HomeMy WebLinkAboutBressi Gardenlane LLC; 2007-03-23;RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF OVERSIZED POTABLE WATER
PIPELINE IMPROVEMENTS WITHIN LENNAR COMMUNITIES
CARLSBAD TRACT CT 00-06 (BRESSI RANCH)
Between
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
AND
BRESSI GARDENLANE, LLC,
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RATIFICATION OF AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR THE CONSTRUCTION OF OVERSIZED POTABLE WATER
PIPELINE IMPROVEMENTS WITHIN LENNAR COMMUNITIES
CARLSBAD TRACT CT 00-06 (BRESSI RANCH)
Ratification of Agreement for Reimbursement of Costs for the Construction of Oversized
Potable Water Pipeline Improvements within Lennar Communities Carlsbad Tract CT 00-06
(Bressi Ranch), dated as of fii'tyv OC^A cfclfyns^ttfl ("Agreement") is made at San
Diego County, California, by and between tW OARLSBAD 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"), and BRESSI GARDENLANE, LLC, ("Developer") a
Delaware limited liability company, 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 on May 29, 2003, as File No. 2003-
0631052.
B. The Planning Commission of the City adopted a series of resolutions on
June 20, 2001, approving the Project, Carlsbad Tract Number (CTOO-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 potable water
pipeline in El Fuerte Street and a 8-inch diameter potable water pipeline in Poinsettia Lane 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 oversize the potable water pipelines by installing a 24-inch diameter potable water
transmission pipeline and appurtenances in El Fuerte and 24-inch and 16-inch potable water
transmission pipelines and appurtenances in Poinsettia Lane, collectively referred to as the
"Potable Water Work" and described more particularly in Section 3 (a) below.
E. The District and Developer recognize that the Potable 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 Potable 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:
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°(
1. Recitals. The Recitals, above, are true and correct and incorporated herein by
this reference.
2. Satisfaction of Obligation. Developer's agreement to perform the Potable 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 Potable
Water Work as described above in paragraph B.
3. General Developer Obligations.
(a) In consideration of the District's reimbursement and other undertakings
as set forth herein, Developer agrees to cause the construction of the
Potable Water Work, which work shall include the following
improvements, as shown on City Drawing No. 397-2K, Sheets 1-36,
dated February 12, 2003, prepared by Kimley-Horn & Associates, Inc.
and City Drawing No. 400-8E, Sheets 1-24, dated February 21, 2003,
prepared by Project Design Consultants (together, the "Plans") and as
shown in the attached Exhibit "A", which are incorporated herein by this
reference:
(i) Potable water pipeline, showing: (1) oversizing of approximately
4,788 lineal feet of a 12-inch diameter PVC pipe to a 24-inch
diameter welded steel pipe and approximately 712 lineal feet of a
12-inch diameter PVC pipe to a 30-inch steel CML&C pipe in El
Fuerte Street; and (2) oversizing of approximately 106 lineal feet
of a 12-inch diameter PVC pipe to a 24-inch diameter welded
steel pipe, approximately 57 lineal feet of a 12-inch diameter Dl
pipe to a 30" steel CML&C pipe, and approximately 947 lineal feet
of an 8" PVC pipe to a 16" PVC pipe in Poinsettia Lane.
The Potable Water Work shall include all necessary valves and
appurtenances, including those necessary to connect the Potable Water
Work to the District's pipelines.
(b) Any portion of the Potable Water Work completed before the effective
date of this Agreement shall be included as a part of the Potable Water
Work for reimbursement, subject to the other provisions of this
Agreement.
(c) Developer shall cause the construction of the Potable Water Work
substantially in compliance with the District-approved plans and
specifications, and other design documentation for the Potable Water
Work.
(d) Developer shall cause construction of all Non-Reimbursable Work at
Developer's cost.
(e) By entering into this Agreement, Developer waives any and all potential
constitutional objections (Nolan/Dolan) relating to the Potable Water
Work improvements.
(f) 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 Potable Water Work Improvements, as
specified in this Agreement.
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lo
(g) Developer shall require Performance and Payment Bonds from the
Contractor.
General District Obligations.
(a)
(b)
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 Potable 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 as described in Section 6(h). The Total Reimbursable Cost for
oversizing is $721,280 calculated as follows:
Description
Reimbursement for
oversizing of 12-
inch to 24- and 30-
inch diameter
potable water
pipelines
in El Fuerte Street
Reimbursement for
oversizing of a 12-
inch to 24- and 30-
inch diameter and
an 8-inch to a 16-
inch diameter
potable water
pipelines in
Poinsettia Lane
Total
Oversizing
Contract
Cost
$602,249
$84,684
$686,933
5.0% Overhead
Allowance
$30,113
$4,234
$34,347
Total
Reimbursable
Cost
$632,362
$88,918
$721,280
District agrees to reimburse Developer for Reimbursable Potable Water
Work as described in Sections 6 and 7 below.
5. Reimbursable Potable Water Work.
(a) With respect to all hard costs of construction comprising the Potable
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 Potable
Water Work Improvements, which are being bid by such contractor. Upon
award of a contract for the Potable 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 Potable Water Work.
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II
(b) During the performance of any Reimbursable Potable Water Work,
Developer or Construction Manager shall retain detailed payment records
for all items of Reimbursable Potable 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 Potable Water Work. Reimbursement
Requests may be submitted by Developer as described in Section 6 (a)
below.
6. Audit of Reimbursable Expenses.
(a) Expenses for Reimbursable Potable 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 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 from Project Funds.
(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 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:
(a) An allowance to cover the allocable portion of premiums paid by
Developer for improvement and/or payment and performance
bonds relating to the construction of Potable Water Work.
(b) An allowance to cover the allocable portion of premiums paid by
Developer for blanket liability insurance coverage.
(g) 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 Potable 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.
(h) All change orders shall be subject to approval by the District. At the time
of approval, the parties shall 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 a change order may be
necessary due to changed circumstances or oversight in original design,
or it is required in order to perform the applicable portion of the Potable
Water Work Improvements in an orderly, reasonable and prudent manner
according to the standard engineering and construction practice
applicable to the improvements.
(i) 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.
7. Payment 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).
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(b) The District shall not unreasonably withhold acceptance of the Potable
Water Work Improvements.
(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 Potable Water Work
Improvement Program.
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.
10. 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.
11. 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: Keith Randhahn, Project Manager; Robert
D'Amaro, Director of Operations
1525 Faraday Avenue, Suite 300
Carlsbad, CA 92008-7319
Telephone: (760)918-7765
Fax: (760)918-8868
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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.
12. Transfer by Developer. The obligations and benefits of this Agreement shall not be
transferred upon sale of the Project.
13. 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.
14. Governing 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.
15. 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.
16. 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.
17. Term. This Agreement shall be effective as of the date first above written, and shall
terminate on January 1, 2008.
18. 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.
19. 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.
-8-
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POINSETTIA LANE
NOTE:
WATER LINE SIZE IN PARENTHESES
IS SIZE REQUIRED FOR PROJECT ONLY.
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BRESSI RANCH
POTABLE WATER
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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 limjffed liability company
: Camino Palomar, LLC,
a~Delaware|imited liability company,
Its Administrative Member
By: Lennar Homes of California, Inc.
a California corporation,
Its Manager
A* Its: Vice President
ai-ld title of signatory)
CARLSBAD MUNICIPAL WATER DISTRICT,
a Public Agency organized under thj
MunicipakWatefcDistrict Act of 1jpn antf a
Subsidiary Qjtynct o/)the/City qpCa&foad,
Califc/ni?
f / I / I fl / JT
\
, President
ATTEST:
CORPAJNEM. WOODTsecfetafy'
(sign here)
(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
Deputy GeneTaTObunsel
-9-
ACKNOWLEDGMENT
State of CaliforjiLc
County of
On
personally appeared_
before me, TI0MM/)*.
(here insert name and title of th^officer)
./
personally known to me (or provod-tQ-me on the basis ^f gatisfartory »vid^n^-«) to be
the person($) whose name(s/) is/are-subscribed to the within instrument and
acknowledged to me that he/sbe/they executed the same in his/hor/thoir authorized
capacity(ie&), and that by his/befitheir signature(jS) on the instrument the person^),
or the entity upon behalf of which the person(^) acted, executed the instrument.
WITNESS
Signature
MARIANNE SIWEK
Commteton* 1658667
Notary Public • California
San Diego County
My Comm. Expires Apr 23,2010
(Seal)
2