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
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~ 1110 IjftJ
\ C¡-j5-4J REIMBURSEMENT AGREEMENT
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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.
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CMD OOD, Drawing No. 0020-DI
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. . 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
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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:
~
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CMD 000, Drawing No. 0020-01
I
. . .
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CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California 11
County of ~A<.- 4J~ } ss.
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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.
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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