HomeMy WebLinkAboutCT 96-02; Terraces At Sunny Creek, The; 2002-0810058; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY
WHEN RECORDED MAILTO:
CARLSBAD MUNICIPAL
District Secretary
WATER DISTRICT
Carlsbad, CA 92008
1200 Carisbad Village Dr.
At no fee as it is to the benefit
Please record this document
Water District (Gov. Code [6103]
@ of the Carlsbad Municipal
DOC # 2002-0810058
SEP 20:. 2002 4-23 PN
SAN DIEGO C&6 RE&kR'S OFFICE GKGORY J. SHITH, COUNTY RECORDER FEES: 0.00
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
CONSTRUCTION OF THE
COLLEGE BOULEVARD 36" WATER PIPELINE EXTENSION
Between
CARLSBAD MUNICIPAL WATER DISTRICT
a Public Agency
AND
THE TERRACES AT SUNNY CREEK,
a Limited Liability Company
-1 - Rev. 7/12/02
AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
CONSTRUCTION OF THE
COLLEGE BOULEVARD 36" WATER PIPELINE EXTENSION
& HIS REIMBURSEMENT AGREEMENT (hereinafter the "Agreement") is entered into as
a California partnership ("Developer") and the CARLSBAD MUNICIPAL WATER DISTRICT,
a Public Agency organized under the Municipal Water District Act of 1911, and a subsidiary
District of the City of Carlsbad ("District"), with reference to the following Recitals:
of zz, 2002, by and between THE TERRACES AT SUNNY CREEK, LLC,
RECITALS
A. Developer is the record owner of certain real property located in City of Carlsbad
"City", which is more particularly described on Exhibit "A attached hereto and made a part
hereof ("the Terraces Development"). The Terraces Development consists of a residential area
of 172 homes, 50 affordable housing units, and a commercial site, referred to as Lot 11 of
CT 83-36, as designated on Exhibit "A. As used herein, the term "Planning Area" shall refer,
as indicated, to both the commercial center and the residential area. The various Planning
Areas as shown on Exhibit "A" either are, or will become, separate legal parcels in accordance
with the applicable legal requirements of the State of California and District.
B. Upon their creation as separate legal parcels, Developer intends to convey or
cause conveyance of record title to the Planning Areas, to other persons pursuant to
contractual commitments not related to this Agreement. Any further development activity with
respect to any of the Planning Areas will be the responsibility of the respective transferees.
C. Developer filed a separate application for tentative subdivision map and site
development plan with respect to the Planning Area. The Terraces Development is the subject
of certain development approvals received from the City of Carlsbad, including without
limitation: Tentative Subdivision Map (CT 96-02, EIR 98-01, AC 96-01, SP 19O(B),
LFMP 87-15B, SDP 97-02), Planned Unit Development Permit (PUD 96-02), and Hillside
Development Permit (HDP 96-02), all approved by the City Council, Resolution No. 98-337
on November 17, 1998, which included specific reference to Planning Commission Resolution
No. 4288 through 4295 recommending approval of the Terraces Development with conditions
and approved by the Planning Commission on July 1, 1998.
D. The various approvals referred to in Recital "C" of this Agreement are collectively
referred to herein as the "Terraces Development Approvals."
of Condition 7 and Finding 1 requires the Developer to construct a water pipeline in a portion of
E. A condition for approval of the Tentative Map (CT 96-02) for Developer's portions
College Boulevard northerly from the intersection of El Camino Real approximately 900 lineal feet.
allows the City to require a subdivider to construct improvements benefiting property outside the F. District and Developer acknowledge that Government Code Section 66485
subdivision; but Section 66486 requires City to enter into a reimbursement agreement for such
Code Section 66486.
improvements. The Parties intend that this Agreement satisfy the requirements of Government
-2 - Rev. 7/12/02
of the Water Pipeline Extension, which lies outside of the Terraces Development. The Water G. Developer has advanced on behalf of District the cost of construction and design
Pipeline Extension consists of 900 lineal feet of 36" diameter pipe with appurtenances from the
Work).
intersection of El Camino Real northerly per City Drawing No. 361-6D (hereinafter "Water
H. City will utilize the Water Connection Fees Fund to reimburse the costs advanced hereunder by Developer for the Water Work.
I. Estimated Cost of the Water Work. District shall reimburse Developer in the
The total cost and the Water Work is currently estimated to be as follows: manner described below for the total costs advanced by Developer for the Water Work.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The Recitals are true and correct.
2. SATISFACTION OF OBLIGATION
Developer's agreement to install the Water Work, as set forth herein, and the actual
construction thereof, shall fully satisfy and constitute full compliance with all requirements
regarding the Water Work.
3. DEVELOPERS' OBLIGATIONS
a) In consideration of District's reimbursement and other undertakings as
set forth herein, Developer agrees to design, construct and install the Water Work.
b) Developer shall complete all work no later than three (3) months from the effective date of this Agreement. Work completed before the effective date of this Agreement
shall, subject to the other provisions of this Agreement, also satisfy this Agreement. I
c) Developer shall use the complete set of City approved plans,
specifications, and other design documentation for the Water Work.
-3 - Rev. 7/12/02
L
d) It shall be the responsibility of Developer to observe and follow the
requirements of City for retention of records and the submittal of information in connection with
the Water Work as specified in this Agreement.
e) By entering into this Agreement, Developer waives any and all potential
constitutional (NollanlDolan) objections relating to the Water Work.
4. DISTRICT OBLIGATIONS
(a) District shall reimburse Developer an amount (the "Reimbursement
Amount") equal to: (i) the actual Total Cost for reimbursement for design and construction;
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 Recital "I" of this Agreement. Reimbursable Amount shall not exceed that estimated in
the following table:
described in Sections 5, 6 and 7 below.
(b) District agrees to reimburse Developer for Reimbursable Water Work as
5. REIMBURSABLE WATER WORK
(a) With respect to all hard costs of construction comprising the Water Work,
Developer shall solicit bids from three reputable contractors. Non-Reimbursable Work includes
any sewer pipeline and appurtenance design and/or construction per City Drawing No. 361-6D;
excluding that previously defined as "Water Work". Reimbursable Water Work may be bid
together with Non Reimbursable work for that portion of the Sewer 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 Recital "I". The parties
agree that the Recital "I" is a fair allocation of the costs under such contract as among the
categories of Reimbursable Water Work. Costs shown in Recital "I" are subject to modification
through change orders pursuant to Paragraph 6(h) of this Agreement.
(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 City 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.
-4 - Rev. 711 2/02
6. AUDIT OF REIMBURSABLE EXPENSES
(a) Expenses for Reimbursable Water Work (including without limitation
overhead and the allowance permitted under clause 6(f) below "Overhead Cost") 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.
(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 to Developer
by Contractor, to the City's Public Works Director ("Director"), together with an invoice for all
other components of the Reimbursable 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 6(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:
Developer for improvement and/or payment and performance bonds relating to the construction
(i) An allowance to cover the allocable portion of premiums paid by
of Water Works are included in (iii) overhead expense.
(ii) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage is included in (iii) overhead expenses.
(iii) An amount fixed at six and one-half percent (6-1/2%) of the eligible costs for Reimbursable 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, general corporate legal and accounting fees and other normal overhead expenses incurred by Developer, including the expenses described in subsections (f)(i) and (f)(ii) above.
-5 - Rev. 7/12/02
(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 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 (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 Reimbursable Work. In making such decisions, the parties shall be
guided by the principle that if a 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, then the
allocation of the portion to Reimbursable Work should be in proportion to the allocation as
between Reimbursable Work in Recital "I" table for that portion of the Water Work.
7. PAYMENT OF REIMBURSABLE EXPENSES
(a) Funding for reimbursement costs will be appropriated for the Fiscal Year
of 2002-2003. No reimbursement payment will be made prior to Fiscal Year 2002-2003.
(b) Payment of Reimbursable Expenses shall be made, within thirty (30)
days after the Auditing Engineer's determination on any such Reimbursement Request
(or determination pursuant to Section 8 if applicable).
(c) District shall not unreasonably withhold acceptance of the Water Work.
(d) 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.
(e) Payment of reimbursable expenses shall be made from the District's
Water Connection Fee Fund.
8. DISPUTES/CLAIMS. If a dispute should arise regarding the performance or
of fact or interpretation not informally resolved by the parties. Such questions, if they become interpretation of this Agreement, the following procedure shall be used to resolve any question
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
days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining receipt, shall reply to the letter, including a recommended method of resolution within ten (IO)
the dispute shall be forwarded to the Board of Directors for their resolution through the office of the City Manager. The City Council 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.
any part thereof or any monies due thereunder without the prior written consent of the District. 9. ASSIGNMENT OF AGREEMENT. Developer shall not assign this Agreement or
-6 - Rev. 711 2/02
other communications given hereunder shall be in writing and shall be deemed to have been 10. NOTICES. Unless otherwise specifically provided herein, all notices, demands or
duly delivered upon personal delivery, or by Federal Express (or similar reputable express
the second business day after mailing by United States Certified Mail, return receipt requested, delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of
postage prepaid, address as specified herein. Notices required to be given to Developer shall be addressed as follows:
The Terraces at Sunny Creek, LLC
Attention: Mr. Chris Dahrling
2006 Palomar Airport Road, Suite 113
Carlsbad, CA 92008
Telephone: (760) 931 -81 81
Facsimile: (760) 931 -8509
Notices to City shall be delivered to the following:
CARLSBAD MUNICIPAL WATER DISTRICT
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
Facsimile: (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. TRANSFER BY DEVELOPER. The obligations and benefits of this Agreement shall not be transferred upon sale of the Terraces at Sunny Creek Development.
12. 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, 13. GOVERNING LAW AND VENUE. This Agreement shall be interpreted and
California.
14. 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.
executed by District and Developer (including for this purpose any successors of Developer, to
15. AMENDMENT. This Agreement may be amended by a written instrument
the extent of their ownership of real property within The Terraces at Sunny Creek Development); except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by Developer.
16. 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, 2003.
-7 - Rev. 7/12/02
17. NO THIRD PARTY 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.
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.
executed as of the date first above written. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
THE TERRACES AT SUNNY CREEK,
(print name and title of signatory)
By:
(sign here)
(print name and title of signatory)
(Proper notarial acknowledgment of execution by Developer must be attached.
treasurer must sign for corporations. Otherwise, the corporation must attach a resolution Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant
certified by the secretary or assistant secretary under corporate seal empowering the officer@) signing to bind the corporation.)
APPROVED AS TO FORM:
ROW. BALL, City Attorney
-a - Rev. 7/12/02
State of California 1
Countyof Sari Diego 1 1
On August 23, 2002 before me, Jeanette Taylor
Public, personally appeared Georqe Szabo, Jr. , Notary
-9 - Rev. 5/20/02
.- LOCATION MAP
PIPELINE EXTENSION LOCATION
A N
NOT TO SCALE
PROJECT NAME: I PROJECT NUMBER: I
COLLEGE BLVD
36-INCH DIA. PIPELINE EXTENSION CP 38171
EXHIBIT