HomeMy WebLinkAboutSan Marcos County Water District; 1957-07-01;*
TIIS IHDENTURE OF LXASE, HADE AND ENTERED INTO AS OF
THE FIRST DAY OF JULY, 1957, BY AND BETWEEN SAiV URCOS
CUKVTY MATE8 DISTRICT, A COUNTY WATER DISTRICT, ORGANIZED
P
UNDER THE COUNTY VATER DISTRICT LAW, HEREINAFTER REFERRED
TRICT, A MUNICIPAL WATER DISTRICT, ORGANIZED UNDER THE
MUNICIPAL WATER DISTRICT ACT OF 1911, HEREINAFTER REFERRED
N TO AS CARLSBAD",
WITAWSSETTH:
VflEREAS, SAN MARCOS HAS HERETOFORE CONSTRUCTED FACILI-
TIES FOR THE TRANSPORTATION AND DELIVERY OF WATER, AND THE
BOARD OF DIRECTORS THEREOF HAVE, BY RESOLUTION, FOUND AND
DECLARED THAT THERE IS SURPLUS CAPACITY IN SAID FACILITIES ' FOR THE TRANSPORTATION OF WATER NOT REQUIRED FOR THE USE AND
BENEFITS OF THE CITIZENS OF SAN MARCOS, AND THAT IT IS REA-
SONABLE TO EXPECT THAT SAID CONDITION WILL CONTINUE TO EXIST
FOR A PERIOD OF THREE YEARS; AND
WflEREAS, CARLSBAD IS A HEMBER AGENCY OF THE SALV DIEGO
GOWNTY YATER AUTHQRITY, AND HAS STARTED TO CONSTRUCT FACILI-
TIES FOR THE TRANSMISSION OF WATER TO BE PURCHASED FROH THE
SAN DIEGO COUNTY WATER AUTHORITY, HEREINAFTER REFEBRED TO
AS THE AUTHORITY"; AND It
WHEBEAS, THE AUTHORITY NOW HAINTAINS AND OPEBATES A
TRANSMISSION LINE, GENERAL,LY KNOWN AND DESIGNATED AS THE SAN
DIEGO AQUEDUCT, AND HAS DECLARED ITS INTENTION TO CONSTRUCT
A SECOND AQUEDUCT IN A LOCATION CONSIDERABLY WEST OF THE SAN
DIEGO AQUEDUCT AND MUCH CLOSER TO THE EXISTING BOUNDARIES OF
CARLSBAD; AND
f i
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VHE’MEAS, THE FACILITIES OF SAN MARCOS ARE CONNECTED
TO THE SAN DIEGO AQUEDUCT AT A POINT WHICH IS GENERALLY RE-
FERRED TO AS SERVICE CONNECTION NO. 2 AT RUENO STATION,
PHROUGX WHICH WATER CAN BE DELIVERED BY THE AUTHORITY TO
THE BUENO COLORADO MUNICIPAL WATER DISTRICT, HEREINAFTER
REFERRED TO AS BUENO’~, FOR THE ACCOUNT OF CARLSBAD, AND N
WHEREAS, THE AUTHORITY AND BUENO HAVE HERETOFORE IN-
DICATED THEIR WILLINGNESS TO DELIVER WATER WHICH CARLSBAD
IS ENTITLED TO RECEIVE FROM THE AUTHORITY TO BUENO FOR THE
ACCOUNT OF CARLSBAD; AND
MHEhEAs, IT IS NOT ECONOMICALLY SOUND OR PRACTICAL FOR
CARLSBAD TO CONSTRUCT ITS FACILITIES ANY FURTHER EAST THAN
IS REQUIRED, AND SAN ~~ARCOS BELIEVES THAT IT IS FOR THE
BEST INTERESTS OF ITS CITIZENS AND TAXPAYERS THAT SAN flARCOS
OBTAIN THE MAXIMUM REVENUES FROM USE OF ITS FACILITIES, AND
CARLSBAD IS WILLING TO LEASE A PORTION OF SAN EARCOS FACILI-
TIES FOR THE PERIOD AND UPON THE TERMS AND CONDITIONS HERE-
INAFTER STATED.
lvOw, THEh!SFOm, IN CONSIDERATION OF THE PAYMENTS OF
THE RENTS HEREIN RESERVED, AND THE PERFORPPANCE AND OBSERV-
ANCE BY CARLSBAD OF ALL THE COVENANTS AND PROVISIONS HERE-
INAFTER CONTAINED, TO BE KEPT AND PERFORMED BY CARLSBAD, AND
FOR THE USES AND PURPOSES, AND UPON AND SUBJECT TO THE TERMS
AND CONDITIONS HEREINAFTER SET FORTH, SAN ~ARCOS DOES BY
THESE PRESENTS, LEASE, DEMISE AND RENT UNTO CARLSBAD, AND
CARLSBAD DOES HEREBY TAKE, LEASE AND HIRE FROM SAN IYARCOS,
ALL THAT CERTAIN PROPERTY SITUATED IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
AN UNDIVIDED 42% INTEREST IN AND TO THAT PORTION
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OF THE SAN MARCOS WATER DISTRIBUTION SYSTEH,
KNOWN AND DESIGNATED AS THE SAN IARCOS TRANS-
MI S SI 0 N MA I Nm
ATTACHED HERETO, MADE A PART HEREOF, AND MARKED EXHIBIT A, IS A MAP OR PLAT SHOWING THE BOUND-
ARIES OF SAN MARCOS AND THE LOCATION OF ITS
SAN P~ARCOS TRANSMISSION MAIN, WHICH IS DESIG-
NATED IN RED THEREON; THE LOCATION OF CONNECTION Nom 2 AT SUENO STATION, AND THE TERMINAL OF SAID
WATER DISTRIBUTION FACILITIES, INCLUDING THE
TRANSMISSION MAIN.
AND IN CONSIDERATION THEREOF, CARLSBAD AND SAN ~~ARCOS
HEREBY MUTUALLY COVENANT AND AGREE AS FOLLOWS:
1 SERBICE CONNECTIOH
CARLSBAD WILL UPON EXECUTION OF THIS LEASE, IMMEDIATELY
COMMENCE TO PREPARE PLANS AND SPECIFICATIONS COVERING THE
INSTALLAXION OF A TEMPORARY SERVICE CONNECTION TO BE IN-
STALLED AT THE WEST END OF THE 24" LINE, WHICH CARLSBAD rs
NOW CONSTRUCTING FROM THE SAN MARCOS TRANSMISSION MAIN, SAID
POINT BEING IN THE VICINITY OF FOOTHILL AND ENCINITAS ROADS.
SAID PLANS AND SPECIFICATIONS SHALL BE COMPLETED WITHIN A
REASONABLE TIME AND SUBMITTED TO SAN MARCOS FOR SAN MARCOS'S
APPROVAL. IF SUCH APPROVAL IS OBTAINED, CARLSBAD WILL TAKE
THE NECESSABY STEPS TO CONSTRUCT, OR CAUSE TO BE CONSTRUCTED,
SUCH TEMPORARY SERVICE CONNECTION IN ACCORDANCE WITH SAID
PLANS AND SPECIFICATIONS. SAID TEMPORARY SERVICE CONNECTION
SHALL BE INSTALLED AT SUCH TIME AS IS SATISFACTORY TO SAN
MARCOS, BUT NOT LATER THAN JUNE 2, 1957, AND IN SUCH MANNER
AS WILL CAUSE THE LEAST AEOUNT OF INTERRUPTION IN SERVICE
TO SAN MARCOS CONSUMERS. ALL MATERIAL, EQUIPMENT AND FACILI-
TIES USED IN CONNECTION WITH THE INSTALLATION OR MAINTENANCE
OF SAID TEMPORARY SERVICE CONNECTION, INCLUDING THE METER,
SHALL BECOME AND REHAIN THE PROPERTY^ OF CARLSBAD. THE MAIM-
TENANCE AND OPERATION OF SAID TEMPORARY SERVICE CONNECTION
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a-
,
SHALL BE SUBJECT TO ALL ORDINANCES, RULES AND REGULATIONS
OF SAN ~YARCOS GOVERNING THE MAINTENANCE AND OPERATION OF
SERVICE CONNECTIONS THEN IN EFFECT. NOTWITNSTANDING ANY-
THING TO THE CONTRARY HEREIN CONTAINED, CARLSBAD SHALL BE
ENTITLED TO SERVICE, OPERATE AND MAINTAIN ANY LINE OWNED BY
CARLSBAD, IN ACCORDANCE WITH THE RULES, REGULATIONS AND
ORDINANCES OF CARLSBAD, AND MAY GRANT AS MANY SERVICE CON-
NECTIONS, WHOLESALE OR RETAIL, To C0NSU;TMER.S WITHIN THE COR-
PORATE BOUNDARY OF CARLSBAD, AS CARLSBAD MAY FROM TIME TO
TI ME D ET ERMI NE
CARLSBAD, AT ITS OWN EXPENSE, SHALL FURNISH, OPERATE
AND MAINTAIN ALL LINES AND FACILTTIES OWNED BY CARLSBAD FOR
THE DISTRIBUTION OF ANY WATER RECEIVED BY CARLSBAD FROM THE
AUTHORITY THROUGH BUENO, SAN MARCOS SHALL NOT BE UNDER ANY
DUTY OR OBLIGATION TO INSTALL OR PAY FOR ANY DISTRIBUTION
OR STORAGE FACILITIES TO DISTRIBUTE WATER THAT MAY BE DE-
LIVERED BY THE kUTH0RITY TO BUENO FOR THE ACCOUNT OF CARLS-
BAD,
2. - TERH
THE TERM OF THIS LEASE SHALL COMMENCE ON THE 5TH DAY
OF JULY, 2957 AND SHALL TERMINATE (UNLESS SOONER TERMINATED
AS HEREIN PROVIDED) ON THE 5TH DAY OF JULY, 1960, OR AT SUCH
TIME AS THE AUTHORITY SHALL COMMENCE THE DELIVERY OF WATER
TO CARLSBAD FROM THE NEW AQUEDUCT WHICH THE AUTHORITY PRO-
POSES TO CONSTRUCT, WHICHEVER EVENT OCCURS FIRST.
3. RENTAL
CARLSBAD AGREES TO PAY TO SAN NARCOS AS RENTAL FOR SAID
PREMISES:
(A) EINIMUM GUARANTEED RENTAL: SUBJECT TO THE
PROVISIONS HEREINBELOW. THE SUM OF PdINETEEN THOUSAND TWO
HUNDRED ($19,200.00) DOLLARS, PAYABLE IN srx EQUAL INSTALL -
MENTS OF THREE THOUSAND Two HUNDRED ($3,200.00) Do~~Ljrls
EACH, PAYABLE ON THE 5TH DAY OF JULY, 1957, AND EVERY SIX
MONTHS THEREAFT$”*, UNTIL THE SUM OF ivINETEEN THOUSAND TWO
HUNDRED (119,200.00) DOLLARS HAS BEEN PAID IN FULL, WHICH
It SUM SHALL BE HEREINAFTER REFERRED TO AS THE MINIMUH GUAR-
It ANTEED RENTAL.
IF DURING ANY PERIOD COMMENCING JULY ~TH AND TERMINAT-
ING JANUARY 5TH, OR COMMENCING JANUARY 5TH AND TERMINATING
JULY 5TH, DURING THE TERM OF THIS LEASE, THIS LEASE SHOULD
BE TERMINATED FOR ANY REASON OTHER THAN DEFAULT ON THE PART
OF CARLSBAD, THE LAST PAYHENT OF THREE THOUSAND Two HUNDRED
($3,200.00) DOLLARS PAID BY CARLSBAD TO SAN IIIARCOS, PURSUANT
TO THIS PARAGRAPH, SHALL BE PRO-RATED AS FOLLOWS:
1. THE NUMBER OF ACRE FEET OF WATER TRANSMITTED BY
CARLSgAD THROUGH THE DEMISED PREMISES DURING SAID PERIOD I
SHALL BE MULTIPLIED BY $3.20.
2. SAID SUM OF THREE THOUSAND Two HUNDRED (13,200.00)
DOLLARS SHALL BE PRO-RATED ON A SIX MONTH TIME BASIS.
3. WHICHEVER AHOUNT IS THE GREATEST SHALL BE CONSID-
ERED THE RENT DUE FOR THE EXPIRED PORTION OF SAID PERIOD,
AND THE DIFFERENCE BETWEEN SAID SUN AND THE SUM OF THREE
THOUSAND Two HUNDRED ($3,200.00) DOLLARS SHALL BE PAID TO
CARLSBAD BY SAN MARCOS WITHIN THIRTY (30) DAYS FROPI THE
DATE OF TERMINATION. THERE SHALL BE NO OBLIGATION ON CARLS-
BAD TO MAKE ANY FURTHER PAYMENTS.
(E) ADDITIONAL RENTAL: IF IN ANY ONE OF THE FISCAL,
YEARS ENDING JUNE 30, 2958, JUNE 30, 1959 OR JUNE 30, 1960,
--
CARLSBAD SHALL TRANSMIT OR TRANSPORT MORE THAN 2,000 ACRE
FEET OF WATER DURTNG SAID YEAR, THROUGH THE DEMISED PREMISES
(EXCLUDING WATER DELIVERED TO CUSTOMERS OF SAN MARCOS AS
HEREINBELOW PROVIDED), THEN CAALSBAD, IN ADDITION TO THE
MINIMUM GUARANTEED RENTAL REQUIRED TO BE PAID UNDER THE PRO-
VISIONS OF PARAGRAPH 3-4 SHALL PAY TO SAN MARCOS THE ADDI-
TIONAL SUM OF $3820 AN ACRE FOOT FOR EACH AND EVERY ACRE FOOT
OF WATER TRANSMITTED OR TRANSPORTED THROUGH THE DEMISED PREM-
ISES, IN EXCESS OF SUCH 2,000 ACRE FEET DURING SAID YEAR.
SAID RENTAL SHALL BE DUE AND PAYABLE THIRTY (30) DAYS AFTER
THE END OF SAID FISCAL YEAR.
(c) CHLORINATION CHABGES: IN ADDITION TO THE CHARGES
SET FORTH IN PARAGRAPH 3-A AND 3-B, CARLSBAD SHALL PAY TO $AN
MARCOS ANY AND ALL COSTS INCURRED BY SAN HARCOS IN CHLORIN-
ATING WATER DELIVERED BY THE AUTHORITY TO BUENO FOR CARLSBAD'S
ACCOUNT. SAID COST SHALL INCLUDE ALL CHARGES FOR LABOR,
POWER, REPAIRS, CHLORINE, DEPRECIATION, OVER-HEAD, RENT AND
ALL OTHER CHARGES ATTRIBUTABLE TO THE CHLORINATION OF SUCH
WATER. ALL SUCH COSTS INCURRED IN THE CHLORINATION OF WATER
BY SAX HARCOS SHALL BE PRO-RATED MONTHLY BETWEEN CARLSBAD AND
SAN MARCOS IN THE SAME PROPORTION AS THE WATERS RECEIVED FROM
BUENO ARE PRO-RATED BETWEEN SAW MARCOS AND CARLSBAD.
(D) IN ADDITION, CARLSBAD AGREES UPON THE TERMS AND
CONDITIONS HEREINAFTER SET FORTH, T 0 MAKE SURPLUS CAPACITY
IN THAT PORTION OF ITS TRANSMISSION MAIN LOCATED WITHIN THE
CORPORATE AREA OF SAN MARCOS, AVAILABLE TO SAN MARCOS TO
SERVICE PROPERTY LOCATED WITHIN THE CORPORATE AREA OF SAN
MARCOS.
(E) THE AMOUNT OF WATER TRANSMITTED THROUGH THE DEHISED
PREMISES SHALL BE THE AMOUNT REGISTERED BY THE METER IN-
STALLED AT THE TEMPORARY SERVICE CONNECTION REFERRED TO IN
PARAGRAPH No. 1 HEREOF, LESS THE TOTAL AGGREGATE AMOUNT OF
ALL WATER DELIVERED TO SAN J~~ARCOS CONSUMERS FOR USE WITHIN
THE CORPORATE AREA OF SAN EARCOS, FROM LINES OWNED, OPERATED
AND MAINTAINED BY CARLSBAD. SAN MARCOS AGREES TO READ ALL
METERS SERVICING ITS CONSUHERS AT THE END OF EACH CALENDAR
MONTH AND TO READ THE METER INSTALLED BY CARLSBAD, PURSUANT
TO THE PROVISIONS OF PARAGRAPH No. 1, AND TO DELIVER TO
CARLSBAD, WITHIN TEN (IO) DAYS THEREAFTER, A TRUE AND ACCUR-
ATE COUNT OF ALL READINGS. SAN ~~ARCOS WILL ALSO NOTIFY
BUENO AND THE AUTHORITY AND CARLSBAD OF THE QUANTITY OF
WATER DELIVERED BY THE AUTHORITY TO BUENO FOR CARLSBAD’S
ACCOUNT. CARLSBAD SHALL HAVE THE RIGHT, AT ALL REASONABLE
TIMES, TO INSPECT ALL OF THE METERS INSTALLED ON ITS FACILI-
TIES AS WELL AS THE METER INSTALLED PURSUANT TO PARAGRAPH lV0.
1.
IN THE EVENT EITHER PARTY HERETO DESIRES ANY METER IN-
STALLED ON THE LINE BEING CONSTRUCTED BY CARLSBAD TO BE
TESTED, IT SHALL NOTIFY THE OTHER PARTY OF ITS DESIRE IN
WRITING, AND THEREAFTER, THE DISTRICT WHICH CAUSED SAID HETER
TO BE INSTALLED, SHALL CAUSE SAID METER TO BE TESTED AND SHALL
GIVE THE OTHER DISTRICT ADEQUATE NOTICE OF WHEN SAID TEST IS
TO BE CONDUCTED SO IT MAY BE PRESENT, A REPORT SHOWING THE
RESULTS OF THE TEST SHALL BE FURNISHED TO EACH PARTY. IF THE
TEST DISCLOSES THAT THE METER WAS FOUND TO BE REGISTERING
WITHIN 5%, THE COST SHALL BE BORATE BY THE DISTRICT REQUESTING
THE TEST,
INSTALLED SAID METER SHALL BEAR THE COST OF SAID TEST AND
IF MORE THAN 5% ERROR IS FOUND, THE DISTRICT WHICH
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SHALL MAKE THE NECESSARY CORRECTIONS AT ITS EXPENSE, IN THE
EVENT THAT THE ACCURACY OF SAID METER IS NOT WITHIN 5% LIMI-
TATIONS, ADEQUATE ADJUSTMENT SHALL BE MADE IN PAST BILLS TO
CORRECT FOR ANY ERRORS IN BILLING.
4. USE OF PREiYISES
CARL SBAD AGREES:
(A) TO USE THE DEMISED PREMISES ONLY AND SOLELY FOR THE
PURPOSE OF TRANSPORTING WATER DELIVERED BY THE AUTHORITY TO
BUENO FOR THE ACCOUNT OF CARLSBAD.
(3) NOT TO COMMIT, SUFFER OR PERMIT ANY WASTE OR HIS-
USE OF THE PREMISES HEREBY LEASED OR ANY PART THEREOF, AND
SPECIFICALLY NOT TO REMOVE, ALTER OR CHANGE THE DEMISED
PREMISES OR ANY PART THEREOF, WITHOUT FIRST SECURING THE
WRITTEN CONSENT OF SAN MARCOS. No SERVICE CONNECTION SHALL
BE INSTALLED TO THE DEMISED PREMISES OTHER THAN THE TEMPORARY
SERrICE CONNECTION REFERRED TO IN PARAGRAPH NO. 2 HEREOF,
(C) TO, AT ALL TIHES AND IN ALL THINGS, OBSERVE AND
ABIDE BY ALL STATUTES AND LAWS OF THE UNITED STATES AND OF
THE STATE OF CALIFORNIA, AND ALL ORDINANCES OF THE COUNTY OF
SAN DIEGO, AND ALL RULES, REGULATIONS OR ORDINANCES PROXUL-
GATED OR ADOPTED BY ANY OFFICIAL, COMMISSION, BODY, AGENCY
OR BOARD OF THE UNITED STATES, THE STATE OF CALIFORNIA, OR
THE COUNTY OF SAN DIEGO, OR OF ANY DISTRICT IN WHICH THE
DEMISED PREMISES ARE LOCATED, PROVIDED THAT NO RULE, REGU-
LATION OR ORDINANCE OF SAN J~ARCOS, WHICH IS INCONSISTENT
WITH THE PROVISIONS OF THIS AGREEMENT, SHALL BE BINDING ON
CARLSBAD.
(D) SAN ~~ARCOS MAY ENTER UPON THE DEMISED PREMISES AT
ANY TIME AND HAKE SUCH IHPROVEMENTS AND REPAIRS AS IN ITS
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JUDGMENT MAY BE NECESSARY OR HAY BE REQUIRED BY LAW, AND
MAY FROM TIME TO TIME INSTALL ONE OR MORE RETAIL OR WHOLE-
SALE CONNECTIONS ON THE SAN MARCOS TRANSMISSION flAIN8
CARLSBAD WILL, ON THE EXPIRATION OF THE TERM HEREOF, OR ON
ANY SOONER TERMINATION OF THE ESTATE HEREBY GRANTED, PEACE-
ABLY AND QUIETLY SURRENDER, YIELD UP AND DELIVER TO SAN
MARCOS, THE DEMISED PREMISES, AND WILL WITHIN THIRTY (30)
DAYS AFTER THE TERMINATION OF THIS LEASE, REMOVE THE TEM-
PORARY SERVICE CONNECTION INSTALLED UNDER THE PROVISIONS OF
PARAGRAPH No. I HEREOF, AT CARLSBAD'S EXPENSE.
58 ELEMENTS
IN THE EVENT THE DEMISED PREMISES ARE DAMAGED BY EARTH-
QUAKE OR THE ELEMENTS OR OTHERWISE, SAN MARCOS SHALL REPAIR
THE SAME WITH DUE DILIGENCE, AND PLACE THE SAME IAT THE CON-
DITION IT WAS PRIOR TO SUCH DAMAGE. SHOULD SUCH DAMAGE BE
SO EXTENSIVE AS TO RENDER SAID PREMISES UNFIT FOR THE PUR-
POSE FOR WHICH THEY WERE LEASED, THEN THE RENT OR A PRO-
PORTIONATE PART THEREOF, ACCORDING TO THE NATURE AND EXTENT
OF THE DAMAGE, SHALL CEASE UNTIL THE SAME CAN BE REPAIRED BY
SAN MARCOS BUT CARLSBAD SHALL, IN NO EVENT, BE ENTITLED TO
COMPENSATION OR DAMAGES ON ACCOUNT OF ANY INCONVENIENCE OR
ANNOYANCE OR LOSS OF REVENUE BY REASON OF THE MAKING OF ANY
SUCH REPAIRS, OR BY REASON ON ACCOUNT OF SUCH DAMAGE. IN
THE EVENT THAT SAN MARCOS DOES NOT MAKE SUCH REPAIRS WITH
REASONABLE DILIGENCE, THEN CARLSBAD MAY AT ITS OPTION,
EITHER MAKE SAID REPAIRS AT ITS EXPENSE OR TERMINATE THIS
LEASE. CARLSBAD SHALL HAVE NO OTHER OR FURTHER RIGHTS OR
REMEDIES BY REASON OF THE FAILURE OF SAN MARCOS TO MAKE SUCH
REPA IRSa
r
6. REPAIRS
EXCEPT AS PROVIDED IN THE PARAGRAPH NEXT PRECEDING EN-
II TITLED ELEMENTS~', ~ARLSBAD AGREES NOT TO CALL UPON SAN
IYARCOS TO MAKE ANY RENEWALS, ALTERATIONS, ADDITIONS, IM-
PROVEMENTS OR REPLACEMENTS UPON THE PREMISES HEREBY LEASED,
OR IN, UNDER OR UPON ANY STRUCTURE NOW LOCATED THEREON OR
HEREAFTER PLACED THEREON, AND THE PARTIES HEIZETO EXPRESSLY
AGREE THAT SAN MARCOS SHALL NOT BE OBLIGATED TO MAKE ANY
SUCH RENEWALS, ALTERATIONS, ADDITIONS, IMPROVEMENTS OR RE-
PLACEMENTS. IN THE EVENT THAT SAN HARCOS SHALL FAIL TO MAKE
ANY REASONABLE REPAIRS TO THE DEHISED PREMISES AND CARLSBAD
SHALL MAKE SUCH REPAIRS, CARLSBAD SHALL BE REIMBURSED BY SAN
~TARCOS FOR ALL REASONABLE OUT-OF -POCKET EXPENSE INCURRED IN
MAKING SAID REPAIRS.
ALL ALTERATIONS, ADDITIONS OR IMPROVEMENTS IN OR TO SAID
PREHISES MADE DURING THE TERM OF THIS LEASE SHALL BECOME THE
PROPERTY OF SAN ~YARCOS AND SHALL REMAIN AND BE SURRENDERED
WITH SAID PREMISES UPON THE EXPIRATION OF THIS LEASE OR THE
SOONER TERMINATION THEREOF, EXCEPT ANY METERS, VALVES, EQUIP-
MENT AND SERVICE CONNECTIONS INSTALLED BY CARLSBAD AT ITS
EXPENSE.
SAN MARCOS SHALL NOT BE LIABLE AT ANY TIME FOR ANY LOSS,
DAMAGE OR INJURY TO THE,PROPERTY OR PERSON OF ANY PERSON
WHOMSOEVER AT ANY TIME OCCASIONED BY OR ARISING OUT OF ANY
ACT OR OMISSION OF CARLSBAD OR OF ANYONE HOLDING UNDER
CARLSBAD, OR THE OCCUPANCY OR USE OF SAID PREMISES OR ANY
PART THEREOF DURING THIS TERM, AND CARLSBAD SHALL HOLD HARM-
LESS $AN flARCOS FROM ANY'AND ALL SUCH LIABILITY.
7. RESERVATIONS
SAN MARCOS RESERVES THE RIGHT FOR ITSELF, ITS AGENT AND
REPRESENTATIVES, TO ENTER UPON THE DEMISED PREMISES AT ALL
TIMES FOR THE PURPOSE OF ATTENDING TO SAN MARCOS’S BUSINESS
AND ITS INTEREST HEREUNDER, AND TO INSPECT SAID PREMISES AND
MAKE ANY REPAIRS OR IMPROVEMGWTS WHICH IT SHALL AT ANY TIME
DEEM NECESSARY FOR THE PRESERVATION OF SAID PRENISES, PRO-
VIDED, HOWEVER, THAT NOTHING HEREIN CONTAINED SHALL BE CON-
STRUED TO OBLIGATE SAN HARCOS TO MAKE ANY REPAIRS OR IM-
PRO VEMENTS WHATSOEVER.
CARLSBAD SHALL NOT ASSIGN, SUBLET, TRANSFER OR HYPOTHE -
CATE THIS LEASE OR ANY INTEREST OR ESTATE CREATED THEREBY,
OR ANY PART THEREOF, WITHOUT THE WRITTEN CONSENT OF SAN
MARCOS THERETO HAVING FIRST BEEN OBTAINED IN EACH AND EVERY
CASE.
9. NOTICES
ALL NOTICES AND DEMANDS OF ANY KIND WHICH SAN MARCOS HAY
BE REQUIRED, OR HAY DESIRE TO GIVE OR TO SERVE UPON CARLSBAD,
MAY BE GIVEN TO CARLSBAD BY DEPOSITING ONE COPY IN THE UNITED
STATES MAIL AT SAN EARCOS, SAN DIEGO COUNTY, CALIFORNIA,
POSTAGE PREPAID, REGISTERED, ADDRESSED TO CARLSBAD AT POST
OFFICE Box 265, CARLSBAD, CALIFORNIA, OR rN LIEU THEREOF BY
DELIVERING ONE COPY PERSONALLY TO ONE OF THE OFFICERS OR
DIRECTORS OF CARLSBRD, AND ALL NOTICES OR DEMANDS OF ANY KIND
WHICH CARLSBAD HAY BE REQUIRED OR MAY DESIRE TO GIVE TO OR
SERVE UPON SAN MARCOS MAY BE GIVEN TO SAN MARCOS BY DEPOSITING
THE SAME IN THE UNITED STATES MAIL AT CARLSBAD, SAN DIEGO
COUNTY, CALIFORNIA, POSTAGE PREPAID, REGISTERED, ADDRESSED TO
SAN MARCOS AT POST OFFICE Box 107, SAN MARCOS, CALIFORNIA,
OR IN LIEU THEREOF BY DELIVERING ONE COPY PERSONALLY TO ONE
OF THE OFFICERS OR DIRECTORS OF SAN HARCOS. THE PLACE TO
wrcH SUCH NOTICES SHALL BE SENT MAY BE CHANGED BY EITHER OF
THE PARTIES HERETO BY WRITTEN NOTICE GIVEN AS HEREINABOVE
PROVIDED. SERVICE OF ANY NOTICE OR DEMAND BY MAIL AS AFORE-
SAID SHALL BE DEEMED COMPLETE AND SHALL BE EFFECTIVE FROM THE
TIME THE SAME IS DEPOSITED IN THE UNITED STATES HAIL AS AFORE-
SAID, AND PROOF OF SUCH DEPOSIT SHALL BE DEEMED PROOF OF
SERVICE OF SUCH NOTICE.
20. WAIVXB OF LIABILITY
THE RIGHTS, POWERS, ELECTIONS AND REMEDIES OF SAN MARCOS
. CONTAINED IN THIS LEASE SHALL BE CONSTRUED AS CUMULATIVE AND
NO ONE OF THEM IS OR SHALL BE CONSIDERED EXCLUSIVE OF THE
OTHER OR EXCLUSIVE O$' ANY RIGHTS OR REMEDIES ALLOWED BY LAW,
AND THE EXERCISE OF ONE OR MORE OF SAID RIGHTS, POWERS, ELEC-
TIONS AND/OR REMEDIES SHALL NOT IMPAIR SAN BARCOS'S RIGHT TO
EXERCISE ANY OTHER.
11. VAI VER
NO WAIVER OF A BREACH OF ANY OF THE TERMS, COBENANTS, OR
CONDITIONS HEREOF SHALL BE BINDING UPON SAN MARCOS OR CARLSBAD
UNLESS SUCH WAIVER IS EVIDENCED BY AN INSTRUMENT IN WRITING
PROPERLY EXECUTED BY SAN P~ARCOS OR CARLSBAD, AND NO SUCH
WAIVER SHALL BE DEEMED TO BE A WAIVER OF THE BREACH OF ANY
OTHER PROPISION OR PROVISIONS HEREOF OR OF ANY SUBSEQUENT OR
CONTINUING BREACH OF THE SAME OR OTHER PROVISIONS HEREOF.
22. ATTORNEYS FEES
IN THE EVENT THAT EITHER PARTY HERETO SHALL BECOME IN-
VOLVED IN LITIGATION WITH THE OTHER, THEN THE PREVAILING
PARTY IN SAID LITIGATION SHALL BE ENTITLED TO A REASONABLE
I
ATTORNEY'S FEE TO BE FIXED BY THE COURT. EACH OF THE PARTIES
HERETO AGREE THAT IF IT DOES NOT PREVAIL IN SAID LITIGATION,
IT WILL PAY AND DISCHARGE SUCH ATTORNEY'S FEE TOGETHER WITH
ALL COSTS INCURRED BY THE PREVAILING PARTY.
13.' TRAiYSMISSION LOSSJYS
THERE SHALL BE NO OBLIGATION ON CARLSBAD TO COMPENSATE
SAN MARCOS FOR ANY UNACCOUNTABLE LOSSES IN SAN HARCOS'S TRANS- ,/
MISSION LINES, PROVIDED, HOWEPER, THAT IF A BREAK OCCURS IN
THE SAN MARCOS TRANSMISSION LINE BETWEEN BUENO STATION AND
THE TEWPORARY SERVICE CONNECTION INSTALLED BY CARLSBAD UNDER
PARAGRAPH No. 1, ANY AND ALL WATER LOSSES PROPERLY ALLOCATED
TO SUCH BREAK, SHALL BE BORNE IN PROPORTION TO THE WATER
ACTUALLY BEING TAKEN BY EACH DISTRICT FROM BUENO AT THE TIME
THE BREAK OCCURS.
24. -- CONSTRUCTION - OF TRAI?SflISSIUW FACILITIES BY CAHLSBAD:
CARLSBAD HAS REPRESENTED TO SAN MARCOS THAT IT WILL
IMMEDIATELY COHMENCE THE CONSTRUCTION OF A FOURTEEN ('14) INCH
LINE FROM THE TERMINATION OF SAN MARCOS'S TRANSMISSION MAIN
TO THE EASTERN BOUNDARY OF GARLSBAD, WHICH WILL CONSTITUTE
PART OF THE FACILITIES OF CARLSBAD USED TO DELIVER WATER TO
THE CITIZENS AND TAXPAYERS OF CARLSBAD. SAID LINE SHALL BE
CONSTRUCTED IN THE APPROXIMATE L3CATION AND OF THE MATERIALS
SET FORTH IN THE PLANS AND SPECIFICATIONS PREPARED FOR
CARLSBAD BY BOYLE L'NGINEERING COMPANY ENTITLED II ARTERIAL
MATER SYSTEM FOR IIYPROVEMENT DISTRICT No. 1 - TRANSMISSI ON
MAIN FROM SAN DIEGO AQUEDUCT UNIT A-2". CARLSBAD AGREES THAT
IT WILL INSTALL NOT TO EXCEED 16 EIGHT ('8) INCH OUTLETS WITH
FLANGE ON SAID FOURTEEN (14) INCH LINE WITHIN THE CORPORATE
AREA OF SAN MARCOS AT CARLSBAD’S EXPENSE, PROVIDED AN HARCOS
SHALL HAVE NOTIFIED CARLSBAD OF THE PROPOSED LOCATION OF SAID
OUTLETS PRIOR TO COMMENCEMENT OF CONSTRUCTION. SAID OUTLETS
SHALL BE LOCATED IN LOCATIONS APPROVED BY ~ARLSBAD. IF SAN
flARCOS DESIRES ADDITIONAL OUTLETS, OR OUTLETS OF A LARGgR
CA‘PACITY, ANY AND ALL COSTS INCURRED IN THE INSTALLATION OF
SAID OUTLETS OR ENLARGING SAID OUTLETS, SHALL BE BORNE BY
SAN P~ARCOS, AND SAN MARCOS SHALL DEPOSIT ANY AND ALL SUMS OF
MONEY REQUESTED BY CARLSBAD TO DEFRAY THE COST OF INSTALLING
SUCH OUTLETS. UPON REQUEST BY SAN MARCOS TO CARLSBAD, SAN
~YARCOS SHALL BE ENTITLED TO INSTALL METERS OF A TYPE APPROVED ,
BY CARLSBAD, ON SAID CONNECTIONS FOR THE DELIVERY OF LAN
MARCOS WATER TO PROPERTY LOCATED WITHIN SAN I~ARCOS. l”do WATER
DELIVERED THROUGH SUCH METERS TO SAN -HARCOS SHALL BE USED OR
DELIVERED OUTSIDE THE CORPOIZATE AREA OF jAN JfARCOS. ALL
MATERIAL AND FACILITIES USED IN MAKING SAID CONNECTIONS SHALL
BE APPROVED IN ADVANCE BY C’ARLSBAD AND INSTALLED AT SAN
MARCOS’S EXPENSE. No WATER SHALL BE DELIVERED BY CARLSBAD
TO SAN BARCOS, .OR CUSTOMERS OF SAN I~ARCOS, EXCEPT THROUGH
SUCH A METER.
SAN MARCOS AGREES TO PAY CARLSBAD FOR ANY AND ALL WATER
TRANSMITTED FROM THE TERMINAL OF $AN 2‘ARCOS ’S TRANSMISSION
MAIN THROUGH THE FACILITIES OF ~ARLSBAD TO THE POINT OF
DELIVERY TO SAN P~ARCOS OR ITS CUSTOMERS, A TRANSPORTATION
CHARGE OF $1.00 PER ACRE FOOT FOR EACH MILE SUCH WATER IS
TRANSPORTED THROUGH CARLSBAD FACILITIES. SAID CHARGES SHALL
BE DUE AND PAYABLE ON THE TENTH C~OTH) DAY OF EACH AND EVERY
HONTH FOR ALL WATER DELIVERED DURING THE PRECEDING MONTH.
NOTWITHSTA~VDING ANYTHING TO THE CONTRARY HEREIN CONTAINED,
SAN MARCOS SHALL ONLY BE ENTITLED TO TRANSPORT WATER THROUGH
THE FACILITIES OF CARLSBAD IF THERE IS SURPLUS CAPACITY IN
CARLSBAD’S FACILITIES AT SUCH TIIYE,
REQUIRES THE FULL CAPACITY OF ITS FACILITIES TO SERVE ITS
AND ANYTIPIE THAT CARLSBAD
CORPORATE AREA, SAN MARCOS SHALL HAVE NO RIGHT AT SUCH TIME
TO TRANSPORT WATER THROUGH CARLSBAD’S FACILITIES FOR THE USE
OF SAN MARCOS. THE RIGHT TO USE THE SURPLUS CAPACITY OF
CARLSBAD’S LINES SHALL NOT EXPIRE WITH THE TERMINATION OF
/
THIS LEASE BUT SHALL CONTINUE OVER SUCH PERIOD OF TIME AS
THERE IS SURPLUS CAPACITY IN CARLSBAD‘S LINE. CARLsBAD SHALL
BE THE SOLE JUDGE OF WHETHER SURPLUS CAPACITY EXISTS.
15b OPTION
AT ANY TIME AFTER THE FIFTEENTH DAY OF JANUARY, 1960,
AND PRIOR TO THE TERMINATION OF THIS LEASE, SIN HARCOS SHALL
HAVE AND IS HEREBY GIVEN THE OPTION TO PURCHASE THAT PORTION
OF THE FACILITIES OF GARLSBAD LOCATED WITHIN THE BOUNDARIES
OF SAN MARCOS AND EAST OF THE NEW AQUEDUCT TO BE CONSTRUCTED
BY THE AUTHORITY. THE PURCHASE PRICE SHALL BE THE COST TO
CARLSBAD OF SAID FACILITIES LESS DEPRECIATION ON A FORTY (40)
YEAR BASIS. !kE PRICE MAY BE PAID IN CASH OR MAY BE REPRE-
SENTED BY A CONTRACT OF PURCHASE AND SALE BEARING INTEREST ON
DEFERRED PAYMENTS AT THE SAME RATE OF INTEREST AS CARLSBAD IS
PAYING ON ITS 1956 SERIES GENERAL OBLIGATION BONDS FOR IH-
PROVEMENT DISTRICT ]/ob 1, TO WIT, 3.905%. NO PAYMENTS ON
PRINCIPAL SHALL BE REQUIRED FOR A PERIOD OF FOUR (4) YEARS,
AND PRINCIPAL SHALL BE AMORTIZED rnr TWENTY-SIX (26) ANNUAL
PAYMENTS IN THE SAME MANNER AS THE PRINCIPAL OF SAID GENERAL
OBLIGATION BONDS IS AMORTIZED.
IN THE EVENT SAID OPTION IS EXERCISED PRIOR TO THE
#-
COMMENCEMENT OF THE DELIVERY OF WATER BY THE AUTHORITY TO
CARLSBAD FROM THE NEW AQUEDUCT, ~ARLSBAD SHALL HAVE THE
RIGHT TO USE THE ENTIRE CAPACITY OF SAID LINE, BUT SHALL RE-
IMBURSE SAN EARCOS FOR ALL CARLSBAD WATER TRANSPORTED THROUGH
SAID LINE AT THE RATE OF $2.00 PER ACRE FOOT FOR EACH MILE
SAID WATER IS TRANSPORTED.
IN THE EVENT THAT PRIOR TO JULY 5, 1960 THE AUTHORITY
HAS COMMENCED CONSTRUCTION OF THE NEW AQUEDUCT, AND $AN
MARCOS HAS SURPLUS CAPACITY IN ITS LINES, THIS LEASE MAY BE
RENEWED BY C'ARLSBAD FOR A LIKE PERIOD, AND UPON THE TERMS
AND CONDITIONS SET FORTH HEREIN, BY GIVING WRITTEN NOTICE OF
ITS ELECTION TO EXTEND THIS LEASE TO &AN ~YARCOS. I~OTWITH-
STANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, SAN
MARCOS SHALL BE SOLE JUDGE OF WHETHER SURPLUS CAPACITY EXISTS.
16. TEfl?ORAB Y SERVICE
UNTIL THE COMPLETION OF THE FOURTEEN (14) INCH LINE TXAT
IS TO BE CONSTRUCTED BY CARLSBAD IN THE SAN HARCOS AREA, SAM
MARCOS GIVES CARLSBAD PERMISSION, AT CARLSBAD 'S ELECTION, TO
INSTALL A TEMPORARY CONNECTION AT THE END OF SAN MARCOS'S
TWELVE (12) INCH FOOTHILL LINE AT THE LOCATION SHOWN ON Ex-
HIBIT A. ALL COSTS INCURRED IN CONNECTION WITH THE IN-
STALLATION OF SAID SERVICE CONNECTION SHALL BE BORNE BY
CARLSBAD, AND SAID CONNECTION SHALL BE DISCONNECTED AND RE-
MOVED AT SUCH TIHE AS CARLSBAD'S UNIT A-2 IS COMPLETED AND
CONNECTED TO AN BARCOS ~'RAIVSMISSION MAIN. SAN P~ARCOS IS NOT
OBLIGATED TO DELIVER THROUGH SAID CONNECTIONS WATER AT A RATE
OF FLOW IN EXCESS OF ONE (1) CUBIC FOOT PER SECOND.
2: 7. OPERATION -,.
CARLSBAD AND SAN MARCOS AGREE THAT THE DEMISED PREMISES
AND THE SAN flARCOS TRANSMISSION MAIN WILL BE OPERATED IN
SUCH MANNER AS WILL ALLOW CARLSBAD AND SAN MARCOS TO RECEIVE
AND TRANSPORT WATER IN THE REQUIRED AMOUNTS FROM BUENO UNDER
THE THEN EXISTING RULES AND REGULATIONS OF BUENO AND THE
AUTHORITY. IT IS THE INTENTION OF THE PARTIES HERETO THAT
CARLSBAD SHALL HAVE AND IS ACQUIRING THE RIGHT TO TRANSPORT
4270 OF THE WATER CAPABLE OF BEING TRANSPORTED THROUGH SAN
*
flARCOS'S Y'RANSMI SSI ON MAIN.
I# WITflZSs i?fiXfiE?OF, THE PARTIES HERETO HAVE SET THEIR
.A HANDS THIS /.df DAY OF JUNE, 1957.
SA# MARCOS COUiVTY j4Al'EB DISTRICT
BY
BY
CARLSBAD MUNICIPAL MATER DISTHCT
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