2010-593646V Recording Requested By and
When Recorded Main To:
-R Deborah Cervone
City Clerk
City of Encinitas
505 South Vulcan Avenue
Encinitas, CA 92024
For the Benefit of the City
DOC # 2010-0593646
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NOV 02, 2010 3:48 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
DAVID L. BUTLER, COUNTY RECORDER
FEES: 0.00
PAGES: 12
Space Above for Recorder's Use Only
REIMBURSEMENT AGREEMENT
(Vulcan/Sanford Park)
This Reimbursement Agreement is entered into this /-Z' - day of July, 2002, by
and between the City of Encinitas, a California municipal corporation (herein "City") and
Greystone Homes, Inc., a Delaware corporation (herein "Greystone"). City and
Greystone are hereinafter sometimes referred to collectively as "Parties."
RECITALS
A. Greystone has secured approval of Tentative Map No. 98-240 ("TM 98-240") and
Final Map No. 14225 ("FM 14225") from City to construct 46 residential units
within the City.
B. Greystone has agreed to enter into a reimbursement agreement with City for TM
98-240 wherein condition SCA 1 of City Council Resolution No. 2000-62 requires
Greystone to construct an approximately 2.5 acre park on Lots 47 and 48 of FM
14225 at the western most portion of the project site ("Park").
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C. City has agreed to reimburse Greystone for the Actual Design and Construction
Costs of the Park on Lots 47 & 48, excepting biofilter & drainage facilities
associated with the residential portion of FM 14225 and landscaping facilities
directly associated with those facilities. "Landscaping" includes plantings and
irrigation facilities related thereto.
D. As a requirement of the City, Greystone has expended significant funds toward
the planning and design of the Park including, but not limited to, the costs
associated with planning, engineering, and landscape design services,
community workshops and presentations, Park & Recreation Commission, City
Council & Planning Commission hearings, major use permit application &
processing, legal fees, and various City fees. Reimbursement will occur for
those meetings and hearings that deal predominantly with Park issues.
E. Greystone is prepared to obtain and City will use its best efforts to process
expeditiously applications for all necessary permits, including building permits,
public improvement permits, and/or land development permits, for the
construction of the Park. Greystone is willing to complete the Park according to
plans approved by City.
F. City's responsibility to reimburse Greystone is limited to those fees, charges and
costs directly related to design and construction of the Park, pursuant to
Condition SCA of City Council Resolution No. 2000-62 (TM 98-240) and Planning
Commission Resolution No. PC 2001-15 (MUP 01-033).
G. City's responsibility to reimburse Greystone also includes sidewalks on Vulcan
and Sanford, plus City will arrange for the undergrounding of public utilities on
Vulcan, both as specified in Condition SCA 6b. of City Council Resolution No.
2000-62 (TM 98-240).
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H. Greystone is entering into this Agreement on condition that City accept this
Agreement as complete satisfaction of Greystone's obligations under Condition
SCA of TM 98-240.
I. City and Greystone have entered into a Right of Entry Agreement which
authorizes Greystone and its contractors to enter City's property to construct and
maintain (for a limited period of time) the Park.
NOW THEREFORE, for good and valuable consideration, the Parties agree as follows:
AGREEMENT
1. Design of Improvements
1.1 As a part of TM 98-240, MUP 01-033 and FM 14225, Greystone agrees to
construct an approximately 2.5 acre Park on property under the ownership and control
of City. The Park will consist of those improvements as set forth on City Drawing No.
6775G, Sheets 44 - 62, ("Improvements"). Plans and Specifications shall be prepared
by Greystone, subject to final written approval of City's Community Services Director.
1.2 The plans and specifications for the Improvements shall comply with the
construction standards in effect when the City issues its permits, as approved by City's
Community Services Director on the final plans approved by City Drawing No. 6775G,
Sheets 44 - 62.
2. Construction
2.1 Timing. Greystone shall begin seeking contractors within thirty (30) days after the
issuance of all necessary permits and approvals. Greystone shall solicit bids from
contractors for construction of the improvements and shall provide a minimum of three
bids to the City's Community Services Director for review. The Community Services
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Director shall review all bids submitted by Greystone and shall select the contractor to
which the contract for construction of the improvements shall be awarded. Upon
Greystone's receipt of written notification of the Community Services Director's
selection, Greystone shall thereafter use due diligence to enter into contracts and
prosecute the work to completion. Construction of the improvements shall be
completed within a reasonable period of time after issuance of permits. On or about
May 17, 2002, the Parties entered into a written Settlement Agreement and Mutual
Release ("Settlement Agreement") that establishes time frames for completion of
various elements of the Park, as well as completion of the entire Park project. The
Settlement Agreement also provides for the City granting extension(s) of time to
complete the various elements and the entire Park project. A copy of the Settlement
Agreement is attached hereto as Exhibit "A" and is incorporated by reference in this
Agreement.
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 and written approval by the Community Services
Director. Greystone guarantees that the Improvements done under this Agreement will
be free from faulty materials and workmanship. Greystone shall provide City with any
written warranty or guarantee it receives associated with the installation of equipment or
the equipment itself. However, Greystone makes no representation regarding whether
any such warranty or guarantee is assignable. Greystone will remedy, repair, or replace
without cost to City only such defects or damages appearing in the Improvements which
are due to faulty materials and/or workmanship within a period of one (1) year after
issuance of a Letter of Completion and Acceptance by City.
2.3 City Processing. The City shall use its best efforts to timely inspect the
Improvements as specified in the Improvement Inspection Checklist prepared by City
and shall use its best efforts to provide timely notification to Greystone of any required
changes.
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2.4 Acceptance and Maintenance. If construction has conformed to the plans and
specifications, City shall issue a Letter of Completion and Acceptance immediately upon
substantial completion of the Improvements. Greystone shall be entitled to fence the
Park to preclude public use until issuance of the Letter of Completion and Acceptance.
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. Following
issuance of the Letter of Completion and Acceptance, City shall accept all maintenance
obligations related to the Improvements.
3. Actual Design and Construction Cost. The actual design and construction cost
shall include, as hereinafter provided, Improvement Costs, costs of Change Orders, and
Other Cost Increases defined below (collectively "Actual Design and Construction
Costs").
3.1 Improvement Costs. The Improvement Costs include, but shall not be limited to:
costs of preparing the Park Project budget; costs associated with preparation and
presentation of park project concept plans for two Community Workshops (10/30/00 and
11/27/00) and a Park and Recreation Commission meeting (12/12/00), as well as a City
Council meeting (1/17/01) for approval of a concept plan; preparation of a major use
permit application and processing of same, including a Planning Commission hearing
(3/1/01); costs associated with the construction, landscaping, improvement, and final
grading of the Park site; costs of professional services for design, engineering,
landscape and construction of the Park and its required facilities; legal services
associated with the Park project including document preparation, attendance at
meetings/hearings, and representation; costs attributable to the provision of public water
and sewer facilities to serve the Park project from the closest public point of connection;
insurance premiums, bonds, and all other fees and charges (e.g., permit fees,
inspection fees, etc.) associated with permit processing and actual construction of the
project; costs attributable to provision of mitigation for impacts to resources affected by
site development of the Park property; and Greystone's Project administration and
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construction management costs not to exceed ten percent (10%) of all approved
Improvement Costs (collectively "Improvement Costs").
3.2 Change Orders. A "Change Order" is a written order, approved by the City in
writing, from any Greystone authorized representative ("Greystone's Project Manager")
to the contractor performing the work authorizing a change in the work to be performed.
Change Orders may be needed where changes in the Park project are made necessary
due to unanticipated conditions arising during construction or changes in the plans and
specifications after construction begins. City must approve all Change Orders in writing
and deliver such Change Order to Greystone's Project Manager.
3.3 Approval of Change Orders. Greystone's Project Manager shall notify City's
Project Manager of the need for a Change Order and City's Project Manager shall either
approve or reject said Change Order within five (5) working days of receiving a written
notice from Greystone's Project Manager. The notice submitted by Greystone's Project
Manager must be accompanied by proper backup documentation justifying the need for
the Change Order. Only the Interim Community Services Director or his designee may
approve Change Orders, and any such approval must be in writing. City's approval
shall not be unreasonably withheld. City shall exercise good faith, and best efforts to
grant approval(s) promptly. Should the City fail to respond to the request for a Change
Order from Greystone's Project Manager within the prescribed period of time, following
proper notice by Greystone's Project Manager, the Change Order request shall be
deemed denied by the City. For purposes of notification with regard to Change Orders,
the City's Project Manager shall mean the person responsible for overseeing Project
design and construction.
3.4 Minor Changes. Notwithstanding the above, Greystone shall have the authority,
without City's consent, to order minor changes in the work which do not cost more than
$500 per change, and do not lengthen the Park project's construction period.
Greystone shall, within 24 hours prior to implementation of any such change, notify the
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City's Project Manager (or Supervisor if Project Manager is not available) of the nature
and cost of the change. The total amount of minor changes permitted pursuant to this
Section shall not exceed $5,000 without City's prior written approval.
3.5 Other Cost Increases. Notwithstanding anything herein which may provide to the
contrary, the Parties acknowledge that the Estimated Total Project Cost and the Total
Project Cost may be increased, and/or the time to complete the Park project extended,
as a result of events occurring outside of the control of the Parties, including (i) actual
bids received exceeding the Estimated Design and Construction Cost; (ii) acts of God,
acts of any governmental authority, the elements, war, litigation, shortages of material,
labor strikes, inflation, later commonly accepted or adopted higher standards and
specifications of construction, concealed or unknown conditions encountered in the
completion of the Project, or other cause beyond Greystone's control, (iii) Improvement
Costs being greater than estimated, or (iv) other factors not the result of unreasonable
conduct by Greystone. The Estimated Total Project Cost and the Total Project Cost
may be increased by the amount of such increases and/or the time to complete the Park
project may be extended, subject to written approval by City, which approval shall not
be unreasonably withheld.
4. Reimbursement. City shall reimburse Greystone one-hundred percent (100%) of
the costs of the Actual Design and Construction Costs, except as limited by Section 4.2
of this Agreement, which total amount (soft and hard costs) shall not exceed
$682,535.22, plus Change Orders pursuant to Sections 3.3 and 3.4, for performing its
obligations hereunder, in accordance with the reimbursement schedule set forth in
Section 4.1 of this Agreement.
4.1 Timinq of Reimbursements. Within thirty (30) days of City issuance of a Letter of
Completion and Acceptance, City shall pay Greystone ninety percent (90%) of said
reimbursement pursuant to Section 4. of this Agreement. City shall retain the remaining
ten percent (10%) as a retention to assure compliance with this Agreement for a period
not to exceed sixty (60) days.
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4.2 Limitations of Reimbursement. Reimbursement under Section 4.1 of this
Agreement is limited to that portion of the Actual Design and Improvement Costs that
Greystone would not otherwise be required to spend had construction of the Park not
been required by the City. Therefore, the design and construction costs for the
following items shall not be reimbursable under Section 4.1 of this Agreement:
(a) Greystone's design and improvement costs associated with a storm water
detention basin located on Lot 47 of the Final Map. However, Greystone shall be
reimbursed for the costs associated with the construction of the volleyball court (i.e.,
purchase and installation of volleyball sleeves and standards) at the bottom of the
detention basin, and for costs associated with the construction of sidewalks adjacent to
the Park on Vulcan and Sanford, plus City will arrange for the undergrounding or
relocating of public utilities on Vulcan, both as specified in Condition SCA 6b of TM 98-
240.
(b) Greystone's design and improvement costs associated with the biofilter
facilities located on Lot 47 of the Final Map as well as landscaping directly above and
covering said biofilter facilities.
5. Satisfaction of Greystone's Obliqations. Compliance with this Agreement shall
satisfy all of Greystone's obligations relating to the Improvements.
6. Assignment. Greystone may assign its rights and transfer its obligations
hereunder only with the City's express, written consent, which shall not be unreasonably
withheld. Immediately upon the granting of such consent, Greystone shall be released
from all liability and obligations hereunder.
7. Greystone Indemnity.
(a) Greystone shall defend, indemnify, and hold City and its elected officials,
agents, officers and employees (together, "City Indemnitees") harmless from and
against any and all claims, costs, damages, demands, expenses, and liability arising
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from the performance of this Agreement by Greystone or its agents, officers or
employees, until such time as City issues the Letter of Completion and Acceptance.
(b) Greystone shall defend, indemnify, and hold City and its elected officials,
agents, officers and employees (together, "City Indemnitees") harmless from and
against any and all claims, costs, damages, demands, expenses, and liability resulting
from any negligent act or omission or willful misconduct, including any latent defects,
arising from the performance of this Agreement by Greystone or its agents, officers or
employees for a one-year period after City's issuance of the Letter of Completion and
Acceptance.
7.1 City Indemnity. City shall defend, indemnify, and hold Greystone and its agents,
officers and employees (together, "Greystone Indemnitees") harmless from and against
any and all claims, costs, damages, demands, expenses and liability from the
performance of this Agreement by Greystone or its agents, officers or employees after
City's issuance of the Letter of Completion and Acceptance, except as specified in
Sections 2.2 and 7 of this Agreement.
8. Attorney'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.
9. Time of Essence. Time is of the essence for this Agreement and of all provisions
hereof.
10. 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
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service of general use (e.g., Federal Express) postage or fee prepaid as appropriate,
addressed as shown below:
If to City: Mr. Phil Cotton
Interim Community Services Director
City of Encinitas
505 S. Vulcan Ave.
Encinitas, CA 92024-3633
If to Greystone: Mr. Mike Levesque
President, San Diego Division
Greystone Homes, Inc.
5780 Fleet Street, Ste. 300
Carlsbad, CA 92008
11. Integration. 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.
12. 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
same or other provision. This Agreement may be amended, modified or rescinded only
in a writing signed by all Parties to this Agreement.
13. Additional Documents. The Parties shall sign any additional documents which
are reasonably necessary to carry out this Agreement or to accomplish its intent.
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14. Severability. 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.
15. Entire Agreement. 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: 71io 4-x--
City of Encinitas
oe~
Y
By:
ZFA, i y Manager
Date: 12- -'0 2-
ATTEST:
k'J.A
ity Clerk
APPRO D AS TO FO
abine, City Attorney
Greystone Homes, Inc., a Delaware
Corporation
By: -
Title: T>k J i7~Lo AJ
Si"'En (ro Ce-
11
State of California
SS.
County of San Diego
On July 12, 2002 , before me, Donna Burris, Notary Public in and for said State, personally
appeared Michael L. Levesque personally known to me pr-eve i to aw ea the basis 9~
to be the person(s) whose name(s) is/awe subscribed to the within
instrument and acknowledged to me that he/&4@4hey executed the same in his/4@944@4
authorized capacity(ies) and that by his/4e4theif 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 and official seal. DON zURRIs
Commission # 1239625
Notary Public - California
San Diego County
%MyComm. Expires Oct 19, 2003