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HomeMy WebLinkAboutCT 99-09; D R Horton; 2001-0137784; Reimbursement Agreement/ReleaseRECORDING REQUESTED BY City of Carlsbad WHEN RECORDED, MAIL TO: City Clerk City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008 134 Please record the document at no fee Af as it is to the benefit of the City (Gov, Code [6103].) s301 DOC tt 2001-0137784 MfiR 09b 2001 3:02 PM IIFFICIN. WWRDS %N DIEGil COlRiTY RECORDER’S OFFICE GREcloRy f.$ITHs ~~~~R : , VW -Jove this line for Recorder’s Use AGREEMENT FOR REIMBURSEMENT OF COSTS FOR WATER PIPELINE OVERSIZING AND EXTENSION IMPROVEMENTS WITHIN RANCH0 CARRILLO VILLAGE “N” - CT 99-09 CMWD PROJECT NO. 97433 THIS AGREEMENT FOR REIMBURSEMENT OF COSTS FOR WATER PIPELINE OVERSIZING AND EXTENSION IMPROVEMENTS WITHIN RANCH0 CARRILLO VILLAGE “N” - CT 99-09, dated as of Feburary 20 2001, (this “Agreement”), is made at Carlsbad, California, between D. R. Horton, San Diego Holding Company, Inc., a California corporation (“Developer”) and the CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water District Act of 1911, and a Subsidiary District of the City of Carlsbad (“District”), with reference to the following recitals: RECITALS A. Developer is the record owner of certain real property commonly known as Ranch0 Carrillo Village “N” (Protico) Phase 3, located in the City of Carlsbad, California, (the “City”), more particularly described as Lot 164, Carlsbad Tract 93-04, inclusive, Map No. 13800, filed in the Office of the County Recorder of San Diego County on June IO,1999 as File No. 199-407799. B. The Planning Commission of the City adopted Resolution No. 4682 and 4683 on February 15, 2000, approving the Ranch0 Carrillo Village “N” tentative tract map, CT 99-09, condominium permit relating to development of a residential community in Ranch0 Carrillo (“the Project”). C. Condition No. 47 of Planning Commission Resolution No. 4682, the Ranch0 Carrillo Village “N” project approvals, require Developer to install a IO-inch diameter potable water pipeline from Tract CT 99-09 to an existing 700 HGL pressure zone water pipeline in Carrillo Way and to oversize the potable water pipeline within the tract from 8 inches in diameter to 10 inches in diameter to meet the needs of the homes to be built within Ranch0 Carrillo Village “N” (the “Project Requirements”). The potable water pipeline improvements are referred to in this Agreement as the “Water Work” and are more particularly described in Section 2(b), below. as 4 4 7 .--( , _ , 1. -1 2-J ; : 5 - 8302 D. The District and Developer recognize and acknowledge that the Water Work, more particularly described in Paragraph 2(b) below, exceeds the infrastructure otherwise required of Developer in connection with its’ buildout of Ranch0 Carrillo Village “N”. Developer agrees to install or cause the installation of the Water Work provided that the District agrees to reimburse Developer as set forth in this Agreement. E. District and Developer acknowledge that Government Code Section 66485 allows the District to require a sub-divider to construct improvements benefiting property outside the subdivision; but Section 66486 requires the District to enter into a reimbursement agreement for such improvements. The parties intend that this Agreement satisfy the requirements of Government Code Section 66486. NOW, THEREFORE, the District and Developer agree as follows: 1. Recitals. The Recitals are true and correct and incorporated herein by this reference. . 2. General - Developer’s Oblicrations. (4 By entering into this Agreement, Developer waives any and all potential constitutional objection (Nolan/Dolan) relating to the Water Work. W In consideration of the District’s reimbursement and other undertakings as set forth herein, Developer agrees to install the Water Work. The Water Work shall include the following improvements, which are more specifically described on Exhibit “A”: 1) Approximately 452 linear feet of lo-inch diameter potable water pipeline beginning at an existing 12-inch diameter pipeline in Carrillo Way and extending to the northerly boundary of Lot 165, together with all necessary valves and appurtenances, including those necessary to connect the Water Work to the District’s main at Carrillo Way; 2) Oversizing approximately 766 linear feet of a-inch diameter potable water pipeline to lo-inch diameter including valves. The Water Work is shown on City Drawing No. 386-8, Sheets 3, 4, 8, 9 and 10 prepared by Hunsaker & Associates (the “Plans”). w Developer shall complete the Water Work within five (5) years of signing this Agreement, provided that the District timely satisfies all of its obligations under this Agreement. (d) Developer shall install the Water Work substantially in compliance with the District approved plans and specifications, and other design documentation for the Water work. 3. General - District Obliaations. (a) District agrees that this Agreement, together with the City’s Development Improvement Agreements for Project, will satisfy the requirement of the Reimbursement Agreement referred to in Condition No. 47 of the Project Approvals. below. (b) District agrees to reimburse Developer as described in Sections 5 and 6 6303 (c) The Total Oversizing and Pipeline Extension Cost is currently estimated to be $51,753. An itemized estimate of the Total Oversizing and Pipeline Extension Cost is attached to this Agreement as Exhibit “B”. W District shall reimburse Developer an amount (the “Reimbursement Amount”) equal to: (i) the actual Total Oversizing and Extension Cost (regardless of whether the actual Total Oversizing and Extension Cost meets or exceed the estimated Total Oversizing and Extension Cost set forth in Subsection 3(c), above); plus, (ii) an overhead allocation of seven percent (7%) of the actual Total Oversizing and Extension Cost in lieu of other reimbursement for Developer’s cost incurred for salary and benefits for staff of Developer’s home offices, supervision above the level of on-site superintendent, general corporate, legal, and accounting fees, the cost of borrowed funds, insurance and bond premiums, and expenses for meeting with and presentations to governmental agencies which issue permits or otherwise regulate project approval; plus, construction administration, construction fees, and permit fees advanced by Developer (collectively, the “Overhead Costs), and (i) and (ii), together, the “Total Reimbursable Cost”). The actual Total Reimbursable Cost shall include all costs associated with the installation of the Water Work noted in Exhibit “B”. The Total Reimbursable Cost is currently estimated to be $55,375, calculated as follows: I $51,753 I $3,622 I $55,375 I 4. Reimbursable Water Work. During the performance of any Reimbursable Water Work, Developer shall retain detailed payment records for all items of Reimbursable Work, for use by District 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 District to evidence the completion and payment for each item of Reimbursable Water Work. Reimbursement Requests may be submitted only after District has formerly accepted the Water Work improvements, in accordance with item 5.(g) below. 5. Audit of Reimbursable Exoenses. (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.” W All Developer’s reimbursement requests will be processed and audited for District by a Deputy City Engineer selected by the Public Works Director. (cl The Deputy City Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within thirty (30) days thereafter issue to District 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 Deputy City Engineer may be further pursued by Developer using the dispute resolution provision of Section 7 below. 3 8304 (d) District’s reimbursement obligations hereunder shall be based upon the actual costs incurred by Developer in performing Reimbursable Water Work (including overhead and the allowances specified in (e) below). W Notwithstanding anything herein to the contrary, and without limitation and in addition to the reimbursable Water Work, District specifically agrees that each of the following shall be deemed Reimbursable Expenses: An amount fixed at seven percent (7%) of the eligible costs for Reimbursable Water Work, exclusive of this clause (e), to compensate for overhead expenses incurred by Developer including for salary and benefits, for staff of Developer’s home office, purchasing department expenses, project supervision, general corporate legal and accounting fees and other normal overhead expenses incurred by Developer. (9 Upon completion of construction of the Water Work, Developer shall fonvard one copy of each invoice submitted to Developer by Contractor, to the City’s 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 Sections 4 and 5 of this Agreement. If the Director objects to any items comprising the Reimbursement Amount, the Director shall notify Developer within ten (IO) days of receipt of all invoices forwarded by Developer. Failure to so notify Developer shall be deemed the Director’s approval of such invoices. In the event the Director does object, Developer and the Director shall meet to discuss the disputed amount (at which time Developer shall make available all of the Work Documentation) and attempt to resolve the matter through good-faith negotiation. (9) Prior to the submission to the Director of all invoices, Developer shall obtain necessary or appropriate lien releases from the Contractor(s), and shall obtain from the Cii and any and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Reimbursable Water 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 Water Work improvements (the Completion Date). 6. Payment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made, in cash (check or money order), within sixty (60) days afler the Auditing Engineer’s determination on any such Reimbursement Request (or determination pursuant to Section 7 if applicable). W 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. District shall not offset Developer’s entitlement to reimbursement under this Agreement against any other obligation of any person. (c) The District shall not unreasonably withhold acceptance of the Water Work improvements. (d) Developer and District agree that the only source of reimbursement funds available to Developer are from the District’s Water Connection Fee. 4 8305 7. DisoutesKlaims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question or 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 (IO) days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be fomarded to the Board of Directors for their resolution through the office of the Executive Manager of District. The Board of Directors may, but are not obligated to resolve the dispute. If the Board of Directors considers the dispute, and directs a solution, the action of the Board of Directors shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 8. Successors: Covenant to Run with Real Property. This Agreement and the covenants contained herein shall be binding upon and inure to the benefit of the Developer and District and shall run with the real property and create an equitable servitude upon the real property. After District reimbursement to Developer, 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 and the equitable servitude hereby created shall automatically terminate. Upon the request of Developer, District shall execute and deliver to Developer, in recordable form, any further documents and/or instruments reasonably necessary to evidence that Project 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. 9. Assianment of Aareement. Developer shall not assign this Agreement or any part thereof or any monies due there under without the prior written consent of the District. IO. 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: Developer: D. R. Horton, San Diego Holding Company, Inc. Stefan La Casse, Vice President 1010 South Coast Highway, Suite 101 Encinitas, CA 92024 Telephone: (760) 634-6700 FAX: (760) 634-6770 5 - , 8306 Notices to District shall be delivered to the following: Carlsbad Municipal Water District Attention: Lloyd Hubbs, 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. II. Counteroarts. 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. 12. Govemina 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. 13. Complete Aareement. 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. 14. Amendment. This Agreement may be amended by a written instrument executed by District and Developer. 15. This Agreement shall be effective as of the date first above written, and Term. shall terminate on the earlier of (i) the date the District fully reimburses Developer the Reimbursement Amount, or (ii) January I, 2015. 16. Third Partv Beneficiaries. This Agreement shall be deemed to confer rights upon any individual or entity which is a party hereto, and the parties hereto expressly agree to any such third-party benefit. 6 h 8307 17. 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above. DEVELOPER: D. R. HORTON, a California corporation By:a3 d c L (sign here) CITY OF CARLSBAD, a municipal (print name/title) Date: ATTEST: By: (sign here) yp?gzB#% ;I 7/$9-T& (print name/title) \-JOR M. WOOD, Secretary Architect/License Number (Proper notarial acknowledgment of execution by Developer 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.) (If signed by an individual partner, the partnership must attach a statement of partnership authorizing the partner to execute this instrument.) APPROVE AS TO FORM: b 7 - 8308 A STATE OF CALIFORNIA COUNTY OF SAN DIEGO On l-2-01 before Me, Stacie Donahue, Notarv Public personally appeared John D. Kerr, Jr., Vice President, DR Horton San Dieclo Holdincr ComDanv. Inc. I personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their 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. (SEAL) .C . EXHIBIT “A” WATER PIPELINE LOCATION MAP VIA MAXIM0 BOUNDARY OF CT99-09 NOT TO SCALE RANCH0 CARRILLO VLLAGE “N” ..- 8311 EXHIBIT “B” h PRELIMINARY COST ESTIMATE FOR WATER LINE REIMBURSEMENT RANCH0 CARRILLO VILLAGE “N” CARLSBAD TRACT NO. 99-09 DRAWING NO. 386-8 CITY OF CARLSBAD 8312 CERTIFICATE OF ASSISTANT SECRETARY The undersigned hereby certifies as follows: 1. He is a duly elected, qualified and acting Assistant Secretary of D.R. Horton San Diego Holding Company, Inc., a California corporation (the “Company”), is familiar with the facts herein certified and is duly author&d to certify the same. 2. The following is a true, correct and complete copy ofresolutions related to the subject matter as adopted by the Consent of Sole Director of the Company dated October 16, 2000 (the “Resolutions”). The Resolutions have not been amended, rescinded or modified and remain in full force and effect as of the date hereof. Authoritv of Vice President and Division President WHEREAS, effective May 27, 1999, John D. Kerr, Jr.,was elected to the office of Vice President of the Company and Division President (the “Division President”) of the Company’s San Diego Division (the “Division”), to serve until the next annual meeting of the directors of the Company and until his successor is duly elected and qualified or until his earlier death, resignation or removal; NOW, THEREFORE, BE IT RESOLVED, that the Division President is hereby author&d and empowered, in the name and on behalf of the Company in the Division, (i) subject to written corporate approval by any one of the following officers of the Company: a) Chairman of the Board, b) Vice Chairman, President and Chief Executive Officer, c) Executive Vice President, Treasurer and Chief Financial Officer, or (d) the Region President of the Division (the “Approving Officers”), to execute and deliver contracts, agreements and other documents and instruments for the purchase of real property, and any improvements or appurtenances constructed thereon or affixed thereto, or any interest therein, including without limitation any right-of-way, easement, leasehold or other tangible or intangible property, right or interest, and any personal property relating or incident thereto, (ii) subject to the written corporate approval of any one of the Approving Officers, to execute and deliver contracts, agreements, deeds, conveyances or other obligations of the Company, closing statements and other documents and instruments for the sale of improved or unimproved real property, or any interest or right there& owned, leased or otherwise controlled by the Company, and (iii) to execute and deliver office and model home leases and such other agreements, instruments or documents as the Approving Officers shall direct; RESOLVED FURTHER, that in connection with the management of the Company’s business, the Division President is hereby authorized and empowered, in the name and on behalf of the Company in the Division, to execute and deliver (i) contracts, agreements and other documents and instruments for the subdivision, development and/or improvement of real property, (ii) home sales contracts, sales ,’ _/ .’ h 8313 person employment agreements and similar or equivalent agreements, documents or instruments and (iii) personal property leases for, among other things, office equipment and construction trailers; and RESOLVED FURTHER, that in connection with the management of the Company’s business in the Division, the Division President shall be authorized and empowered, in the name and on behalf of the Company in the Division,%o execute and deliver any and all documents and instruments necessary to sell and convey title to single-family homes. IN WITNESS WHEREOF, the undersigned has signed on the 15” day of October, 2000. Paul W. Buchschacher, Assistant Secretary U:VKEsLER\Min\soHldnpWOOcrlBCOS.wpd