the District agrees to reimburse Cypress as set forth in this Agreement. F. Cypress completed installation of the 12-inch diameter recycled water transmission main in College Boulevard and Tamarack Avenue in approximately April 2000 to the District's satisfaction. G. District and Cypress desire to enter into a ratification of reimbursement agreement, which covers the Reimbursable Work contemplated by the construction of the Recycled Water Work. H. District and Cypress acknowledge that Government Code Section 66485 allows the District to require a subdivider 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. -2 - Rev. 1/02/01 NOW, THEREFORE, the District and Cypress agree as follows: 1. Recitals. The Recitals above are true and correct and incorporated herein by this reference. 2. Satisfaction of Obligation. Cypress' agreement to perform the Recycled Water Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Calavera Hills Project solely with respect to the Recycled Water Work. 3. General CvDress Obliaations. In consideration of the District's reimbursement and other undertakings as set forth herein, Cypress agrees to cause the construction of the Recycled Water Work, by and through its general contractor, Corky McMillin Construction Services, ("Construction Manager"), consistent with paragraph 5(a), below, which work shall include the following improvements, as shown on City Drawing No. 303-2, Sheet 2c, 4, 5, 15, 18 and 19 prepared by Hunsaker & Associates, and Drawing No. 304-7, Sheets 10 and 11, prepared by Hunsaker & Associates, (the "Plans") and as shown in the attached Exhibit "B" which is incorporated herein by this reference: (i) Exhibit "B, recycled water pipeline, oversizing of approximately 1,464 lineal feet of a 8-inch diameter PVC pipe to a 12-inch diameter PVC pipe (550 HGL) in College Boulevard and oversizing of approximately 3,972 lineal feet of 8-inch diameter PVC pipe to 12-inch diameter PVC pipe (550 HGL) in Tamarack Avenue. The Recycled Water Work shall include all necessary valves and appurtenances, including those necessary to connect the Recycled Water Work to the District's potable water pipeline in College Boulevard. Any portion of the Recycled Water Work completed before the effective date of this Agreement shall be included as a part of the Recycled Water Work for reimbursement, subject to the other provisions of this Agreement. Cypress shall cause the construction of the Recycled Water Work in compliance with the District-approved plans and specifications, and other design documentation incorporated herein by reference for the Recycled Water Work. Cypress shall cause construction of all Non-Reimbursable Work at Cypress' cost. By entering into this Agreement, Cypress waives any and all potential constitutional objections (Nollan/Dolan) relating to the Recycled Water Work improvements. It shall be the responsibility of Cypress to observe and follow the requirements of District for retention of records and the submittal of information in connection with the Recycled Water Work Improvements, as specified in this Agreement. Rev. 1/02/01 -3 - 4. General District Obliqations. (a) The District shall reimburse Cypress an amount (the "Reimbursement Amount") equal to: (i) the actual Total Cost for reimbursement for oversizing; plus (ii) an allowance for overhead as described in Section 6 (f) below. The actual Reimbursable Amount shall include all costs associated with the installation of the Recycled Water Work. The Reimbursable Amount for the oversizing of recycled water pipelines in Tamarack Avenue and College Boulevard is $78,735, calculated as follows: oversizing of an 8-inch to a 12-inch diameter recycled water pipeline $73,930 $4,805 $78,735 1 (b) District agrees to reimburse Cypress for Reimbursable Recycled Water Work as described in Sections 6 and 7 below. 5. Reimbursable Recvcled Water Work. (a) With respect to all hard costs of construction comprising the Recycled 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. The parties agree that the spreadsheet attached hereto as described in section 4(a) is a fair allocation of the costs under such contract as among the categories of Reimbursable Recycled Water Work. Costs shown in section 4(a) are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement. (b) During the performance of any Reimbursable Recycled Water Work, Cypress shall retain detailed payment records for all items of Reimbursable Recycled Water Work, for use by District in auditing subsequent reimbursement requests by Cypress. Cypress' 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 Recycled Water Work. Reimbursement Requests may be submitted monthly in arrears, as identified in Section 6 (a) below, by Cypress for each segment of work. 6. Audit of Reimbursable Expenses. (a) Expenses for Reimbursable Recycled Water Work (including without limitation overhead and the allowance permitted under clause (f) below) are referred to herein collectively as "Reimbursable Expenses." Cypress shall be entitled to submit requests for Reimbursable Expenses monthly in arrears, and separately for each construction segment. Rev. 1/02/01 -4 - (b) All Cypress' 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 Cypress a report either accepting Cypress' 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 Cypress 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 Cypress 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 Cypress within thirty (30) days of receipt of all invoices forwarded by Cypress. Failure to so notify Cypress 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 Cypress in performing Reimbursable Work (including overhead and the allowances specified in (f) below). (f) Notwithstanding anything herein to the contrary, and without limitation and in addition to the Reimbursable Work, District specifically agrees that each of the following shall be deemed Reimbursable Expenses: (i) An amount fixed at 6.5 percent (6.5%) of the eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead expenses incurred by Cypress including for salary and benefits, for staff of Cypress' home office, purchasing department expenses, project supervision, bid solicitation, general corporate legal and accounting fees and other normal overhead expenses incurred by Cypress, including: (a) An allowance to cover the allocable portion of premiums paid by Cypress for improvement and/or payment and performance bonds relating to the construction of Recycled Water Work. (b) An allowance to cover the allocable portion of premiums paid by Cypress for blanket liability insurance coverage. -5 - Rev. 1/02/01 Before Cypress submits all invoices to Director, Cypress shall obtain necessary or appropriate lien releases from the Contractor, 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 Cypress receives all such final lien releases, approvals, and certificates shall be deemed the date of completion of the Recycled 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, which is allocated to Reimbursable Work. In making such decisions, the parties shall be guided by the principle that a change order may be necessary due to changed circumstances or oversight in original design, or it is required in order to perform the applicable portion of the Recycled 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 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 District shall not unreasonably withhold acceptance of the Recycled Water Work Improvements. (b) (c) Cypress 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 Cypress 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 (1 0) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the 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 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. -6 - Rev. 1/02/01 9. 10. 11. 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 Cypress and District and shall run with the real property and create an equitable servitude upon the real property. After District acceptance of Reimbursable Water Work, 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, and the equitable servitude hereby created shall automatically terminate. Upon the request of Cypress, District shall execute and deliver to Cypress, 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 Cypress. Assiqnment of Contract. Cypress shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District. 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 Cypress shall be addressed as follows: CYPRESS VALLEY, LLC Attention: Mr. Don Mitchell 2727 Hoover Avenue National City, CA 91950 Telephone: (61 9) 336-3673 Fax: (61 9) 336-301 0 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 CvDress. The obligations and benefits of this Agreement shall not be transferred upon sale of the Calavera Hills 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. -7 - Rev. 1/02/01 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 Aqreement. 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 Cypress except that no amendment regarding the provisions for reimbursement to Cypress shall be valid unless executed by both Cypress and the District. 17. Term. This Agreement shall be effective as of the date first above written, and shall terminate on January 1, 2010. 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. -8 - Rev. 1/02/01 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. CYPRESS VALLEY, LLC, a Delaware Limited Liability Company By: McMlLLlN COMPANIES, LLC, a Delaware Limited Liability Company ITS MANATME By: (sign here) * (print name and title of siQnatory) - CARLSBAD MUNICIPAL WATER DISTRICT, (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: RONA)BR,BALL, General Counsel - BY: -General Counsel BW-- Rev. 1/02/01 -9 - State of California . 1 ? Y 7- YYYY Y - Y - 4 On &r~)ar~j Z? ~002~~ before me, E\ \z(kkth -u. Ere ill , Notary -to be the personally known to me person whose 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. Public, personally appeared 1 I Mi LE1 At l(U3 O-Il I;&, WITNESS my hand and official seal. % State of California ) 1 County of 1 On before me, Notary Pu is to me or proved to me on the basis of satisf the person whose name is subscribed to the within instrument and acknowledged executed the same in his authorized capacity, and that by his signature on the i person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. -10 - Rev. 1 1 /01/00 EXHIBIT “A” LEGAL DESCRIPTION CALAVERA HILLS - VILLAGES Q AND T ALL OF CARLSBAD TRACT NO. 83-32, CALAVERA HILLS VILLAGE Q, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12950 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 16,1992 AND ALL OF CARLSBAD TRACT NO. 83-19, CALAVERA HILLS VILLAGE T, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12951 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 16,1992 8 REV 08/20/02