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HomeMy WebLinkAbout1981-11-17; City Council; Resolution 66631 2 3 4 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 6663 A RESOLUTION OF THE CITY COUNCIL OF 'ME CITY OF CAIiLSBAD, CALIFORNIA, APPROVING, WITH CONDITIONS, A REVISION To AN Am BE'IWEEN 'ME CITY AND LWE CALAWRA HIL;LS ASSOCIATES M'IED DECEMBER 26, 1979, AEJD AUMORIZING 'ME WYOR TO SIGN FOR THE CITY. WHEREAS City and Developer have previously entered into a certain agreement, dated Deder 26, 1979, and entitled "Agremt Between City of Carlsbad, California and Lake Calavera Hills Associates for Construction of a 1.2 Million Gallon Capacity Sewage Treatment andwaste Water Reclamation Facility andNecessaxy Appurtenances and to Provide for the Financing and ReMurseramt for Costs of Oversizing Thereof," and; wHE33EAs Developer has undertaken perfonnance under said agreement and has expended substantial sums of mey in furtherance of the agreement, and; WHEREAS Developer has completed construction of the sewage treatment facility and portions of the effluent disposal line and those facilities are ready for delivery to and acceptance by the City, and; WHEBEAS by reason of certain intervening considerations, the parties now agree that it is not in the best interests of either the City or Developer to attempt to cqlete the agreement in accordance with its terns, and; WHEREAS the parties desire to effect a novation of the original agreement and enter into a naJ agreemmt to establish their rights and obligations, and; WHEREAS the parties intend by this new agreement to transfer all campleted facilities to the City, with Developer receiving appropriate credit for expenditures previously made and appropriate reservations of sewage treatmnt capacity in those facilities. I/// f e - - . 1 2 3 4 5 6 7 8 9 10 11 1% 1: 14 15 1E 11 1E 1s 2c 21 22 22 24 2E 2E 27 2e NOW, THEIiEFoRE, BE IT RESOLVED that the City Council of the City of Carlsbad approves that revised agrement identified as Exhibit "A" attached hereto andmade a part hereof and authorizes the Mayor of the City of Carlsbad to sign said agrement cm behalf of the City subject to the follcrwing conditions : 1. Submission by the Developer and approval by the City of a minor sdxlivision map creating the Treatment Plant Site as a separate lot, and; 2. Stibmission by the Developer and acceptance by the City of suitable docmzntation transferring ownership to the City of and land and improvements for the Treatment Plant Gite, the access road to the Treatment Plant Site, the rights of way for the reversible force main and p~lp station, and such rights as the Developer possesses in the EDL contructed by the San Marcos County Water District, and; 3. Certification by the City Engineer that all facilities being transferred to the City are camplete and operable and that all warranties on equipment are in hand. PASSED, APPFWED AND ADOPTED at a regular meting of the City Council day of Nowher of the City of Carlsbad, California, held on the 17th 1981, by the following vote, to wit: AYES: Council Menhers Packard, Casler, Anear, Lewis and Kulm NOES : None ABSm: None ~&TB C. PACKARD, Mayor ATEST : AGREEMENT This Agreement is made and entered into at Carlsbad, - Jua w w, California, this 20th day of* Se~-?&&~%h8-l-, by and between City of Carlsbad, California, a municipal corporati on v= (hereinafter referred to as "City"), and Lake Calavera Hills Associates, a California partnership (hereinafter referred to as "Developer" ) . R E C I T A L s: A. City and Developer have previously entered into a certain agreement, dated December 26, 1979, and entitled "Agreement Between City of Carlsbad, California and Lake Calavera Hills Associates for Construction of a 1.2 Million Gallon Capacity Sewage Treatment and Waste Water Reclamation Facility and Necessa.ry Appurtenances and to Provide for the Financing and Reimbursement for Costs of Oversizing Thereof". Developer has undertaken performance under said B. agreement and has expended substantial sums of money in excess of $2,000,000 in furtherance of the agreement. C. Developer has completed construction of the sewage treatment facility and portions of the effluent disposal line and those facilities are ready for delivery to and acceptance by the City. .. . . D. By reason of certain intervening considerations, the parties now agree that it is not in the best interests of either the City or Developer to attempt to complete the agreement in accordance with'its terms. E. The parties desire to effect a novation of the original agreement and enter into a new agreement to establish their rights and obligations. F. The parties intend by this new agreement to transfer all completed facilities to the City, with Developer receiving appropriate credit for expenditures previously made and appropriate reservations of sewage treatment capacity in those facilities. NOW, THEREFORE, in consideration of the recitals and of the mutual obligations of the parties established by this agreement, City and Developer agree as follows: . SECTION 1: DEFINITIONS A, "Acceptance": A formal action by the City accepting any offer of dedication of the sewage treatment ' facility or any portion thereof. Acceptance shall not constitute a waiver of defects. by City. B. "Agreement" : This agreement , being a new agreement in the place and stead of the original agreement dated December 26, 1979. C. "EDU": - EDU is an abbreviation of Equivalent Dwelling Unit and is an approximation of that amount of sewage 2. I. which is discharged daily by an average residential dwelling unit. D. "EDL Line": EDL line is synonymous with the term "fail-safe line" used in the original agreement and means any effluent or excess effluent disposal line which would carry effluent from the project to the ocean outfall. P E, "Master Plan Area or Calavera Hills": Master plan area or Calavera Hills shall include a11 areas defined in the Lake Calavera Hills Master Plan (MP-lSO(A)) on file with the City and incorporated herein by reference. F. "MGD" _c : Plant capacity expressed in millions of gallons per day. G. "Original Agreement" : That certain original agreement between the parties hereto, dated December 26, 1979, which agreement is novated and replaced by this agreement. SECTION 2: . NOVATION OF ORIGINAL AGREEMENT That certain agreement between the parties dated December 26, 1979, "the Original Agreement", is hereby superseded and extinquished and this agreement shall establish and control the rights and obligations of the parties in its place and stead. SECTION 3: RELEASE FROM MORATORIA Upon the execution of this agreement by the parties and the delivery of the completed facilities to City, the City shall . 3. promptly undertake the steps necessary to remove the lands of Developer within the Master Plan Area from the Planning moratoria imposed by Chapter 21.49,of the Carlsbad Municipal Code. will immediately make available to Developer and Developer's City successors in interest sewage treatment capacity at the Encina Treatment Plant on the same basis as any other property owners in the City's sewer service area. The availability of this capacity is subject to the limitations of the existing system for the transmission of sewage to the Encina Plant; provided, however, that City shall not unreasonably discriminate against Developer and Developer's successors in interest in access to transmission capacity. SECTION 4: DELIVERY OF COMPLETED FACILITIES Upon execution of this agreement by the parties, Developer shall deliver to and offer to dedicate to City all plans, land, rights-of-way, completed facilities, and Developer's interests in the San Marcos Outfall Pipeline (hereinafter "Completed Facilities"). The Completed Facilities are described ' on Exhibit "A" , attached hereto and made a part hereof by this reference. Developer will transfer all rights, title and intere-st in the Completed Facilities to City free and clear of . all liens and encumbrances, subject only to any rights expressly reserved herein. SECTION 5: WARRANTY Developer shall fully guaranty and warrant all work on the Completed Facilities for a period of one year from the 4. 1. date of this agreement. If within said warranty period any structure or part of any structure furnished, installed, or constructed, or caused tg be installed or constructed by Developer, br any of the work related to the completed facilities, fails to fulfill any of the requirements of the plans . and specifications referred to in the Original Agreement, Developer shall without delay and without any cost to City, repair, replace, or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Developer will be notified in writing of any deficiencies which must be corrected, but failure on the part of City to notify Developer shall not affect any of City's rights under this provision. Developer shall commence repair of any defect or deficiency within ten working days after notification by City. The repairs shall be completed expeditiously and within a reasonable period of time. If Developer fails to commence or complete repairs within these time limits, City may undertake and is hereby authorized by Developer to make, at City's option, the repairs and assess the cost to Developer. Repairs pursuant to this warranty shall be at the cost of Developer and no credit shall be given therefor. SECTION 6: RELEASE FROM FURTHER OBLIGATIONS UNDER ORIGINAL AGREEMENT Except as expressly provided herein, Developer shall have no further obligations under the Original Agreement and, in 5. ... particular, shall have no obligation to complete the EDL Line nor the water reclamation facilities; provided, however, that this release shall not reaease Developer from liability for fees or charges,'if any, for water reclamation facilities which are . uniformly applied to all property owners within the City or within the drainage basin, SECTION 7 : COMPLETION OF TAMARACK AVENUE RIGHT-OF-WAY ACQUISITION AND IMPROVEMENT Anything contained herein to the contrary I notwithstanding, Developer shall remain responsible for completing the acquisition of Tamarack Avenue right-of-way as shown on Exhibit "B" attached hereto and made a part hereof by this reference, and for the improvement of same. Developer's claim for reimbursement from other property owners adjoining Tamarack Avenue shall be presented to the City Council to be resolved by it and its decision shall be final. That matter is not a part of this agreement. SECTION 8: CREDIT FOR PAST EXPENDITURES In consideration of the construction and transfer of the Completed Facilities, Developer shall receive a credit with City in an amount equal to the audited and agreed upon costs 2& incurred by Developer to date, including construction interest, in completing the facilities, in an amount of $-2;-859;-%4-; $2,866,778.00 @ e c- This credit will be available to be drawn upon by Developer to pay sewer connection fees for: development within the Master Plan Area. 6. SECTION 9: CONNECTION FEES The City agrees thgt the sewer connection fee for up to a total of 1,000 EDU's of capacity for any development on property within the Master Plan Area owned by Pacific Scene, Inc. shall be $1,000 per EDU. City will assign a portion of Developer's credit balance in the amount of $1,000,000, to be drawn upon by Pacific Scene, Inc. or their successors in interest, to pay sewer connection fees. The sewer connection fee for other developments on property in the Master Plan Area shall be the fee generally applicable to development of the same type elsewhere in the City's sewer service area. Until such time as Developer's credit is exhausted, City shall not issue sewer permits for development in the master plan area to other than Developer without either writter? assignment of credit or written notification from Developer that sewer permits may issue without credit. Developer, in exercising his rights under this section, shall not require other developers to pay more for sewer capacity than the current city charge, SECTION 10: SUCCESSORS AND ASSIGNS The covenants and agreements cont.ained in this agreement will be binding upon and insure to the benefit of City and its successors and assigns, and Developer and its successors and assigns; provided, however, Developer shall not convey, assign or otherwise transfer its rights or obligations hereunder without the prior written consent of the City. 7. .. I SECTION 11 : ASSIGNMENT OF CREDIT In the event Developer sells portions of the property within the Master Plan Area to other parties who become the developers thereof, the credits available pursuant to this agreement may be assigned by Developer to satisfy the obligations of such developments for the payment of sewer connection fees. Such assignment shall be in writing to the City indicating the amount of such credit to be made available. No assignment shall be made.without prior written approval of City. City reserves the right to limit the assignments so as not to be required to account for multiple assignees under circumstances which may create an administrative burden for City. SECTION 12: RESERVATION OF CAPACITY IN LCH SEWAGE TREATMENT PLANT City shall reserve sewage treatment capacity in the Lake Calavera Hills Sewage Treatment Plant for Developer to the extent of 41.77% of the rated capacity of the plant. The parties contemplate that the rated capacity of the plant may increase or decrease as conditions change and that Developer's reserve * capacity may increase or decrease accordingly. Determination of rated capacity for the purpose of this agreement shall be in the sole discretion of the City Council. The parties understand that this facility will not be available for use.unti1 the EDL line is completed in its entirety. LCH Plant does not constitute a guaranty that sewage treatment This reservation of capacity in the a. will in fact be available to serve the Master Plan Area. Any connections made from development in the Master Plan Area to the Encina Treatment Plant will be deducted from the capacity reserved for Developer at the Lake Calavera Hills Plant. t . Capacity reserved for Developer shall not be used for any development other than development within the Master Plan Area. SECTION 13: DEVELOPMENT SUBJECT TO ORDINANCES Nothing in this agreement shall exempt Developer from 'any local building or zoning ordinances. Developer shall be subject to any existing or future zoning, building or other laws established or adopted by City to regulate the location, quality, quantity, pace or other aspects of development in City. Developer shall also be subject to all general plan requirements of the City, including any proposals adopted to implement any element of the general plan and to the Lake Calavera Hills Master Plan conditions. SECTION 14: COMPLETION OF EDL LINE. The timing of the construction by the City of the EDL line shall be at the discretion of the City. The City cantemphtes undertaking to complete the line under the- same terms and conditions as any other City capital improvement project as dictated by the needs of the City and available financing. 9. .. SECTION 15: DEVELOPER'S OPTION TO COMPLETE EDL LINE A. Developer's Option: If the City or Developer determines that sewer * service is not available to the Master Plan Area and it becomes necessary for Developer to use the capacity reserved in the Lake Calavera Hills Plant to serve such area'and if the City is not prepared to construct the EDL line, Developer shall have the option, subject to the terms of this section, to complete or cause to be completed the EDL line. Developer shall notify City in writing of his intention to elect to exercise this option and secure the consent of City before proceeding. The actual cost of completing the EDL line will be added to Developer's credit with the City. B. Cost Estimate: No later than the time of submission of the plans and specifications, Developer shall submit a detailed itemized cost estimate for the EDL line and an'estimated completion date. City shall act upon the cost estimate and completion date no later - than thirty days after submission of such estimate in a complete and approvable form. Upon approval of such estimate and date by the City, they shall become a part of this agreement. C. Actual Cost To Build The EDL Line: Actual cost to build the EDL line shall mean the sum . total dollar cost of actual expenditures for construction including, but not Limited to, labor, materials, plan checking, 10. engineering, surveying, design, interest during the construction period of the EDL line on borrowed funds necessary for the actual construction of the EDL line, fees for applicable permits, costs attributable to land, rights-of-way or other interests in real property necessary for the EDL line not to exceed the fair market value at the time of acquisition or acceptance of the EDL line, whichever is less, and other costs necessary for the construction . in a good workmanlike manner in accordance with the plans and specifications, but not including any preliminary reports, studies, attorney's fees or other such charges. Actual costs to build the EDL line shall be documented to the satisfaction of the City and shall be approved by the City Council. D. Cost Limitation: The actual cost to build the EDL line shall not exceed the estimates as approved pursuant to Section 15(B) above. Any difference between actual costs and the estimates shall be absorbed by Developer and shall be disregarded for purposes of the credit. Notwithstanding the fact that construction may extend past the estimated completion date, construction interest accruing after that date shall not be inclvded as part of the actual costs and shall be disregarded for purposes of the credit. 11. .. E. Risk of Development Prior to Approval of Developer: City shall have no obligation to give Developer any credit until the cost estimates required by Section 15(B) are approved by City. Developer-shall bear the full risk of any loss occasioned to Developer because it commenced construction prior to approval of the estimates. Developer shall receive no credit and shall have no recourse against the City for any loss occasioned to Developer because the estimates were not approved or the agreement was otherwise terminated by Developer prior to completion and acceptance of the project by the City. F. Cost Monitoring: -In addition to the rights stated elsewhere in this agreement, City shall have the right to monitor all costs for the project. Developer shall provide City with all receipts, invoices, bills or other information requested by City to aid in the cost monitoring. G. Construction Agreement: If Developer exercises his option and undertakes to complete the EDL line, the following provisions of the Original Agreement shall apply and shall become part of this agreement: SECTION 2: DEVELOPER'S OBLIGATIONS ' A. Construct. C. Dedication. D. Warranty. E. Acquisition of rights-of-way. 12. F. Permits e G. Inspection. H. Compliance with laws. I. Compliance with the Precise Development Plan. J. Other responsibilities prior to acceptance. SECTION 4: CITY’S OBLIGATIONS AND RIGHTS B. Acceptance. C. Inspection, D. Cooperation. SECTION 8: GENERAL CONSTRUCTION *SECTION 16: SUBJECT TO FEES Developer and the Master Plan Area are subject to all City fees of general application including, but not limited to, sewer connection, sewer service, line extension, pumping plant and water reclamation, on the same basis as other similarly situated properties within the City’s sewer service area, except that Developer may draw upon his credit with the City to pay sewer connection fees in accordance with this agreement. SECTION 17: MISCELLANEOUS PROVISIONS A. Indemnity of City: Developer shall indemnify, assume the defense of, and hold free and harmless, City, its officers, agents, employees and any engineer, architect or other consultant utilized by City on the project from any and all obligations, liabilities, liens, claims, demands, losses, damages and expenses, of whatever type 13. or na'ture including, but not limited to, attorney's fees and all litigation costs arising out of Developer's design or construction of the proposed facilities or any other act or omission to act by Developer, its agents, servants, employees, . invitees, or independent contractors which are required by this agreement. 4 Notwithstanding the foregoing, the indemnity agreement created by this section shall not indemnify the City, its officers, agents or employees against any liability arising from the negligence or willful misconduct of City, its officers, directors, agentsp employees or independent contractors. B. Developer not agent of City: Neither Developer nor any of Developer's agents or contractors are connect ion with or shall be considered to be agents of City in the performance of Developer's obligations under this agreement. C. Records: City will maintain complete records of all connection fees received. Such records shall be open to Developer upon reasonable notice to City. De Payments on notices: A11 notices, demands and requests which may be or are I - required to be given or made by either party to the other party shall be in writing. All notices, demands and requests by . 14. _. 1 Developer to City shall be sent by United States registered mail, postage prepaid, addressed to City as follows: City Manager City of Carl'bsbad, Carlsbad, California 92008 - 1200 Elm Avenue All notices, demands, requests and payments by City to Developer shall be sent by United States registered mail, postage prepaid, addressed to Developer as follows: Lake Calavera Hills Associates 1207 Elm Avenue, Su-&ke-4, Carlsbad, California 92008 Attn: Roy J. Ward or to such other addressee and to such other place as Developer may from time to time designate in written notice to City. E. Arbitration of Disputes: Any controversy or claim between the parties to this agreement including, but not limited to, any claims, disputes, demands, differences, controversies, or misunderstandings arising under, out of, or in relatidn to this agreement, or any alleged breach of this agreement, shall be submitted to and determined by arbitration in accordance with the California Arbitration provisions contained in Code of Civil Procedure Section 1280 et seq., as amended from time to time, except as to those determinations under this agreement made in the sole . discretion of the City or its Council. 15. Subject to the provisions of Code of Civil Procedure Section 1296, the arbitrator or arbitrators shall determine the rights of the parties in accordance with the law and the award shall be subject to review ai to the arbitrator's application of the law by any court having jurisdiction of the matter, whether or not any mistake of the law shall appear upon the face of the award. As to all questions of fact, however, the determination of the arbitrator or arbitrators shall be binding upon all parties and shall be deemed final and conclusive. Each party shall be entitled to written findings of fact and conclusions of law as to all issues determined by the award. Subject to the above limitations, the award granted by the arbitrator shall be binding upon all parties to the arbitration and judgment upon the award rendered by the arbitrator or arbitrators nay be entered in any court having jurisdiction over the matter. F. Notice of Taxable Possessory Interest: If this agreement results in the creation of a possessory interest, and such possessory interest is vested in a private party in this document, the private party may be subjected to the payment of personal property taxes levied on such interest. G. Antitrust Claims of Developer or Successors: By entering into this agreement or any subcontract pursuant to this agreement, Developer, each contractor, and each subcontractor who performs work or who supplies goods, or 16. 4' 1 materials in accordance with the terms of this agreement hereby of€ers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under federal or state antitrust liw including, but not limited to, antitrust action any of them may have under Section 4 of the Clayton Act (15 U.S.C. Section 15) or under the Cartwright Act (Chapter 2 commencing with Section 16700 of Part 2 of Division 7 of the Business and Professions Code), arising from the purchases of goods, services or materials pursuant to this agreement or any related subcontract .. This assignment is made and becomes effective at the time City accepts the proposed facilities and land transfer without further acknowledgment of the parties. Developer agrees to insure that a comparable provision is included in all contracts or subcontracts at all tier levels which are executed pursuant to this agreement. H. Venue: In the event of any legal or equitable proceeding to enforce the terms or conditions of this agreement, the parties - agree that venue shall lie only in the federal or state courts in or nearest to the North County Judicial District, County of San Diego, State of California. I. Modification: This agreement may not be altered in whole or in part except by modification in writing, executed by . both parties to this agreement. 17. J. Attorney's Fees: In the event any arbitration proceeding, administrative proceeding or litigation Gn law or in equity, including any action for declaratory relief, is brought to enforce or interpret the provisions or performance of this agreement, the prevailing party or parties shall be entitled to an award of . reasonable attorney's fees and costs associated with the proceeding as determined by the court, the presiding officer, or the arbitrator authorized to make a determination of the issues in addition to any other relief to which the prevailing party may be entitled. In the event opposing parties have each prevailed on one or more causes of action actually contested or admitted by pleadings, discovery or prehearing documents on file, the arbitrator or presiding officer may offset such fees and costs between prevailing parties after considering the necessity of the proceeding and the importance of the issue or issues upon which each party has prevailed. K, Right of City to Inspect. Both parties to this agreement understand that City intends to approve, or inspect and approve, all phases of design and construction of the proposed facilities. Developer shall supply City with such information as City deems necessary from time to time in City's sole discretion to properly review all design and construction phases of the contract and to provide 18. City with the opportunity to inspect the proposed facilities' from time to time upon request. 0 L. Section Headings and Interpretation: All clauses contained in this agreement shall be interpreted in a manner which renders them valid under applicable provisions of state or federal law to the maximum feasible extent. By Resolution No. 5871 the City Council, of City, approved a Precise Development Plan for the development of the sewage treatment facility and all necessary.appurtenances. The provisions of the Precise Development Plan as adopted by Resolution No. 5871 shall prevail over any inconsistent provisions of this agreement. The headings of sections herein are used for convenience only and shall not affect the meaning or the contents thereof . M. Approval by City: Except as otherwise expressly provided herein, approval by City shall mean written approval by the City Manager. N. Risk of Loss: Prior to acceptance of the project, the risk of loss shall be on Developer. 19. I. -1 IN WITNESS WHEREOFf the parties have executed this .agreement in duplicate as o$ the day and year above-written. ATTEST : CITY OF CARLSBAD, a municipal corporation of the State of California BY RgLfled ma -0P;IALD C. PACKARD, Mayor City Clerk 1 LAKE CALAVERA HILLS ASSOCIATES, rney ' TO 442 C (Partnership) lil I 8 } ss. / i STATE OF CALIFORNIA I COUNTY OF-sNq JanUary 20, 1982 9 before me, the undersigned, a Notary Puldic in and for said State, personally appeared Roy J. Ward w DL w I known to me t On 2 to be_thermLef-pke partners of the partnership 2 that execirted the within instrument, and acknowledged to me @ that such paitn I $ (This nroa for omclal notarial seal) 20.