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HomeMy WebLinkAbout2000-06-06; Municipal Water District; 478; Reimbursement Agreement - Kelly Land Company,- CARLSBAD MdNlCIPAL WATER DISTRICT i AGENDA BILL AB# 4-78 TITLE* -- APPROVE AND AUTHORIZE EXECUTION OF REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY MTG. 6/06/00 FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 2) DEPT. ENG CMWD PROJECT NO. 88-602, CITY PROJECT NO. 35341 I RECOMMENDED ACTION: Adopt Resolution No. 107 0 to approve and authorize a reimbursement agreement with Kelly Land Company for oversizing water and recycled water pipeline improvements within Cannon Road West (Reach 2), CMWD Project No. 88-602, City Project No. 35341. I ITEM EXPLANATION: The Kelly Land Company is constructing a portion of Cannon Road referred to as Cannon Road West (Reach 2). This reach extends approximately from the intersection of Faraday Avenue with Cannon Road easterly to the intersection of El Camino Real with Cannon Road. Kelly Land Company is constructing Reach 2 in two phases referred to as Segment 1 and Segment 2. The Kelly Land Company is also the developer of property along Reach 2 and is required to install an 8-inch diameter potable water pipeline and an 8-inch diameter recycled water pipeline in Cannon Road Reach 2 for proposed land development projects. However, the master plan for the water and recycled water system calls for construction of a 16-inch diameter potable water pipeline and a 24-inch diameter recycled water pipeline in Cannon Road Reach 2 to serve additional areas. District Ordinance No. 26 provides for a reimbursement agreement on facilities greater in size than what is required to serve the development. Kelly Land Company has agreed to construct the oversized pipeline improvements through a reimbursement agreement. The plans and specifications for the potable water and recycled water pipelines in Cannon Road Reach 2 were prepared by the District on Improvement Drawing 333-2GE dated October 21, 1998. The engineer’s estimate for the project cost of Reach 2 is $1,027,506. Four (4) contractors submitted bids to the Kelly Land Company to perform the Segment 1 work. The lowest responsible bidder was Erreca in the amount of $299,938. Erreca is also the low bidder on Segment 2 in the amount of $483,808. I ENVIRONMENTAL REVIEW: The Planning Director has determined that the requested action is consistent with prior CEQA review. The project was reviewed in the Cannon Road Reach 1 Environmental Impact Report, the Kelly Ranch Environmental Impact Report, and the Mitigated Negative Declaration for Reach 2. Significant environmental impacts identified by those CEQA documents were determined to be mitigable to levels of less than significant. Permits from the resource agencies have been obtained. I FISCAL IMPACT: . L The pipelines to be constructed under Cannon Road West Reach 2 are part of an overall project referred to as “Cannon Road Transmission Main”. Funds for the overall project were appropriated based on constructing a 16-inch water pipeline and a 24-inch recycled water pipeline in Cannon Road from LEG0 Drive east to El Camino Real. However, two changes were made affecting the project appropriation. First, in 1998, additional pipelines were installed extending west to Avenida Encinas. This was done to avoid impacting Cannon Road in the future from the freeway interchange to LEG0 Drive. These additional pipelines were built by Caltrans through a change order to their Cannon Road/l-5 interchange project. The pipelines installed by Caltrans were funded by the Cannon Road Transmission Main appropriation. Second, construction of the pipelines across the Agua Hedionda bridge, near El Camino Real, were higher in cost than originally estimated because of the need for special ductile iron pipe fittings. As a result of these two changes, an additional appropriation of $786,457 is required from the Water Connection Fee fund. Following is a summary of the project costs. I , Page 2 of Agenda Bill No. Lz 7 r PROJECT COST FOR CANNON ROAD WATER AND RECYCLED WATER TRANSMISSION MAINS - AVENIDA ENCINAS TO EL CAMINO REAL ._ ‘_ : !,’ ,. _: ” $, __ ” A&~$ ;’ ’ ,DyfCRIPTION’ ‘: <a ;> __ : :: .I<: : TOT& [I i’l , ,_ cos* j;: jj : Engineering Design Cost - Planning Systems (Environmental) $12,544 - Kleinfelder (Geotechnical) $9,220 - Daniel Boyle Engineering (Final Design & Amendments) $23,435 - O’Day Consultants (Preliminary Design, Final Design & Amendments) $81,804 Engineering Total $127,003 Reimbursement Cost for Oversizing to Carlsbad Ranch Co. (AB 14,821; a-04-98) $459,279 Construction of Cannon Road West Reach 1 by City of Cartsbad (AB 14,911; 10-27-98) $593,591 Reimbursement Cost to Caltrans (AB 15,010; 1-12-99) $657,078 JkJmbursement Cost for Oversizing to Kelly Land Company $1,027,506 !;fOiALiPROJECT COST, ‘: ;, <.:I ” ‘, ,, _‘! ‘i ,’ 3 EXISTING’i4PPROPRIATION y CANNON’ ROAD WES~:iRANSMlSSlON~~MAIN:- :’ :: ’ I’ ; $2,864#57i $2,078,000 ADDlTlONAL APPROPRIATION .!, , : ‘_ < !_ ‘: ;> 1, : > G; ‘t’ $7&?6;457~ EXHIBITS: 1. Location Map for Cannon Road West Transmission Main. 2. Reimbursement agreement between Kelly Land Company and the Carlsbad Municipal Water District. 3. Resolution No. I(390 to approve and authorize execution of reimbursement agreement with Kelly Land Company for oversizing of water and recycled water pipeline improvements in Cannon Road West (Reach 2), CMWD Project No. 88-602, Project No. 35341. 2 I HEDIONDA LAGOON I I I \-‘ CITY4 I NOT TO SCALE I REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY I .N’ ~-~BEFi FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE m - - - - 1 IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 21 PROJECT NAME i PROJECT 1 EXHIBIT ! DOE ^ 2000-03~0087 JUL 0711 2OOQ 3:56 PM RECORDING REQUESTED BY: Kelly Land Company WHEN RECORDED, PLEASE MAIL TO: 8282 OfFICIfu RECIXDS !BN DIEGS CWNTY ltEUll?DER’S OFFICE City Clerk City of Carlsbad 1200 Carisbad Village Drive Carlsbad, California 92008 Please record the documents at no fee as it is to the benefit of the District (Gov. Code [6103]. Space above this line for Recorder’s Use AGREEMENT FOR REIMBURSEMENT OF COSTS FOR OVERSIZING WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 2) CMWD PROJECT NO. 88-602 THIS AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS WITHIN CANNON ROAD WEST (REACH 2) dated as of June, 15 ,2000, (“Agreement”), is made at Carlsbad, California, between KELLY LAND COMPANY, a Delaware corporation (“Kelly”), and the 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, (“District”), with reference to the following recitals: RECITALS A. Certain real property located in the City of Carlsbad, California, is more particularly described on Exhibit “A” attached hereto and made a part hereof (the”Kelly Ranch”). The Kelly Ranch consists of several Villages, as designated on Exhibit “B.” As used herein, the term “Village” or “Planning Area” shall refer, as indicated, to one or more of such Villages so designated on Exhibit “B.” The various Villages as shown on Exhibit “B” either are, or will become, separate legal parcels in accordance with the applicable legal requirements of the State of California and the City of Carlsbad (“City”). 1 / 1 “- ‘” -9 -; \i L 8283 B. Kelly is the record owner of the Kelly Ranch, except for Village E of which Shea Homes (“Shea”) is the record owner. C. Upon their creation as separate legal parcels, Kelly intends to convey or cause conveyance of record title to Villages B, C, F, K and L, respectively, to other persons or agencies pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any of Villages B, C, F, K or L will be the responsibility of the respective transferee. Village A is already a separate legal parcel, any obligations for water and recycled water improvements in connection with the development of Village A will be addressed in connection with processing the separate development proposals for Village A, and this Agreement will not address such matters in connection with Village A. Village B will be deeded by Kelly to the State of California acting by and through the Department of Fish and Game, Wildlife Conservation Board. All of the Villages of the Kelly Ranch, other than Villages A, B, C, F, K and L, are herein referred to collectively as the “Kelly Ranch Project.” Kelly is the developer of the Kelly Ranch Project. D. Kelly filed a separate application for tentative subdivision map and site development plan with respect to Village E (the “E Project”). The E Project is the subject of certain development approvals received from the City of Carlsbad (the “E Project Approvals”), including without limitation: Tentative Subdivision Map (CT 96-07), Planned Unit Development Permit (PUD 97-04), Hillside Development Permit (HDP 96-l 3) and Coastal Development Permit (CDP 96-l 3), all approved by City Council Resolution No. 98-68 on April 7,1998 which included specific reference to Planning Commission Resolution No. 4225 recommending approval of the E Project with conditions and approved by the Planning Commission on January 21, 1998. The final map for the E Project (Final Map No. 13715) was recorded in the Official Records of San Diego County on December 31, 1998. Shea purchased the E Project from Kelly by deed recorded on September 22,1998 in the Official Records of San Diego County. 2 8264 E. Kelly has filed a separate application for a General Plan Amendment, Rezoning, LCP Amendment, Hillside Development Permit, Coastal Development Permit and a master tentative map (the “Tentative Map” or “TM”) with respect to Villages, D, F, G, H, I and J, as well as K and L. Villages K and L are being processed merely to create them as legal parcels, and the Master Tentative Map intended is to note that further mapping of parcels K and L, respectively, will be required prior to any development of them. Kelly has also filed a proposed amendment to the Zone 8 Local Facilities Management Plan (the “LFMP Amendment”). In addition, Kelly has filed or intends to file a separate application for approval of a site development plan with respect to Village J, a planned development permit with respect to Village I and a site development plan for Villages D, G and H. F. On April 7,1999, the Planning Commission of the City of Carlsbad recommended approval of the Kelly Ranch Project Core Approvals with a series of resolutions which included, without limitation, approval of: Certification of Final Supplemental Environmental Impact Report (EIR 98-05) General Plan Amendment (GPA 97-07), Zone Change (ZC 97-07) Zone Code Amendment (ZCA 99-03) Local Coastal Program Amendment (LCPA 97-09), Master Plan Amendment (MP 174(B)), Amendment to Local Facilities Management Plan for Zone 8 (LFMP 87-08(B)), Tentative Map (CT 97-16) Hillside Development Permit (HDP 97-17) Coastal Development Permit (CDP 97-43) and Planned Unit Development Permit (PUD 99-02). All of such Planning Commission actions were adopted and approved by the City Council of City on May II, 1999, by Council Resolution No. 99-162 and City Council Ordinance Nos. NS-482, NS-483 and NS-484. G. One of the conditions of approval for the Tentative Map (CT 96-07) for the E Project, condition 53(c) of Planning Commission Resolution No. 4255, requires Kelly to construct a portion of the improvements, including all utilities (“Cannon Road West Improvements”), in accordance with Improvement Drawing 333-26 prepared by O’Day Consultants dated February 19, 1998 (“Cannon Road West Plans”), from the westerly boundary of the E Project (also identified as Station 99+00 on Improvement Drawing 333-2G) 3 easterly to El Camino Real including modifications to the intersection of El Camino Real and Cannon Road (“Condition 53(c)“). H. The various approvals referred to in Recitals D, E, F, and G are collectively referred to herein as “Kelly Ranch Project Approvals.” I. On December 15, 1998, the City Council approved the Reimbursement Agreement for the construction of Reach 2 of Cannon Road West from Faraday Avenue to El Camino Real (“Cannon Road Reach 2”) between City and Kelly covering reimbursable work for road and drainage facilities (“Prior Road Reimbursement Agreement”). This Agreement is intended to augment and complement the Prior Road Reimbursement Agreement, and will be further augmented in the future by a separate South Agua Hedionda Interceptor Sewer Reimbursement Agreement. J. Other portions of condition 53 of the conditions of approval for the Tentative Map (CT 96-07) for the E Project require Kelly to construct water and recycled water pipelines and appurtenances within portions of Cannon Road Reach 2 and El Camino Real. The construction of the water and recycled water pipelines and appurtenances are collectively referred to herein as the “Water Work.” The Water Work is to be constructed in accordance with Improvement Drawing 333-2GE prepared by O’Day Consultants dated October 21, 1998 (“Water Work Plans”). K. District and Kelly desire to provide for construction of the Water Work simultaneously with Cannon Road Reach 2, in the location generally shown on Exhibit “C.” L. The Water Work shall include the Potable Water Improvements and the Recycled Water Improvements, as set forth on Exhibit “D.” 1) “Potable Water Improvements” shall mean the improvements described in this Section K.1, and will be composed of the following two segments: a) The first segment (“Potable First Segment”) to be constructed simultaneously with the “First Segment” (as defined in the Prior Road Reimbursement Agreement) of Cannon Road West Improvements including: 4 0) A potable water pipeline consisting of approximately 186 lineal feet of 16-inch ductile iron water pipeline in Cannon Road. (ii) A potable water pipeline in Cannon Road from El Camino Real to Station 99+00, consisting of over sizing approximately 2,397 lineal feet of 8-inch PVC C900 pipeline and appurtenances to 16-inch CML&C steel pipeline and appurtenances. W The second segment (“Potable Second Segment”) to be constructed simultaneously with the “Second Segment” (as defined in the Prior Road Reimbursement Agreement) of Cannon Road West Improvements: (0 A potable water pipeline in Cannon Road from Station 99+00 to the west boundary of Kelly Ranch, consisting of over sizing approximately 2,640 lineal feet of 8-inch PVC C900 pipeline and appurtenances to l&inch CML&C steel pipeline and appurtenances. 2) “Recycled Water Improvements” shall mean the improvements described in this Section K.2, and will be composed of the following two segments: a) The first segment (“Recycled First Segment”) to be constructed simultaneously with the “First Segment” (as defined in the Prior Road Reimbursement Agreement) of Cannon Road West Improvements including: (0 A recycled water pipeline consisting of approximately 174 lineal feet of 24” ductile iron recycled water pipeline in Cannon Road; and (ii) A recycled water pipeline in Cannon Road from El Camino Real to Frost Avenue, consisting of over sizing approximately 1,261 lineal feet of 8-inch PVC C900 pipeline and appurtenances to 24-inch CML&C steel recycled water pipeline and appurtenances. b) The second segment (“Recycled Second Segment”) to be constructed simultaneously with the “Second Segment“ (as defined in the Prior Road Reimbursement Agreement) of Cannon Road West Improvements including: 5 (0 A recycled water pipeline in Cannon Road from Frost Avenue to the west boundary of Kelly Ranch, consisting of over sizing approximately 3,900 lineal feet of 8-inch PVC C900 pipeline and appurtenances to 24-inch CML&C steel recycled water pipeline and appurtenances. 3) The Potable First Segment and the Recycled First Segment are referred to herein collectively as the “First Segment.” Notwithstanding any other provision of this Agreement, the First Segment also includes three pipelines located in the Cannon Road bridge crossing Agua Hedionda Creek: approximately 198 linear feet of 24-inch pipe, approximately 216 linear feet of 1 g-inch pipe and approximately 216 linear feet of 8-inch pipe, all of TR-FLEX DIP, associated DIP TR-FLEX bends, and other appurtenances (herein identified as item 1.5 in Exhibit “D,” and referred to herein as the “Bridge Pipeline Rework”). The Potable Second Segment and the Recycled Second Segment are referred to herein collectively as the “Second Segment.” M. District and Kelly recognize that the Water Work exceeds the infrastructure otherwise required of the Kelly Ranch Project in that the pipeline sizes are greater than what is required of the development. Kelly agrees to construct or cause the construction of the Water Work, provided the District agrees to reimburse Kelly on a progress payment basis as set forth in this Agreement. For the purposes of this Agreement, the Water Work includes Reimbursable Water Work and Kelly Project Requirement Water Work. “Kelly Project Requirement Water Work” is that portion of the Water Work which could be required by the District as conditions of the Kelly Ranch Project. “Reimbursable Water Work” shall mean the difference in the total cost for over sizing specific work items which would be required for the Kelly Ranch Project only (i.e. the Kelly Project Requirement Water Work) and is measured by the difference between the cost of the Water Work and the cost of the Kelly Project Requirement Water Work. The Reimbursable Water Work amount shall be as set forth on Exhibit “D,” subject to modification 6 asset forth in this Agreement. A line item description of the specific work items included within the category of Reimbursable Water Work and Kelly Project Requirement Water Work is included within Exhibit “D” attached hereto and incorporated herein by this reference. N. Kelly has requested reimbursement from the District pursuant to the Subdivision MapAct and District Ordinance No. 26 for the cost of constructing the Water Work. 0. District and Kelly acknowledge that Government Code Section 66485 allows the City of Carlsbad to require a sub-divider to construct improvements benefiting property outside the subdivision; but Section 66486 requires the District to enter into a reimbursement agreement for such improvements. The parties intend that this agreement satisfy the requirements of Government Code Section 66468. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1) Recitals. The Recitals are true and correct. 2) Satisfaction of Obliqation. Kelly’s agreement to perform the Water Work as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements regarding the Kelly Ranch Project with respect to the Water Work. 3) Kellv Obliaations. a) In consideration of Districts reimbursement and other undertakings as set forth herein, Kelly agrees to construct and install the Water Work. W Kelly shall complete all Water Work no later than four (4) years from the effective date of the Agreement. Water Work completed before the effective date of this Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement. c) Kelly shall use the complete set of District approved plans, specifications, and other design documentation for the Water Work as modified by District approved change orders and approved field changes made for the Bridge Pipeline Rework. 8289 d) By entering into this Agreement, Kelly waives any and all potential constitutional (NollanlDollan) objectives relating to the Water Work. 4) District Obliqations. a) District shall make available for Kelly’s use the complete set of plans, specifications, geotechnical reports, and other design documentation for the Water Work. b) District agrees to reimburse Kelly for the Reimbursable Water Work as described in Section 5 and 6 below. Invoices for each progress payment request shall include: the “Reimbursement Amount” equal to (i) the cost of the Reimbursable Water Work (the “Actual Cost”), r>lus (ii) an overhead allocation of four percent (4%) of the Actual Cost in lieu of other reimbursement for Kelly’s cost incurred for salary and benefits for staff of Kelly’s home offices, supervision above the level of on-site superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds, insurance and bond premiums, expenses for meetings with and presentations to government agencies which issue permits or otherwise regulate project approval, (collectively, the “Overhead Costs”). The Actual Cost shall include all costs associated with the installation of the Water Work and includes allowances for soils compaction testing, pipeline surveying, staking, and other incidental costs as set forth on Exhibit “D.” 5) Contractor Budqet: Invoices. a) District acknowledges that Kelly has sold the E Project and is under contract to sell other portions of the Kelly Ranch Project to merchant builders. It is acknowledged that Kelly shall be entitled to cause the Water Work to be bid, contracted, bonded commenced and constructed by one or more of its successors, and that it may cause the construction of the First Segment and the construction of Second Segment by separate successors. To the extent that Kelly causes a successor to post the bonds required for the First Segment and/or Second Segment, Kelly shall be entitled to exoneration and cancellation of its own bond which has been so replaced. For purposes of this entire Section 5 (except for the next succeeding grammatical paragraph), the term “Kelly” shall mean and include not only the original 8 - 8290 signing party to this Agreement, but also such successors who participate in the bidding, contracting, bonding, and construction of one or more of such segments. It is further acknowledged that, notwithstanding that Kelly arranged or arranges for such construction of the Water Work by one or more successors, the obligations of the District for reimbursement shall be to Kelly, and any such reimbursement payments shall be made by District to Kelly. It shall be the responsibility of Kelly to cause any successor who is constructing all or any portion of the Water Work to observe and follow the requirements of District for retention of records and the submittal of information in connection with the Water Work, as specified in this Agreement. W The parties acknowledge that the contract for the First Segment of the Water Work has already been issued and that such work is underway, and that the line items and dollar figures for the First Segment as set forth in Exhibit “D” are correct, subject to modification by change orders pursuant to Paragraph 5(g) of this Agreement. With respect to all hard costs of construction comprising the Second Segment, Kelly shall solicit bids from three reputable contractors. Reimbursable Water Work shall be bid together with Kelly Project Requirement Work for the Second Segment. Upon mutual selection by District and Kelly of the contractor for the Second Segment, and agreement upon a contract amount such Segment, the costs thereof shall be allocated among the categories consistent with the method and process used in Exhibit “D,” in the respective proportions set forth therein as between Kelly Project Requirement Water Work and Reimbursable Water Work. The parties agree that the spreadsheet attached hereto as Exhibit “D” is a fair allocation of the costs for the Second Segment under such contract as among the categories of Reimbursable Water Work and Kelly Project Requirement Water Work. Costs for the Second Segment shall be subject to modification through change orders. cl During the performance of any Reimbursable Water Work, Kelly shall retain detailed payment records for all items for Reimbursable Water Work, for use by District in auditing any subsequent reimbursement requests by Kelly. Kelly’s monthly requests 9 for reimbursement (each a “Reimbursement Request”) shall include copies of change orders (if new), 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 Water Work (“Work Documentation”). Reimbursement Requests may be submitted monthly in arrears by Kelly. d) Exhibit “D” sets forth the preliminary cost estimates for the Reimbursable Water Work for the Second Segment. The parties acknowledge that Exhibit ‘D”, which was prepared by Kelly’s engineers, is for illustrative purposes only and that all costs are subject to further detail pursuant to clause (b) above as well as to audit for eligibility for payment in accordance with the procedures of this Paragraph 4. e) With each Reimbursement Request, Kelly shall forward one copy of each invoice submitted to Kelly by Contractor, to the engineer employee designated for this purpose by the District (“Public Works Director”), together with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor’s invoice. The Public Works Director shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set forth in Section 3(b) of this Agreement. If the Public Works Director objects to any items comprising the Reimbursement Amount, the Public Works Director shall notify Kelly within ten (10) days of receipt of all invoices forwarded by Kelly. Failure to so notify Kelly shall be deemed the Public Works Director’s approval of such invoices. In the event the Public Works Director does object, Kelly and the Public Works Director shall meet to discuss the disputed amount (at which time Kelly shall make available all of the Work Documentation) and attempt to resolve the matter through good-faith negotiation. 9 Prior to the submission to the Public Works Director of the final invoices, Kelly shall obtain necessary or appropriate lien releases from the Contractor, and shall obtain from the City of Carlsbad, the District, and any and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Water Work and the ability to put the Potable Water Improvements and the Recycled Water 10 829 2 Improvements into use. The date Kelly receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Water Work (the “Completion Date”). cl) All change orders shall be subject to approval by both the District and Kelly. At the time of approval, the parties shall also determine the portion of the change order which is allocated to Reimbursable Water 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 in an orderly, reasonable and prudent manner according to the standard engineering and construction practice applicable to the Water Work, then the allocation of the portion to Reimbursable Water Work should be in proportion to the allocation as between Reimbursable Water Work and Kelly Project Requirement Water Work in Exhibit “D” for that portion of the Water Work. 6) Payment of Reimbursable Exoenses. a) Payment of each Reimbursement Amount shall be made, in cash, within sixty (60) days after the Public Works Director’s determination on any such Reimbursement Request (or determination pursuant to Paragraph 7 (a) if applicable. W Any disputed Reimbursement Amount that is ultimately agreed or determined to be payable shall be paid to Kelly within thirty (30) days after any settlement with or award to Kelly. cl The City of Carlsbad shall collect all its normal fees upon its issuance of all building permits. Payment of Reimbursement Amounts under this Agreement shall not be reduced for fees or charges that may be payable as a condition of obtaining permits for the development of any Village of Kelly Ranch. District shall not offset Kelly’s entitlement to reimbursement under this Agreement against any obligation of any person. 4 Notwithstanding any other provision of this Agreement, payment for the Bridge Pipeline Rework shall be governed by the provisions of this Paragraph 5(d). Upon receipt of the invoice from the general contractor for the Bridge Pipeline Rework, Kelly shall 11 8293 submit to District a Reimbursement Request with respect to such Bridge Pipeline Rework requesting payment of the invoice amount. District shall pay Kelly the amount of such invoice within 30 days of receipt of such Reimbursement Request, provided that the Bridge Pipeline Rework has been installed, tested and approved by the District. District shall not unreasonably delay the testing and approval of such Bridge Pipeline Rework. 7) Miscellaneous. 4 Disoutes; 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 formally 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 Kelly or the Public Works Director. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution. The Public Works Director, or principal, upon receipt, shall reply to the letter, including a recommended method of resolution, within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded through the office of the Executive Manager to the Board of Directors of District for their resolution. 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 seeking remedies available to them at law. b) Successors: Covenant to Run with Real Propertv. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the successors, heirs, assigns and transferees of Kelly and District shall run with the real property (other than Villages A and B) and create an equitable servitude upon such real property. Upon their creation as separate legal parcels, the provisions of this Agreement shall no longer apply to, and the same shall no longer be or constitute an equitable servitude against or run with the land as to Villages C, F, K and L, and the equitable servitude hereby created shall automatically 12 8294 terminate as to each of said Villages. Upon the request of Kelly, District shall execute and deliver to Kelly, in recordable form, any further documents and/or instruments reasonably necessary to evidence that said Villages C, F, K and L are thereafter fully released and free from the provisions of this Agreement, provided that the cost of preparing and recording such documents and/or instruments shall be paid by Kelly. c) Transfer bv Kellv. The obligations and benefits of this Agreement shall be transferred upon sale of Kelly Ranch Project as specified herein. As used in this Agreement, “Kelly” shall mean the owner (or owners) of the real property which comprises the Kelly Ranch Project, except as to any real property for which residential permits have been issued, and EXCEPT THAT THE ENTITLEMENT TO REIMBURSEMENT PURSUANT TO THIS AGREEMENT SHALL IN ALL EVENTS REMAIN WITH KELLY LAND COMPANY. In accordance with the provisions of Section 4(a) of this Agreement and upon written notice to District pursuant to Paragraph 7(d), all obligations and responsibilities of this Agreement shall move to the new owners of the real property which comprises the Kelly Ranch Project except as qualified by the preceding sentence; and, as to the E Project the parties acknowledge that all such obligations and responsibilities are moved concurrently herewith to Shea as the successor to Kelly Land Company with respect to the E Project except as qualified by the preceding sentence. d) Unless otherwise specifically provided herein, all notices, Notice. demands or other communications given hereunder shall be in writing and shall be deemed to have 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 follows: 13 If to Kelly: Kelly Land Company C/O Hillman Properties West, Inc. 2011 Palomar Airport Road, Suite 112 Carlsbad, California 92008 Attention: Scott Medansky Telephone: (760) 931-q 190 Facsimile: (760) 931-7950 With a copy to: Sheppard, Mullin, Richter, & Hampton LLP Attorneys at Law Nineteenth Floor 501 West Broadway San Diego, California 92101-3598 Attention: Christopher B. Neils Telephone: (619) 338-6500 Facsimile: (619) 234-3815 If to District: Carlsbad Municipal Water District c/o City of Carlsbad Engineering Department 1635 Faraday Avenue Carlsbad, California 92008-7314 Attention: Mr. Lloyd Hubbs, PublicWorks Director Telephone: (760) 602-2730 Facsimile: (760) 602-8562 or to such other address or to such other person as any party shall designate to the others for such purpose in the manner set forth above. e) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. 9 Govemino Law and Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, and venue shall reside in San Diego County, California. 9) Complete Aqreement. This Agreement contains the entire agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. t-0 Amendment. This Agreement may be amended by a written instrument executed by District and Kelly (including for this purpose any successors of Kelly, to 14 8296 the extent of their ownership of real property within Kelly Ranch Project), except that no amendment regarding the provisions for reimbursement to Kelly shall be valid unless executed by Kelly Land Company. 0 Term. This Agreement shall be effective as of the date hereof, and shall terminate on the earlier of(i) the date the District fully reimburses Kelly the Reimbursement Amount, or (ii) January 1,2015. j) No Third Partv 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. k) 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. “KELLY” “DISTRICT” KELLY LAND COMPANY, a Delaware, n . WOOD, Secretary (SEAL) (Proper notarial acknowledgment of execution by Kelly Land Company must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that ofticer to bind the corporation.) APPROVED AS TO FORM: \ 15 829”/ EXHIBIT “A” LEGAL DESCRIPTION PARCEL 1 PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 1.1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS. PARCEL 2 A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, AS DESCRIBED IN GRANT DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, RECORDED NOVEMBER 13,1962, AS FILE NO. 193941 OF OFFICIAL RECORDS. TOGETHER WITH THAT PORTION OF LOT “F” OF RANCH0 AGUA HEDIONDA, IN THE CllY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16,1896, AS DESCRIBED IN QUITCLAIM DEED TO MARVIN H. SIPPEL AND LUCIA CAROLINE SIPPEL, CO-TRUSTEES OF THE SIPPEL IRREVOCABLE FAMILY TRUST, RECORDED DECEMBER 29,1983, AS FILE NO. 83-475227 OF OFFICIAL RECORDS. PARCEL 3 A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDS, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 823, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL “A” OF CERTIFICATE OF COMPLIANCE WITH CONDITIONS, RECORDED SEPTEMBER 27,1996, AS FILE NO. 1996-0489998 OF OFFICIAL RECORDS. EXCEPTING THEREFROM PARCEL 1 OF PARCEL MAP NO. 18039 IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED JUNE 1, 1998, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY AS FILE NO. 1998-325000 OF OFFICIAL RECORDS. PARCEL 4 A PORTION OF LOT “I” OF RANCH0 AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO PARTITION MAP THEREOF NO. 832, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, NOVEMBER 16, 1896, DESCRIBED AS PARCEL “A” OF CERTIFICATE OF RECORDED AUGUST 28,1998, AS FILE NO. 1998-0550155 OF OFFICIAL RECORDS. 16 8298 . . . . d I -, .- . .f la ,\ ,-“:* /q i 8299 II I .-N EXHIBIT “D” WATER AND RECYCLED WATER IMPROVEMENTS IN CANNON ROAD REACH 2 Prepared 2/l 7/00 Cost Summary Kelly Project Oversizing Requirement Reimbursable Total Cost 1.0 SEGMENT 1 -WATER 1.1 GENERAL CONTRACT [I] Wl .l El Camino Real W1.2 Cannon Road Subtotal $9,020 $8,677 258,687 291,261 267,708 299,938 $17,698 549,948 567,645 1.2 NON-GENERAL CONTRACT 1.2.1 Soils Engineering (2%) 1.2.2 Bond Premiums (2%) 1.2.3 Other Incidental Costs (2%) Subtotal Total -- General and Non-general Contracts 11,353 11.353 5,354 5,999 5,354 5,999 5,354 5,999 16,062 17,996 283,770 317,934 11,353 34,059 601,704 1.3 Overhead (4%) 11,351 12,717 24,068 1.4 Contingency (10%) [2] 29,512 33,065 62,577 1.5 Water and Recycled Water Pipes at Agua Hedionda Bridge [3] 1.6 Additional Water Improvements at ECR [4] 0 165,000 165,000 100,000 100,000 Total - Segment 1 324,633 628,717 953,350 2.0 SEGMENT 2 -WATER 2.1 GENERAL CONTRACT [5] W2.1 Cannon Road 155,048 328,861 483,909 2.2 NON-GENERAL CONTRACT 2.2.1 Soils Engineering (2%) 2.2.2 Bond Premiums (2%) 2.2.3 Other Incidental Costs (2%) Subtotal Total - General and Non-general Contracts 6,577 9,678 6,577 9,678 6.577 9.678 3,101 3,101 3,101 9,303 164,351 19;732 29;035 348,592 512,944 2.3 Overhead (4%) 6,574 2.4 Contingency (10%) [2] 17,093 Total - Segment 2 188,018 TOTAL -SEGMENTS 1 & 2 $512,650 13,944 20,518 36,254 53,346 398.790 586,807 $1,027,506 $1,540,157 1. 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COUNTY OF 3 jc &‘a > , before me jw m , personally appeared r and u, personally known to me (or proved to me on the basis of satisfactory evidence) to Ibe the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity (ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand ad official seal. (SEAL) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 1090 A RESOLUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD) TO APPROVE AND AUTHORIZE REIMBURSEMENT AGREEMENT WITH KELLY LAND COMPANY FOR OVERSIZING OF WATER AND RECYCLED WATER PIPELINE IMPROVEMENTS IN CANNON ROAD WEST (REACH 2), CMWD PROJECT NO. 88-802. PROJECT NO. 35341. WHEREAS, Kelly Land Company is developing property along Cannon Road West (Reach 2); and WHEREAS, Kelly Land Company is required to construct eight inch diameter potable water and recycled water pipelines in Cannon Road West (Reach 2) but the District requires that these pipelines be oversized to a l&inch diameter pipeline and 24-inch diameter pipeline, respectively; and WHEREAS, Kelly Land Company is willing to construct the oversized potable water and recycled water pipelines by a reimbursement agreement for an estimated cost of $1,027,506; and WHEREAS, the Planning Director reviewed this project and issued a Mitigated Negative Declaration and permits have been obtained; and WHEREAS, the existing appropriation for the project is $2,078,000 and an additional appropriation is required in the amount of $786,457; and WHEREAS, the additional appropriation in the amount of $786,457 shall be obtained from the Water Connection Fee fund. NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Carlsbad Municipal Water District (CMWD) of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the reimbursement agreement by and between Kelly Land Company and Carlsbad Municipal Water District is hereby approved and the President is authorized and directed to sign said agreement on behalf of the Board of Directors. Ill Ill Ill Cl” . 4 5 9 10 11 12 1 e 14 15 16 17 16 19 20 21 22 23 24 25 26 27 28 3. That the additional appropriation in the amount of $786,457 is hereby approved to be obtained from the Water Connection Fee fund. PASSED, APPROVED AND ADOPTED at a special meeting of the Carlsbad Municipal Water District held on the 6th day of June, 2000 by the following vote, to wit: AYES: Board Members Lewis, Hall, Finnila and Nygaard NOES: N AlTEST: * (SEAL)