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Home My WebLink About2001-02-20; City Council; 16067; APPROVE REIMBURSEMENT AGREEMENT OF COSTS FOR THE CONSTRUCTION OF RANCHO SANTA FE RD - CT 90-03 SHELLEY PROPERTY4B# k’#b~ MTG. 2-20-2001 3EPT. ENG CITY OF CARLSBAD - AGENDA BILL TITLE: APPROVE AND AUTHORIZE EXECUTION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RANCH0 SANTA FE ROAD FROM CALLE ACERVO TO NORTHERN BOUNDARY OF SHELLEY PROPERTY. CT 90-03 RECOMMENDED ACTION: Adopt Resolution No. gml-5 2 approving and authorizing execution of Reimbursement Agreement for the construction of Ranch0 Santa Fe Road from Calle Acervo to Northern Boundary of SHELLEY Property with Continental Residential Inc., a California corporation (“Continental”), as owner of Units 2, 3, and 4 of CT 90-03 (SHELLEY Property). ITEM EXPLANATION: Carlsbad Tract No. CT 90-03, known as the Shelley Property (the “Project”), is a major subdivision consisting of 4 phases, or Units as approved on the original Tentative Map. Continental owns Units 2, 3 and 4 of CT 90-03 (“Owner”). The City has approved the final maps of CT 90-03, Units 1 and 2. Continental has said they will seek Final Map approval of Units 3 and 4 at a later date. This Project is located within Local Facilities Management Plan (LFMP) Zone 11 and is generally located at the northeast corner of Ranch0 Santa Fe Road and Calle Acervo. As part of the Project development, Ranch0 Santa Fe Road will be constructed as a modified secondary arterial which will have a median in certain locations. The developer has agreed to grade and construct both sides of Ranch0 Santa Fe Road contingent upon a reimbursement agreement. Payment to the developer will be made available from funds collected pursuant to Community Facilities District No. 2 (CFD No.2). ENVIRONMENTAL: The Developers of CT 90-03 (SHELLEY) received environmental approval, via a certified Environmental Impact Report (EIR 90-06) and a mitigated negative declaration associated with each respective project. FISCAL IMPACT: During the past few years, the City has continued to work on the formation of a Community Facilities District (CFD) to fund the construction of Ranch0 Santa Fe Road. Until the CFD is finally formed, developers in the Ranch0 Santa Fe Road area have chosen to enter into agreements with the City to prepay their obligation under the future CFD. The funds to pay the Page 2 of Agenda Bill No. Id,06 7 City of Carlsbad’s share of the road construction, estimated at $3,570,000, will come from the Ranch0 Santa Fe Road fund. Based on anticipated development and prepayment agreements, there are sufficient funds anticipated for this agreement. EXHIBITS: 1. Location Map. 2. Resolution No. a?w-5s approving and authorizing execution of Reimbursement Agreement for the construction of Ranch0 Santa Fe Road from Calle Acervo to Northern Boundary of SHELLEY Property with Continental Residential Inc., a California corporation (“Continental”), as owner of Units 2,3, and 4 of CT 90-03 (SHELLEY Property). 3. Reimbursement Agreement. PROJECT NAME RANCH0 SANTA FE RD. REIMBURSEMENT AGREEMENT WN BY: SCOTT EVANS, CARLSBAD ENGINEERING DEPT. l/11/01 C: \DEVELOPMENT PROJECTS\CT90-03UNITI.DWG PROJECT EXHIBIT NUMBER CT90-03 I 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION N0.zoo1-52 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE EXECUTION OF AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RANCH0 SANTA FE ROAD FROM CALLE ACERVO TO THE NORTHERN BOUNDARY OF SHELLEY PROPERTY CT 90-03 WITH CONTINENTAL RESIDENTIAL, INC., A CALIFORNIA CORPORATION WHEREAS, Continental Residential, Inc. (the “Developer”) has agreed to grade and construct Ranch0 Santa Fe Road full width improvements as shown on Drawing 380-IK (the “Improvements”) from Calle Acervo to the Northern Boundary of the SHELLEY Property; and WHEREAS, the City Council has directed City staff to proceed with the formation of a Community Facilities District (CFD No. 2) to finance the Improvements; and WHEREAS, although it is anticipated that CFD No. 2 will be formed in the future, the City Council is willing to consider alternative financing and construction proposals during the period from the present to the formation date of CFD No. 2; and WHEREAS, Continental Residential, Inc. intends to build a 218 unit development known as Units 2, 3 and 4 of the Shelley Property, CT 90-03, (“Development”) in Local Facilities Management Zone 1 I; and WHEREAS, the City Engineer has determined that the Development is conditioned to construct a portion of the Improvements and to pay their fair share cost of the Improvements, and has agreed to construct additional improvements adjacent to the project obligation; and WHEREAS, the City Council finds that Continental Residential, Inc. may enter into the Agreement for Reimbursement of Costs for the Construction of Ranch0 Santa Fe Road from Calle Acervo to the Northern Boundary of Shelley Property (the “Agreement”) (a copy of which is attached hereto). NOW THEREFORE BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Agreement is hereby approved. 3. That the Mayor is hereby authorized to execute the agreement with Continental Residential, Inc. Ill 4 1 4. That the City Clerk is hereby authorized to cause the executed Agreement to be 2 recorded in the Office of the County Recorder of San Diego County, State of California. 3 4 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 20th day of February 5 ,200l by the following vote, to wit: AYES: 6 Council Members Lewis, Kulchin, Finnila, Nygaard and Hall. NOES: None 7 8 9 10 11 ATTEST: 12 14 LORRAlF(E M. WOOD, City Clerk 15 16 17 . 18 19 20 21 22 23 (SEAL) 24 25 ’ 26 27 28 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Dr. Carlsbad. CA. 92008 8318 DOC # 2001-0137789 MAR 09p 2001 3:c.n PM OFFICIAL RECORBS =GIIj lIOlN; iiEBfl&R;s FiEs: ’ 72.oo 2001-0137789 SPACE ABOVE THIS LlNE FOR RECORDER’S USE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RANCH0 SANTA FE ROAD FROM CALLE ACERVO TO THE NORTHERN BOUNDARY OF SHELLEY PROPERTY Between CITY OF CARLSBAD, a Municipal Corporation AND CONTINENTAL RESIDENTIAL, INC. Rev. l/18/01 -1 - 6319 AGREEMENT FOR REIMBURSEMENT OF COSTS FOR THE CONSTRUCTION OF RANCH0 SANTA FE ROAD FROM CALLE ACERVO TO THE NORTHERN BOUNDARY OF SHELLEY PROPERTY This Agreement for Reimbursement of Costs for the Construction of Ranch0 Santa Fe Road From Calle Acervo to the Northern Boundary of Shelley Property dated as of Februarv 28 , 2000 (“Agreement”), is made at San Diego County, California, by and between the CITY OF CARLSBAD, a municipal corporation (“City”) and CONTINENTAL RESIDENTIAL, INC, (“Developer”), with reference to the following recitals; RECITALS A. Developer is the record owner of certain real property located in the City of Carlsbad, California more particularly described on Exhibit “A” attached hereto and made a part hereof (‘Shelley Property”). The Shelley Property as shown on Exhibit “A” is comprised of three separate legal parcels in accordance with the applicable legal requirements of the State of California and the City. B. Developer filed separate applications for tentative subdivision map and related approvals with respect to the Shelley Property, (“Project”). The Project is the subject of certain development approvals received from the City, including without limitation: Tentative Subdivision Map (CT 90-03) Planned Unit Development Permit (PUD 90-04) and Hillside Development Permit (HOP 90-I I), all incorporated into and approved by City per City Council Resolution No. 98-417, on December 15, 1998, (“Resolution”) which incorporated Planning Commission Resolution No.% 4349, 4350, 4351, 4352, and 4353 and the conditions approved by the Planning Commission. C. The Tentative Subdivision map, CT 90-03 (“Tentative Map”), for the Project is divided into four Tentative Map Units (“Units”) as shown on Exhibit “B” attached hereto and made a part hereof. The Resolution contains certain conditions pertaining to one, some, or all of the Units, and is incorporated herein by reference. 0. Developer intends to convey or cause conveyance of record title to one or more Units of the Project to others pursuant to contractual commitments not related to this Agreement. E. City has determined that this Project is located within the boundaries of a proposed Community Facilities District known as Community Facilities District No. 2-Ranch0 Santa Fe and Olivenhain Road (hereinafter referred to as “District”). F. City intends to form the District to finance among other things, those improvements generally described in Section 2 herein. G. The Tentative Map for the Shelley Project, Condition Nos. 37, 38 and 49 of Planning Commission Resolution No. 4350 (the “TM Conditions”), require: (i) (Condition 49) the Developer to construct a portion of Ranch0 Santa Fe Road, from the southerly boundary of the project at the intersection of Calle Acervo and Ranch0 Santa Fe Road northerly to the northerly boundary of the Project and then continuing northerly through a transition to the existing intersection with Olivenhain Road, not including intersection and traffic signal improvements to the intersection of Olivenhain Road and Ranch0 Santa Fe Road (ii) (Condition 37) the Developer to enter into a prepayment agreement for the Developer obligation for the funding to improve Ranch0 Santa Fe Road in order to satisfy this special condition in the Zone 11 Local -2 - Rev. l/18/01 6320 Facilities Management Plan; and (iii) (Condition 38) the Developer to enter into a reimbursement agreement with the City. H. The parties intend that this Agreement shall satisfy the requirements of the TM Conditions as specified in Clause (iii) of Recital G. I. On December 19, 2000, January 20, 2001, and January 24, 2001, the parties separately entered into for Units 1, 2, and 3 / 4, respectively, certain “Petition, Waiver and Consent to Creation of a Community Facilities District and Agreement to Pay Fair Share Cost of CT 90-03” (“Fair Share Agreement”) to satisfy the TM condition specified in clause (ii) of Recital G. J. The improvements to Ranch0 Santa Fe Road contemplated by the TM Conditions which are to be constructed pursuant to this Agreement (“Ranch0 Santa Fe Road Improvements”), include the following for that portion of Ranch0 Santa Fe Road specified in clause (i) of Recital G: Ranch0 Santa Fe Road is designated as a modified Secondary Arterial as specified by General Plan Amendment 98-08, in City Council Resolution No. 2000-23 with an 84 to 88 foot right-of-way width. Planning Commission Resolution 4350, Condition 49 states: 49. Plans, specifications, and supporting documents for all public improvements shall be prepared to the satisfaction of the City Engineer. In accordance with City Standards, the developer shall install, or agree to install and secure with appropriate security as provided by law, improvements shown on the tentative map and the following improvements: A. All streets within Units 1 and 2 constructed in accordance with City standards. B. All streets within Unit 3 constructed in accordance with City standards. C. Ranch0 Santa Fe Road, graded to City circulation element designated Arterial standards and constructed to full Secondary Arterial standards, along the Unit 3 frontage and south to Calle Acervo, including appropriate transitions 0. Storm drain improvements in Ranch0 Santa Fe Road along the Unit 3 frontage, in accordance with the City’s Master Drainage and Storm Water Quality Management Plan. E. All streets within Unit 4 constructed in accordance with City standards. F. Ranch0 Santa Fe Road, graded to City circulation element designated Arterial width and constructed to full Secondary Arterial standards, along the Unit 4 frontage. -3 - Rev. l/18/01 6321 G. Ranch0 Santa Fe Road, graded to City circulation element designated Arterial width and constructed to half street plus 12’ of additional paving and appropriate transitions in accordance with Secondary Arterial standards, from the northerly property line of the project to the Ranch0 Santa Fe Road/Olivenhain Road intersection, but not including intersection and traffic signal improvements. H. A double box culvert, in accordance with City’s Master Drainage and Storm Water Quality Management Plan. K. City and Developer recognize that the Ranch0 Santa Fe Road Improvements includes work which exceeds the road improvement conditions of the Shelley Property (“Expanded Ranch0 Santa Fe Road Improvements”). Developer has agreed to accept the TM Conditions and agrees to accept the Expanded Ranch0 Santa Fe Road Improvements provided that City agrees to reimburse Developer on a progress payment basis for the Expanded Ranch0 Santa Fe Road Improvements. For the purposes of this Agreement, the Ranch0 Santa Fe Road Improvements have been divided into five general categories labeled for convenience as “Reimbursable Work” and “Non Reimbursable Work”, more particularly described as follows: :’ 3: 4. 5. Reimbursable (City of Carlsbad) Reimbursable (Concordia) Reimbursable (OMWD) Reimbursable (LCWD) Non-Reimbursable A line item description’ of the specific work items included within the respective categories of Reimbursable Work and Non Reimbursable Work is included within Exhibit “C” attached hereto and incorporated herein by this reference. The items listed in Exhibit “C” as Reimbursable (OMWD) and Reimbursable (LCWD), respectively, are within the category of Reimbursable Work as between City and Developer, but become Non-Reimbursable as between City and Developer when LCWD and OMWD, respectively, enter into separate reimbursement agreements with Developer covering such items. L. For purposes of phasing, it is anticipated that the grading operation and roadway construction shall be accomplished in one phase. M. City and Developer acknowledge that Government Code Section 66485 allows the City of Carlsbad to require a sub-divider to construct improvements benefiting property outside the subdivision; but Section 66486 requires the City to enter into a reimbursement agreement for such improvements. The parties intend that this agreement satisfy the requirements of Government Code Section 66486. N. City has collected, and will continue to collect, the funds from the developers of projects located within the boundaries of the proposed District. For purposes of this Agreement such funds, whether collected prior to or after actual formation of the District, are referred to as “Financing Program Funds.” NOW, THEREFORE, the City and Developer agree as follows: 1. Recitals. The Recitals are true and correct and incorporated herein by this reference. Rev. l/18/01 -4- 8322 2. District Improvements. City intends to form the District to finance among other improvements the following (hereinafter “District Improvements”) which are generally described as follows: (4 Ranch0 Santa Fe Road North Phase 1 (RSF No. 1) La Costa Avenue to east of Mahr Reservoir. (W Ranch0 Santa Fe Road North Phase 2 (RSF No. 2) Phase 1 End to Melrose Drive. (cl Ranch0 Santa Fe Road South (RSF So.) (assumes secondary arterial standard) Encinitas City boundary to Olivenhain Road full improvements. 3. General Citv Obliaations. (a) City shall expedite processing of the complete set of plans, specifications, and other design documentation for the Ranch0 Santa Fe Road Improvements being prepared by Developer’s consultants. (b) City shall assist in obtaining easements and rights-of-way required to complete construction of the Ranch0 Santa Fe Road Improvements not located within land which comprises the Shelley Property. (c) City shall provide for inspections and environmental monitoring for the Reimbursable Work directly from the Financing Program Funds. (d) City shall use its best efforts to secure in its name or arrange for the issuance to Developer of all required environmental and, other permits for the Ranch0 Santa Fe Road Improvements. City agrees to process any environmental and other permits related to the Ranch0 Santa Fe Road Improvements which may fall under City jurisdiction within the statutory time limits established for such permits and shall not unreasonably withhold approval of any such permits. (e) City agrees to allow Developer to separately post bonds and file subdivision improvement agreements separately for each of the four subdivision units and for Ranch0 Santa Fe Road as one construction phase, all as part of the subdivision improvement agreement requirements for the Shelley Project, CT 90-03. (f) City agrees that subdivision improvement agreements will agreement referred to in the TM Conditions. (9) City agrees to described in Sections 6 and 7 below. this Agreement together with the respective satisfy the requirement of the reimbursement reimburse Developer for Reimbursable Work as 4. General Developer Obligations. (4 Developer shall prepare improvement plans and specifications for each subdivision unit, and the Developer shall prepare improvement plans and specifications for Ranch0 Santa Fe Road. @I Developer shall enter into standard subdivision improvement agreements and post the required improvement security in accordance with City requirements -5 - Rev. l/18/01 8323 for each of the four subdivision units and for Ranch0 Santa Fe Road as one construction phase. Developer’s cost. (c) Developer shall cause construction of all Non Reimbursable Work at (d) By entering into this Agreement, Developer waives any and all potential constitutional objections (NolanIDolan) relating to the Ranch0 Santa Fe Road improvements. (e) Developer shall pay for plancheck, inspection and for the mitigation costs for Non-Reimbursable Work performed along Ranch0 Santa Fe Road. (9 Developer shall pay for right-of-way easements, and associated expenses (appraisal, condemnation, attorneys fees, etc.) for the right-of-way or easement pertaining to non-reimbursable work. (9) It shall be the responsibility of the Developer to observe and follow the requirements of City for retention of records and the submittal of information in connection with the Ranch0 Santa Fe Road Improvements, as specified in this Agreement. 5. Reimbursable Work. 64 For purposes of this entire Agreement, the term “Developer” shall mean and include only the original signing party to this Agreement. lb) With respect to all hard costs of construction comprising the Ranch0 Santa Fe Road Improvements, Developer shall solicit bids from three reputable contractors. Reimbursable Work may be bid together with Non Reimbursable work for that portion of the Ranch0 Santa Fe Road Improvements which are being bid by such contractor. Upon mutual selection of the contractor for each Segment, by City and Developer, and agreement upon a contract amount for each Segment, the costs thereof shall be allocated among the categories consistent with the method and process used in the Exhibit “C.” The parties agree that the spreadsheet attached hereto as Exhibit “C” is a fair allocation of the costs under such contract as among the categories of Reimbursable Work and Non Reimbursable Work. Costs shown in Exhibit “C” are subject to modification through change orders pursuant to Paragraph 6(h) of this Agreement. ((3 During the performance of any Reimbursable Work, Developer shall retain detailed payment records for all items of Reimbursable Work, for use by City in auditing subsequent reimbursement requests by Developer. Developer’s requests for reimbursement (each a “Reimbursement Request”) shall include copies of plans, specifications, engineer’s cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by City to evidence the completion and payment for each item of Reimbursable Work. Reimbursement Requests may be submitted monthly in arrears, as identified in Section 6 (a) below, by Developer for each segment of work. 6. Audit of Reimbursable Expenses. (a) Expenses for Reimbursable Work (including without limitation overhead and the allowance permitted under clause (e) below) are referred to herein collectively as “Reimbursable Expenses”. Developer shall be entitled to submit requests for Reimbursable Expenses monthly in arrears, and separately for each construction segment: -6 - Rev. l/18/01 8324 (W All Developers Reimbursement Requests will be processed and audited for City by a reputable consulting engineer selected by City (“Auditing Engineer”). The costs of the Auditing Engineer shall be paid directly by City from Financing Program Funds. w The Auditing Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within thirty (30) days thereafter issue to City and Developer a report either accepting Developer’s submittal or specifying with particularity any reimbursement items or amounts not approved. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by Developer using the dispute resolution provision of Section 8 below. W With each Reimbursement Request, following 30-day review by Auditing Engineer, the Auditing Engineer shall forward one copy of each invoice submitted to Developer by Contractor, to the City Public Works Director (“Director”), together with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor’s invoice. The Director shall confirm and approve the Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set forth in Section 5 of this Agreement. If the Director objects to any items comprising the Reimbursement Amount, the Director shall notify Developer within ten (10) days of receipt of all invoices forwarded by Developer. Failure to so notify Developer shall be deemed the Director’s approval of such invoices. (e) City’s reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing Reimbursable Work (including overhead and the allowances specified in (f) below). (9 Notwithstanding anything herein to the contrary, and without limitation and in addition to the Reimbursable Work, City specifically agrees that each of the following shall be deemed Reimbursable Expenses: (0 An allowance to cover the allocable portion of premiums paid by Developer for improvement and/or payment and performance bonds relating to the construction of Ranch0 Santa Fe Road are included in (iii) overhead expense. (ii) An allowance to cover the allocable portion of premiums paid by Developer for blanket liability insurance coverage is included in (iii) overhead expenses. (iii) An amount fixed at eight and three tenths percent (8.3%) of the eligible costs for Reimbursable Work, exclusive of this clause (f), to compensate for overhead expenses incurred by Developer including for salary and benefits, for staff of Developers home office, purchasing department expenses, project supervision, general corporate legal and accounting fees and other normal overhead expenses incurred by Developer, including the expenses described in subsections (f)(i) and (f)(ii) above. (9) Prior to the submission to the Director of all invoices, Developer shall obtain necessary or appropriate lien releases from the Contractor, and shall obtain from the City and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Reimbursable Work, and the ability to put the Public Improvements into use. The date Developer receives all such final lien releases, approvals, and certificates shall be deemed the date of completion of the Ranch0 Santa Fe Road Improvements (the “Completion Date”). -7 - Rev. l/18/01 8325 (h) All change orders shall be subject to approval by both the City and Developer. At the time of approval, the parties shall also determine the portion of the change order which is allocated to Reimbursable Work. In making such decisions, the parties shall be guided by the principle that if a change order is necessary due to changed circumstances or oversight in original design, or if it is required in order to perform the applicable portion of the Ranch0 Santa Fe Road Improvements in an orderly, reasonable and prudent manner according to the standard engineering and construction practice applicable to the improvements, then the allocation of the portion to Reimbursable Work should be in proportion to the allocation as between Reimbursable Work and Non-Reimbursable Work in Exhibit “C” for that portion of the Ranch0 Santa Fe Road Improvements. 7. Pavment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made, within sixty (60) days after the Auditing Engineer’s determination on any such Reimbursement Request (or determination pursuant to Section 8 if applicable) after first deducting and crediting against the aggregate of such Reimbursable Expenses to date an amount equal to $10,250 multiplied by the number of dwelling units pursuant to The Fair Share Agreement for units 2, 3, and 4. W Except as noted in clause (a) above, payment of any Reimbursable Expenses under this Agreement shall not be reduced for fees or charges that may be payable as a condition of obtaining permits for the development of any Unit of Shelley Property. City shall not offset Developer’s entitlement to reimbursement under this Agreement against any other obligation of any person, except as specified in this Section 7. (cl Reimbursable Expenses for items of Reimbursable Work paid for by Developer in advance of construction of the Project Ranch0 Santa Fe Road improvements (such as environmental permits, engineering and design, City fees and construction mobilization) may be submitted for reimbursement with the first Reimbursement Request submitted for each construction Segment. (d) The City shall not unreasonably withhold acceptance of the Ranch0 Santa Fe Road Improvements. (e) Developer and City agree that the City’s General Fund is not part of this Agreement, and shall not be obligated under the terms of this Agreement nor available for reimbursement purposes. 8. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally 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 of Developer or the 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 aggrieved 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 from seeking remedies available to them at law. 9. Successors: Covenant to Run with Real Propertv. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the Developer -8 - Rev. l/18/01 8326 and City and shall run with the real property and create an equitable servitude upon the real property. Upon the application of the credit referred to in Section 7(a) for each respective Unit and after City acceptance of District Improvements, the provisions of this Agreement shall no longer apply to, and the same shall no longer be or constitute an equitable servitude against or run with the land as to the respective Units and the equitable servitude hereby created shall automatically terminate as to each of said respective Units. Upon the request of Developer, City shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that each said Unit is thereafter fully released and free from the provisions of this Agreement, provided that the cost of preparing and recording such documents and/or instruments shall be paid by Developer. 10. Assignment of Contract. The Developer shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City and the District. 11. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, address as specified herein. Notices required to be given to Developer shall be addressed as follows: Attention: David A. Lother, Vice President Continental Residential, Inc 2237 Faraday Avenue, Suite 100 Carlsbad, CA 92008 Teephone: (760) 931-l 980 (760) 931-0237 Rev. l/18/01 -9 - 8327 Notices to City shall be delivered to the following: CITY OF CARLSBAD Engineering Department Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760) 602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 12. Transfer bv Developer. The obligations and benefits of this Agreement shall not be transferred upon sale of Shelley Project except as specified herein. As used in this Agreement. “Developer” shall be the owner (or owners) of the real property which comprises the Shelley Project, except as to any real property for which residential occupancy permits have been issued. Upon written notice to City pursuant to Section 11 above, all obligations and responsibilities of this Agreement shall move to the new owners of the real property which comprises Shelley Project except as qualified by the preceding sentence. 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 14. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. 15. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 16. Amendment. This Agreement may be amended by a written instrument executed by City and Developer (including for this purpose any successors of Developer, to the extent of their ownership of real property within Shelley Project); except that no amendment regarding the provisions for reimbursement to Developer shall be valid unless executed by Developer. 17. Term. This Agreement shall be effective as of the date first above written, and shall term% on the earlier of (1) the date the City fully reimburses Developer the Reimbursement Amount, or (ii) January 1, 2015. 18. 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. 19. Indemnification. Developer shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless City, its officers, agents, and employees, against any challenges to the award of the contract(s) for the Ranch0 Santa Fe Road Improvements to contractor(s). Defense costs include the cost of separate counsel for the City, if the City requests separate counsel, as well as the payment of any fines or judgements. Rev. l/18/01 -10 - 8328 20. Severability. The invalidity or unenforceability Agreement, as determined by a court of competent jurisdiction, shall in or enforceability of any other provision hereof. of any provision of this no way affect the validity IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. By: David A. Lother Vice President, Continental Residential, Inc (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) -11 - Rev. l/18/01 8329 State of California ) County of _sdn?DitedjO 1 On JAk%AdJy 19, 2OO 1 before me, &AL-n h%%do , Notary Public, personally appeared David A. Lother g personally known to me or the person whose name is subscribed t executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS State of California County of On before me, Public, personally appeared Claude Lewis , Notary personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. -12 - Rev. ll/Ol/OO 8330 Exhibit “A” UNIT NO. 2 BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14, SAID POINT BEING THE EASTERLY TERMINUS OF THAT CERTAIN CENTERLINE DESCRIPTION RECORDED IN SAID COUNTY RECORDER’S OFFICE ON MARCH 12, 1996 ’ AS DOCUMENT NO. 1996-0119577 OF OFFICIAL RECORDS; THENCE ALONG SAID CENTERLINE I. NORTH 87”11’16” WEST 60.17 FEET TO THE BEGINNING OF A TANGENT l,OOO.OO FOOT RADIUS CURVE CONCAVE TO THE NORTH; 2. THENCE ALONG THE ARC OF SAID CURVE WESTERLY 168.67 FEET THROUGH A CENTRAL ANGLE OF 09”39’51”; 3. THENCE NORTH 77”31’25” WEST 171.45 FEET TO THE BEGINNING OF A TANGENT 650.00 FOOT RADIUS CURVE CONCAVE TO THE SOUTH; 4. THENCE ALONG THE ARC OF SAID CURVE WESTERLY AND SOUTHWESTERLY 758.44 FEET THROUGH A CENTRAL ANGLE OF 66”51’16” TO THE NORTHEASTERLY TERMINUS OF THAT CERTAIN COURSE ON THE CENTERLINE OF THE STREET EASEMENT RECORDED IN SAID COUNTY RECORDER’S OFFICE AS DOCUMENT NO. 1993-0108952 OF OFFICIAL RECORDS, DESCRIBED THEREON AS LINE BEARING NORTH 35”37’30” EAST 445.51 FEET; 5. THENCE ALONG SAID CENTERLINE SOUTH 35”37’19” WEST 342.76 FEET; 6. THENCE LEAVING SAID LINE NORTH 54”22’41” WEST 30.00 FEET; 7. THENCE NORTH 20”40’15” WEST 189.50 FEET; 8. THENCE NORTH 06”53’24” WEST TO THE BEGINNING OF A NON-TANGENT 70.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 06”53’24” EAST; 9. THENCE ALONG THE ARC OF SAID CURVE WESTERLY, NORTHWESTERLY, AND NORTHERLY 96.61 FEET THROUGH A CENTRAL ANGLE OF 79”04’30” TO THE BEGINNING OF A 50.00 FOOT RADIUS REVERSE CURVE CONCAVE TO THE SOUTHWEST, A RADIAL LINE TO SAID BEGINNING BEARS NORTH 72”11’06” EAST; 10. THENCE ALONG THE ARC OF SAID CURVE NORTHERLY AND NORTHWESTERLY 20.56 FEET THROUGH A CENTRAL ANGLE OF 23”33’23”; 11. THENCE NORTH 41”22’17” WEST 83.67 FEET; 12. THENCE NORTH 48”37’43” EAST 60.00 FEET; 13. THENCE NORTH 52”12’49” EAST 77.88 FEET; 14. THENCE NORTH 34”46’43” EAST 183.41 FEET; 15. THENCE NORTH 47”27’35” EAST 203.45 FEET; 16. THENCE NORTH 62”07’33” EAST 208.99 FEET; 17. THENCE NORTH 70”58’06” EAST 207.76 FEET; 18. THENCE NORTH 83”18’07” EAST 210.65 FEET; 19. THENCE SOUTH 85”38’47” EAST 281.53 FEET; 20. THENCE NORTH 82”29’19” EAST 108.01 FEET; Page 1 of 3 8331 21. THENCE SOUTH 61”02’09” EAST 162.27 FEET TO SAID WESTERLY LINE OF THE EAST HALF OF SAID LOT 14; 22. THENCE ALONG SAID LINE SOUTH 02”41’19” EAST 360.68 FEET TO THE POINT OF BEGINNING. CONTAINS 13.536 ACRES, MORE OR LESS. UNIT NO. 3 BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWESTERLY CORNER OF SAID LOT 14; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 14 NORTH 87”38’50” EAST 661.34 FEET (RECORD NORTH 87”11’20” EAST 661.65 FEET PER DEED RECORDED NOVEMBER 28, 1984 AS FILE NO. 84-443590 OF OFFICIAL RECORDS) TO AN ANGLE POINT ON THE NORTHERLY AND EASTERLY BOUNDARY OF THE LAND DESCRIBED IN DEED TO FRITZ WEIGAND AND WIFE, RECORDED APRIL 23, 1929 IN BOOK 1620, PAGE 213 OF DEEDS; THENCE ALONG SAID BOUNDARY SOUTH 02”48’11” EAST 330.03 FEET (RECORD SOUTH 03”14’40” EAST) TO THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID BOUNDARY 1. SOUTH 57”31’17” WEST 978.00 FEET; 2. THENCE SOUTH 80”25’52” WEST 925.00 FEET TO A POINT ON THE CENTERLINE OF RANCH0 SANTA FE ROAD, ALSO KNOWN AS ROAD SURVEY NO 454-A, SAID POINT THE BEGINNING OF A NON-TANGENT 1000.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 57”44’23” WEST; 3. THENCE ALONG THE ARC OF SAID CURVE AND SAID CENTERLINE SOUTHEASTERLY 73.18 FEET THROUGH A CENTRAL ANGLE OF 4”11’34”; 4. THENCE SOUTH 36”27’11” EAST 1250.58 FEET TO THE BEGINNING OF A TANGENT 1000.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST; 5. THENCE ALONG THE ARC OF SAID CURVE SOUTHEASTERLY 312.57 FEET THROUGH A CENTRAL ANGLE OF 17”54’32”; 6. THENCE SOUTH 54”21’43” EAST 158.16 FEET TO AN ANGLE POINT, SAID ANGLE POINT BEING ALSO THE CENTERLINE INTERSECTION WITH AVENIDA LA POSTA AS MONUMENTED ACCORDING TO TRACT MAP NO. 3897-l FILED IN THE OFFICE OF THE COUNTY RECORDED OF SAID COUNTY ON JANUARY 6, 1983, SAID POINT BEING ALSO THE MOST WESTERLY CORNER OF LAND DESCRIBED IN DEED RECORDED SEPTEMBER 21,1992 AS DOCUMENT NO. 1992-0597007 OF OFFICIAL RECORDS; 7. THENCE ALONG THE NORTHWESTERLY LINE OF SAID LAND NORTH 35”37’19” EAST 106.96 FEET; 8. THENCE LEAVING SAID LINE NORTH 54”22’41” WEST 30.00 FEET; 9. THENCE NORTH 20”40’15” WEST 189.50 FEET; 10. THENCE NORTH 06”53’24” WEST 29.62 FEET TO THE BEGINNING OF A NON- TANGENT 70.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 06”53’24” EAST; 11. THENCE ALONG THE ARC OF SAID CURVE WESTERLY, NORTHWESTERLY, AND NORTHERLY 96.61 FEET THROUGH A CENTRAL ANGLE OF 79”04’30” TO THE BEGINNING OF A 50.00 FOOT RADIUS REVERSE CURVE CONCAVE TO THE SOUTHWEST; Page 2 of 3 8332 12. THENCE ALONG THE ARC OF SAID REVERSE CURVE NORTHERLY 20.56 FEET, THROUGH A CENTRAL ANGLE OF 23”33’23”; 13. THENCE NORTH 41”22’17” WEST 83.67 FEET; 14. THENCE NORTH 48”37’43” EAST 60.00 FEET; 15. THENCE NORTH 52”12’49” EAST 77.88 FEET; 16. THENCE NORTH 34”46’43” EAST 183.41 FEET; 17. THENCE NORTH 47”27’35” EAST 203.45 FEET; 18. THENCE NORTH 62”07’33” EAST 208.99 FEET; 19. THENCE NORTH 70”58’06” EAST 207.76 FEET; 20. THENCE NORTH 83”18’07” EAST 210.65 FEET; 21. THENCE SOUTH 85”38’47” EAST 281.53 FEET; 22. THENCE NORTH 82”29’19” EAST 108.01 FEET; 23. THENCE SOUTH 61”02’09” EAST 162.27 FEET TO A POINT ON THE WESTERLY LINE OF THE EAST HALF OF SAID LOT 14 AND THE EASTERLY LINE OF THE LANDS DESCRIBED IN SAID DEED RECORDED AS FILE NO. 84-443590 OF OFFICIAL RECORDS; 24. THENCE ALONG SAID EASTERLY LINE NORTH 02”41’19” WEST 835.62 FEET; 25. THENCE SOUTH 87”32’30” WEST 650.93 FEET; 26. THENCE NORTH 02”48’11” WEST 330.03 FEET TO THE TRUE POINT OF BEGINNING. CONTAINS 47.630 ACRES, MORE OR LESS. UNIT NO. 4 BEING A PORTION OF LOTS 13 AND 14 OF THE SUBDIVISION OF RANCH0 LAS ENCINITAS ACCORDING TO MAP THEREOF NO. 848, ON FILE IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWESTERLY CORNER OF SAID LOT 14; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 1. NORTH 87”38’50” EAST 661.34 FEET TO TO AN ANGLE POINT IN THE NORTHERLY AND EASTERLY BOUNDARY OF THE LAND DESCRIBED IN DEED TO FRITZ WEIGAND AND WIFE, RECORDED APRIL 23, 1929 IN BOOK 1620, PAGE 213 OF DEEDS; 2. THENCE ALONG SAID BOUNDARY SOUTH 02”48’1 I” EAST 330.03 FEET; 3. THENCE LEAVING SAID BOUNDARY SOUTH 57”31’17” WEST 978.00 FEET; 4. THENCE SOUTH 80”25’52” WEST 925.00 FEET TO A POINT ON THE CENTERLINE OF RANCH0 SANTA FE ROAD, ALSO KNOWN AS ROAD SURVEY NO. 454-A, SAID POINT LIES ON THE ARC OF A NON-TANGENT l,OOO.OO FOOT RADIUS CURVE CONCAVE TO THE NORTHEAST, A RADIAL LINE TO SAID BEGINNING BEARS SOUTH 57”44’23” WEST; 5. THENCE ALONG THE ARC OF SAID CURVE AND CENTERLINE NORTHWESTERLY 219.01 FEET THROUGH A CENTRAL ANGLE OF 12”32’54”; 6. THENCE NORTH 19”42’43” WEST 768.03 FEET TO THE NORTHERLY LINE OF SAID LOT 13; 7. THENCE ALONG SAID NORTHERLY LINE NORTH 87”29’39” EAST 1,416.42 FEET TO THE POINT OF BEGINNING. CONTAINS 33.272 ACRES, MORE OR LESS. 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