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HomeMy WebLinkAboutCT 93-09; Catellus Residential Group Inc; 1998-0617941; Reimbursement Agreement/Release. ‘ I b + -, RECORDING REQUESTED BY: WHEN RECORDED, PLEASE MAIL TO: ( 1260 Carlsbad Village Drive Carlsbad, California 92008 Please record the document at no fee as it is to the benefit of the City (Gov. Code [6103].) 428 DOC --Y 199E0617941 ~ SEP 28s 1998 3:4’7 PM omc1Al REm SAN DIEGO MUNTY REamER’S OFFICE GIEGORY gmH9 cyTYYREcoRDER . . . Space above this line for Recorder’s Use DEEP SEWER REIMBURSEMENT AGREEMENT THIS DEEP SEWER REIMBURSEMENT AGREEMENT (“Agreement”) is made and entered into as of the 22nd day of September , 1998 by and between CATELLUS RESIDENTIAL GROUP, INC., a California corporation (hereinafter “Catellus”), and the CITY OF CARLSBAD, a municipal corporation of the State of California (hereinafter “the City”), with reference to the following: RECITALS A. Catellus is the owner of that certain real property located in the City of Carlsbad, County of San Diego, State of California, and more particularly described on Exhibit “A” attached hereto and incorporated herein by the reference (the “Ocean Bluff Property”). B. The real property located adjacent to the Ocean Bluff Property in the City of Carlsbad, County of San Diego, State of California, is more particularly described on Exhibit “B” attached hereto and incorporated herein by this reference (the “Roesch Property”). C. Both the Ocean Bluff Property and the Roesch Property will receive sewer service from the City. D. Catellus will install the sewer improvements which will serve the Ocean Bluff Property. Catellus is also required to install the sewer improvements which will serve the Roesch Property (the sewer improvements serving both properties being collectively referred to herein as the “Deep Sewer improvements). The Deep Sewer Improvements will be located beneath the real property more particularly depicted on Exhibit “c” attached hereto and incorporated herein by this reference, which real property includes what is commonly referred to as “Brigantine Drive,” as well as portions of what (CT 93-09, Proj. 89-505) is commonly referred to as “Poinsettia Lane” (all of the foregoing collectively being referred to herein as the “Sewer Improvement Property”). E. The City has informed Catellus that the sewer lines which are to be installed as part of the Deep Sewer Improvements (in order to properly serve the Roesch Property) will need to be installed at a depth of approximately thirty- eight (38’) feet below the existing ground surface (which is significantly deeper that the ordinary depth of sewer lines). F. The parties recognize that the installation of sewer lines at such extraordinary depth requires significantly greater work and expense than customary sewer line installation for a residential tract. G. The parties acknowledge that pursuant to Q 66485 of the California Government Code, a local agency may require a subdivider to install improvements containing supplemental size, capacity, number, or length, for the benefit of property not within the subdivision. The parties further acknowledge that pursuant to Q 66486 of the Government Code, if such improvements are required, the local agency shall enter into an agreement with the subdivider to reimburse the subdivider for that portion of the cost of those improvements in excess of the construction cost customarily required for the subdivision. H. To accommodate Catellus for such added expense, the parties hereby desire to provide for the reimbursement by the City to Catellus for all sewer installation costs incurred by Catellus in excess of those which would normally be incurred if the Deep Sewer Improvements were installed at a standard depth (as would be required if installed only for the benefit of the Ocean Bluff Property). AGREEMENT NOW, THEREFORE, in consideration of the terms and agreements hereinafter set forth, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. DESCRIPTION OF WORK. The Deep Sewer Improvements shall include approximately six hundred ninety-six linear feet (696”) of eight-inch (8”) diameter pipeline from station 9+25.37 to station 16+21.47 and to the two (2) access holes at station 12+75.67 and station 16+21.47 (as shown on Drawing 360-38, Sheets 6 and 7), plus approximately seven hundred thirty-two linear feet (732’) of eight-inch (8”) diameter pipeline from station IO+16 to station 15+92.81 and from station 10+49.31 to station 12+095.20, and to three (3) access holes at station 11+78.52, station 13+87.25, and station 15+92.81 (as shown on Drawing 360-3, Sheets 3 and 4). 2 Rev. 09/09/98 *, 430 2. CITY REIMBURSEMENT OBLIGATION. In the event that Catellus installs the Deep Sewer Improvements for any reason whatsoever, including, without limitation, to satisfy any condition of approval in connection with a tentative map for either the Ocean Bluff Property or the Roesch Property, the City shall reimburse Catellus an amount (the “Reimbursement Amount”) equal to the difference between the cost of the Deep Sewer Improvement Installation (the “Actual Cost”) and Thirty-Six Thousand Three Hundred Seventy-Seven Dollars ($36,377) (which the parties agree is the reasonable estimate of the cost to install sewer improvements solely for the benefit of the Ocean Bluff Property). The Actual Cost shall include all costs associated with the installation of the Deep Sewer Improvements. 3. CONTRACTOR; INVOICES. The Deep Sewer Improvements shall be installed by a licensed contractor or sub-contractor (the “Contractor”) selected by Catellus (which Contractor shall be selected after receipt of bids from no fewer than three (3) contractors). Catellus shall instruct the Contractor to prepare and deliver to Catellus duplicate copies of all periodic and final invoices for labor and materials used in the installation of the Deep Sewer Improvements. Catellus shall forward one copy of each such invoice to the Engineer (the “District Engineer”) for the Carlsbad Municipal Water District (the “District”), together with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor’s invoice. The District Engineer shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs set forth in Section 2 of this Agreement. If the District Engineer objects to any item comprising the Reimbursement Amount, the District Engineer shall notify Catellus within ten (10) days of receipt of all invoices forwarded by Catellus and the Contractor. Failure to so notify Catellus shall be deemed the District Engineer’s approval of such invoices. In the event the District Engineer does object, Catellus and the District Engineer shall meet to discuss the disputed amount, and attempt to resolve the matter through good-faith negotiation. If the parties are unable to resolve the dispute through good- faith negotiation, the dispute shall be submitted to judicial reference in accordance with Section 6.i. of this Agreement. Prior to the submission to the District Engineer of the final invoices, Catellus shall obtain all necessary or appropriate lien releases from the Contractor, and shall obtain from the City, the District, and any and all necessary or appropriate governmental agencies, all approvals, certificates, and other documents necessary or appropriate to indicate the completion of the Deep Sewer Improvements and the ability to put such Deep Sewer Improvements into use. The date Catellus receives all such lien releases, approvals, and certificates shall be deemed the date of completion of the Deep Sewer Improvements (the “Completion Date”). 3 Rev. 09/09/98 431 4. REIMBURSEMENT SCHEDULE. The City shall collect a fee (the “Deep Sewer Fee”) upon the issuance of a grading permit for the Roesch Property. The City shall remit the entire Reimbursement Amount to Catellus no later than (30) days following collection by the City of the Deep Sewer Fee. 5. NOTICE. Payment or notice required or permitted to be given by one party to the other shall be in writing and shall be deemed effective (a) on personal delivery on the second business day after mailing by Certified or Registered United States mail, postage prepaid, return receipt or (b) on the succeeding business day after mailing by Express Mail or after deposit with a commercial delivery service of general use, all postage or fees prepaid and addressed to the parties at the addresses below: If to Catellus: Catellus Residential Group 5 Park Plaza, Suite 400 k-vine, CA 92014 Attn: Mr. Brian J. Milich If to City: Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 Attn: Robert J. Greaney, General Manager Notice of change of address shall be given by written notice in the manner set forth in this paragraph. 6. MISCELLANEOUS. a. Entire Aareement. This Agreement contains the entire agreement between the parties with respect to the matters set forth herein, and supersedes all prior or contemporaneous agreements (whether oral or written) between the parties with respect to the matters set forth herein. b. Amendment. This agreement may be modified only in a writing signed by both parties. c. Successors and Assians. This Agreement shall be binding upon and inure to the benefit of each party and their respective heirs, personal representatives, successors and assigns. d. No Third Partv Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. e. Attornev’s Fees. In the event either party shall institute any action or proceeding against the other party relating to this Agreement, the unsuccessful party in such action or proceeding shall reimburse the successful party for its 4 Rev. 09/09/98 - 432 ‘I disbursements incurred in connection therewith and for its reasonable attorneys’ fees as fixed by the court. In addition to the foregoing award of attorneys’ fees to the successful party, the successful party in any lawsuit on this Agreement shall be entitled to its attorneys’ fees incurred in any post-judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive any merger of this Agreement into any judgment on this Agreement. f. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. g. Governina Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. h. Counteroarts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taker together, shall constitute one and the same instrument. i. DisDutes: Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve and question of fact or interpretation not formally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement, shall be reduced to writing by the principal Catellus or the City’s Public Works Director (Director). A copy of 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 receipt, shall reply to the letter, including a recommended method of resolution, within ten (10) days. If the resolution thus obtained is unsatisfactory to the aggreived party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. Ill Ill Ill IN III /II Ill Ill III Rev. 09109198 -. 433 i. Term. This Agreement shall be effective as of the date hereof, and shall terminate on the earlier of(i) the date the City fully reimburses Catellus the Reimbursement Amount, or (ii) January 1, 2015. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. “CATELLUS” “CITY” CAlTELLUS RESIDENTIAL GROUP, INC., a California CITY OF CARLSBAD, a municipal corporation of the corporation By:B BRIAN J. MILICH, Vice President ATTEST: ALETHA L. RAUTENK Stephen J. tiller, Assistant Secretary (print name/title) (SEAL) (Proper notarial acknowledgment of execution by Catellus 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: RONALD R. BALL. Citv Attorney 6 Rev. 09109198 -. 434 STATE OF CALIFORNIA i “’ COUNTYOF h(&- ‘+ DATE ‘! personally appeared personally known to me -8R - z i to be the person(s) whose c name(s) m b r su scribed to the within instrument and acknowledged to me that &$be@executed the same in Ipigh@@uthorized capacity(ies), and that by &%?ae@ ‘g t t er SI na ure(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. (This area for official notary seal.) Title or Type of Document Date of Document Signer(s) other than named above No. of Pages CMWD 89405 06114195 Rev. EXHIBIT “A” Legal Description of Ocean Bluff Property 435 CARLSBAD TRACT 93-09 BEING A SUBDIVISION OF THAT PORTION OF SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, BEING DESCRIBED AS PARCEL B IN CERTIFCATE OF COMPLIANCE RECORDED ON MARCH 11, 1997 AS FILE NO. 1997-0106631 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF LOT 3 OF SAID SECTION 22 AS SHOWN AND ESTABLISHED ON RECORD OF SURVEY MAP NO. 12096, FILED IN THE OFFICE OF THE COUNTY RECORDER, MARCH 23, 1989, SAID CORNER BEING MARKED BY A 2 INCH IRON PIPE WITH CAP STAMPED “L.S. 3189 1/2M AHR 1979”; THENCE ALONG THE EAST LINE OF SAID LOT 3 AS ESTABLISHED PER SAID RECORD OF SURVEY MAP NO. 12096, SOUTH Ol”29’12” EAST (SOUTH Ol”28’59” EAST PER R OF S 12096), 1056.64 FEET OF THE SOUTHEAST CORNER OF SAID LOT 3, SAID CORNER BEING MARKED BY % INCH IRON PIPE MARKED “R.C.E. 8210” AS SHOWN AND ESTABLISHED ON SAID RECORD OF SURVEY MAP NO. 12096; THENCE NORTH 86”57’48” WEST (NORTH 86”57’35” WEST PER R OF S 12096), 663.55 FEET TO AN ANGLE POINT OF SOUTHERLY LINE OF SAID LOT 3 BEING MARKED BY A 2 INCH IRON PIPE STAMPED “L.S. 2821” AS SHOWN AND DESCRIBED ON SAID RECORD OF SURVEY MAP NO. 12096; THENCE NORTH 86”53’40” WEST, 663.62 FEET (NORTH 86”53’31” WEST, 663.69 FEET PER R OF S 12096) TO A 2 INCH IRON PIPE STAMPED “L.S. 2821” ESTABLISHING THE SOUTHWEST CORNER OF SAID LOT 3 PER RECORD OF SURVEY MAP NO. 12096; THENCE ALONG THE WESTERLY LINE OF SAID LOT 3 AS ESTABLISHED PER RECORD OF SURVEY MAP NO. 12096 (SAID LINE ESTABLISHED BY SAID 2 INCH IRON PIPE AND % INCH IRON PIN AS SHOWN ON R OF S 12096), NORTH Ol”43’58’ WEST (NORTH Ol”43’45’ WEST PER R OF S 12096), 997.78 FEET TO A POINT OF THE NORTH LINE OF SAID SECTION 22; THENCE ALONG SAID NORTH LINE, SOUTH 89”28’34” EAST, 1328.08 FEET (SOUTH 89”28’21” EAST, 1327.24 FEET PER R OF S 12096) TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF, IF ANY, LYING NORTH OF THE SOUTH BOUNDARY LINE OF RANCH0 AGUA HEDIONDA, AS SAID SOUTH LINE WAS ESTABLISHED MAY 5, 1913, BY DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAN DIEGO COUNTY, IN THAT CERTAIN ACTION NO. 16830 ENTITLED KELLY INVESTMENT COMPANY, A CORPORATION, VS. CLARENCE DAYTON HILLMAN AND BESSIE OLIVE HILLMAN. ‘\ , EXHIBIT - 436 ” B” Legal Description of Roesch Property LOT 4 IN SECTION 22, TOWNSHIP 12 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, EXCEPTING THEREFROM THOSE PORTIONS THEREOF LYING NORTH OF THE SOUTH BOUNDARY LINE OF THE RANCH0 AGUA HEDIONDA, AS SAID SOUTHLINE WAS ESTABLISHED MAY 5,1913, BY DECREE OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR SAN DIEGO COUNTY, IN THAT CERTAIN ACTION (NO. 16830) ENTITLED KELLY INVESTMENT COMPANY, A CORPORATION, VS. CLARENCE DAYTON HILLMAN AND BESSIE OLIVE HILLMAN. ALSO EXCEPTING THEREFROM THAT PORTION, IF ANY, LYING WITHIN THE LAND CONVEYED TO OCEAN BLUFF PARTNERSHIP BY DEED RECORDED ON APRIL 28, 1997 AS FILE NO. 1997-0194116 OF OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY. r .- SITE PLAN -- 437 , DEEP SEWER 'reject Name: Project Exhibit DEEP SEWER IN POINSETTIA LANE AND BRIGANTINE DRIVE No, C 89-505 438 CATELLUS RESIDENTIAL GROUP, INC. SECRETARY CERTIFICATE RESOLVED, that Brian Milich in his capacity as Vice President and Stephen Muller in his capacity as Assistant Secretary are authorized for, on behalf of and in the name of Catellus Residential Group, Inc. (the “Corporation”), to sign the Deep Sewer and Water Reimbursement Agreement for the Carlsbad Municipal Water District, and all other related documents and agreements. The execution of such agreements and documents by them shall be conclusive evidence of full Corporate approval thereof. IN WITNESS WHEREOF, I have afixed my name as Assistant Secretary of said Corporation and have caused the corporate seal of the corporation to be hereunto affixed this 1 4’h day of September, 1998. n 1 ,~:- --- -. City of Carlsbad September 25,1998 County Recorder PO Box 1750 San Diego CA 921124147 Enclosed for recordation is/are the following described document(s): Deep Sewer Reimbursement Agreement Catellus Residential Groupm Inc. CT 93-09, Ocean Bluff Property; Project No. 98-505 Agreement for Reimbursement of Costs . . . Water Pipeline improvements . . . . Catellus Residential Groupm Inc. CT 93-09, Ocean Bluff Property; Project No. 98-505 - o-f3 v-l, 8s7 UJ Also enclosed are instructions on how the City is to be billed for the recordation fees incurred. Thank you for your assistance with this item. ,? 7 ?? 7 *’ 4-m , 7 /c< ---- . -7-- KATHLEEN D. SHOUP Sr. Otfice Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-l 989 - (760) 434-2808 a9