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2000-399841 . DOC . 2000-0399841 Recording Requested By: JUL 28. 2000 9:45 AM 3907 IfFICIfÏ REGœDS City of Encinitas ~ DIEIiJ IlUITY REæRDER'S OFFICE When Recorded Mail to: GREm J. SHITH. C!ŒTV REaRIIR ~~ ~~,~~, A,~", 1IIIIIñlllìili '?t' Enclnltas, CA 92024 2000.0399841 si' For the Benefit of the City Space above for Recorder's Use Only ? ~ 1110 IjftJ \ C¡-j5-4J REIMBURSEMENT AGREEMENT ¡{, This Reimbursement Agreement is entered into this 7th day of Julv, 2000, by and between the City of Encinitas, a California municipal corporation (herein "City") and Brandywine Development Corporation (herein "Developer"). RECITALS A. Developer has secured Tentative Map Approval No. TM 89-229 from City to construct twenty-six detached residential units within the City. B. Developer has agreed to enter into a reimbursement agreement with City for this project wherein condition SP 9 of Planning Commission Resolution No. 99-40 requires Developer to construct an off site storm drain system in Warwick Avenue. C. City Council on October 20, 1999, agreed to reimburse the Developer for the construction of off-site storm drain improvements in Warwick Avenue pursuant to Government Code §66485 et sea. NOW THEREFORE, for good and valuable consideration, CITY and DEVELOPER agree as follows: AGREEMENT 1. Desian of Improvements 1.1 As a part of Developer's project, Developer agrees to construct certain off-site storm drain system concurrent with Warwick Avenue access construction. The storm drain project will consist of those improvements and location as set forth on City Drawing No. 0020-DI, ("Improvements"). Plans and Specifications shall be prepared by City, subject to final approval of City's City Engineer. bp6407 CMD OOD, Drawing No. 0020-DI ¡ . . 3908 1.2 The plans and specifications for the Improvements shall comply with the construction standards in effect when the City issues its permits. Developer shall have no obligation to conform said plans and specifications to any subsequently changed standards. 2. Construction 2.1 Timina. Developer shall begin seeking contractors within thirty (30) days after the issuance of all necessary permits, and shall thereafter use due diligence to enter into contracts and prosecute the work to completion, work shall be completed within ninety (90) days after issuance of permits. 2.2 Construction Standards. Construction of the Improvements shall be accomplished in a good and workmanlike manner, free of liens and in compliance with the approved plans and specifications. 2.3 Citv Processina. The City shall use its best efforts to timely inspect the Improvements as they are being built, and shall use its best efforts to timely notify Developer of any required changes. City shall not require changes unless necessary to make construction conform to the permitted plans and specifications. 2.4 Acceptance and Maintenance. Developer or City shall record a Notice of Completion immediately upon completion of the Improvements. If construction has conformed to the plans and specifications, City shall accept the Improvements within forty (40) days after recordation of the Notice of Completion. The completed Improvements shall be free and clear of liens and encumbrances, except those non- monetary encumbrances and easements which City reasonably determines will not interfere with the intended use of the Improvements. 3. Reimbursement. City shall reimburse Developer one-hundred percent (100%) of the costs of the Improvements, not to exceed the sum of one hundred forty dollars ($140,000) as the amount reimbursed, for performing its obligations hereunder. Improvement costs included not only the actual direct hard cost of construction the storm drain facilities referenced but also related costs of plan check, inspection, permits, fees, bonds, civil engineering, soils engineering, plans and supervision. Developer shall send City the invoices from contractors and subcontractors. The City shall issue joint checks to the Developer and the applicable subcontractor(s). Developer shall keep records of its costs in accordance with generally accepted accounting procedures. City shall issue checks within thirty days of the City approval of the invoice(s). Change orders may be issued modifying the scope of work if conditions dictate this requirement but only if said change(s) are necessary to satisfactorily complete the original work per plan due to previously unknown site or job circumstances beyond the control of either the Developer or the Subcontractor(s). Any Change orders shall required the prior written approval of the City. These changes, if any, shall not exceed 10% of the aforementioned reimbursement amount. 4. Satisfaction of Developer's Obliaations. Compliance with this Agreement shall satisfy all of Developer's obligations relating to the Improvements. 5. Assianment. Developer may assign its rights and transfer its obligations hereunder only with the City's express, written consent, which shall not be unreasonably bp6407 CMD OOD, Drawing No. 0020-DI . . . 3909 withheld. Immediately upon the granting of such consent, Developer shall be released from all liability and obligations hereunder. 6. Indemnitv. Subject to Sections 6.1 and 6.2 below, Developer shall defend, indemnify, and hold City and its elected officials, agents, officers and employees (together, "Indemnitees") harmless from and against any and all claims, costs, damages, demands, expenses, and liability arising from the performance of this Agreement by Developer or its agents, officers or employees. 6.1 Exception: Indemnitee's fault. Section 6 shall not apply to the extent the matter arises from the negligence of intentional misconduct of any Indemnitee. 6.2 Termination of Dutv. Except for obligations relating to bonds for Warwick Avenue improvements imposed pursuant to Government Code §66499.9(c), Section 6 shall terminate upon City's acceptance of the Improvements. 7. Attornev's Fees. The prevailing party in any action or proceeding, including but not limited to arbitration, writ petitions, complaints for damages, and complaints for declaratory relief, arising from this Agreement shall be entitled to reasonable attorney's fees (including out-of-pocket expenses of attorneys and experts) and costs incurred therein. 8. Time of Essence. Time is of the essence of this Agreement and of all provisions hereof. g. Notices. All demands and notices required hereby shall be written, and shall be effective (i) immediately upon personal delivery, (ii) on the third business day after mailing by certified or registered U.S. Mail, return receipt requested, or (iii) on the business day after mailing by Express Mail or after deposit with a private delivery service of general use (e.g., Federal Express) postage or fee prepaid as appropriate, addressed as shown below: If to City: City Engineer City of Encinitas 505 S. Vulcan Ave. Encinitas, CA 92024-3633 If to Developer: Brandywine Development Corporation Attn: James L. Barisic, President 1801 E. Edinger Ave., Ste. 125 Santa Ana, CA 92705 10. Intearation. The undersigned, and each of them, acknowledge and represent that no promise or inducement not expressed in this Agreement has been made in connection with this Agreement. This Agreement contains the entire agreement and understanding between the parties as to the subject matter of this Agreement. 11. Waiver and Amendment. No provision of this Agreement, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the bp6407 CMD OOD, Drawing No. 0020-DI i . . 3910 same or other provision. This Agreement may be amended, modified or rescinded only in a writing signed by all parties to this Agreement. 12. Additional Documents. The parties shall sign any additional documents which are reasonably necessary to carry out this Agreement or to accomplish its intent. 13. Severabilitv. If any provision of this Agreement is invalidated, the remainder of this Agreement shall terminate if the invalidated provision was a material part of the consideration for either party. 14. Entire Aareement. This Reimbursement Agreement constitutes the entire understanding and agreement between the Parties and supercedes all previous negotiations between them pertaining to the subject matter thereof. In Witness Whereof, these parties have executed this Agreement on the day and year shown below: Date: ~~ I }?// CJty of E",~ By ~ i "'A- I . . nager ðWIJ~ Brandywine Development By: ¥ ' "- Title: ~I<"""'~ Date: ::\v~'t lS¡)..,.,= ATTEST: ~ bp6407 CMD 000, Drawing No. 0020-01 I . . . . CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT State of California 11 County of ~A<.- 4J~ } ss. K. ,(Jö?/i,eý onývÚ¡ 13,;¿ðòÒ, before me, WNOIl ~, tllilífO()K: ,PUÓ,uC, Date Namaa""T"oI~'(a.,...JanaDoe.Nota",""bI'" personally appeared\l111l1 £:5 "¿. 'f3¡tye /.5 I e Nama{al 01 S;gna~'1 0 personally known to me ~oved to me on the basis of satisfactory evidence r @ o,,'~ "" , to be the person(s) whose name(s@re - RANDA G. MILLJOUR subscribed to the wit' instrument and ¡¡¡ " NOTARY PUBUC-CALIFORNIA~ acknowledged to me t h ~ e/theyexecuted '" COMM, NO, 1204250 - '. SAN OIEGO COUNTY I the same in i ~ er/their~orized t", ',", MYCOMM.EXP.JAN,6,2003 capacity(ies) , apd that by his r/their , ... - signature(s) on thè instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. --" WITNESS my hand and Offi<;ial seal. 7~~ruP2J~ P1a""Nota",SeaIAbo"" OPTIONAL Though the. informaNon below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reaffachment of this form to another document. Description of Attached Document TItle or Type of Document: (:f .I Ai ¡f')/ )~ J.te.... ) 7'" /If} ~ /J?E AJ ¡ Document Date: 7 )(31 DO Number of Pages: S Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer <AJI#e 1.-<"/ (!..... Signer's Name: :í/11uf':5, ,¿" D Individual IPR85IO&.J / Top of thumb h... ~ Corporate Officer - TItle(s): 0 Partner-D Limited 0 General 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: <.!ie¡£bUOLf ú) / ,U g Oét)€L/)PP7~P¡- "'997 Nallooal Nota", Aaooola'~"' 9350 D. Solo A'... P.o. 80, 2402' Cha"worth, CA 9'313.2402 Pocd. No. 5907 ""'""'" Call ToIl.Fm. '-800-876'6827