Loading...
HomeMy WebLinkAboutAvaiara Land Associates; 1991-07-15;REIMBURSEMENT AGREEMENT THIS REIMBURSEMENT AGREEMENT (the "Agreement") is entered into as of QfujLur I Si Iff/, 1991, by and between AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership ("Aviara"), and THE CITY OF CARLSBAD, a municipal corporation of the State of California ("City"), with reference to the following facts: A. The City Council of City adopted Resolution No. 2595 on December 8, 1987, approving a tentative subdivision map for Carlsbad Tract No. 85-35 relating to Aviara's development of a mixed-use, master-planned community within the City of Carlsbad (the "Project"). Condition No. 39 of Resolution No. 2595 provides as follows: "The project applicant shall be required to comply with all general and specific public facilities conditions identified within the Zone 19 Local Facilities Management Plan and to execute an agreement or agreements satisfactory to the City Manager and City Attorney guaranteeing their availability." B. On June 27, 1989, City approved the recordation of the final subdivision maps for Carlsbad Tract No. 85-35. C. Aviara has advanced or is willing to advance on behalf of City the cost of constructing a new sewer pump station and certain sewer trunk line facilities as required by the Zone 19 Local Facilities Management Plan to replace the existing North Batiquitos Sewer Pump Station, as well as to advance the cost of other related improvements. D. Pursuant to Resolution No. 91-21, adopted by the Carlsbad City Council on January 22, 1991, City has implemented a plan for levying and collecting sewer benefit area fees in order to fund improvements in various sewer benefit areas within the City of Carlsbad. Said plan is set forth in the December 1990 Update to the December, 1987 Master Plan of Sewerage, prepared by Wilson Engineering (the "Wilson Report"), and is subject to further review and modification by City. The sewer benefit area fees, in addition to sewer connection fees, will be collected by City from builders upon City's issuance of building permits. E. City will utilize funds collected from such sewer benefit area fees to reimburse the costs advanced hereunder by Aviara. -1- JSM:G:\HOME\A013101G.DW2:051591 NOW, THEREFORE, the parties hereto agree as follows: 1. Costs to be Reimbursed by City. a. Sewer Pump Station Construction. Aviara agrees to advance all costs necessary to demolish the existing North Batiquitos Sewer Pump Station and to construct a sewer pump station adjacent to said existing station. The new sewer pump station will be located on the northwest shore of Batiguitos Lagoon in the area identified in the attached Exhibit "A". The work necessary for said demolition and construction is shown on City of Carlsbad Public Improvement Plan 306-6. b. Ayres Trunk Sewer Repairs. In addition, Aviara will advance the costs necessary to upgrade and improve the Ayres Trunk Sewer as shown on City of Carlsbad Public Improvement Plan 302-7. c. Batiouitos Force Main Repairs. Aviara will also advance the costs necessary to repair the Batiguitos Force Main as shown on City of Carlsbad Public Improvement Plan 306-5. d. Ambrosia Trunk Sewer Construction. Aviara will also advance the costs necessary to construct the Ambrosia Trunk Sewer upon Phase I of the Project as shown on City of Carlsbad Public Improvement Plan 292-2 (referenced as "Reach NBT2" in the Wilson Report), and the extension thereof onto property located adjacent to the Project owned by Howard F. Murphy. e. Credit for Cost to Construct Ayres Trunk Sewer. As successor in interest to the property owner that constructed the original Ayres Trunk Sewer, Aviara shall also be reimbursed for said construction cost in the amount of One Million Sixty Thousand Seventy Dollars ($1,060,070.00). Aviara will submit proof that it is successor in interest to the original Ayres Trunk Sewer. Aviara further agrees to indemnify and hold City harmless from and against any cost or expense, including attorneys' fees, settlements or judgments, that City might incur in the event that, following City's reimbursement of Aviara pursuant to this Agreement, a prior owner of the Project is found to have a right to or interest in the sums paid to Aviara pursuant to this Section l(e). f. Definition of "Work". The various items of construction, improvement and repair described in subsections (a) through (e) above are hereinafter collectively referred to as the "Work". g. Reimbursement for Costs of Work. City shall reimburse Aviara in the manner described in Section 2 below for the total costs advanced by Aviara for the Work. The total cost of the Work is currently estimated to be -2- JSM:G:\HOME\A013101G.DW2:051591 approximately Three Million Five Hundred Seven Thousand Six Hundred Forty-Four Dollars ($3,507,644.00). City may reduce the total cost to be reimbursed by the sum of One Hundred Thirty-Seven Thousand Six Hundred Seventy-Four Dollars ($137,674.00), which amount is acknowledged to be Aviara's share of the cost owed by Aviara for the Occidental/Ponto Trunk Sewer Line reimbursement. City and Aviara acknowledge that the net reimbursement amount is therefore currently estimated to be Three Million Three Hundred Sixty-Nine Thousand Nine Hundred Seventy Dollars ($3,369,970.00). Aviara will obtain all property interests necessary for the construction, operation and maintenance of the improvements herein described. h. Accounting of Costs. When an item of the Work has been completed (as described in Section 2(a) below), Aviara shall present City with a complete and detailed accounting of the costs and expenses advanced by Aviara in connection with the Work. Upon its receipt of a written request therefor from City, Aviara will allow an audit of such costs and expenses to be prepared at Aviara's expense by an accounting firm specified by City. i. Nature of Reimbursable Costs. In addition to "hard" construction costs such as materials, equipment and labor, the costs to be reimbursed hereunder shall include right of way acquisition costs and costs of obtaining property interests as described in Section l(g) above, engineering design and construction fees and permit fees advanced by Aviara. City shall not be required to pay to Aviara interest upon costs or expenses advanced by Aviara hereunder. The City Engineer shall have the authority to establish reimbursable costs based upon information obtained pursuant to Sections l(h) and l(i) of this Agreement. Notwithstanding the foregoing, if Aviara disputes the City Engineer's determination of reimbursable costs or believes that the sum established by the City Engineer is not consistent with the specific provisions of this Agreement, then Aviara may elect to (i) appeal the City Engineer's decision to the City Council (and thereafter, at Aviara's option, to a Court of proper jurisdiction) for final determination, or (ii) submit the dispute for the review and recommendation of a neutral and independent civil engineer qualified in engineering, design and construction and mutually approved by City and Aviara; provided, however, said engineer's recommendation shall be non-binding and shall not preclude Aviara from thereafter appealing the City Engineer's decision as described in item (i) above. 2. Manner of Payment. a. City's Collection and Reimbursement. City shall collect sewer benefit area fees upon its issuance of all building permits in Sewer Benefit Areas J, K, L, described in detail in the Wilson Report and depicted in the attached Exhibit "B" (the "Benefit Areas"). As each item of the Work is -3- JSN:G:\HOME\A013101G.DW2:051591 completed and accepted by City, as manifested by City's approval of a notice of completion for said item, then the City's reimbursement payment for said item is due and payable. Thereafter, City shall pay to Aviara in semiannual installments on each June 30 (for sewer benefit area fees collected by City through the preceding May 31) and on each December 31 (for sewer benefit area fees collected by City through the preceding November 30) any such fees collected by City for building permits issued within the Benefit Areas, until Aviara is fully reimbursed for the costs and expenses of the item of the Work as described above. b. City's Payment of Sewer Benefit Area Fees to Third Parties. No sewer benefit area fees collected by City from within Sewer Benefit Area L shall be paid to any other party or utilized for any other purpose by City until Aviara has been fully reimbursed for all costs for which it is entitled to reimbursement from the City hereunder. Sewer benefit area fees collected by City from within Benefit Area K may be utilized by City for other purposes provided that at least 26.35% of all such fees collected are paid to Aviara as reimbursement for the costs advanced hereunder. Sewer benefit area fees collected by City from within Benefit Area J may be utilized by City for other purposes provided that at least 93.5% of all such fees collected are paid to Aviara as reimbursement for the costs advanced hereunder. 3. Term of Agreement. The term of this Agreement shall commence on the date upon which it is executed by City and shall terminate on January 1, 2020. 4. Successors and Assigns. This Agreement shall inure to the benefit of, and shall be binding upon, the assigns, successors in interest, personal representatives, heirs and legatees of the parties hereto. 5. Entire Agreement. This Agreement shall constitute the entire agreement between the parties hereto with respect to the subject matter hereof, superseding all negotiations, prior discussions, preliminary agreements or understandings, written or oral. 6. Attorneys' Fees. In the event of any litigation to enforce the provisions of this Agreement, the prevailing party in such litigation shall be entitled to recover from the losing party its expenses, attorneys' fees and costs incurred therein or in the enforcement or collection of any judgment or award rendered therein. 7. Payments to Aviara. Any payments by City to Aviara hereunder shall be made payable to Aviara Land Associates Limited Partnership and shall be forwarded to the following address, or to such other address as Aviara specifies in writing to the City Manager of City: c/o Hillman Properties -4- JSM:G:\HOME\A013101G.DU2:051591 West, Inc., 2011 Palomar Airport Road, Suite 206, Carlsbad, California 92009, Attention: Mr. D.L. Clemens. Aviara may assign its rights to receive payments hereunder to another entity, provided Aviara delivers to City a written notice designating the name and address of its assignee and the effective date of such assignment. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. ATTEST:CITY OF CARLSBAD, a Municipal Corporation of the State of California By: City Clerk Aletha L. Rautenkranz AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership By: Aviara Land Company, a Delaware corporation, General Partnei By: By: Republic Development Company, a California jorporation/ General Partner I By: By: -5- JSM:G:\HOME\A0131010.DW2:051591 PROJECT SITE LOCATION MAP NOT TO SCALE EXHIBIT "A" N EXHIBIT "B1