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HomeMy WebLinkAboutPalomar Forum Associates; 2003-02-14;Reimbursement Agreement for Costs Related to Sewage Flows from the to the Buena Sanitation District This agreement is entered by and between the City of Carlsbad, a municipal corporation of the State of California, ("City") and Palomar Forum Associates, a limited partnership, developer for the Palomar Forum (CT 99-06), and LSOF Carlsbad Land L.P., a limited partnership, developer for the Carlsbad Raceway (CT 98-10), both collectively referred to herein as Developer on F-e.brwary-14 , 2003. The Palomar Forum and the Carlsbad Raceway Business Parks are collectively referred to herein as the Project. Carlsbad Raceway and Palomar Forum (CT 98-10 and CT 99-06) Whereas, City and the Buena Sanitation District ("District") have, from time to time entered into sewage flow agreements, whereby District agrees to allow a sewer sanitation customer of City to discharge sewage into the District's sanitation collection system on the condition that Carlsbad reimburse District the reasonable cost for the use of its sewage collection system; and Whereas, City cannot now efficiently provide sewer service to the area within which the Project is located, and desires that the Project temporarily connect to the District's sanitation collection system for approximately six years until the South Agua Hedionda Interceptor sewer line is completed in Carlsbad; and Whereas, the City of Carlsbad and the District entered into an Agreement for Sewage Flows between the City of Carlsbad and Buena Sanitation District ("Flow Agreement") to allow sewage to be temporarily discharged from the Project into the District's sanitation collection system for the benefit of the Project on February 11 , 2003, attached and incorporated herein; and Whereas, the public service to be provided temporarily by District to the Project is an alternate to or substitute for the public service that City would normally provide to the area within which the Project is located, consistent with Government Code section 561 33(e); and Whereas, the Developer is willing to pay the City for administrative costs incurred by the City for managing the Agreement between the District and City, and for the actual costs of any City-installed equipment necessary to connect the Project's sewage discharge to the District's sewage collection system. Now, therefore, the parties agree to the following terms and conditions: Payment of Compensation: The Developer agrees to reimburse City for the City's proportionate share of the District's actual costs operational and maintenance costs associated with the total volume of sewage generated from the Project into the Buena sanitation system pursuant to Section 6 of the Flow Agreement. City or Developer may 1 construct a metering system at the point of main line connection to the District's facility consistent with Section 9 of the Flow Agreement. Administrative Costs: Each Developer agrees to reimburse the City for costs incurred in administering the Agreement. The City will invoice each Developer an additional five percent (5%) of the District's invoiced amount, but no less than one thousand dollars, ($1,000) each year. An alternative method of paying administrative costs may be substituted if mutually agreed to by the City's Finance Director and both Developers. Term: This Agreement shall become effective upon the date first written above, and continue for a period of one (1) year. This Agreement shall renew annually, without further action of either Developer or City, unless terminated as set forth below. The parties intend that this Agreement will continue until City completes construction of the South Agua Hedionda Interceptor. Barring unforeseeable events, the City anticipates completing the South Agua Hedionda Interceptor by approximately December 2008. Termination: The parties intend that this Agreement will remain in full force and effect until the South Agua Hedionda Sewer Interceptor in Carlsbad is complete. However, if necessary, for unforeseen circumstances, this agreement may be terminated for good cause by giving 120 days advance written notice to the other party. The South Agua Hedionda Interceptor project shall be deemed completed when it is capable of accepting sewage flow, whether or not the City has formally accepted the Project as complete. Indemnification: The Developer agrees to indemnify and hold the City and its officers, officials, employees and volunteers harmless from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of this agreement, caused in whole or in part by any willful misconduct or negligent act or omission of the Developer, it agents and employees, or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. Venue: In the event of any legal or equitable proceeding to enforce or interpret the terms or conditions of this Agreement the parties agree that venue shall lie only in the federal or state courts in or nearest to the North County Judicial District, County of San Diego, State of California. Notices: All notices required or provided for under this agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this paragraph. Notice shall be effective on the date it is delivered in person, or, if mailed, on the date of deposit in the United States Mail. Notices shall be addressed as follows unless a written change of address is filed with the City: Notice to City: City Engineer 1635 Faraday Avenue Carlsbad. CA 92008 2 Notice to Developer: Palomar Forum Associates, L.P. C/o Larry E. Nelson, General Partner 1420 Bristol Street North, Ste. 100 Newport Beach, CA 92660 Notice to Developer: LSOF Carlsbad Land, L.P. C/o Hudson Advisors LLC John Crowley 717 N. Harwood, Ste. 2100 Dallas, Texas 75201 Modification: Unless otherwise stated herein, this Agreement may not be altered in whole or in part except by modification, in writing, executed by all the parties to this Agreement. Multiple Counterparts: This Agreement may be executed in a number of identical counterparts which, taken together, shall constitute collectively one (1) agreement. Each counterpart shall be deemed an original. Entire Aweement: This Agreement contains all representations and the entire understanding between the parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda, or agreements, whether or not such correspondence, memoranda, or agreements are in conflict with this Agreement, are replaced by this Agreement. The Signature Page for this Agreement follows on Page Four, attached Signature Page 3 Reimbursement Agreement for Costs Related to Sewage Flows from the to the Buena Sanitation District Carlsbad Raceway and Palomar Forum (CT 98-10 and CT 99-06) ATTEST: APPROVED AS TO FORM: Ronald R. Ball, City Attorney FOR THE DEVELOPER Palomar Forum Associates, L.P LSOF Carlsbad Land, L.P. By: LSOF GenPar 111, Inc., Its General Partner By,eU Print Name and Title Proper notarial acknowledgment of execution by Developer 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 empouering the officer(s) signing to bind the corporation. If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument. 4 Reimbursement Agreement for Costs Related to Sewage Flows from the to the Buena Sanitation District Carlsbad Raceway and Palomar Forum (CT 98-10 and CT 99-06) FOR THE ClJY OF CARLSBAD A ATTEST: APPROVED AS TO FORM: Ronald R. Ball, City Attorney FOR THE DEVELOPER Palomar Forum Associates, L.P. By: Print Name and Title LSOF Carlsbad Land, L.P. By: LSOF GenPar 111, Inc., Its General Partner r) By: I By: Print Name and Title Proper notarial acknowledgment of execution by Developer 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@) signing to bind the corporation. If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument. 4 STATE OF TEXAS § COUNTY OF DALLAS 5 On the & day of January ,2003 before me, the undersigned Notary Public, personally appeared Mary Etta Ford ,who is personally known to me to be the person whose name is subscribed to the foregoing instrument and acaowledged tome that she executed the same for the purposed and consideration therein expressed. Y Witness my hand and -1 seal. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California I ,!3 proved to me on the basis of satisfactory personally known to me evidence to be the persop whose, namepf is& acknowledged to me that he/she/they executed subscribed to t e wlthln Instrument and the same in his/ketWeir authorized capacity(i. and that by his/heFLtk& signatureNon the instrument the personlp): or the entity upon behalf of which the persow acted, executed the instrument. slgnsrvre ol MW OPTIONAL Though the information below is not required by law. iI may pmve valuable to persons relying on the document and could prevent fraudulent removal and reanachment of this form to another document. Description of Attached Document Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: 0 Individual 0 Corporate Officer - Title@): 0 Partner - 0 Limited 0 General U Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: ~~ Signer Is Representing: u CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT y"" A . ~. . a proved to me on the basis of satisfactory 0 personally known to me evidence to be the person(s) whose namekrl islate subscribed to the within instrument and acknowledged to me that helsReHkeg executed the same in hislh&.l+ek authorized capacity(ies). and that by hidherftkeir signature(sf on the instrument the personjg), or the entity upon behalf of which the personp acted, executed the instrument. WITNESS py hand and $ticia1 seal. OPTIONAL Though the information below is no1 required by law, it may pmve valuable lo persons relying On the documen1 and could Prewnl fraudulent removal and readmhmsnf of lhis form 10 anolher document. Description of Attached Document Titie or Type of Document: Document Date: Number of Pages: Signer@.) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: 0 Individual 0 Corporate Officer - Title($: 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: