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HomeMy WebLinkAboutPacesetter Homes Inc; 1983-06-13;WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 81-30 PACESETTER HOMES, INC. Agreement No. 3 - Reimbursement Agreement for Offsite 8-Inch Waterline in Buttercup Road This Agreement is entered into on June 13 , 198 3 , between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and PACESETTER HOMES, INC. (hereinafter "DEVELOPER") with respect to the following: A. DEVELOPER is about to present the map identified as "Carlsbad Tract No. 81-30 - Pacesetter Homes, Inc." (the "subdivision") to the City of Carlsbad for final approval under the Subdivision Map Act of the State of California and in compliance with the provisions of the City of Carlsbad's ordinances applicable to the filing and approval of subdivision maps. The property encompassed by the subdivision lies within the boundaries of the DISTRICT. B. Carlsbad Tract 81-30 is a resubdivisi on of a portion of Carlsbad Tract 73-23. The DISTRICT currently has operative two formal contractual agreements with Occidental Land, Inc., a California corporation, providing for the construction of a complete public water system for the Carlsbad Tract 73-23, as listed herein: (1) Agreement I -- Agreement for Construction of Water System to Serve Subdivision Lands and for Performance -1- Bond - Vista del Playa - Carlsbad Tract 73-23, dated February 5, 1975. (2) Agreement II -- Agreement for Construction of Water System to Serve Subdivision Lands and for Performance Bond - Relocation of Existing 16" Water Main and Construction of Pressure Regulating Station - Vista del Playa - Carlsbad Tract 73-23, dated February 5, 1975, These agreements are incorporated in full as a part of this agreement by reference. C. Occidental Land, Inc., by letter dated April 13, 1983, and attached hereto as Exhibit "A" has assignedval1 of the obligations, rights, and responsibilities with respect to the two subdivision agreements for Carlsbad Tract 73-23, dated February 15, 1975, so that it is now the obligation of the DEVELOPER to fulfill all the terms and conditions of the two original agreements for Carlsbad Tract 73-23 as they now relate to lots 1 through 99 of Carlsbad Tract 73-23. D. This agreement shall supplement the agreements for Carlsbad Tract 73-23, and reorganize the scope of work and responsibilities with respect to both the onsite and offsite portions of the public water system for Carlsbad Tract 81-30. E. DEVELOPER and the DISTRICT have entered into the following agreements, concurrently with and related to this Agreement, all of which together provide for the construction of a complete public water system to serve the subdivision: (1) Agreement No. 1 - Onsite Improvements, consisting of eight pages. (2) Agreement No. 2 - Offsite Improvements - Easterly Extension of 8-Inch Waterline in Buttercup Road and Relocation of 10-Inch and 12-Inch Waterline in Batiquitos Drive, consisting of nine pages. -2- These agreements will hereinafter collectively be referred to as "the related agreements." F. DEVELOPER will construct, as part of the offsite improvements, an 8-inch waterline in Buttercup Road as shown on Exhibit "B", which is attached hereto and incorporated herein by reference (hereinafter referred to as "8-inch offsite line in Buttercup Road"). This 8-inch offsite line in Buttercup Road has been determined by the DISTRICT to be eligible for reimbursement. G. DEVELOPER has requested reimbursement from the DISTRICT, pursuant to the Subdivision Map Act and DISTRICT Ordinance No. 26, for the cost of constructing the 8-inch offslte line in Buttercup Road described in Recital "F". NOW, THEREFORE, in consideration of the mutual obligations set forth below, and the construction by DEVELOPER of the 8-inch offsite line in Buttercup Road described above, the parties agree as follows: 1. The DISTRICT shall reimburse DEVELOPER for the cost of constructing the 8-inch offsite line in Buttercup Road. ~ro7/u, COST 2. DEVELOPER shall determine and furnish to the DISTRICT the total cost of constructing the 8-inch offsite line in Buttercup Road. DEVELOPER shall furnish to the DISTRICT all records for the actual cost of constructing the 8-inch offsite line in Buttercup Road. The DISTRICT shall make the final determination, reasonably and in good faith, based on the information provided by DEVELOPER, as to the actual construction cost which is to be reimbursed to DEVELOPER. DISTRICT will make payment to DEVELOPER those charges collected by DISTRICT from benefiting properties for a period of ten (10) years after the date of acceptance of the public water system by the DISTRICT for the 8-inch offsite line in Buttercup Road in accordance with DISTRICT Ordinance No. 26. -3- 2. Notices. 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: Mr. Len Goodman Pacesetter Homes, Inc. 4540 Campus Drive Newport Beach, CA 92660 To DISTRICT: William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Camino Real Carlsbad, CA 92008 3. 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 exists a dispute between it 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 public improvements necessary to provide such service. The DISTRICT has 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 entered into a stipulation, filed in the above-described case on August 19, 1982, regarding water service provided while that action is pending. That stipulation is incorporated herein by reference. The parties hereto agree that their rights and obligations under this Agreement are subject to that stipulation and any judgment, judicial declaration, settlement or other determination made in the above-described legal proceeding. 4. 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. -4- 5. 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. 6. Governing Law. This Agreement and any amendments hereto shall be governed by, construed and enforced in accordance with the laws of the State of California. 7. Construction and Interpretation. This Agreement is one of three related agreements between DEVELOPER and the DISTRICT pertaining to the construction of water system public improvements for the subdivision. This Agreement contains the entire understanding and agreement of the parties as to both the onsite and offsite improvements portions of the water system. Where possible, all three related agreements shall be construed in harmony with each other, to effectuate the parties' intent to construct a complete water system for the subdivision. However, the specific provisions of this Agreement shall prevail over any conflicting provision of any other related agreement insofar as they pertain to onsite water improvements. 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 all prior agreements, statements, discussions, representations and understandings pertaining to that water system. 8. 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. -5- 9. 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. PACESETTER HOMES, INC. By COSTA REAL MUNICIPAL WATER DISTRICT S Norman M. Almack, Presi dent Board of Directors -6- I occmeriTaL iano, inc. P.O. Box 19601 -2100 S.E. Main Irvine. California 92714 (714)©6t>?801 April 13, 1983 Woods ide/Kubota/Assoc. Inc. 2465 Pio Pico Drive P. 0. Box 1095 Carlsbad, CA 92008 Attention: Jack Kubota RE: ASSIGNMENT OF BOND AND DEPOSITS RELATING TO CARLSBAD TRACT 72-23 - VISTA DEL PLAYA COSTA REAL MUNICIPAL WATER DISTRICT Dear Mr. Kubota: Occidental Land, Inc. (formerly Occidental Petroleum Land 'and Development) has outstanding $210,000 in bonds and $9,700 in cash deposits to cover water line/associated facility improve- ments required in the approval of Carlsbajd Tract 73-23 (CT73-23) . Occidental Land has transferred, by purchase agreement, its rights and obligations in Lots 1 - 99 of CT 73-23 to Pacesetter Homes, 4540 Campus Drive, Newport Beach, California, and Lots 100 - 101 of CT 73-23 to Carlsbad Investors, c/o Dwight Spiers, 17941 Mitchell Street, Irvine, California. In doing so, Pacesetter and Carlsbad Investors are now responsible for the water facility improvements required by the City of Carlsbad's approval of the resubdivision of Lots 1 - 99, CT 73-23 (new tract number CT-81-30) and Lots 100 - 101 of CT 73-23. Therefore we respectfully request Occidental Land be relieved of further obligation with respect to the following Agreements and Performance Bonds : 1. Construction Agreement February 5, 1975 Occidental Land and Carlsbad Municipal Water District. Deposit $8,500.00 2. Construction Agreement February 5, 1975 Occidental Land and Carlsbad Municipal Water District Deposit $1,200.00 EXHIBIT "A" Woodside/Kubota/Assoc. Inc. April 13, 1983 Page two 3. Surety Bond #2583988 Safeco Ins. Co. February 6, 1975 Face Value 4. Surety Bond #2583987 Safeco Ins. Co. February 6, 1975 Face Value $170,000.00 $ 40,000.00 Pursuant to Paragraph 3 of each Construction Agreement, Occi- dental requests refund of monies due Occidental. Please advise my office at such time Pacesetter, Carlsbad Investors and Costa Real Municipal Water District have pro- vided adequate security for water facility construction associated with Lots 1 - 99 of CT-73-23 (now CT-81-30) and Lots 100 and 101 of CT-73-23. Respectfully, OCCIDENTAL LAND, INC. K. M. Wasmann Executive Vice President KMW/b CC: Pacesetter Homes - Len Goodman Carlsbad Investors - Dwight Spiers Don Agatep APR 18 1983 CONSUL' IKG FJIGINEEFiS