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Home My WebLink AboutCT 72-34; City of Carlsbad; 86-012789; Reimbursement Agreement/Release,_86-012789 I ;,rREcoRr,rD.,,~ /CF c-%; W,'^CO;,T, • .' . "' ' ' '• i'-1.;',1 i'OM'J ? '<•" ••" REIMBURSEMENT AGREEMENT REGARDING OFFSITE WATER SYSTEM FACILITIES CONSTRUCTED AS PART OF NO FEE CARLSBAD TRACT NO. 72-34 RANCHO LA CUESTA THIS AGREEMENT is made this / ^^ day of j~)&. G6(*i US* % 1935, between COSTA REAL MUNICIPAL WATER DISTRICT, hereinafter called "DISTRICT", and NEWPORT SHORES BUILDERS, a California corporation, hereinafter called "DEVELOPER", with respect to the following: (a) DEVELOPER and DISTRICT have entered into the following agreements, related to this Agreement, all of which together provide for the construction of a complete public water system to serve the subdivision: (1) "Agreement for Construction of Water System to Serve Subdivision Lands and for Performance Bond - Carlsbad Tract No. 72-34, Phases I, II, III & IV, Rancho La Cuesta", dated June 30, 1976. (2) "Agreement for Construction of Water System to Serve ,-> Subdivision Lands and for Performance Bond - Carlsbad Tract No. 72-34, Offsite Water System - El Camino Real, Rancho La Cuesta", dated June 30, 1976. (3) "Agreement for Construction of Water System to Serve Subdivision Lands and for Performance Bond - Carlsbad Tract No. 79-4 - Rancho la Cuesta - Unit No. 5", dated March 4, 1981. These agreements will hereinafter be referred to as "the related agreements." -1- 1494 (b) DEVELOPER has requested and DISTRICT has agreed to the preparation and execution of this agreement for the reimbursement of certain amounts for specific offsite water system facilities pursuant to the rules and regulations of DISTRICT Ordinance No. 26. IT IS, THEREFORE, AGREED: 1. DISTRICT will reimburse DEVELOPER for one-half (1/2) of the cost of the following water main facilities: (a) 16-inch transmission main: El Camino Real - Alga Road to 4,362 feet north. (b) 16-inch transmission main: Alga Road - El Camino Real to Manzanita Street. (c) 12-inch transmission main: Alga Road - Manzanita Street to Mimosa Drive. All of the above-described facilities are set forth in Exhibit "A" of this Agreement which sets forth the entire facilities. 2. The reimbursement shall be made pursuant to the following terms and conditions: (a) DISTRICT hereby establishes a "Benefit Area" of the facilities constructed as set forth in Exhibit "B" attached herewith and made a part hereof; (b) DISTRICT will establish a "Direct Connection Surcharge" for all users benefiting from connection to the transmission main amounting to a cost per front footage as determined by DISTRICT. 1495 DISTRICT will utilize all available records of the construction project and .calculate the total project cost which will include construction costs and incidental project expenses. The total maximum payment DEVELOPER will be eligible for is $68,369.00 (one-half the total actual project cost). 4. Process of Reimbursement. DISTRICT shall establish a benefit area as set forth in Exhibit "B". This benefit area shall be assessed a "front-footage" charge as set by DISTRICT at the time water service is provided to any property as shown on the map. The "front-footage" charge shall be one-half of the total actual project cost divided by the total front footage or equivalent quantity of the total benefit area. 5. Time of Reimbursement. DISTRICT shall establish the total time of ten (10) years after the date of this Agreement. Reimbursement to DEVELOPER will be made from time to time as the assessment is collected by DISTRICT. 6« Not ices. All notices or other communications required or permitted under this Agreement shall be sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To DEVELOPER: Newport Shores Builders Drawer A Huntington Beach, CA 92648 To DISTRICT: William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 7. Benefit and Burden. This Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon the heirs, successors and assigns of the parties hereto. The DISTRICT acknowledges that there did exist a dispute between 1t and the City of Carlsbad as to which entity has the right to provide retail water service to this subdivision, among others, and the right to hold legal title to all 1496 public improvements necessary to provide such service. The DISTRICT filed an action for declaratory relief in the North County Branch of the Superior Court of the State of California for the County of San Diego, case no. N20027, to resolve that dispute. The DISTRICT and the City of Carlsbad have settled this lawsuit. The parties hereto agree that their rights and obligations under this Agreement are subject to the judgment, judicial declaration, settlement or other determination made in the above-described legal proceeding on June 29, 1983. 8. Severability of Provisions. The invalidity or illegality of any provision of this Agreement shall not affect the validity or enforcement of the remainder of this Agreement. If any provision or term hereof is found to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect as though the invalid or unenforceable provision was not a part of the Agreement. 9. Waiver or Amendment. No provision of this Agreement, nor any breach hereof, can be waived unless in writing. Waiver of any one breach of any provision hereof shall not be construed as a waiver of any other breach of the same or any other provision hereof. This Agreement shall be amended or modified only by a written agreement signed by the party to be charged with the amendment. 10. Governing Law. This Agreement and any amendments hereto shall be governed by, construed and enforced in accordance with the laws of the State of Cali fornia. 11. Construction and Interpretation. This Agreement is one of four related agreements between DEVELOPER and the DISTRICT pertaining to the construction of water system public improvements for the subdivision. Where possible, all related agreements shall be construed in harmony with each other, to effectuate the parties' intent to construct a complete -4- 1497 water system for the subdivision. This Agreement and the related agreements contain the entire understanding and agreement of the parties as to the construction of the complete water system for the subdivision, and supersede a.l 1 prior agreements, statements, discussions, representations and under- standings pertaining to that water system. 12. Attorney's Fees. The prevailing party in any action at law or in equity, including arbitration, brought to enforce or prevent the breach of this Agreement, or any provision hereof, including but not limited to any action for injunctive or declaratory relief, shall be entitled to attorney's fees and costs incurred in such action, including those incurred in any appeal. 13. Authority to Sign. The individuals who sign this Agreement on behalf of the undersigned corporation and municipal water district warrant that they have the authority and approval to do so on behalf of such corporation and municipal water district. NEWPORT SHORES BUILDERS, a California corporation By. COSTA REAL MUNICIPAL WATER DISTRICT By Margaret' /. Board rffyui rectTors resident D207/8 -5- 1498 U31VM IVdlDiNDiAi RECEIVED > I —-£^^— ^ DEC 18 1985 $86^030 ..^..-..^ ..ljl • -i BEST COPY FOR PAR CONDMWEST BLUFF NORTH DOC82-059867 .**• (SEE SHT. -v ' 1560 RECEIVED DEC 18 1985 WOODSIDE-KUROTA & CONSULTINb CARLSBAD DEC 2 3 1985 !|