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HomeMy WebLinkAbout3348; Sambi Seaside Heights LLC; 1995-0467960; Reimbursement Agreement/Release-I . . RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO I 1 NafTW Cii Clerk Cii of Carl&ad Street Address 1200 Carlsbad Village Drive City & Carisbad, CA 92008 State I I G,:: It 1995-0467950 17-OCT-1995 lle04 All OFFICIEIL RECORDS SAN DIEGU COuElTY RECDRMR’S OFFICE 37.00 733 SPACE ABOVE THIS LINE FOR RECORDER’S USE APN 214-140-07 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF HIDDEN VALLEY ROAD THIS AGREEMENT, made and entered into as of the m day of m , 1995, by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as “City”, and SAMBI SEASIDE HEIGHTS, a California Limited Liability Company, hereinafter referred to as “Property Owner.” WHEREAS, Property Owner is the legal owner of certain real property located within the City of Carlsbad, California, herein described as: A portion of the Southeast Quarter of Section 21, Township 12 South, Range 4 West, San Bernardino Meridian, in the County of San Diego, State of California. WHEREAS, City is the legal owner of certain real property, known as Poinsettia Community Park, abutting Property Owners real property on the west; and WHEREAS, City has completed the planning and design of its Poinsettia Community Park project to be constructed on said City owned real property; and 1 I ‘. I j , \ r’ . . , . I ‘1. WHEREAS, Property Owner is currently in the process of planning and otherwise I developing certain subdivision improvements to said Property Owner’s respective real property adjacent to City’s Poinsettia Community Park project; and WHEREAS, Property Owner is legally obligated to construct Hidden Valley Road as a condition of City’s approval of a final map on Property Owner’s property; and WHEREAS, City and Property Owner find it in their mutual interest to proceed with the construction of Hidden Valley Road intended to provide access to both City’s and Property Owner’s adjacent properties. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Property Owner hereby agree as follows: 1. OBLIGATIONS OF CITY A. City has secured, or shall cause to be secured, all government agency permits, approvals, licenses, agreements, and other necessary permission to construct said Hidden Valley Road. B. City shall competitively bid as a City public works project the construction of Hidden Valley Road and shall strive to minimize costs for said construction and administration. Hidden Valley Road shall be graded by City in conjunction with the City’s Poinsettia Community Park Project Phase I. City shall construct or cause to be constructed, in accordance with City Drawing No. 331-4, Sheets 1-12, on file in the office of the City Engineer, the improvements to Hidden Valley Road if Property Owner has not commenced construction of said improvements by April 1, 1996. I * rC -. t 735 * * C. City shall keep an accounting of all costs related to the construction, inspection, and administration of Hidden Valley Road. On or around July 1, 1996, City shall prepare and deliver to Property Owner a complete and detailed accounting of all costs related to the Hidden Valley Road construction project. 2. OBLIGATIONS OF PROPERTY OWNER A. Property Owner shall commence construction of improvements on the portion of Hidden Valley Road located on Property Owner’s property no later than April 1, 1996 and complete construction of said improvement no later than July 1, 1996. B. If Property Owner does not commence construction of improvements on Hidden Valley Road by April 1,1996, Property Owner hereby authorizes City to construct, or cause to be constructed, the improvements on the portion of Hidden Valley located on Property Owner’s property. C. Property Owner shall reimburse City for the cost of constructing Hidden Valley Road located on Property Owners property in accordance with Section 3, Reimbursement of Costs, of this agreement. 3. REIMBURSEMENT OF COSTS A. Property Owner shall reimburse City for its share of costs incurred by City for the construction and administration of Hidden Valley Road located on Property Owner’s property. For the purposes of this agreement, the estimated cost of said construction and administration for all of Hidden Valley Road is as follows: 4 -. 736 . ~ 1) Construction $574,ooo 2) Inspection & Administration: 8% of Line 1 45,920 3) Soils & Materials Testing: 3% of Line 1 17,228 4) Design 81 Construction Contingency: 15O/6 of Line 1 88,100 5) Total Estimated Cost $723,248 The costs identified above are to be considered as estimates only. Property Owner hereby acknowledges that the actual cost may substantially exceed the estimated cost as stated above and hereby agrees to pay its share of the actual and final cost of constructing the portion of Hidden Valley Road located on Property Owner’s property. B. Property Owner shall reimburse City based upon final, actual costs incurred by City for the administration and construction of Hidden Valley Road. Actual costs shall _ be determined by using unit bid prices for the number of units constructed on Property Owner’s Property. The portion of lump sum items and testing and administration costs payable by Property Owner shall be determined by multiplying those costs by the factor obtained from the following formula: Total of Hidden Valley Unit Costs on Property Owner’s Property Total of Hidden Valley Unit Costs Property Owner shall be notified by City of the final costs for the construction of Hidden Valley Road based upon the final project accounting as described in Section 1, Paragraph C, of this agreement. Said reimbursement from Property Owner to City shall include applied interest at the rate of eight percent (8%) per year, simple interest, compounded annually. Interest shall be calculated from October 1, 1888 to the date Property Owner makes final payment of amounts due City under this agreement. ’ * . _- > . 737 C. If Property Owner records a map on Property Owner’s real property, described on Page 1 of this agreement, and fails to begin construction of improvements to Hidden Valley Road by April 1, 1996 and City constructs or causes to be constructed said improvements, Property Owner shall pay to City its share of costs for the construction of Hidden Valley Road as described in Section 3B of this agreement. Said payment shall be due and payable within ninety (90) days of Property Owner’s receipt of invoice and detailed cost accounting described in Section 1C of this agreement. If City constructs or causes to be constructed Hidden Valley Road prior to Property Owner recording a map on Property Owner’s real property, Property Owner shall pay to City its share of costs for the construction of Hidden Valley Road as described in Section 38 of this agreement. Said payment shall be due and payable either prior to the recordation of Property Owner’s final map or final City approval of other development on property described on Page 1 of this agreement, whichever occurs first. D. Any payments due City under this agreement shall become a lien upon the real property of Property Owner, described on Page 1 of this agreement, as of the date of recording of this document. City has the right to collect from Property Owner any amount due by any legal means, including but not limited to, seizure and/or sale of the property. Property Owner and their successors, heirs, assigns and transferees shall be liable for reasonable attorney’s fees incurred by City in collection of amounts due. E. In the event City begins the improvements to Hidden Valley Road as identified in Section 1, Paragraph B, of this agreement prior to the date of transfer of any interest in Property Owner’s real property identified herein, Property Owner shall remain liable 5 i38 with their successors, assigns, and transferees for the obligations contained within this agreement. F. Property Owner shall give thirty (30) calendar days written notice to City of the transfer of any interest in its property as identified herein. Property Owner may release new Property Owner from the obligations of this agreement by: 1) Paying to City the total amount due under Section 3, Paragraph 8, of this agreement upon transfer of any interest in its property; 2) Posting a bond acceptable to City guaranteeing the performance of the obligations as stated within this agreement; 3) Securing an agreement from the transferee to be bound by this agreement with the Property Owners acceptable to City. 4. HOLD HARMLESS AGREEMENT: CITY If Property Owner constructs Hidden Valley Road, City, its officers, and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, nor for personal injuries or death caused by, or resulting from, any intentional or negligent acts, errors or omissions of Property Owner or Property Owner’s agents, employees, or representatives. Property Owner agrees to defend, indemnify, and hold free and harmless the City and its officers and employees against any of the foregoing claims, liabilities, penalties or fines, including liabilities or claims by reason of alleged defects in any plans and specifications, and any cost, expense or attorney’s fees which are incurred by the City on account of any of the foregoing. . L 739 5. HOLD HARMLESS AGREEMENT: PROPERTY OWNER If City constructs Hidden Valley Road, Property Owner, its officers, and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, nor for personal injuries or death caused by, or resulting from, any intentional or negligent acts, errors or omissions of City or City’s agents, employees, or representatives. City agrees to defend, indemnify, and hold free and harmless the Property Owner and its officers and employees against any of the foregoing claims, liabilities, penalties or fines, including liabilities or claims by reason of alleged defects in any plans and specifications, and any cost, expense or attorney’s fees which are incurred by Property Owner on account of any of the foregoing. 6. DURATION OF CONTRACT This agreement shall be in effect for a period not-to-exceed twenty (20) years. Said twenty year period shall begin on the date of execution of this agreement. 7. CONFORMITY TO LEGAL REQUIREMENTS City shall cause all drawings and specifications to conform to all applicable requirements of law: federal, state, and local. City shall provide all necessary supporting documents to be filed with any agencies whose approval is necessary for the improvements to Hidden Valley Road. City shall provide copies of the approved plans, specifications, contract documents, and all other project related reports and studies to any other agencies. 7 ’ 8. OWNERSHIP OF DOCUMENTS 740 All plans, studies, sketches, drawings, reports, and specifications as herein required are the property of City, whether the work for which they are made be executed or not. In the event this agreement is terminated, all documents, plans, specifications, drawings, reports, and studies shall be considered the property of City. 9. COVENANTS AND OBLIGATIONS TO RUN WlTH LAND Following execution of this agreement by Property Owner and City, City shall record or cause to be recorded this agreement with the Office of the County Recorder, County of San Diego, State of California, into the title of the property as described on Page 1 of this agreement. Covenants and obligations of Property Owner created by this agreement and as stated herein shall run with the property and become the covenants and obligations of any and all subsequent owners of interest of said property. All terms, conditions, and provisions hereof shall inure to and bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors, and assigns, including the provisions of Section 4, “HOLD HARMLESS AGREEMENT: CITY”, and Section 5, “HOLD HARMLESS AGREEMENT: PROPERTY OWNER”. 10. PROHIBITED INTEREST No official of City who is authorized in such capacity on behalf of City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of City who is authorized in such capacity and on behalf of City to exercise any executive, supervisory, or similar functions in connection with the performance of this agreement shall become directly or indirectly interested personally in this agreement or any part thereof. 8 * . * . . , 741 .ll. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of City, either before, during or after the execution of this agreement, shall affect or modify any of the terms or obligations herein. . . . a.. *.. . . . . . . . . . 9 . . . k. ’ . * -.. .12. 742 EFFECTIVE DATE This agreement shall be effective on and from the date on Page 1 of this agreement. by Property Owner this G&*&I/ Executed by City this 28 day , of SW-i- I 199%. 19 Q&* SAMBI SEASIDE HEIGHTS, CITY OF CARLSBAD, a municipal a California Limited Liability Company corporation of the State of California Seizo H. Toyohara (print name here) ATTEST: Manager (title and organization of signatory) (Proper notarial acknowledgment of execution by Contractor 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 officer to bind the corporation.) APPROVED AS TO FORM: 10 - _.- ,- Ci&BffNIA ALL-PURP6.X ACKNOWLEDGMENT State of P/&Ad/& County of On >$$$%.&?~ z&/6%@ before me Date personally appeared ’ , Name(s) ol Signer(s) &personally known to me - OR - ?Y proved to me on the basis of satisfactory evidence to be the person@) whose name(S) is& subscribed to the within instrument and acknowledged to me that he/&&hey executed the same in his-r authorized capacity-), and that by his/he&&& signature) on the instrument the persorf&), or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my4and and off~ci -jittdg OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: ~~ter)oy7 4 &d&i-& :~&Y-/W- 07 Document Date: JEpTmk 2 c, /qGr Number of Pages: %A Signer(s) Other Than Named Above: &ce- Capacity(ies) Claimed by Signer(s) Signer’s Name: Signer’s Name: 0 Individual 0 Corporate Officer Title(s): 0 Partner - 0 Limited 0 General Cl Attorney-in-Fact 0 Trustee 0 Guardian or Conservator q Other: Signer Is Representing: 1 I I I 1 I Cl Individual 0 Corporate Officer Title(s): 0 Partner - 0 Limited 0 General 0 Attorney-in-Fact 0 Trustee q Guardian or Conservator I? Other: Signer Is Representing: I I - 6 1994 NatlOnal Notary * 6’236 Remmet Ave., P.O. Box 7 ‘184 * cancga Park , CA 91309-7164 Prod. No. 5907 Reorder: Call Toll-Free 1-600-676-6627