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Home My WebLink AboutPalomar Business Park; 1984-05-14;AGREEMENT II REIMBURSEMENT AGREEMENT REGARDING CARLSBAD TRACT NO. 81-46 AIRPORT BUSINESS CENTER, UNIT NO. 3 This Agreement is entered into on May 14 _ , 198_4_, between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and PALOMAR BUSINESS PARK (hereinafter "DEVELOPER"), with respect to the following: A. DEVELOPER has presented the map identified as "Carlsbad Tract No. 81-46 - Airport Business Center - Unit No. 3" (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. DEVELOPER and the DISTRICT have entered into the following agreement, related to this Agreement, which together provide for the construction of a complete public water system to serve the subdivision: (1) Agreement I - Water System Improvements Agreement. This agreement will hereinafter be referred to as "the related agreement." C. DEVELOPER will construct, as part of the onsite improvements, a pressure-regulating station as shown on sheet 16 of 22 of the approved plans which has been determined by the DISTRICT to be eligible for rei mbu rsement . D. DEVELOPER has requested reimbursement from the DISTRICT pursuant to the Subdivision Map Act and DISTRICT Ordinance No. 26 for the cost of constructing the onsite improvements described in Recital "C." p^. STATION \A/A5 EU^;MAT£~C? WITH NeVv/ ADOPTED (VOID) -N (CANCEUJtO NOW, THEREFORE, in consideration of the mutual obligations set forth below, and the construction by DEVELOPER of the water system improvements described above, the parties agree as follows: 1. DISTRICT will reimburse DEVELOPER eighty-three percent (83%) o of the estimated cost of the DEVELOPER for the construction of the , pressure-regulating station as shown on sheet 16 of 22 of the approved plans. The reimbursement shall be made pursuant to the following terms and conditions: (a) DISTRICT hereby establishes a "Service Area" of the pressure-regulating station as set forth in Exhibit "A" attached herewith and made a part hereof. (b) DISTRICT will establish a "Capital Contribution Charge" for all users benefiting from the pressure-regulating station amounting to a charge per acre, based upon the actual total cost of the pressure-regulating station divided by a total of 424 acres. (c) DISTRICT will make payment to DEVELOPER charges collected by the DISTRICT for a period of ten (10) years after the date of acceptance of the public water system by the DISTRICT. The total maximum payment made to DEVELOPER shall be eighty-three percent (83%) of the total actual cost. 2. For the purpose of establishing the values for all of the public water system facilities that are eligible for reimbursement under this agreement, the following procedure shall be followed: Pressure-Regulating Station: DEVELOPER shall submit to DISTRICT all financial records with a request for establishing the total cash value of the facility. The DISTRICT shal V-review all such records and make a determination as to the actual cash value. 3. 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: Airport Business Center - Carlsbad 17890 Skypark Circle Irvine, CA 92714 -2- To DISTRICT: William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Cami no Real Carlsbad, CA 92008 4. Benefit and Burden. This Agreement shall inure to the benefit o.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 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 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 sub- ject to the judgment, judicial declaration, settlement or other deter- mination made in the above-described legal proceeding on June 29, 1983. 5. Severability of Provisions. The invalidity or illegality of any provision of this Agreement shal1 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. 6. 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. 7. 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. -3- 8. Construction and Interpretation. This Agreement is one of two related agreements between DEVELOPER and the DISTRICT pertaining to the construction of water system public improvements for the subdivision Where possible, both related agreements shall be construed in harmony,«•. with each other, to effectuate the parties' intent to construct a complete water system for the subdivision. This Agreement and the related agreement contain the entire understanding and agreement of the parties as to the construction of the complete water system for the subdivision, and supersed' all prior agreements, statements, discussions, representations and under- standings pertaining to that water system. 9. 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. 10. Authority to Sign. The individuals who sign this Agreement on behalf of the undersigned joint venture and municipal water district warrant that they have the authority and approval to do so on behalf of such joint venture and municipal water district. COSTA REAL MUNICIPAL WATER DISTRICT Norman M. Almack, President Board of Di rectors -4- STATE OF CALIFORNIA ) * "" - ) SS COUNTY OF ORANGE ) On May 14, 1984, before mef the undersigned, a Notary Public in and for said State, personally appeared JAMES A. STRINGER and CRAIG BOUCHER, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as Vice President and Secretary, on behalf of SIGNAL LANDMARK, INC., a California corporation, the corporation that executed the within instrument pursuant to its bylaws or a resolution of its board of directors, said corporation being known to me to be one of the venturers of PALOMAR BUSINESS PARK, the joint venture that executed the within instrument, and acknowledged to me that such corporation executed the same as such venturer and that such joint venture executed the same. WITNESS my hand and official seal. , OFFICIAL SEAL •KATHLEEN L DALLAIRE NOTARY PUBLIC - CALIFORNIA ORANGE COUNTY My comm. expires AUG 14, 1987 Public in and for said County and State STATE OF CALIFORNIA) COUNTY ^ ,^ _ ___ 1984, before me the 5 Receiver or tne => up= *•-.,* _ September 7, iy»J» -,.>,;„the . same WITNESS my hand and official seal. i -^ SEAL KATHLEEN L DALLAIKE NOTARY PUBLIC - CALIFORNIA ORANGE COUNTYMy comm. expires AUG 14, 1967 ! . County and PALOMAR BUSINESS PARK, a joint venture BY: SIGNAL LANDMARK, INC., a California corporation (Joint Venturer/; e Presiden ArKrihgefc(Title) Craiq/Boxicher (Title) Secretary By: PALOMAR AIRPORT PARK, LTD., a California limited partnership (Join^/^fenturerX IS ING $P. EBEfULTNG, Receiver for Palomar Airport Park, Ltd., pursuant to Order Appointing Receiver of the Orange County California Superior Court filed on September 7, 1983 in Case No. 35-03-46 -5-