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HomeMy WebLinkAboutCT 93-03; Western Pacific Housing-Poinsettia LP; 2002-0000000; Reimbursement Agreement/ReleaseAGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF WATER AND RECLAIMED WATER PIPELINE IMPROVEMENTS WITHIN POINSETTIA HILL, CARLSBAD TRACT 93-03 Between CARLSBAD MUNICIPAL WATER DISTRICT And WESTERN PACIFIC HOUSING-POINSETTIA LIMITED PARTNERSHIP Rev. 1/02/01 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF WATER AND RECLAIMED WATER PIPELINE IMPROVEMENTS WITHIN POINSETTIA HILL, CARLSBAD TRACT 93-03 (WESTERN PACIFIC HOUSING - POINSElTIA L.P.) This Agreement for Reimbursement of Costs for the Construction of Water and M kkCH Aq , 2002 ("Agreement"), is made at San Diego County, California, Reclaimed Water Pipeline Improvements within Poinsettia Hill, CT 93-03. dated as of 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 WESTERN PACIFIC HOUSING, POINSETTIA LIMITED PARTNERSHIP, a California Limited Partnership ("Developer"), with reference to the following recitals; RECITALS property commonly known as Poinsettia Hill, located in the City of Carlsbad, California A. Developer owned from February 27, 1997 to February 11. 2002 a certain real (the "City"), more particularly described as Carlsbad Tract No. 93-03. filed in the Office of the County Recorder of San Diego County on September 12, 1997, as File No. 1997-0443862, Map No. 13475. B. The Planning Commission of the City adopted a series of resolutions on January 5, 1994 approving the Poinsettia Hill project. A Mitigated Negative Declaration dated November 11, 1993, a Tentative Subdivision Map (CT 93-03), a Condominium Permit (CP 93-02). a Site Development Plan (SDP 93-02), and a Hillside Development Permit (HDP93-02). All of such Planning Commission actions were adopted and approved by the City Council of the City of Carlsbad on April 5, 1996 (City Council Resolution No. 94-93). Thereafter, the City Council approved a one-year extension of time on April 9, 1996 (City Council Resolution No. 96-122). C. The Poinsettia Hill project approvals require Developer to install water and reclaimed water pipelines in Cassia Road to meet the needs of the homes and apartments to be built within Poinsettia Hill (the "Project Requirements"). D. The District has requested Developer to install a 30-inch diameter potable water transmission pipeline, an 18-inch diameter reclaimed water transmission pipeline and other improvements in Cassia Road, collectively 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 Poinsettia Hill. Developer agrees to install or cause the installation of the Water Work provided that the District agrees to reimburse Developer as set forth in this Agreement. -1- Rev. 1/02/01 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; but 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 are true and correct and incorporated herein by this reference. 2. Satisfaction of Obliaation. 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 Poinsettia Hill solely with respect to the Water work. 3. General Developer Obliaations. In consideration of the District's reimbursement and other undertakings as set forth herein, Developer agrees to install the Water Work, which shall include the following improvements, as shown on City Drawing No. 354-9, Sheets 3, 4, and 5, dated August 16, 1997, prepared by Hunsaker & Associates (the "Plans") and as shown in the attached Exhibit "A" and "B" which is incorporated herein by reference: (i) Oversizing of approximately 2,031 lineal feet of 30-inch diameter steel CML&C (550 HGL) potable water transmission pipeline in Cassia Road; (ii) Oversizing of approximately 1,990 lineal feet of 18-inch diameter ductile-iron (384 HGL) reclaimed water transmission pipeline in Cassia Road; The Water, Work shall include all necessary valves and appurtenances, including those necessary to connect the Water Work to the District's pipelines in Cassia Road. 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 install the Water Work substantially in compliance with the District-approved plans and specifications, and other design documentation for the Water Work. Developer shall cause construction of all Non-Reimbursable Work at Developer's cost. -2- Rev. 1/02/01 (e) By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Water Work improvements. (f) It shall be the responsibility of the Developer to observe and follow the requirements of District for retention of records and the submittal of information in connection with the Water Work Improvements, as specified in this Agreement. 4. General District Obliqations. (a) The District shall reimburse Developer an amount (the "Reimbursement Amount") equal to: (i) the actual Total Cost for reimbursement for construction of oversizing; plus (ii) an allowance for overhead as described in Section 6 (f) below. The actual Total Reimbursable 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 Reimbursable Cost is currently estimated to be $353,706, calculated as follows: (b) District agrees to reimburse Developer for Reimbursable Water Work as described in Sections 6 and 7 below. 5. Reimbursable Water Work. (a) With respect to all hard costs of construction comprising the Water Work Improvements, Developer shall solicit bids from 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 agreement of a contract amount for the Water Work, the costs thereof shall be allocated among the categories consistent with the method and process used in the 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. -3- Rev. 1/02/01 (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, and other documentation reasonably required by District to payment slips, canceled checks (front and back), lien releases 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 ExDenses. 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: 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. 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 specifying with particularity any reimbursement items or amounts Developer a report either accepting Developer's submittal or 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. With each Reimbursement Request, following 30-day review by Auditing Engineer, the Auditing Engineer shall forward one copy of each invoice submitted to Developer by Contractor, to the City's other components of the Actual Cost not otherwise reflected on Public Works Director ("Director"), together with an invoice for all 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 thirty (30) days of receipt of all invoices forwarded by Developer. Reimbursement Amount, the Director shall notify Developer within approval of such invoices. Failure to so notify Developer shall be deemed the Director's -4- Rev. 1/02/01 (e) District's reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing specified in (f) below). Reimbursable Work (including overhead and the allowances (f) Notwithstanding anything herein to the contrary, and without specifically agrees that each of the following shall be deemed limitation and in addition to the Reimbursable Work, District Reimbursable Expenses: (i) An amount fixed at five percent (5%) of the eligible costs for Reimbursable Work, exclusive of this clause (0. to compensate for overhead expenses incurred by Developer including for salary and benefits, for staff of Developer's supervision, general corporate legal and accounting fees home office, purchasing department expenses, project and other normal overhead expenses incurred by Developer, including: (a) An allowance to cover the allocable portion of and/or payment and performance bonds relating to premiums paid by Developer for improvement the construction of Water Work. (b) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage. (9) Prior to the submission to the Director of all invoices, Developer 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 lien releases, approvals, and certificates shall be deemed the Improvements into use. The date Developer receives all such final date of completion of the Water Work Improvements (the "Completion Date"). (h) All change orders shall be subject to approval by both the District and Developer. At the time of approval, the parties shall also determine the portion of the change order which is allocated to be guided by the principle that if a change order is necessary due Reimbursable Work. In making such decisions, the parties shall to changed circumstances or oversight in original design, or if it is Work Improvements in an orderly, reasonable and prudent required in order to perform the applicable portion of the Water manner according to the standard engineering and construction practice applicable to the improvements, then the allocation of the portion to Reimbursable Work should be in proportion to the allocation as between Reimbursable Work in Exhibit "C" for that portion of the Water Work Improvements. -5- Rev. 1 /02/0 1 allocation as between Reimbursable Work in Exhibit "C for that portion of the Water Work Improvements. 7. Pavment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made, within sixty (60) days after the Public Works Director's determination on any such Reimbursement Request (or determination pursuant to Section 8 if applicable). (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. DisputedClaims. 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 resolution thus obtained 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 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 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 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. Assionment of Contract. The Contractor shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District. -6- Rev. 1/02/01 demands or other communications given hereunder shall be in writing and shall be deemed to 11. Notices. Unless otherwise specifically provided herein, all notices, 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: Western Pacific Housing-Poinsettia, L.P. Attention: Scot Sandstrom 5790 Fleet Street, Suite 210 Carlsbad, CA 92009 Telephone: (760) 929-1600 FAX: (760) 929-1601 Notices to District shall be delivered to the following: CARLSBAD MUNICIPAL WATER DISTRICT do City of Carlsbad Attention: Public Works Director Carlsbad, CA 92008 1635 Faraday Avenue 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 Poinsettia Hill. 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. enforced under the laws of the State of California, and venue shall reside in San Diego County, 14. Governina Law and Venue. This Agreement shall be interpreted and California. 15. Complete Aareement. 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. executed by District and Developer (including for this purpose any successors of Developer, 16. Amendment. This Agreement may be amended by a written instrument to the extent of their ownership of real property within Poinsettia Hill; except that no amendment the Developer and the District. regarding the provisions for reimbursement to Developer shall be valid unless executed by both -7- Rev. 1/02/01 17. Term. This Agreement shall be effective as of the date first above written, and shall terminate on the earlier of (i) the date the District fully reimburses Developer the Reimbursement Amount, or (ii) January 1.2015. 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. Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill Ill -a- 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. WESTERN PACIFIC HOUSING- CARLSBAD MUNICIPAL W POINSETTIA LIMITED PARTNERSHIP, ;15 Partnership ( 9 ere 1 c0.r c . C’;L<MJSfwI\I1 (print name and I 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 -9- Rev. 1/02/01 1 UNANIMOUS WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF AP LHI, INC. We, the undersigned, as member of the Board of Directors of AP LHI INC., a corporation organized under the General Corporation Law of California (the “Corporation”), being all the members of such Board as presently constituted, do by this writing consent to take the following actions and adopt the following resolutions: WHEREAS, the Corporation is the managing general partner of Western Pacific Housing-Poinettia, L.P., a California limited partnership, (“WPH’); and WHEREAS, WPH is in the business of acquiring property and engaging in the development, zoning, rezoning, design, improvement and construction of single family residences, townhouses, and condominiums upon such property for sale to the home-buying public; and WHEREAS, it is in the interest of WPH to negotiate, enter into, modify and terminate agreements involving third parties relating to the business of WPH; and WHEREAS, Scot C. Sandstrom, Vice President of the Corporation, in its capacity as the managing member of WPH, has from time to time negotiated signed, modified and terminated various agreements dealing with H.O.A. documents, CC&Rs, Subdivision Agreements, Utility Agreements, Condominium Plans, all Agency Applications relating to Development, Construction Contacts, Purchase Orders, Consultant Agreements, Final Maps, Permits, and Engineering Agreements relating to the Project with third parties, relating to the business of the Corporation, in its capacity as the managing member of WPH; and WHEREAS, the Board of Directors wishes to authorize, approve and ratify the actions taken by Scot C. Sandstrom, acting in his capacity as Vice President of the Corporation, acting in its capacity as the managing general partner of WPH, in having negotiated, signed, modified and terminated such agreements, and to authorize and direct Scot C. Sandstrom to negotiate, sign, modify and terminate such agreements from time to time when he deems it to be in the best interest of the Corporation, in its capacity as the managing general partner of WPH.. NOW, THEREFORE, BE IT RESOLVED, the actions of Scot C. Sandstrom, acting in his capacity as a Vice President of the Corporation, acting in its capacity as the managing general partner of WPH, in having negotiated, signed, modified and terminated various agreements &om time to time, are hereby authorized, approved and ratified; and BE IT RESOLVED FURTHER, that Scot C. Sandstrom, acting in his capacity as a Vice President of the Corporation, acting in its capacity as the managing general partner of WPH, is hereby authorized and directed to negotiate, sign, modify and terminate, from time to time when he deems it to be in the best interest of the Corporation, in its capacity as the managing general partner of WPH, agreements relating to the business of the Corporation, in its capacity as managing general partner of WPH. We direct that this consent be filed with the Minutes of the proceedings of the directors of the corporation. 1 .. I This consent is executed pursuant to Section 307@) of the Corporations Code of the State of California, and Section 2.12 of the Bylaws of the corporation, both of which authorize the directors to take action by unanimous written consent without a meeting. DATED: January 4,2000 e ” - Eugen osenfeld Craig A. Manchester State of California ) On 4doa before me, h) \a , Notary Public, personally appeared . n-t S-M -. personally known to me or -- o be the executed the same in his authorized capacity, and that by his signature on the instrument the person whose name is subscribed to the within instrument and acknowledged to me that he person, or the entity upon behalf of which the person acted, executed the instrument. -~ State of California ) 1 County of 1 On before me, , Notary Public, personally appeared Claude Lewis - personally known to me or - proved to me on the basis of satisfactory evidence to be the 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. WITNESS my hand and official seal. Rev. 1/02/01 EXISTING 18' POTABLE A' EXISTING 12' RECLAIMED WATERLINE I IYVATERLINE EXHIBIT 'A' POINSETTIA HILLS WATER FACILITY REIMBRUSEMENT AGREEMENT CT #a-oa EXHIBIT "B" TABLE 1 POINSElTIA HILL--CASSIA ROAD QUANTITY TAKE-OFF CONSTRUCTION OF PIPELINE, 2/14/02 30-INCH STEEL (550 HGL) WATER TRANSMISSION PIPELINE CITY OF CARLSBAD Notes: (1) The quantities shown above are from Drawing No. 354-9, Sheets 3,4, and 5, City dated 818197. SHEET 1 OF 2 EXHIBIT B EXHIBIT "B" TABLE 2 POINSETTIA HILL--CASSIA ROAD 18-INCH DUCTILE IRON (384 HGL) RECYCLED WATER TRANSMISSION PIPELINE QUANTITY TAKE-OFF CONSTRUCTION OF PIPELINE, 2/14/02 CITY OF CARLSBAD Notes: (1) The quantities shown above are from Drawing No. 354-9, Sheets 3, 4, and 5, City dated 8/8/97. SHEET 2 OF 2 EXHIBIT B EXHIBIT "C" POlNSElTlA HILL-CASSIA ROAD WATER AND RECLAIMED WATER PIPELINE IMPROVEMENTS REIMBURSEMENT FOR CONSTRUCTION OF OVERSIZING SUMMARY 02/14/2002 . Cassia Road - 30-inch steel (550 HGL) . Cassia Road - 18-inch ductile-iron (384 HGL) $236,728.10 I $100,135.21 water transmission pipeline: Oversizing I TOTAL REIMBURSEMENT reclaimed water transmission pipeline: Oversizing I $336,863.31 - Note: See Tables 1 through 2 SHEET 1 OF 3 EXHIBIT C EXHIBIT "C" TABLE 1 POINSElTIA HILL-CASSIA ROAD 30-INCH STEEL (550 HGL) WATER TRANSMISSION PIPELINE REIMBURSEMENT COST CONSTRUCTION OF PIPELINE, 2/14/02 Noles: GO Conlmacl Change Order (I) Construction Contract. Civil Conslructors, 1997 (2) Cost is included in Olher items Specified in lhe ConslrucLion Conlra~t. 13) Engineer's estimale by Civil Conslrudorn (6/19/97). (4) Costs far reimbursable items provided by Western Pacific Hwing--Poinsenia LP. (5) PO 2040-1035. Work requested and approved io, ieimbursemsnt by Randy KiaahSBn. (6) PO 2040-1019. Wok requested and approved for reimbursement by Randy Klaahsen. (7) PO 2040-1044. Work requested and approved for reimbursement by Randy Klaahsen. (8) PO 2040-1024. Work requesled and approved lor reimbursement by Randy Klaahsen. SHEET 2 OF 3 EXHIBIT C EXHIBIT "C" TABLE 2 POlNSElTlA HILL--CASSIA ROAD 184NCH DUCTILE IRON (384 HGL) RECYCLED WATER TRANSMISSION PIPELINE REIMBURSEMENT COST CONSTRUCTION OF PIPELINE, 2/14/02 Notes: CO Conlra~l Change Order (1) constructian contract. civil Conslrudors, 1997 (2) Engineeh estimate by Civil Co~~structo~s (6119l97). (3) Costs lor relmbvmable items provided by Western Pacific Hou%ing"Pomse"ia LP. (4) Addendum 106-1. Work requested and approved for reimbumement by Randy Klaahsen. (5) PO 2040~1035. Work requested and approved for reimbursement by Randy Klaahsen. (7) PO 2040-1044. Wok requested and approved far reimbursement by Randy Klaahsen. (6) PO 2040-1019 Work requested and approved for reimbursement by Randy Klaahsen. (9) PO 2040-1024, Work requesled and approved lor reimbursement by Randy Klaahsen. (8) PO 2040-1090. Work requested and approved 10, reimbursement by Randy Klaahsen. SHEET 3 OF 3 EXHIBIT C