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HomeMy WebLinkAbout2002-09-10; Municipal Water District; 540; Reimbursement Agmt w/ Terraces at Sunny Creek, LLCa- ?' ,. , ,, , CARLSBAD MUNICIPAL WATER DISTRICT -AGENDA .B# 540 ITG. 9/10102 TITLE: APPROVE AND AUTHORIZE REIMBURSEMENT AGREEMENT DEPT. 'EPT. PROJECT NO. 38171 CITY MGR. ENG RECOMMENDED ACTION: WITH THE TERRACES AT SUNNY CREEK, L.L.C. FOR CONSTRUCTION OF WATER PIPELINE IMPROVEMENTS IN COLLEGE BOULEVARD Adopt Resolution No. 1169 to approve and authorize execution of a reimbursement agreement with The Terraces at Sunny Creek, L.L.C., for water pipeline improvements in College Boulevard, Project No. 38171. ITEM EXPLANATION: The Terraces at Sunny Creek L.L.C., is the developer of 174 homes located at the northeast corner they designed and constructed a 36-inch diameter water transmission pipeline in the College of the intersection of El Camino Real and College Boulevard. As a condition of project approval Boulevard extension north of El Camino Real. This transmission pipeline is included in the Capital Improvement Program under Project No. 38171. The pipeline plans, prepared by Wilson Engineering, are shown on Drawing No. 361-6D, Sheets 1 through 7, dated September 21, 2000. The Terraces at Sunny Creek, L.L.C. has provided a reimbursement cost of $210,137 for the water transmission pipeline improvements. These costs were reviewed by City engineering staff and are acceptable. what is required to serve the development. The Terraces at Sunny Creek, LLC, agreed to design District Ordinance No. 26 provides for a reimbursement agreement on facilities greater in size than with the District. A reimbursement agreement was prepared and is attached. and construct the water transmission pipeline improvements through a reimbursement agreement ENVIRONMENTAL REVIEW The Planning Director approved the 36" water pipeline in College Boulevard and issued a Mitigated Negative Declaration on August 18, 1999 as part of EIA 97-05. FISCAL IMPACT: The total cost for the work covered by the reimbursement agreement is two hundred ten thousand one hundred thirty seven ($210,137) dollars. Funds in the amount of $224,449 have been appropriated for Project No. 38171 for the Fiscal Year of 2002/2003. The source of funds is the Water Connection Fee Fund. ESTIMATED CONSTRUCTION COST FOR THE 36" WATER PIPELINE IN COLLEGE BOULEVARD Water Pipeline Construction Cost $210,137 Appropriation for FY 2002-2003 I $224,449 EXHIBITS: 1. Location Map for Water Pipeline. 2. Resolution No. 1169 at Sunny Creek, L.L.C. for construction of a 36 water pipeline in College Boulevard north of for approval of a reimbursement agreement with The Terraces El Camino Real, Project No. 38171. 3. Reimbursement agreement. I LOCATION MAP E%rliBiJ" I VICINITY \ I A N NOT TO SCALE PROJECT NAME: CP 38171 COLLEGE BLVD EXHIBIT PROJECT NUMBER: 36-INCH DIA. PIPELINE EXTENSION 1 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. 1169 A RESOLUTION OF THE BOARD OF DIRECTORS OF APPROVAL OF A REIMBURSEMENT AGREEMENT WITH THE CARLSBAD MUNICIPAL WATER DISTRICT (CMWD) FOR A POTABLE WATER PIPELINE IN COLLEGE BOULEVARD TERRACES AT SUNNY CREEK L.L.C. FOR CONSTRUCTION OF NORTH OF EL CAMINO REAL, CITY PROJECT NO. 38171. WHEREAS, The Terraces at Sunny Creek L.L.C. ("Developer") is the ownerldeveloper of The Terraces at Sunny Creek (the "Project"); and WHEREAS, a 36' water pipeline (the "Pipeline") was designed and constructed by leveloper in College Boulevard as part of the Project ; and WHEREAS, the construction of the Pipeline was done at the request of the Carlsbad vlunicipal Water District; and WHEREAS, Developer has requested the CMWD Board's approval of a Reimbursement 4greement (a copy of which is attached hereto and marked as Exhibit "A' and incorporated by this .eference) pursuant to District Ordinance 26; and WHEREAS, the Planning Director approved the design and construction of the 36'water ipeline in College Boulevard and issued a Mitigated Negative Declaration on August 18, 1999, as ]art of EIA 97-05; and WHEREAS, the total cost for construction and design of the pipeline is $210,137, and the Nater Connection Fee Fund appropriation is $224,449 under capital improvement project number 38171 for Fiscal Year 2002-2003; and NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of Carlsbad Municipal Nater District (CMWD) of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct /I I1 /I I1 I1 71 71 3 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 2. That the agreement between the CMWD and Terraces at Sunny Creek L.L.C. for the reimbursement of costs for constructing water pipeline improvements in College Boulevard northerly of El Camino Real, Project No. 38171, is hereby approved and the President is authorized to execute said agreement. PASSED, APPROVED AND ADOPTED at a special meeting of the Carlsbad Municipal Uater District held on them day of SEPTEMXR , 2002 by the following vote, to wit: AYES: Board Members Lewis, Kulchin, Finnila, Hall NOES: None A Page 2 of 2 of Resolution No. 1169 (SEAL) RECORDINGREQUESTEDBY WHEN RECORDED MAILTO: District Secretary CARLSBAD MUNICIPAL WATER DISTRICT 1200 Carlsbad Village Dr. Carlsbad, CA 92008 At no fee as it is to the benefit Please record this document Water District (Gov. Code [6103] Of the Carlsbad Municipal SPACE ABOVE THIS LINE FOR RECORDER'S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF THE COLLEGE BOULEVARD 36" WATER PIPELINE EXTENSION Between CARLSBAD MUNICIPAL WATER DISTRICT a Public Agency AND THE TERRACES AT SUNNY CREEK, a Limited Liability Company -1 Rev. 7/12/02 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR CONSTRUCTION OF THE COLLEGE BOULEVARD 36" WATER PIPELINE EXTENSION of /#G&JS?-~~, 2002, by and between THE TERRACES AT SUNNY CREEK, LLC, THIS REIMBURSEMENT AGREEMENT (hereinafter the "Agreement") is entered into as a California partnership ("Developer") and the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 191 1, and a subsidiary District of the City of Carlsbad ("District"), with reference to the following Recitals: RECITALS A. Developer is the record owner of certain real property located in City of Carlsbad "City", which is more particularly described on Exhibit "A attached hereto and made a part hereof ("the Terraces Development"). The Terraces Development consists of a residential area of 172 homes, 50 affordable housing units, and a commercial site, referred to as Lot 11 of CT 83-36, as designated on Exhibit "A. As used herein, the term "Planning Area" shall refer, as indicated, to both the commercial center and the residential area. The various Planning Areas as shown on Exhibit "A either are, or will become, separate legal parcels in accordance with the applicable legal requirements of the State of California and District. B. Upon their creation as separate legal parcels, Developer intends to convey or cause conveyance of record title to the Planning Areas, to other persons pursuant to contractual commitments not related to this Agreement. Any further development activity with respect to any of the Planning Areas will be the responsibility of the respective transferees. C. Developer filed a separate application for tentative subdivision map and site development plan with respect to the Planning Area. The Terraces Development is the subject of certain development approvals received from the City of Carlsbad, including without limitation: Tentative Subdivision Map (CT 96-02, EIR 98-01, AC 96-01, SP 19O(B), LFMP 87-15B, SDP 97-02), Planned Unit Development Permit (PUD 96-02), and Hillside Development Permit (HDP 96-02), all approved by the City Council, Resolution No. 98-337 on November 17, 1998, which included specific reference to Planning Commission Resolution No. 4288 through 4295 recommending approval of the Terraces Development with conditions and approved by the Planning Commission on July 1, 1998. D. The various approvals referred to in Recital "C" of this Agreement are collectively referred to herein as the "Terraces Development Approvals." E. A condition for approval of the Tentative Map (CT 96-02) for Developer's portions of Condition 7 and Finding 1 requires the Developer to construct a water pipeline in a portion of feet. College Boulevard northerly from the intersection of El Camino Real approximately 900 lineal F. District and Developer acknowledge that Government Code Section 66485 allows the City to require a subdivider to construct improvements benefiting property outside the subdivision; but Section 66486 requires City to enter into a reimbursement agreement for such improvements. The Parties intend that this Agreement satisfy the requirements of Government Code Section 66486. -2 - Rev. 711 2/02 of the Water Pipeline Extension, which lies outside of the Terraces Development. The Water G. Developer has advanced on behalf of District the cost of construction and design Pipeline Extension consists of 900 lineal feet of 36" diameter pipe with appurtenances from the intersection of El Camino Real northerly per City Drawing No. 361-6D (hereinafter "Water Work"). H. City will utilize the Water Connection Fees Fund to reimburse the costs advanced hereunder by Developer for the Water Work. I. Estimated Cost of the Water Work. District shall reimburse Developer in the The total cost and the Water Work is currently estimated to be as follows: manner described below for the total costs advanced by Developer for the Water Work. COST FOR CONSTRUCTION OF NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. RECITALS. The Recitals are true and correct 2. SATISFACTION OF OBLIGATION Developer's agreement to install the Water Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute full compliance with all requirements regarding the Water Work. 3. DEVELOPERS OBLIGATIONS a) In consideration of District's reimbursement and other undertakings as set forth herein, Developer agrees to design, construct and install the Water Work. b) Developer shall complete all work no later than three (3) months from the effective date of this Agreement. Work completed before the effective date of this Agreement shall, subject to the other provisions of this Agreement, also satisfy this Agreement. c) Developer shall use the complete set of City approved plans, specifications, and other design documentation for the Water Work. -3 - Rev. 7/12/02 d) It shall be the responsibility of Developer to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Water Work as specified in this Agreement. e) By entering into this Agreement, Developer waives any and all potential constitutional (Nollan/Dolan) objections relating to the Water Work. 4. DISTRICT OBLIGATIONS (a) District shall reimburse Developer an amount (the "Reimbursement Amount") equal to: (i) the actual Total Cost for reimbursement for design and construction; 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 Water Work noted in Recital "I" of this Agreement. Reimbursable Amount shall not exceed that estimated in the following table: described in Sections 5, 6 and 7 below. (b) District agrees to reimburse Developer for Reimbursable Water Work as 5. REIMBURSABLE WATER WORK (a) With respect to all hard costs of construction comprising the Water Work, Developer shall solicit bids from three reputable contractors. Non-Reimbursable Work includes any sewer pipeline and appurtenance design and/or construction per City Drawing No. 361 -6D; excluding that previously defined as "Water Work". Reimbursable Water Work may be bid together with Non Reimbursable work for that portion of the Sewer Work Improvements which the costs thereof shall be allocated among the categories consistent with Recital "I". The parties are being bid by such contractor. Upon agreement of a contract amount for the Water Work, agree that the Recital "I" is a fair allocation of the costs under such contract as among the categories of Reimbursable Water Work. Costs shown in Recital "I" are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement. (b) During the performance of any Reimbursable Water Work, Developer shall retain detailed payment records for all items of Reimbursable 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 City to evidence the completion and payment for each item of Reimbursable Water Work. Reimbursement Requests may be submitted monthly in arrears, as identified in Section 6 (a) below, by Developer for each segment of work. -4 - Rev. 711 2/02 6. AUDIT OF REIMBURSABLE EXPENSES (a) Expenses for Reimbursable Water Work (including without limitation overhead and the allowance permitted under clause 6(f) below "Overhead Cost") are referred to herein collectively as "Reimbursable Expenses". Developer shall be entitled to submit requests for Reimbursable Expenses monthly in arrears, and separately for each construction segment. (b) All Developer's Reimbursement Requests will be processed and audited for District by a reputable consulting engineer selected by District ("Auditing Engineer"). The costs of the Auditing Engineer shall be paid directly by District. (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 Developer by Contractor, to the City's Public Works Director ("Director"), together with an invoice for all other components of the Reimbursable 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. (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 6(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: (i) An allowance to cover the allocable portion of premiums paid by of Water Works are included in (iii) overhead expense. Developer for improvement and/or payment and performance bonds relating to the construction Developer for blanket liability insurance coverage is included in (iii) overhead expenses. (ii) An allowance to cover the allocable portion of premiums paid by eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead (iii) An amount fixed at six and one-half percent (6-1/2%) of the 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, including the expenses described in subsections (f)(i) and (f)(ii) above. -5 - Rev. 7/12/02 (9) Prior to the submission to the Director of all invoices, Developer shall obtain necessary or appropriate lien releases from the contractor, and shall obtain from 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 Water Work (the "Completion Date"). (h) All change orders shall be subject to approval by both the District and Developer. At the time of approval, the parties shall also determine the portion of the change order which is allocated to Reimbursable Work. In making such decisions, the parties shall be guided by the principle that if a change order is necessary due to changed circumstances or oversight in original design, or if it is required in order to perform the applicable portion of the Water Work Improvements in an orderly, reasonable and prudent manner according to the standard engineering and construction practice applicable to the improvements, then the allocation of the portion to Reimbursable Work should be in proportion to the allocation as between Reimbursable Work in Recital "I" table for that portion of the Water Work. 7. PAYMENT OF REIMBURSABLE EXPENSES (a) Funding for reimbursement costs will be appropriated for the Fiscal Year of 2002-2003. No reimbursement payment will be made prior to Fiscal Year 2002-2003. (b) 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). (c) District shall not unreasonably withhold acceptance of the Water Work. (d) Developer and District agree that the City's General Fund is not part of this Agreement, and shall not be obligated under the terms of this Agreement nor available for reimbursement purposes. (e) Payment of reimbursable expenses shall be made from the District's Water Connection Fee Fund. interpretation of this Agreement, the following procedure shall be used to resolve any question 8. DISPUTES/CLAIMS. If a dispute should arise regarding the performance or of fact or interpretation not informally resolved by the parties. Such questions, if they become Agreement shall be reduced to writing by the principal of Developer or the Director. A copy of identified as a part of a dispute among persons operating under the provisions of this 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 days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining receipt, shall reply to the letter, including a recommended method of resolution within ten (IO) the City Manager. The City Council may, but is not obligated to resolve the dispute. If the Board the dispute shall be forwarded to the Board of Directors for their resolution through the office of of Directors considers the dispute, and directs a solution, the action of the Board of Directors shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 9. ASSIGNMENT OF AGREEMENT. Developer shall not assign this Agreement or any part thereof or any monies due thereunder without the prior written consent of the District. -6 - Rev. 7/12/02 other communications given hereunder shall be in writing and shall be deemed to have been 10. NOTICES. Unless otherwise specifically provided herein, all notices, demands or duly delivered upon personal delivery, or by Federal Express (or similar reputable express the second business day after mailing by United States Certified Mail, return receipt requested, delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of postage prepaid, address as specified herein. Notices required to be given to Developer shall be addressed as follows: The Terraces at Sunny Creek, LLC Attention: Mr. Chris Dahrling 2006 Palomar Airport Road, Suite 1 13 Carlsbad, CA 92008 Telephone: (760) 931-8181 Facsimile: (760) 931-8509 Notices to City shall be delivered to the following: CARLSBAD MUNICIPAL WATER DISTRICT Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 Facsimile: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 11. TRANSFER BY DEVELOPER. The obligations and benefits of this Agreement shall not be transferred upon sale of the Terraces at Sunny Creek Development. 12. 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. enforced under the laws of the State of California. and venue shall reside in San Dieao Countv. 13. GOVERNING LAW AND VENUE. This Agreement shall be interpreted and California. between the parties with respect to the subject matter contained herein, and supersedes all 14. COMPLETE AGREEMENT. This Agreement contains the entire agreement negotiations, discussions, and prior drafts with respect to this subject matter. executed by District and Developer (including for this purpose any successors of Developer, to 15. AMENDMENT. This Agreement may be amended by a written instrument the extent of their ownership of real property within The Terraces at Sunny Creek Development); except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by Developer. shall terminate on the earlier of (i) the date the District fully reimburses Developer the 16. TERM. This Agreement shall be effective as of the date first above written, and Reimbursement Amount, or (ii) January 1, 2003. -7 - Rev. 711 2/02 17. NO THIRD PARTY BENEFICIARIES. This Agreement shall not be deemed to confer any rights won any individual or entity which is not a Dartv hereto. and the Darties hereto expresslidi&laim any such third-party beneiit. .~ Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity 18. SEVERABILITY. The invalidity or unenforceability of any provision of this or enforceability of any other provision hereof. executed as of the date first above written. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be THE TERRACES AT SUNNY CREEK, George SzaLo, Jr./President (print name and title of signatory) ATTEST: A (print name and title of signatory) / (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(s) signing to bind the corporation.) APPROVED AS TO FORM: -a - Rev. 711 2/02 on August 23, 2002 before me, Jeanette Taylor , Notary Public, personally appeared Georqe Szabo, Jr. ~ personally known to me or __ proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which th8 person ,, acted, executed the instrument. WITNESS my hand and official seal. ,, On before me, ,, . ' ' ,' Notary Public, personally appeared Claude Lewis ~ personally known to me or - proved to me on the basis if 'satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowtedged ta me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. ,, WITNESS my hand and official seal. ' ,, ,, ,, -9 - Rev. 5/20/02 LOCATION MAP A. N NOT TO %dl€ PROJECT NAME: EXHIBIT PROJECT NUMBER: COLLEGE BLVD 36-INCH DIA. PIPELINE EXTENSION CP 38171 ” A ”