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.
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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
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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
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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
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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:
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PROJECT
SITE
LOCATION MAP
NOT TO SCALE
EXHIBIT "A"
N
EXHIBIT "B1