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HomeMy WebLinkAboutContinental Residential Inc; 2000-04-11;J Exhibit 3 e a AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF WATER TRANSMISSION MAIN IMPROVEMENTS WITHIN EL FUERTE STREET AND VALLECITOS WATER DISTRICT INTERTIE AND METER VAULT CMWD PROJECT 86-502 THIS AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF WATER TFUNSM MAIN IMPROVEMENTS WITHIN EL FUERTE STREET AND VALLECITOS WATER DISTRICT INTERTIE AND VAULT dated as of , 14-, ("Agreement"), is made at Carlsbad, California, I: CONTINENTAL RESIDENTIAL, INC., a California corporation ("Continental"), and the CARLSBAD MUNICIPAL \ DISTRICT, a Public Agency organized hder the Municipal Water District Act of 191 1, and a Subsidiary Distric City of Carlsbad, ("District"), with reference to the following recitals: &!&&~ RECITALS A. Continental is the record owner of certain real property located in the City of Carlsbad, Californi particularly described on Exhibit "A" attached hereto and made a part hereof (the "Rancho Carrillo"). The Carrillo consists of several villages, as designated on Exhibit "A". As used herein, the term "Village" shall r indicated, to one or more of such Villages so designated on Exhibit "A." The various Villages as shown on Ex1 either are, or will become, separate legal parcels in accordance with the applicable legal requirements of the California and the City of Carlsbad. 8. As separate legal parcels, Continental intends to convey or cause conveyance of record title of the to other persons pursuant to contractual commitments not related to this Agreement. Any further development with respect to any of the Villages will be the responsibility of the respective transferee. All of the Villages of Carrillo, are herein referred to collectively as the "Rancho Carrillo Project " Continental is the developer of the Carrillo Project. C. The City Council of City adopted Resolution No. 97-645, on October 21, 1997, approving Rancho Master Plan Amendment, General Plan Amendment, Addendum to Master Environmental Impact Report 93-01 , 1 Rev. 06 ). e a findings and conditions of the Planning Commission Resolutions No. 4165, 4166, and 4167(GPA 96-05 and MP relating to development of a mixed-use, master-planned community within the City of Carlsbad. Finding tf Resolution No. 4167 provides as follows: “All necessary public facilities can be provided concurrent with need and adequate provisions ha\ provided to implement those portions of the capital improvement program applicable to the subject property. The Plan has language in the text stating that all future development shall comply with the public facility perfc standards and phasing requirements of the Local Facilities Management Plan (LFMP) for Zone 18. Public facili required to be constructed as development in the Master Plan creates demand for additional facilities. D. Continental has advanced on behalf of District the cost of constructing water facilities consisting o water transmission main within El Fuerte Street and an intertie/meter vault with Vallecitos Water District, hei collectively referred to as the Water Work. E. District will utilize funds collected from water connection fees to reimburse the costs advanced hereL Continental. F. District and Continental recognize that the Water Work exceeds the infrastructure otherwise req Continental as required by the Growth Management provisions of the LFMP’s for Zones 10, 17, and 18. Cor agrees to construct or cause the construction of the Water Work provided the District agrees to reimburse Contin set forth in this Agreement. G. District and Continental desire to enter into a reimbursement agreement which covers the Reimt Work contemplated by the construction of the Water Work. H. The Water Work shall include the following improvements, as set forth on Exhibit “8”. (1 ) El Fuerte Water Transmission Main. Continental agrees to advance all costs necessary to c 2,058.84 feet of 30-inch diameter potable water pipeline (700 pressure zone) in El Fuerte Street within the north limits of the subdivision identified in the attached Exhibit “B”. The work necessary for said construction is sf Drawing 331-1, Sheets 21, 22, and 23, Carlsbad Municipal Water District Project No. 95-402. 2 Rev. 06 0 0 (2) Intertie/Meter Vault with Vallecitos Water District. Continental will advance the costs new construct the Intertie/Meter Vault in Melrose Drive near the south boundary of the subdivision identified in the Exhibit “B as shown on Drawing 331-1, Sheet 10, Carlsbad Municipal Water District Project No. 86-502. (3) Definition of “Water Work. The various items of construction, described in subsections (1; above are hereinafter collectively referred to as the “Water Work”. (4) Estimated Cost of Water Work. District shall reimburse Continental in the manner des( Section 4 below for the total costs advanced by Continental for the Water Work. The Total f the Reimbursable Cost for each of the items of Water Work is currently estimated to be as fo item Description Total Cost Reimbursable ( 1 30-Inch Transmission Main $255,425 $255,425 2 IntertielMeter Vault $ 70,607 $ 70.607 Total Construction Cost of Work is $326,032 $326,032 NOW THEREFORE, the good and valuable consideration, the receipt and sufficiency of which i acknowledged, the parties hereto agree as follows: 1. 2. SATISFACTION OF OBLIGATION. Continental’s agreement to perform the Water Work, as set forth herein, and the actual construction shall fully satisfy and constitute full compliance with all requirements regarding the Rancho Carrillo Project witt to the Water Work. The Recitals are true and correct. 3. CONTINENTAL OBLIGATIONS. (a) In consideration of District‘s reimbursement and other undertakings as set forth herein, Cc agrees to construct and install the Water Work. (b) Continental shall complete all work no later than three ( 3 ) years from the effective da Agreement. Work completed before the effective date of this Agreement shall, subject to the other provisior Agreement, also satisfy this Agreement. (c) Continental shall use the complete set of City approved plans, specifications, and othf documentation for the Water Work. 3 Rev. Ot e 0 (d) By entering into this Agreement, Continental waives aiiy and all potential cons; (Nollan/Dolan) objections relating to the Water Work. 4. DISTRICT OBLIGATIONS. (a) The District shall reimburse Continental an amount ( the “Reimbursement Amount” ) equal to cost of the Water Work (the “Actual Total Construction Cost of all items of Water Work identified in Recital “I- Agreement”), plus, ( ii ) an overhead allocation of four percent ( 4% ) of the Actual Total Construction Cost ($ 1: lieu of other reimbursement for Continental’s cost incurred for salary and benefits for staff of Continental’s home supervision above the level of on-site superintendent, general corporate, legal, and accounting fees, the borrowed funds, insurance and bond premiums, expenses for meetings with and presentations to governmental i which issue permits or otherwise regulate project approval, (collectively, the “Overhead Costs”), plus, (iii) an a1 two and one-half percent (2.5%) of the Actual Total Construction Cost ($8,151) for construction admini engineering design, construction fees and permit fees advanced by Continental, soils engineering, pipeline SL staking, and other incidental costs. The Actual Total Construction Cost shall include all costs associated installation of the Water Work. Total Reimbursable Costs are: $326,032 + $13,041 + $8,151 = $347,224 (b) District agrees to reimburse Continental for the Water Work as described in Section 5 and 6 t 5. ACCOUNTING OF COSTS. (a) When an item of the Water Work has been completed, as described in Section 5(e Continental shall present District with a complete and detailed accounting of the costs and expenses adva Continental in connection with the Water Work. Upon its receipt of a written request therefor from District, Coi will allow an audit of such costs and expenses to be prepared at Continental’s expense by certified public acci specified by District. (b) With respect to all hard costs of construction comprising the Water Work, Continental shz bids from three reputable contractors. Reimbursable Work shall be bid together with Non-Reimbursable work 4 Rev. 06 0 0 portion of the Water Work which is being bid by such contractor. Continental may reject a low bid if, in its rea discretion, it does not believe the low bidder will be able to complete its portion of the Water Work competently or (c) During the performance of any Reimbursable Water Work, Continental shall retain detailed 1 records for all items for Reimbursable Water Work, for use by District in auditing any subsequent reqL Continental. Continental’s requests for reimbursement (each a “Reimbursement Request”) shall include copies ( specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, c checks (front and back), lien releases and other documentation reasonably required by District to evide completion and payment for each item of Reimbursable Work. Reimbursable Requests may be submitted in stag completion of any item of the Water Work in conformance with Section 5 (e). (d) Continental shall send one copy of each contractor invoice to the “District Engineer” of the ( Municipal Water District together with an invoice for all other components of the Reimbursement Amount. The Engineer shall consider and approve the request pursuant to this Agreement. If the District Engineer objects to ai comprising the Reimbursement Amount, the District Engineer shall notify Continental within ten (IO) days of rece invoices forwarded by Continental. Failure to notify Continental shall be deemed the District Engineer‘s approval invoices. In the event the District Engineer does object, Continental and the District Engineer shall meet to disi disputed amount (at which time Continental shall make available all of the Work Documentation) and attempt to the matter through good-faith negotiation. (e) Prior to the submission to the District Engineer of the final invoices, Continental shal necessary or appropriate lien releases from the Contractor, and shall obtain from the City of Carlsbad, the C Municipal Water District, and any and all appropriate governmental agencies, all approvals, certificates, ar documents necessary to indicate the completion of the Water Work and the ability to put the Water Work into L date Continental receives all such lien releases, approvals, and certificates shall be deemed the date of comp the Water Work (the “Completion Date”). Continental may submit its accounting and requests for payment (Sectij any time. Any delay by Continental in such submittals shall not prejudice Continental’s rights, but shall delay da) the time in which the District must take any responsive action. 5 Rev.06 e 0 (f) Nature of Reimbursable Costs. Notwithstanding the foregoing, if Continental disputes the Engineer’s determination of reimbursable costs or believes that sum established by the District Engineer is not COI with the specific provisions of the Agreement, then Continental may elect to ( i ) appeal the District Engineer’s dec the Board of Directors (and thereafter, at Continental’s option, a Court of proper jurisdiction) for final determinatio ) submit the dispute for the review and recommendation of a neutral and independent civil engineer qua engineering, design and construction and mutually approved by District and Continental; provided, howew engineer’s recommendation shall be non-binding and shall not preclude Continental from thereafter appealing the Engineer’s decision as described in item ( i ) above. 6. DISTRICT’S PAYMENT OF REIMBURSEABLE EXPENSES. District shall pay Continental the Reimbursement Amount for its costs (as approved pursuant to 5, above) within 30 days after the District‘s acceptance of the Water Work, or execution of this Agreement whict later. 7. MISCELLANEOUS. (a) Disputes: Claims: If a dispute should arise regarding the performance or interpretation Agreement, the following procedure shall be used to resolve and question of fact or interpretation not formally I by the parties. Such questions, if they become identified as a part of a dispute among persons operating ut provisions of this Agreement, shall be reduced to writing by the principal Continental or the District’s General I (General Manager). A copy of such documented dispute shall be forwarded to both parties involved alc recommended methods of resolution which would be of benefit to both parties. The General Manager, or princir receipt, shall reply to the letter, including a recommended method of resolution, within ten (1 0) days. If the resolu obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the 1 Directors for their resolution through the office of the City Manager of the City of Carlsbad. The Board of Direct but is not obligated to resolve the dispute. If the Board of Directors considers the dispute, and directs a SOIL action of the Board of Directors shall be binding upon the parties involved, although nothing in this procedi prohibit the parties seeking remedies available to them at law. 6 Rev. OC 0 0 (b) Jurisdiction. Continental agrees and hereby stipulates that the proper venue and jurisdic resolution of any disputes between the parties arising out of this agreement is San Diego County, California. (c) Obligations and Benefits Not Runninq With Land: No Third Party Beneficiaries. This Ag shall bind and inure to the benefit of the parties and their respective successors and assigns However, it shall with the land or be recorded, and all payments due from the District shall be made to Continental or such assil Continental designates in writing. This Agreement shall not be deemed to confer any rights upon any individual which is not a party hereto; the parties hereto expressly disclaim any such third-party benefit. (d) Notice. Unless otherwise specifically provided herein, all notices, demands or other commur given hereunder shall be in writing and shall be deemed to have duly delivered upon personal delivery, or by Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed tt day, or as of the second business day after mailing by United States certified mail, return receipt requested, prepaid, addressed as follows: If to Continental: Continental Residential, Inc. Attention: Mr. David Lother 2237 Faraday Avenue, Suite 100 Carlsbad, California 92008 Telephone: (760) 931 -1 980 Facsimile: (760) 931 -0237 If to District: Carlsbad Municipal Water District Attention: Mr. Robert J. Greaney, General Manager 5950 El Camino Real Carlsbad, California 92008 Telephone: (760) 438-2722 X 71 06 Facsimile: (760) 431 -1 601 or to such other address or to such other person as any party shall designate to the others purpose in the manner set forth above. 7 Rev. OE e 0 (f) Counterparts. This Agreement may be executed in any number of counterparts, each of wl be deemed an original, but all of which, taken together, shall constitute one and the same instrument. (9) Governinn Law. This Agreement shall be governed by, and construed in accordance with, of the State of California. (h) Complete Aweement. This agreement contains the entire agreement between the pal respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whethe written) between the parties with respect to the matters set forth herein. (i) Amendment. This agreement may be amended by a written instrument executed by Di! Continental (including for this purpose any successors of Continental, to the extent of their ownership of real with Continental Ranch Project), except that no amendment regarding the provisions for reimbursement to Cc shall be valid unless executed by Continental Residential, Inc. (j) Term. This Agreement shall be effective as of the date hereof, and shall terminate on the (i) the date the District fully reimburses Continental the Reimbursement Amount, or (ii) January 1, 2015. (k) No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights 1 individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party ber In the event of any litigation to enforce the provisions of this Agree1 prevailing party in such litigation shall be entitled to recover from the losing party, its expenses, attorney’s fees, attorney’s out of pocket expenses, and costs incurred therein or in the enforcement or collection of any jud award rendered therein. (I) Attornev’s Fees. (m) Pavments to Continental. Any payments to Continental by District hereunder shall ’ payable to Continental Ranch, Inc. and shall be forwarded to the following address, or to such other ac Continental specifies in writing to the General Manager of District: clc Continental Residential, Inc. Attention: Mr. David Lother 2237 Faraday Avenue Carlsbad, California 92008 8 Rev. 0 0 e (n) District Authority: District warrants, represents and agrees that it has the legal authority i the funds that it will use to reimburse Continental. District further warrants, represents and agrees that it has authority to pay these funds to Continental. These warranties, representations and agreements are a inducement to Continental to enter into this Agreement. In the event District lacks legal authority to collect necessary to pay Continental, District shall pay the amount due Continental out of other funds at the same fa' had collected the fees. Ill Ill Ill 111 Ill lli 111 Iff Ill Ill Ill Ill 3 fi/ Ill Ill Ill Ill 9 Rev. 0 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first I above. Executed by DEVELOPER this H day of Executed by DISTRICT this // day of %- ac FIE-0 * , *Ern & ,t9--& By: w de DEVELOPER. CONTINENTAL RESIDENTIAL, INC., A California Corporation & Sign here ATTEST B (SEAL) (Proper notarial acknowledgment of execution of DEVELOPER must be attached ) (Chairman, president or vice-president and secretary or assistant secretary, CFO or assistant treasurer must corporations Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretai corporate seal empowering that officer(s) signing to bind the qorporation.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the p; execute the instrument ) APPROVED AS TO FORM. RONALDR BA CMWD 86-502 10 Rev.06128199 0 e State of California 1 ) ss. County of San Diego ) On February 24, 2000, before me, Toni Carter, Notary Public, personally appeared David A. Lother, of Continental Residential, Inc., personally known to me 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. f&&& 4&&b&&&d.&-.-Q TO2.3 CAFEf? cdmpuinn L; 12i le01 v Toni Carter, Notary Public ' State of California 1 County of Sm Diego ) ) ss. On February 24, 2000, before me, Toni Carter, Notary Public, personally appeared Gregory A. Hastings, of Continental Residential, Inc., personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in hs 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. ToGi Carter, Notary Public -. . e EXHIBIT A 0 . * ,.%* Y ,.n','l.* - .. --..a w I, 2-3-rr ~c< ~;\jmm c&&.\i