HomeMy WebLinkAboutBressi Gardenlane LLC; 2005-06-09;AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF RECYCLED WATER PIPELINE IMPROVEMENTS
W ITHlN LENNAR COM M U N IT1 ES
CARLSBAD TRACT CT 00-06 (BRESSI RANCH)
Between
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
AND
BRESSI GARDENLANE, LLC,
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AGREEMENT FOR REIMBURSEMENT OF COSTS FOR
THE CONSTRUCTION OF RECYCLED WATER PIPELINE IMPROVEMENTS
WITHIN LENNAR COM M U N IT1 ES
CARLSBAD TRACT CT 00-06 (BRESSI RANCH)
This Agreement for Reimbursement of Costs for the Construction of Recycled Water
Pipeline Improvements within Lennar Communities Carlsbad Tract CT 00-06 (Bressi Ranch),
dated as of .~(LP- 4. A 005 , +%&+("Agreement") is made at San Diego County,
California, by and betwgen 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 BRESSI GARDENLANE, LLC, ("Developer") a California corporation,
with reference to the following recitals:
RECITALS
A. Developer is developing certain real property commonly known as
Lennar Communities Carlsbad Tract CT 00-06, Bressi Ranch, ("Project") located in the City of
Carlsbad, California (the "City"), more particularly described as Carlsbad Tract No. 00-06,
filed in the Office of the County Recorder of San Diego County onMay 29, 2003, as File No.
2003-0631 052.
B. The Planning Commission of the City adopted a series of resolutions on
June 20, 2001, approving the Project, Carlsbad Tract Number (CT00-06). Planning Commission
actions were adopted and approved by the City Council on July 9, 2002 (City Council
Resolution No. 2002-205).
C. The Project approvals require Developer to install a 12-inch diameter recycled
water pipeline in Poinsettia Lane, El Fuerte Street, Gateway Road, and Street 'A', 'B', '(2, 'D'
and 'F' to meet the needs of the residential and Industrial areas to be built within Project (the "Project Requirements").
D. In addition to completing the Project Requirements, the District has requested
the Developer to install a 30-inch diameter recycled water transmission pipeline and
appurtenances in Poinsettia Lane, El Fuerte Street and Gateway Road, referred to as the "Recycled Water Work" and described more particularly in Section 3 (a) below.
E. The District and Developer recognize that the Recycled Water Work exceeds the infrastructure otherwise required of Developer in connection with its build-out of the Project. Developer agrees to install or cause the installation of the Recycled Water Work and the
District agrees to reimburse Developer as set forth in this Agreement.
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; and Government Code 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, above, are true and correct and incorporated herein by this reference.
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4
2. Satisfaction of Obliqation. Developer's agreement to perform the Recycled Water Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to the Recycled Water Work "as described above in paragraph B."
3. General Developer Obliaations.
(a) In consideration of the District's reimbursement and other undertakings as set forth herein, Developer agrees to cause the construction of the Recycled Water Work, which work shall include the following improvements, as shown on City Drawing No. 405-88, Sheets 1-1 5, dated June 30, 2003, prepared by Boyle Engineering Corporation (the "Plans") and as shown in the attached Exhibit "A" which are incorporated herein by this reference:
The Recycled Water Work shall include all necessary valves and appurtenances, including those necessary to connect the Recycled Water Work to the District's pipelines.
Any portion of the Recycled Water Work completed before the effective date of this Agreement shall be included as a part of the Recycled Water Work for reimbursement, subject to the other provisions of this Agreement.
(b)
(c) Developer shall cause the construction of the Recycled Water Work substantially in compliance with the District-approved plans and specifications, and other design documentation for the Recycled Water Work.
(d)
(e)
Developer shall cause construction of all Non Reimbursable Work at Developer's cost.
By entering into this Agreement, Developer waives any and all potential constitutional objections (Nolan/Dolan) relating to the Recycled Water Work imp rovemen ts.
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 Recycled Water Work Improvements, as specified in this Agreement.
Developer shall require Performance and Payment Bonds from the Contractor.
(f)
(9)
4. General District Obliqations.
(a) The District shall reimburse Developer an amount (the "Reimbursement Amount") equal to: (i) the actual authorized reimbursement Total Cost 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 Recycled Water Work noted in the attached Exhibit "B" which are incorporated herein by reference and approved change orders either lump sum or time and material with a not to exceed amount as described in Section 6(h). The Total Reimbursable Cost is currently estimated to be $1,293,440, calculated as follows:
Construction of Oversizln
(b) District agrees to reimburse Developer for Reimbursable Recycled Water Work as described in Sections 6 and 7 below.
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5. Reimbursable Recvcled Water Work.
(a) With respect to all hard costs of construction comprising the Recycled Water Work Improvements, Construction Manager shall solicit bids from three reputable contractors. Reimbursable Recycled Water Work may be bid together with Non Reimbursable work for that portion of the Recycled Water Work Improvements, which are being bid by such contractor. Upon award of a contract for the Recycled Water Work, the costs thereof shall be allocated among the categories consistent with the method and process used in Exhibit "B." The parties agree that the spreadsheet attached hereto as Exhibit "B" is a fair
allocation of the costs under such contract as among the categories of Reimbursable Recycled Water Work. Costs shown in Exhibit "B" are subject to modification through the award of the contract or change orders pursuant to Paragraph 6(h) of this Agreement.
(b) During the performance of any Reimbursable Recycled Water Work, Developer or Construction Manager shall retain detailed payment records for all items of Reimbursable Recycled 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 District to evidence the completion and payment for each item of Reimbursable Recycled 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 Expenses.
(a) Expenses for Reimbursable Recycled 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.
(b) All Developer's Reimbursement Requests will be processed and audited for District by a replitable 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 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.
(c)
(d) With each Reimbursement Request, following 30-day review by Auditing Engineer, the Auditing Engineer shall forward one copy of each invoice submitted to District by Developer, to the City's Public Works Director ("Director"), together with an invoice for all other components of the Actual 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. If the Auditing
Engineer objects to an invoice he shall authorize payment on all approved items of work except for the disputed work or cost item.
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(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 (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:
1) An allowance to cover the allocable portion of premiums paid by Developer for improvement andor payment and performance bonds relating to the
construction of Recycled Water Work.
2) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage.
Before Developer submits all invoices to Director, Developer shall obtain necessary or appropriate lien releases from all contractors, 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 Improvements into use. The date Developer receives all such final lien releases,
approvals, and certificates shall be deemed the date of completion of the Recycled Water Work Improvements (the "Completion Date"). In lieu of providing all final lien releases prior to reimbursement, Developer shall have the right to guarantee contractor's payment pending receipt of final releases through the act of providing a bond security as guaranty of payment. Bond release would then require delivery of missing releases.
(9)
(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 each 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 Recycled Water Work in Exhibit "B" for that portion of the Recycled Water Work Improvements.
An amount fixed at five percent (5%) 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.
(i)
7. Pavment of Reimbursable Expenses.
(a) 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).
The District shall not unreasonably withhold acceptance of the Recycled Water Work Improvements. (b)
(c) Developer and District agree that the City's General Fund is not part of this Agreement. The City has reserved funding earmarked under an approved Capital Improvement Program titled Recycled Water Work Improvement Program.
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8. Disputes/Claims. 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 recommended resolution 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. Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the District, which approval shall not be unreasonably withheld.
10. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to 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, addressed as shown below. Notices required to be given to Developer shall be addressed as follows:
Lennar Communities
Attention: Sean Scholey, Project Manager; John Slatton,
Director of Operations
1525 Faraday Avenue, Suite 300
Carlsbad, CA 92008-731 9
Telephone: (760) 91 8-7765
Fax: (760) 918-8868
Notices to District shall be delivered to the following:
CARLSBAD MUNICIPAL WATER DISTRICT c/o City of Carlsbad
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
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.
11. Transfer bv Developer. The obligations and benefits of this Agreement shall not be transferred upon sale of the Project.
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.
12.
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13. Governinu Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California.
14. ComDlete 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.
15. Amendment. This Agreement may be amended by a written instrument
executed by District and Developer except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by both the Developer and the District.
16. Term. This Agreement shall be effective as of the date first above written, and shall terminate onJanuary 1, 2007.
17. No Third Pam 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
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18. Severabilitv. 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.
BRESSI GARDENLANE, LLC, a Delaware limited liability company
By: Lennar/LNR Camino Palomar, LLC,
a Delaware limited liability company,
Its Administrative Member
By: Lennar Homes of California, Inc. a Califorpcorporation
itsdana er
Its: Vice President
(printname and titlgof signatory)
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, California t 1 ,I .7
MATT HALL, Vice-president
LORRAINE M. WOOD, Secretary
WErnIc= +WMbA, ~~/: mmu
(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
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State of California 1 1 1 county of Jan D;eq* -- J
before me, LJ;II;Q~ F\hlafJde- I I-, Notary ~-_-_ On /NA\l.Zl 200s
to be the Public, perdonally appeared
personally known to me or
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.
- i-a,rr \I Cl e OI e fis ------
WITNESS my hand and official seal.
d&&* d&
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.
-9 - Rev. 11/01/00
I@
EXHIBIT "B" TO REIMBURSEMENT AGREEMENT
Updated November 8,2004
RECYCLED WATER TRANSMISSION PIPELINE IMPROVEMENTS (CMWD 81 LENNAR)
CMWD I LENNAR
Item No. I Description I UNIT I QTY I UNITCOST I TOTALCOST QVI cost I Qty I cost 1 .OO Payment and Performance Bonds LS 1 14,000 14,000 67.9% $9.5061 18.4% $2,576
2.00
3.00
5.00
8.02
8.02a
8.02b
8.03
8.04
8.04a
8.04b
8.05
8.06
8.07
8.08
8.09
8.10
8.11
8.12
8.13
8.14
8.15
8.16
8.16a 8.16b
8.17
8.18
8.19
8.20
8.20a
8.20b
8.21
8.22
8.23
8.24
8.25
8.26
8.27
8.28
8.29
8.30
8.31
8.32
8.33
8.34
Mobilization & Site Preparation
Develop and Supply Const. Water
Erosion Control
Subtotal
Gateway Road
30" Recycled Water Line (550 HGL)
12" Recycled Water Line (Required)
30" Recycled Water Line (Upsized)
8" Class 200 FLG Gate Valve
30" Butterfly Valve Class 250
12" Butterfly Valve (Required)
30" Butterfly Valve (Upsized)
2" Manual Air Release
2" Air Vacuum Assembly
4" Blow off Assembly
CP Test Station with Anodes
End Cap
BPVC Class 200 Recycled Water Main
BPVC Class 150 Recycled Water Main
8" FLG & MJ Adapter
Connect to Existing
2" Irrigation Sewice per w-4
Subtotal
Poinsettia Lane
30" Recycled Water Line (550 HGL)
12" Recycled Water Line (Required)
30" Recycled Water Line (Upsized)
8" Class 350 DIP
2" Blow Off Assembly
4 Blow Off Assembly
30" Butterfly Valve Class 250
12" Butterfly Valve (Required)
30" Butterfly Valve (Upsized)
2" Air Vacuum Assembly
CP Test Station with Anodes
Connect to Existing
Sawcut & Replace AC
Subtotal
El Fuerte Street
30 Recycled Water Line (550 HGL)
12" Recycled Water Line (Required)
30" Recycled Water Line (Upsized)
2' Blow Off Assembly
4" Blow Off Assembly
2" Manual Air Release
2" Air Vacuum Assembly
CP Test Station with Andes
8" Class 125 FLG Gate Valve
30' Butterfly Valve Class 250
12' Butterfly Valve (Required)
30" Butterfly Valve (Upsized)
2" Irrigation Service per w-4
12" FLG Gate Valve Class 200
Subtotal
8" STL Outlet WCL 150 FLG
Subtotal Not Including Items 1-5
Allocable Share of Items 1-5
Contingency (Initial)
Change Order #4
Add 30 Butterfly Valve CI 250
12" Butterfly Valve (Required)
30" Butterfly Valve (Upsized)
Add 8" CI 125 FLG Gate Valve
Subtotal
Contingency (Current)
Grand Total
5% Overhead Allowance
LS
LS
LS
LF
LF
LF
EA
EA
EA
EA
EA
EA
EA
EA
EA
LF
LF
EA
EA
EA
EA
LF
LF
LF
LF
EA
EA
EA
EA
EA
EA
EA
EA
EA
LF
LF
LF
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
EA
1
1
1
4257
3
2
2
5
3
5
2
45
25
3
1
1
3
1448
64
1
2
1
4
2
1
1
4460
2
3
3
4
4
1
2
2
1
1
1
61,756
5,000
5,000
132
45
87
1,500
15,000
2,100
12,900
2,200
2,400
3,000
2,900
1 42
50
63
200
3,200
1,800
330
135
46
89
44
2,000
3,300
15,000
2,100
12,900
2,400
2,900
10,000
1,100
134
46
88
2,000
3,300
2,200
2,400
2,900
1,500
15,000
2,100
12,900
1,900
2,100
15,000
2,100
12,900
1,500
-I 195,480
1,448 $128,872
$2,816
$2.000
2,816
2.000
6,600
15,000
1 $2,10C
1 $12,900
9,600 4 $9,600
5,800 2 $5,800
10,000 1 $10,000
1,100 1 $1,100
$248,396 $179,688 $68,708
597,640
4,460 $392,48
4,000
9,900
6,600
9,600
11,600
1,500
30,000
3,800
2,100
$676,740
$1,572,159 $289,468
18.4%
$157,216
15,000
1,500
$16,500
$140,716 $25,347
$1,815,131 $334,194
Total Reimbursable Cost (with Overhead Allowance) I $1,293,4401
E Life PmcTsy
13.7% $1.91
13.7% $846
13.7% $68
13.7% $68
$1 1,74
3 $4.50
2 $4,80
2 $28
45 $2,258
25 $1 57
3 $601
1 $3,201
1 $1,801
3 $991
$215,76
. . . . . .. . .
$21 5,76r
13.79
$21,57(
$c $21,57(
$249,08!
On A,:I 31; 200 5 , before me, a; \\\ow F. ~Q&wI\, rJohrj QLl;t,
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subscribed to the within instrument and
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signature@ on the instrument the persona or
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