HomeMy WebLinkAboutSan Marcos County Water District; 1980-06-16;. , . . F'ipa-1 Draft 'q ; fr
THIS MEMORANDUM OF UNDERSTANDING is entered into
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MEMORANDUM
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A, ,-, . . -. . . ./ , OF UNDERSTANDING FOR a-:..,; i ..-ji . 1 ._. .
ENLARGEMENT OF SAN 1ARCOS COUNTY WATER DISTRICT OCEAN OUTFALL f-/T{ (-Jr c,qf;i"s&Jg
FAILSAFE PIPELINE Geieioptneni.al Servicer.
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this 16th day of June, 1980, by and between SAN MARCOS .. . .
COUNTY WATER DISTRICT (hereinafter referred to as "SAN *
MARCOS"), and the following owners and/or developers of real ..
mm=rty I who are hereinafter collectively referred to as
"DEVELOPERS":
CARLSBAD PACIFIC B&NESS CENTER, . a general partnership composed of Miller-Davis Company, a Colorado general partnership and Koll Carlsbad Associates, .a general partnership composed of the Koll Company, Inc., and Koll Carlsbad, Inc.
LAKE CALAVERA HILLS ASSOCIATES, a California partnership.
LA COSTA LAND COMPANY . .
PALOAMAR BUSINESS PARE, . a joint venture composed of Signal Landmark,.
Inc-, a California corporation; Palomar Air- port Park, Ltd., a California limited partner-
ship; and Donald C, McHone, an individual
CARLSBAD 0AKs (SANTA FE commx), a partnership composed of Lomas Santa Fe, Inc., and Fairhomes; Inc-
MARYBRESSI
PONDEROSA HOMES, a California general partnership
TARNUTZER-HAMILTON-HUNTER, a California general partnership
CARRILLO ASSOCIATES, a California general partnership composed of' Woodward Wmpany, Inc., and Meister Company, Inc-
AETNA CAPITAL COMPANY, a California corporation
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DAON-CARRILLO RANCH (DAON CORPORATION), a Delaware corporation authorized to do business in California
BYRON WHITE, (CAREtILL RANCH0 PARTNERSHIP)
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CARLSBAD RACEWAY COMPANY
MITSUI FUDOSAN (USA), INC., d;b,a. Palomar Airport Business Park
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. DAON-SHADOW RIDGE (DAON.CORPORATION), a Delaware corporation authorized to do business in California
(MITSUI FUDOSAN (USA), INC., d-b-a, Palomar Airport Business
Park, is participating at this time on.behalf of itself and _
the following other owners and/or developers of real property
in the area known as Palomar Airport Business Park: Birtcher
Pacific; Allan B- Jaffee; Laughlin & Fox Associates; City I.nvestors,
Inc.; Thomas-Hensey-Nicol Company; Leqnard McCroskey; Trojan Pro-
perties; Graham International, Inc.; and Lael Hare,) .
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RECITALS
A, Pursuant to an agreement dated March 3, 1980,
between The Daon Corporation, hereinafter referred to as "Con- .
tractor" as to its obligations pursuant to said agreement,
and SAN MARCOS, which agreement is hereinafter referred to as .
the "San Marcos-Daon Agreement," Contractor has agreed to
construct a pipeline more specifically described therein, con-
sisting in part of a pipeline described in plans, specifications
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and contract documents prepared by CM Engineering entitled,
"Contract Documents for the Construction of a 12-Inch Failsafe
Outfall Sewer for Daon Corporation," dated May 7, 1980, and the
remaining portion of which pipeline is an approximately 136O-
foot segment to be constructed on the site of the Encina Water
Pollution Control Facility, which two portions of the pipeline
are hereinafter collectively referred to as the "Project", _
The Project extends from SAN MARCOS' Meadowlark Treatment Plant
to the Encina Ocean Outfall downstream of the Encina Water
Pollution Control Facility, as shown on Exhibit "A" to this
Memorandum of Understanding, which Exhibit is by this reference -
incorporated herein.
B. Pursuant to the San Garcos-Daon Agreement,
, Contractor and SAN BfiRCOS agreed to permit an enlargement of
the Project, the cost of said enlargement to be borne com-
pletely by the party or entity making such a request for en- . *
largement.
c. Section 3 of the San Marcos-Daon Agreement
provides that all necessary funds associated with said pipe-
line capacity enlargement must be advanced or'& deposit upon
demand of Contractor and shall be placed in an interest bearing
trust account controlled by Contractor, to be used by Contractor
only for progress payments associated with said pipeline en-
largement.
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D. SAi+ HARCOS and"Contractor require that said
necessary funds be on deposit with Contra&or no later than 12:OO -m
noon on June 13, 1980, to be placed in said interest bearing
trust account.
E. By Addendum No. 1 to the plans, specifications and
contract documents referred to hereinabove, portions of the -
pipeline included within the Project were designed in certain
alternative sizes, to facilitate enlargement thereof.
F. .DEVELOPERS, except LAKE CALAVERA HILLS ASSOCIATES -
and DAON-SHADOk RIDGE (DAON CORPORATION), are the owners and/or
developers of a portion of'the real property within the Palomar
Airport Sewer Service Area in the County of San Diego; LAKE,
CALAVERA HILLS ASSOCIATES is the owner and/or developer of a
portion of the real property within the Lake Calavera Hills Sewer . ! Service Area in the County of San Diego"and DAON-SHADOW RIDGE
(DAON CORPORATION) is the owner and/or developer of real property
withina portion of Buena Sanitation District, in the County of
San‘Dieso. Said real property of DEVELOPERS is generally depict-
ed on Exhibit "B,' hereto, consisting of three pages, which Exhi-
bit is by this reference incorporated herein. ;
G* It is the intent of DEVELOPERS to have capacity in
the Project constructed so as to meet the needs of their property
as depicted on Exhibit "B", for disposal of any surplus reclaimed
water which cannot be reused by DEVELOPERS or appropriate public
agencies, at such time as facilities for collection, treatment,
reclamation, storage, reuse and failsafe disposal have been . .
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. constructed to serve said property, in accordance with all ap-
plicable legal requirements. St is the further intent of the
parties that such capacity being funded by DEVELOPERS will., at a
future date be assigned to the City of Carlsbad and Buena Sani- .
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‘- - - 'tation District or their successors who will, in cooperation wi?& w -- ;11j* =- - maintain,,such -capacity for the benefit of . -- "d - said property, .-
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H, ' Some of the DEVELOPERS, including, but not by Nay‘
of limitation, MITSUI FUDOSAN (USA), INC, I d-b-a, Palomar Mrport . .
Business Park, and Birtcher Pacific (participating through MITSUI
FUDOSAN (USA),'XNC., &b,a.'Palomar Airpdrfz Business Park), as
well as other owners and/or developers of-real property depicted
. on Exhibit "B" who are not now'participating in this Memorandum
of'understanding, including, but not by way of limitation, The' .
Huntington Beach Company, desire to increase the amount of their_
participation or becom e PARTXCIPAT'ING DEVELOPERS, as hereinafter . defined, as the case may be, in the fundiilg of the enlargement,.
to serve property which is &or~n on Exhibit "B" but for which a - . . . : --
pro rata share of'& enlargement capacity is not being funded s
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at this time, at such time as said other property receives fur-
ther developmental approvals, and desire to increase or comence _
such participation in the manner set forth in this Memorandum . - .
of Understanding for additional DEVELOPERS (Section 9), The -.
DEVELOPERS and SAN MARCOS acknowledge such intent and agree to
cooperate in good faith in allowing such later participation to
the extent the necessary additional capacity has been funded by
DEVELOPERS and is available, .
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I. Those DEVELOPERS desire to be parties to this
Agreement who, on or before 11:00 a.m. on June 12, 1980, exe-
cute and return a counterpart hereof to SAN MARCOS committing
to fund their pro rata share of the total cost of the reaches
of the pipeline to be enlarged to serve their property, and
who deliver to Contractor, by cash or checks payable to "Daon
Corporation - Ocean Outfall Trust Fund" at the address of
kontractor set'forth in Section 12 hereof, 'on or before 12100 noon -
on June 13, 1980, the amount determined as hereinafter set forth,
which amount shall be determined by 12:00 noon on June 12,.1980, . which DEVELOPERS shall hereinafter in some instances be referred
to as @'PARTICIPATING DEVELOPERS". .
5. Pursuant to the requirements of the California
' Environmental Quality Act ("CEQA") and the guidelines imple- .
menting CEQA promulgated by the Secretary of Resources for
the State of California ("State EIR Guidelines")‘an environ-
mental impact report ("EIR") entitled "Final Environmental
Impact Report -i San Ilarcos County Water District Wastewater - e m-
Treatment and Reclamation Project Expansion," dated February 19, -
1980, has been prepared and certified as complete by SAN MARCOS
for the Project as well as other facilities of SAN W4RCOS,' _
K. A Notice of Determination was filed by S-AN .
MARCOS on March 10, 1980, approving the Project, pursuant to
the requirements of CEQA and the State EIR Guidelines,
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DEFINITIOXS
All of the definitions contained in the San Marcos-
Daon Agreement shall govern this Memorandum of Understanding,
unless otherwise specified herein,
COVEBANTS
June 12, 1980,'committing to fund a pro
1. Enlargement. The PARTICIPATING DEVELOPERS who.
have executed a counterpart.hereof on or before 11:00 a-m- on
rata-share of the-cost of
on Exhibit "A" an&who
or check made payable
the enlargement of the Project as shown .
have deposited with Contractor, by cash
to "Daon Corporation - Ocean Outfall Trust Fund" at the address.
of Contractor set forth in Section 12 hereof, the amount calcu-
lated pursuant to Section 3 of this Memorandum of Understanding
by 12:00 noon on June 13, 1980, and SAN MARCOS agree that Con- - I tractor shall cause those reaches of the Project serving the -
property depicted on Exhibit "B", hereinafter referred to as "the
Buena Reach" and "the Carlsbad Reach," which reaches are depicted
on Exhibit "A" hereto, to be enlarged from an internal diameter .
of 12 inches to 16 inches as to the Buena Reach, alid from 12
inches to 24 inches as to the Carlsbad Reach, inclusive of that
portion of the latter reach located on the site of the Encina
Water Pollution Control Facility. The increase in the size o=
the Buena Reach and Carlsbad Reach to the diameters as speci-
- fied in this Section shall hereinafter be referred to as "the
EnlargementH. Each PARTICIPATING DEVELOPER'S pro rata share of
the cost of the Enlargement shall be calculated as set forth in
Section 3 hereof.
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2. Design and Construction of Enlargement, The
construction of the Project, inclusive of the Enlargement, shall
be accomplished by SAN PIARCOS and Contractor in the manner set .
forth in the San 21arcos-Daon Agreement, The Enlargement shall be
accomplished'by means of construction of the Project with an _. -.
internal pipeline diameter of 16 inches for the Buena Reach and
24 inches for the Carlsbad Reach. All references to the Project
contained herein shall be deemed to mean the Project as enlarged _
pursuant to this Memorandum of Understanding, except where the
context requires otherwise..
3. Responsibility for Enlargement Costs, costs
relating to the Project, inclusive of the Enlargement, including,
but not limited to, all professional fees, all perGit fees, all
taxes or other assessments, all labor andmaterial costs, costs
of performance bonds if required by SAN MARCOS, cost of the audit
to be conducted pursuant to Section 14 of the San Marcos-Daon
Agreement, and any other associate& costs as defined in Paragraph
(e) on Page 4 of the San Marcos-Daon Agreement shall be shared on
a pro rata basis proportional to percentage of capacity committed *. -* , - _
and reserved as set forth in this Section. It is currently
estimated that if all of the above-named DEVELOPERS elect to
become PARTICIPATING DEVELOPERS, Contractor and such PARTICIPATING
DEVELOPERS will fund the cost of the Carlsbad Reach, presently .
estimated to be $738,500, in the following percentages:
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Carl&id Reach
CARLSBAD PACIFIC BUSINESS CENTER LAXE CALAVERA HILLS ASSOCIATES
LA COSTA LRND COMPANY PALOMAR BUSINESS PARK CARISBAD OAKS (SANTA FE COMPANY) . MARY BRESSI PONDEROSA HOMES TARNUTZER-HAMILTON-HUNTER CARRILLO ASSOCIATES AETNA CAPITAL COMPANY . 'DAOPJ-CARRILLO RANCH (DAON CORPORATION)
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11.70%
13.00% 4 .4.90% 4.76%
8.16% . .. 8.02% 0.27% 0.41% 1.90% 1.90%
. 4.35% . BYRON WHITE (CARRILLO RANCH0 PARTNERSHIP) 1.50% CARLSBAD RACEWAY COMPANY 2.86% WTSUI FUDOSAN .(USA), INC. 3.67% .
DAO~-SHADOW RIDGE (DAON CORPORATION) 16.30% . .
Contractor 16.30%
Subject to the provisions of Section 17, the above-listed per-
centage amounts shall be readjusted among those DEVELOPERS who
elect to become PARTICIPATING DEVELOPERS and commit to fund a
portion of the capacity on or before June 12, 1980, as prdvided
in Section 1, so that the total amount deposited by the PARTICI-v
PATING DEVELOPERS, together with Contractor's pro rata share, . -
will fund 100% of the cost of the Carlsbad Reach; as enlarged to -
serve the entire Palomar Airport Sewer Service Area, in the
following manner: the capacity needs of the PARTICIPATING DE-
VELOPERS shall be totaled, and each PARTICIPATING DEVELOPER's
capacity shall be divided by such total. The resulting percent-
age shall be that PARTICIPATING DEVELOPER's share of the total
portion of the cost of the Carlsbad Reach to be borne by PARTI-
-CIPATING DEVELOPERS. For purposes of said readjustment, DAON-
SHADON RIDGE (DAON CORPORATION) and LAKE CALAVERA HILLS ASSOCIATES,
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whose capacity funded in the Enlargement will serve portions
of Buena Sanitation District and the Lake Calavera Hills Sewer
service Area respectively, shall not be included among the
PARTICIPATING DEVELOPERS whose percentages may be readjusted.
It is further estimated that Contractor and DAON-' - 1 . .
SHADOW RIDGE (DAGN CORPORATION) will fund the cost of the
Buena Reach, estimated to be $360,000, in the following per-
centages: . . c
. Buena Reach . .
Contractor .50% DAON-SHADOSJ RIDGE (DAON CORPORATION) 50%
The PARTICIPATING DEVELOPERS, except for DAON-SHADOFJ RIDGE
(DAoN coRpowmoN), are not participating in the funding of the -
Buena Reach or the San Marcos Reach as depicted on Exhibit *'A*'.
.: 4. Deposit of Funds. All funds deposited with
Contractor to accomplish the enlargement, including additional
amounts deposited as provided in this Section, shall be held -.
in an interest-bearing trust account and shall be disbursed
only-for the expenses of the Project to'be paid by PARTICIPATING _
DEVELOPERS as provided herein. The amount deposited by each
PARTICIPATING DEVELOPER, including any additional amount deposit&, _
plus interest credited to such amount, less the amount act&.ly~
expended by Contractor to fund the Project, will be returned to
each PARTICIPATING DEVELOPER by Contractor. The amount actually
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so expended shall be that PARTICIPATING DEVELOPER's capital
contribution to the Project. _
If'Contractor determines that additional funds will
be required to fund the Buena Reach and/or the Carlsbad Reach .
of the Project, Contractor shall so notify PARTICIPATIMG DE-,
VELOPERS in writing, and PARTICIPATING DEVELOPERS who are fund-
ing capacity in the reach for which such additional funds are
necessary shail deposit their pro rata share of such funds in
proportion to their capital contributions, as determined pur-
suant to Section 3.hereof, within ten (10) days of receipt of
said notice.
5. Vesting of Capacity. PARTICIPATING DEVELOPERS
shall have rights to the capacity added to the Buena Reach and
the Carlsbad.Reach of the Project by means of the enlargement,
in proportion to their respective capital contributions, de-
termined by multiplying the actual capacity of said reaches as
constructed by the percentages set forth in Section 3 hereof. SAN
MARCOS shall-own and operate the Project, PARTICIPATING DEVELOPERS
intend to and may assign their capacity to other persons ox en- .
tities, including Buena Sanitation District (hereinafter referred
to as "Buena") and the City of Carlsbad, (hereinafter referred - ;
to a,s "city") subject to the prior approval of SAN MARCOS,
No such assignment of capacity shall be effective until so approved
by SAN MARCOS. Such approval shall not be unreasonably withheld,
and shall be based upon SAN MARC& continued ability to main-
tain and operate the Project-
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. It is contemplated that should PARTICIPATING DEVELOPERS'
capacity be assigned to City and Buena, as appropriate,
City and Buena will use such capacity as a part of their res- -
pective facilities, and will, in cooperation with SAN MARCOS,
share in the maintenance and operation of the Project in the
manner set forth in an agreement to be negotiated and entered
into between.kJN MARCOS, City and Buena, The foregoing not-
withstanding, it is expressly agreed that no PARTICIPATING
DEVELOPER shall have any. right to utilize its capacity right ta
discharge any reclaimed effluent into the Project unless SAX *
MARCOS has first approved said utilization of such rights-to
capacity, which approval shall be conditioned upon SAN MAXOS* _
I entering into an agreement for joint operation and maintenance
of the Project with the sewer agency within which such PARTICI- -
PATING DEVELOPER's property lies (currently City or Buena),
or other entity acceptable to SAN MARCOS. Any transfer of the
land depicted in Exhibit "A" shall include a written notation _.
of this restriction on assignment of capacity rights created .-
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herein. Pending assignment to City and/or Buena, SAN MAIZCOS *
and PARTICTPATING DEVELOPERS shall share repair or replacement
costs of the Project in proportion to their capacity rights on
a reach by reach basis! and SAN MARCOS agrees to obtain the prior
approval of PARTICIPATING DEVELOPERS for any repairs or replace-
ment estimated to cost over Ten Thousand Dollars ($10,000) in
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. the reaches in which such PARTICIPATING DEVELOPERS have capa-
city rights, ekcept in cases 0E emergencies, Upon completion - . . .-
of constructi& and'acceptance of the Project by SAN MARC&; -1 _
- ' pAR!rIcIPATIHG DEWELOPERS shall exe'cute' and.d&.ver to SAN ._' __ .
-&L?LRCOS all documents, if any, necessary to-vest title to.tbe -
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-constructed facilities ?&rS MARCOS subject to the capac5ty i : - . . . . .
-rights set f&h in this Memorandum of Understanding; - '
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6, Possessory ,Interest. If the ownership or cap&
.city rights created hereby-shall result in a t&able possessory . .
interest, PARTICIPATING DEVFZOPERS agree t6pay any su& t-s
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in the proportions detkined in Section 3 hereof, . . . . .
. 7.'. 'Award of Construction.Contract, The award of Y
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. contract provided for herein shall be made as provzded in the' . ~.
San Marcos-baon Agreement.
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If SAN MARCOS fails to'approve -_ . . . .-.
pridr'to~~ovexber 1, 1980, 'award of a contract or contracts ---- . . . . . --_
“to :accom&sh the Project, or-if Contractor.fails to enter into - . . -
such contra& or-oontracts by said 'aate, afi amoun3zs deposited - . *. - . - -
. -. . . . -hereunder shall be'r&st&ned to PAR!CICI~ATING DEXE+OPERS, zn-. -- ‘"'*'- . .*. . - . . . - . . . .' . . . . . - . . eluding inteiest earned thereon;‘ unlesi such date is &ctende~ - -- . -
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by.';nuttxal z&eemen~ df 'the parties-
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-8. Change Orders. .Change orders affecting the: m L
cost of the Carlsbad Reach shall not exceed a cumulative le. i
amount of $75,000LO0 unless prior written approval of PARTxCTpAIc-
JNG‘DEVELOPERS is obtained by SAN MARCOS and Contractor, change -
orders affecting the cask of the Buena Reach shall no.t exceed
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a cumulative amount of $75,000.00 unless prior written approval
of DAON-SHADOW RIDGE (DAON CORPORATION) is obtained by SAN MARCOS
- and Contractor. Written notice of change orders exceeding the
cumulative amounts set forth herein shall be made as provided
in Section 12, and if any PARTICIPATING DEVELOPER so notified
fails to either approve or disapprove such change order within
ten (10) days, it shall be“deemed approved by such PARTICIPATING
DEVELOPER.' . *
9. Additional Parties. It is agreed that addi-
tional owners and/or developers of real property shown on Exhi-
bit "B" who have not executed this Eiemorandum of Understanding
to assume a proportionate share of the funding of the Project .
(hereinafter referred to as "ADDITIONAL DEVELOPERS") may become
PARTICIPATING DEVELOPERS and parties hereto, and that PARTICI- . . PATING DEVELOPERS may increase the amount of their participation,
in the manner set forth in this Section.
a. Con'sen't '&id Ndtike, ADDITXONA'L, DEVELOPERS or
PARTICIPATING DEVELOPERS desiring to increase the amount of their
participation shall so notify the PARTICIPATING DEVELOPERS, as -
provided in Section'12 hereof; of their desire and intent to -
purchase capacity or additional capacity in the Project, Said
ADDITIONAL DEVELOPERS desiring to become PARTICIPATING DEVELOP&S
and PARTICIPATING DEVELOPERS desiring to increase the amount of -
their participation in the funding of the Enlargement may do so
with the consent of the majority of the PARTICIPATING DEVELOPERS
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and in the manner hereinafter set forth.- Each PARTICIPATING DE-
VELOPER agrees to make capacity available for purchase by such
ADDITIONAL DEVELOPERS or PARTICIPATING DEVELOPERS desiring to
obtain additional capacity, to the extent such PARTICIPATING
DEVELOPER has capacity rights in the Project in excess of the _ -
amount needed by such PARTICIPATING DEVELOPER's property as
set forth in Exhibit "C" hereto,
b. Right to Purchase.
Within thirty (30) days of receiving the notice pro-
vided for in subsection (a) of this Section, any PARTICIPATING
DEVELOPER may notify the other PARTICIPATING DEVELOPERS of its
intent to purchase the available capacity, and its right to
purchase shall take priority as against that of an ADDITIONAL
DEVELOPER. If two or more PARTICIPATING DEVELOPERS desire to
purchase excess capacity and the amount of said excess is less
than the total amount they desire to purchase, their rights to
purchase such excess capacity shall be apportioned based on the
-proportion which their respective capital contributions to the
Project bear to each other. The foregoing notwithstanding, no
PARTICIPATING DEVELOPER or ADDITIONAL DEVELOPER may purchase an
amount of capacity which will result in a flow greater than the
flow need of such PARTICIPATING DEVELOPER'S or ADDITIONAL DE-
VELOPER'S property as set forth in Exhibit "C" to this Memorandum
of Understanding, consisting of two pages, which Exhibit is by
this reference incorporated herein-
, C. Amount of Reimbursement. A PARTICIPATING DEVELOPER
desiring to increase the amount of its participation in the funding
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of the Project and acquire additional capacity therein or
ADDITIONAL DEVELOPER desiring to obtain capacity rights may,
after having obtained the consent of the majority of the PAR-
TICIPATING DEVELOPERS, purchase the amount of capacity deter-
mined as provided in subsection (b) of this Section, by reimburs-
ing the then PARTICIPATING DEVELOPERS for its proportionate share
of all costs funded by PARTICIPATING DEVELOPERS pursuant-to this
Memorandum of Understanding plus an amount, hereinafter referred
to as the "additional amount", to be determined as follows:
i. The additional amount to be. paid by PARTI-
CIPATING DEVELOPERS as to property located within the Palomar
Airport Sewer Service Area as depicted on Exhibit "B", or ADDI-
TIONAL DEVELOPERS as to property located within the Palomar Air-
port Sewer Service Area as depicted on Exhibit "B" and entirely
within the boundaries of the California coastal zone, as defined
upon the date hereof pursuant to the provisions of the California
Coastal Act, shall be based upon the average prime interest rate
for each quarter or portion thereof during the period from the
date hereof until the date of such reimbursement ("the reimburse-
ment period*'). All necessary California Coastal Act approvals _
must be obtained prior to such purchase of capacity.
ii. The additional amount to be paid by any
other ADDITIONAL DEVELOPER shall be that amount determined
as provided in subsection i, multiplied by one hundred fifty
(150%) percent. Reimbursement shall be made to each of the
PARTICIPATING DEVELOPERS pursuant to the percentages set forth
in Section 3 hereof, or as adjusted as herein provided. At such
time ,as ADDITIONAL DEVELOPERS become PARTICIPATING
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DEVELOPERS and parties to this Memorandum of Understanding, it
is agreed by each of the PARTICIPATING DEVELOPERS and ADDITIONAL
DEVELOPERS that SAN MARCOS shall recompute the appropriate
percentages of all PARTICIPATING DEVELOPERS including such .
ADDITIONAL DEVELOPERS who have become PARTICIPATING DEVELOPERS.
An addendum shall be attached to this Memorandum of Understand-
ing setting forth all future reimbursement and other obligations . ,
by all parties, and executed by all PARTICIPATING DEVELOPERS, as
well as the ADDITIONAL DEVELOPERS who have become PARTICIPATING
DEVELOPERS.
d, Assignm&t. Nothing contained in this Section
shall prevent any PARTICIPATING DEVELOPER from assigning it&
capacity rights in'the Project in connection with a sale, lease,
or other transfer of its property, and its successor in interest
shall,become a PARTICIPATING DEVELOPER upon execution of a copy
of this Memorandlim'of Understanding. .
101 Arbitration "of Disputes. Any
claim between the parties to this Memorandum
controversy or
of Understanding;
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including, but not limited to, any claims, disputes, demands, . .
differences, controversies, or misunderstandings arising under,
out of, or in relation to this Memorandum of Understanding, or
any alleged breach of this Memorandum of Understanding, shall
be submitted to and determined by arbitration in accordance
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with the California Arbitration provisions contained in
Civil Procedure 51280 et seq., as amended from time to
time,
The .arbitrator or arbitrators shall determine the
rights of the parties in accordance with the law and the -. s
award shall be subject to review as to the arbitrator's' .
application of the law by any court having jurisdiction of
the matter, whether or not any mistake of the law shall appear
upon the face of the award. As to all questions of fact, how-
ever, the determination of the arbitrator or arbitrators shali_
be binding upon all .parties and shall be deemed final and .
conclusive.
; of fact and conclusions of la\? as to all issues determined by. . . . the award. Subject to the above limitations, the award granted
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Each party shall be entitled to written findings
.
by the arbitrator shall be binding upon all parties to the arbi-
tration and judgment upon the award rendered by the arbitrator
or arbitrators may be entered in any court having jurisdic&ion.
over the matter.'
11. Attorneys' Fees. In the event any arbitration . .
proceeding, administrative proceeding or litigation in law or.
in equity, including an action fog declaratory relief, is
brought to enforce or interpret the provisions or perfor-
mance of this Memorandum of Understanding, the prevailing party
shall be entitled to the award of reasonable attorneysV fees
-18-
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and the costs of the proceeding, which shall be determined .
by the Court or the-presiding officer having.authority to
make this determination.
If any party to this Memorandum of Understanding
becomes a party to any litigation, administrative proceeding. -
or arbitration concerning the enforcement or interpretation of .
the provisions of this Nemorandum of Understanding or the per-
formance of this Memorandum of Understanding by reason of any . act or omission of another party or authorized representatives _
of another party to this Memorandum of Understanding and not
by any act or omission of the party that becomes a party to
that proceeding or any act or omission of its authorized.repre-
sentatives, the party that causes another party to become in- .
volved in the proceeding shall be liable to that party for .
reasonable attorneys' fees and costs of the proceeding incurred
by that party in the proceeding. The award of reasonable -
attorneys' fees and costs shall be determined as provided above. .
In the event opposing parties have each prevailed
on one or more causes of action actually contested or admitted . .
by pleadings or prehearing documents on file, the presiding
officer shall make an award of attorneys' fees and costs, but
the presiding officer may prorate such fees and costs between
prevailing parties based on the necessity of the proceeding
and the importance of the issue upon which each party has pre-
vailed.
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12. Notice. Except as provided in Section 1,
any notice, payment or other instrument required or permit-
ted by this Memorandum of Understanding to be given to any
party shall be deemed to have been received when personally -
. delivered or upon depositing the same in the United States -
Mail, certified, return receipt requested, postage prepaid, ad-
dressed to:
SAN MARCOS:
Contractor:
San Marcos County Nater District 788 West San Marcos Blvd. San Marcos, Ca. 92069 . Attn: Jim McKay;General Manager
Dam Corporation - 4041 MacArthur Blvd. -Newport Beach, Ca, 92660 Attn: Michael K. Ryan, Projec* Manager
.DEVELOPERS:
.
Carlsbad Pacific Business Center c/o The Koll Company 7330 Engineer Road . . San Diego, Ca. 92111 Attn: Bernard E. Fipp .
Lake Calavera Hills Associates 1270-D Elm Avenue Carlsbad, Ca, Attn: Roy J,
La Costa Land Costa De1 Mar Car&bad, Ca, Attn: Irving
92008 . . Ward
Company Road 92008 Roston
Palomar Business Park c/o Signal Landmark 17890 Skypark Circle Irvine, Ca. 92714 Attn: Mike O'Dell
Carlsbad Oaks c/o Santa Fe Company 3575 Kenyon Street San Diego, Ca. 92110 Attn: Paul K, Tchang, President
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. . _...
.’ - % - 1 c- . . : -- CA . *. . . - ,
Mary Bressi c/o Browne & Vogt 630 Alta Vista Drive, Suite 203 Vista, Ca, 92083 Attn:. Ronald W, Wootton .
--
Ponderosa Homes . P-O- Box 23-40 w Newport Beach, Ca, 92660 Attn: John Garcia .
Tarnutzer-Hamilton-Hunter 2915 Redhill, Suite F200 Costa Mesa, Ca. 92627 Attn,: Floyd William Hunter, XII
Carrillo Associates
c/o The Woodward Company, Inc,- 5100 Campus Drive Newport Beach, Ca, 92660 Attn: Don E, Woodward
Aetna Capital Company .
c/o The Woodward Company, Inc. 5100 Campus Drive Newport Beach, Ca, 92660 . Attn: Don E. Noodward -
Daon-Carrillo Ranch (Daon .Corporation) 4041 MacArthur Blvd. Newport Beach, Ca, 92660 Attn: Michael XI Ryan
Byron White (Carrillo Ran&o Partneksh: 600 B Street, Suite 2050 . .
San Diego, Ca, 92101 Attn: Byron White . .
. Car&bad Raceway Company c/o Belsan Investment Company _ 3311 Starline Drive Rolling Hills, Ca. 90274 Attn: Larry Grismer
Mitsui Fudosan (USA), 'rnc, .d.b.a. Palomar Airport Business Park 6361 Yarrow Drive, Suite A Carlsbad,'Ca. 92008 Attn: Bernard Gilmore
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Daon-Shadow Ridge (Daon Corporation) 4041 MacArthur Blvd. Newport Beach, Ca. 92660 Attn: Wayne H, Callaghan
Notice of a change of address-shall be delivered in
the same manner as any other notice provided by this paragraph,
but shall not be deemed effective until received by the other
parties to this Memorandum of Understanding.
13. Partial Invalidity.' If any term, covenant,
condition or provision of this Memorandum of Understanding ,
is held by a court of competent jurisdiction or by an arbit-
ration proceeding as provided herein to be invalid, void or
unenforceable, the remainder of the provisions hereof shall
remain in full force and effect and shall in no way be affected,.
impaired or invalidated thereby.
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14. Disclaimer Relative to Treatment Facilities.
Each of the PARTICIPATING DEVELOPERS agrees that its partici-
pation in the funding of the Project does not create any right
to receive sewer service, obtain development approvals, or to
have constructed any collection, treatment, reclamation, or . . . -
storage facilities, othec than the facilities included within
the Project, to'serve its property by any of the other parties,
15:. Successors in Interest. Unless otherwise
provided in this Memorandum of Understanding, the terms, cove-
nants and conditions contained herein shall apply,to, inure.
to the benefit of, and bind the heirs, successors, executors,
,administrators and assigns of the parties hereto. --
16. Venue. In, the event of any legal or 'equitable
proceeding to enforce the terms or conditions of this Memorandum
of Understanding, the parties agree that venue shall lie only .
in,the federal or state courts in or nearest to the North County
Judicial District, County of San Diego, State of California.
17. .- Execution. This Memorandum of Understanding _ _ may be signed in counterparts and each separate counterpart
shall be deemed an original and shall be effective as to the
Buena Reach upon execution by SAN MARCOS and DAON-SHADOW RIDGE
(DAON CORPORATION) and effective as to the Garlsbad Reach
between all signatories at such time as it is executed by SAN
MARCOS, DAON-SHADOW RIDGE IDAON CORPORATION) and any number of
.
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DEVELOPERS other than DAON-SHADOIJ RIDGE (DAON CORPORATIOti)
whose capacity needs total 758 of the total capacity needs e
of all DEVELOPERS other than DAON-SHADO:g RIDGE (DAON CORPORA-
TION). Each DEVELOPER who, in the manner set forth in Section
1 hereof, executes this Memorandum of Understanding and de-.- *
livers to Contractor, by cash or check, the amount determined - .
. ix-i Section 3 hereof, shall become a PARTICIPATING DEVkLOPER, --
provided such DEVELOPER has executed, concurrently herewith,
the "Memorandum of Understanding Between Developers and Daon as .
Cbntractor" and the "Memorandum of Understanding Between Developers
'and Carlsbad Pacific Business Center", which documents are at-
tached hereto as Exhibits "D" and "E", respectively, and by this .
reference incorporated herein.
18. Relationship of Daon Corporation. The Daon . . *
Corporation in executing this Agreement does so as DAON-
SHADOW RIDGE (DAON CORp0RATION) and DA~N-~ARRILL~ RANCH (DAON
CORPORATIOT\I!, owner and developer of real property located.with-
in sewer service areas in the County of San Diego,'and not in . - . . -
its corporate capacity as Contractor-, as defined in the San i .I
Marcos-Daon Agreement, dated March 3, 1980, and in this Memo- -
rtindum of Understanding for Enlargement of San Marcos County - _
Water District Ocean Outfall Failsafe Pipeline.
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IN WITNESS WHEREOF, the parties hereto have executed
this Memorandum of Understanding this /6* daY.of J&fle
1980.
,
.DAON-SHADO?rRIDGE (THE DAON CORPORATION), a Delaware corporation,aut.horized to do
CARLSBAD PACIFIC BUSINESS CENTER,
a general partnership composed of Miller-Davis Company, a Colorado general _ partnership and Koll Carlsbad Associates, a general partnership composed of the X011 and /x011 Carlsbad., Inc, -
'LAKE CALAVAR\ HILLS ASSOCIATES,
a California partnership
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LA COSTA LAND COMPANY
B
BY
PALOMAR BUSINESS PARK, a joint venture composed of Signal Landmark, Inc., a California corporation, Palomar Air- a California limited @artier- an individual
.* -- \
. BY
CARLSBAD OAKS, by . Santa Fe Company,. a partnership composed Inc., and Fairhomes, Inc.
BY
MARY BRESSI
PONDEROSA HOMES, a California general partnership
BY
BY
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TARNUTZER-HAMILTON-HUNTER,
a California general partnership
By T&;dz< T
Floyd William Hunter, III .
CARRILLO ASSOCIATES, a California general partnership composed of Woodward Company, Inc,, and Meister Company, Inc.
AETNA CAPITAL COMPANY,
em-CARRILLO RANCH (DAON COR~OR~~TION),
BYRON WHITE (CARRILL~ RANCH0 PARTNERSHIP)
CARLSBAD RACEWAY COMPANY, by Belsan Investment Company, a California corporation; Rubel Investment Company, a u Investment
(- . a : (- . . . . l
* . .
MITSUI FUDOSAN (USA), INC., d.b,a. Palomar Airport Business Park
BY
.
BY -
BY
BY
1 -
BY
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'LA COSTA LAND COMPANY
. .
.
BY
PALOMAR BUSINESS PARK, .Fn:oint venture yomposed of Signal Landmark, _ a Callfornla corporation, Palomar Air- . port'Park, Ltd., a California limited partner- ship, and Donald C. McHone, an individual
BY . -
BY
CARLSBAD OAKS, by Santa Fe Company, a partnership composed of Lomas Santa Fe, Inc., and Fairhomes, Inc,
Bv
BY
MARY BRESSI
BY/ XC& /&, .z .yy,z ,‘,
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BY
PONDEROSA HOMES, a California general partnership
BY
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LA COSTA LAND COMPANY .
BY,
BY
. PALOMAR BUSINESS PARK, a joint venture composed of Signal Land&xc,
Inc., a California corporation, Palomar Air- _ port Park, Ltd., a California limited partner- ship, and Donald C; McHone. an individual
BY .
BY - .
CARLSBAD OAKS, by
. Santa Fe Company,' a paktnership composed
. of Lomas Santa Fe, .Inc., and Fairhomes, Xnc. . .
- .
BY
MARY BRESSI
- .
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-BY
.
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BY.
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TARWTZER-HMILTON-HUNTER, a California general partnership
BY Floyd William Hunter, III
CARRILLO ASSOCIATES, _
a California general partnership composed of Woodxard Company, Inc,, and Meister Company, Inc
* . BY .
BY . e
. . .
. AETHA CAPITAL COXPANY,- . - a California corporation
BY . Don E. Woodward, attorney-in-fact
. DAON-~ARRILLo -CH (DA~~J CORPORATIOX) a Delaware corporation authorized to d; - .. business in California .
-.
BY
. . -
'By -_ : . _- . .
_ . :BYRON WHITE (CARRILLO -
-.
.
CARLSBAD RACEWAY- COXPANY, - by Belsan Investment Company, a California - corporation; Rubel Investment Company, a California corporation; and Sandru Investment _ Company, a California corporation
. BY
BY . -
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. .
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\. PALOMAR AIRPORT
SEWER SERVICE AREA SEWER SERVICE AREA GRAPHIC SCALE GRAPHIC SCALE SO00 FEZI SO00 FEZI 3-d 3-d
2, 2, KOII KOII
3. 3. Signal Landmark E Signal Landmark E
* Other SmalI Properties * Other SmalI Properties
4. 4. Miscellaneous Property Miscellaneous Property
5. 5. C&Isbad Oaks C&Isbad Oaks
7, 7. La Costa North La Costa North
8. 8. Carillo Ranch & Carillo Ranch &
Other SmaII Properties Other SmaII Properties
9. 9. E3 ressie Ranch E3 ressie Ranch
10. 10. ,hli&ellaneous Southwest ,hli&ellaneous Southwest . .
Properties Properties
11. 11. Miscellaneous Northwest Miscellaneous Northwest
of KolI of KolI
SAN MARCOS COUNTY WATER DISTRICT REVISION-t
OCEAN OUTFALL FAILSAFE PIPELINE JUNE lO~l980 8
JUNE II, 1980
SAN MARCOS COUNTY WATER DISTRICT REVISION-t
OCEAN OUTFALL FAILSAFE PIPELINE JUNE lO*l9SO a
JUNE II, 1980
MEMBRANDUM OF UNDERSTAND1
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PALOMAR AIRPORT SEWER SERVICE AREA FLOW DISTRIBUTION
PROJECT ** FLOW IN MILLIONS OF GALLONS PER DAY
1.
2.
3.
4.
5.
6.
7.
8.
*
**
Lake Calavara Hills Associates o,o*
Carlsbad Pacific Business Center 0.86
West of Airport A. Signal Landmark B, Huntington Beach Company 0*35
0.05
Beckman, Costa Rio Municipal Water District, County, Etc. 0.44
Carlsbad Oaks (Santa Fe Company) O-60
Palomar Airport Business Park .
A-l Palomar Airport Business Park (Mitsui Fudosan (USA), Inc.) A-2 Birtcher Pacific A-3 Laughlin & Fox Associates A-4 Graham International, Inc. A-5 Leonard McCroskey A-6 Lael Hare A-7 City Investors, Inc. A-8 Thomas-Hensey-Nicol Company A-9 Trojan Properties A-10 Allan B. Jaffee .
0.05 0.05
0.03
0.03 0.01 0.01
0.02
0.02 0.01 O-04 .
B. Palomar Airport Business Park
Phase II O-07
C. Palomar Airport Business Park Phase III O-07
La Costa Land Company
Carrillo Ranch
A. Carrillo Associates B. Aetna Capital Company C. Carrillo Ranch (Daon Corporation)
O-36
O-14
0.14 0.32
Not in Palomar Airport Sewer Service Area Number preceding each area or group of areas corresponds to numbered area on Exhibit "B"
EXHIBIT "C"
Page 1 of 2
.
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PALOMAR AIRPORT SEWER SERVICE AREA FLOW DISTRIBUTION
PROJECT ** FLOW IN MILLIONS OF GALLONS PER DAY
D. Tarnutzer-Hamilton-Hunter ' E, Ponderosa Homes F. Byron White (Carrillo Ranch0 Partnership) G. Carlsbad Raceway Company
0.03 0.02
0.11 0.21
9. Mary Bressi O-59
10, Miscelleneous Southwest Properties 0.15
11. Miscellaneous Northwest Properties 0.08
TOTAL 4.86
** Number preceding each area or group of areas corresponds to numbered area on Exhibit nB*r
. EXHIBIT "C" Page 2 of 2
* . . . . . (:-
MEMORANDUM OF UNDERSTANDING BETWEEN DEVELOPERS AND DAON AS CONTRACTOR
THIS flemorandum of Understanding is made effective - - .b . . as of the 12th day of June, 1980, and is entered into with
reference to the followiug facts: ~ . I
A.. . On March 3, 1980, San Marcas County Water Dis-
'trict ("SAN MARCOS'~) and Daon Corporatian, a Delaware corporation
("CONTRACTOR") entered into an Agreement for‘Des&gn and Construction .
of Ocean Otitfall Failsafe Pipeline ("San Warca!&Daon +greemznt")
whereby CONTRACTOR agreed to dessgn and construct an ocean ouffall .
.failsafe pipeline'("Project") pursuant ta specifications contained
in the San tiarcos-Dzion"$gr&mnent, . .
B. The San Marcas-Daon Agreement-provides that xe-. . _
quests for chapge& in the'specifications of the Project may be
made so.as to enlarge the Pfoject's capacity, - .
C!, Enlargement requests have been made by . . . :
prospective or present owners of real property in thti -area .
of the Project ("D&LOPERS"), - . ;. .- * . *
i
ing
and
for
.
'D, Thkparties desire to document their understand-
. . with respect to CONTRACTOR's proceeding with 'the de&g& - s
construction of the Project in response ta the requests
enlarged capacity. --.- *.
THEREFORE, the 'parties hereby-agree as follows;
.
EXHIBIT "D"
.
.* . ” . - c- . c .- .* .- . . l . . . . .- , .
1. Sir. 2 the costs of enlarging le capacity of
the Project are to be borne completely by the party or entity
making the request for enlargement as provided in the San _
Marcos-Daon Agreement, the parties agree that all .DEVEI,OPERS .
shall pay their pro rata share of the costs of the Carlsbad . . l
* or Buena Reaches, as such reaches are described and depicted
in ihe separate Memorandum of Understanding for Enlargemen-ts of -
San Marcos County Water District Ocean Outfall‘~F~~Zsafe Pipe-
line, dated June 12, 1980, directly to COXTRACXOR by cash or _ * . checks made payable to ."Daon Corporation - Ocean OutfaLl Trust
Fund". All such cash or checks .must be received by CONTRACTOR --
on or prior to 12:OO.noon on 3une 13,,1980, No request of any
DEVELOPER to participate in the enlargement will be honored by
CONTRACTOR ik that proposed participating DEVELOPER has not paid
/ . CONTRACTOR in the manner and within the time provided above- All
funds deposited with CONTRACTOR to accomplish the enlargement,
including additional amounts deposited as provided in Sectilon 4
of the separate Memorandum of UnderstandSng For Enlargement of -
- San Marcos‘County Water District Ocean Outfall Failsafe Pi.peline,
shall be held.by CONTRACTOR in an interest bearing t&s-L: account
, and shall be disbursed only for the expenses of the enlargement
of the Suena and Carlsbad Reaches of Project, DEVELOPERS may - . .
request CONTRACTOR or its agent from-time to time upon reasonable
notice to provide an up to date accounting of the funds disbursed
for the enlargement of the Buena and Carlsbad Reaches of the
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Project which accc 1. c .ting shall' shoi;' disburse .- :nts on
. . -.* . l
the basis '
of the pro rata shares of DEVELOPERS as provided in Section 3 .
of the separate Memorandum of Understtinding for Enlargement of
San Marcos.County Water District Ocean Outfall Failsafe Pipe-
line. f
2. DEVELOPERS hereby acknowledge that neither CON- m
- TRACTOR's receipt of payment for the enlarged capacity costs . -
nor its design'and construction of the Project with the enlarged .
capacity shall be construed as either an express or implied -
. representation by CONTRACTOR that the enlarged capacity, or
any capacity, will be ultimately made available'to the
DEVELOPERS, or.any of them, .and that any such ultimate .
availability of capacity is a matter strictly between DE-
. VRLOPERS, their respective sewer agencies--and SAX MARCOS, .
and 'not a matter affecting CONTRACTOR, except as to the enlarged * .
capacity as provided above. .The parties agree that CONTk?XTOR*s
only obligations are those expressly stated in the San Xarcos-
Daon Agreement, and involve only the design-and construction -.
of the ProjectWith the enlarged capacity specifications set - *
forth in the plans, specifications and contract documents pre-
pared by C&I Engineering, entitled, "ContractDocuments for the
Construction of a 12-Inch.Failsafe Outfall Sewer for Daon car- *
porationcn dated May 7, 1980, as referenced Zn the separate
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-1 xqemorandum of Und standing for Enlargement >f San Marcos -
County Water District Ocean Outfall Failsafe Pipeline, l
3. . The parties acknowledge that there have been
no express or implied representations by COZ?TRACTOR or SAN
MARCOS as to when or whether sewer service permits will ultintately
be made available to DEVELOPERS. In this regard, DEVELOPERS . -
hereby jointly and severally agree to indemnify, defend,- and'
hold CONTRACTOR harmless from and against all claims and lia-
bility arising out of or in relation to. any disputes between or
among any of them and/or with any other parties, regarding .
which DEVELOPERS, if any, are entitled to.sewer permits -
* and/of to capacity rights in the Carlsbad or Buena Reaches of
. the Project,. and/or the nurriber of such permits or nature of
such righ.ts which are to be made available to DEVELOPERS, - . -
4, CONTRACTOR hereby affirms its warranties as .. -- - - to the design and construction of the Project with the en- .
larged capacity as specified in the plans, specifications and
contract documents prepared by CM Engineering, entitled, "Con-
tract Documents for the Construction of a 12-Inch Failsafe out- .
'fall Sewer for Daon Corporation," dated May 7, 19 80, and referenced
in the separate Hemorandum of Understanding for Enlargement of .. . -
. San Marcos County Water District Ocean Outfall Failsafe Pipeline,
and the San Narcos&aon Agreement, and SAN NIRCOS hereby reaffirms
that all such warranties-will expire and be of.no further force or .
effect on the date of acceptance of the Project by SAN'MARCOS as
provided in the San 'Marcos-Daon Agreement,
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. . . . . . l - . . . . . . * .( . ’ L *. L . . l -I .
.
5 .- The parties further hgree that in no event .
shall CONTRACTOR's design and construction of the Project
. with the enlarged capacity, or its work on that Project, in. - *
any way affect its right to the 400 DUE's as provided in the _
San Marcos-Daon Agreement. .
In consideration of the above, in consideration of -
the clarifications contained above, and for other good and. * .
valuable consideration acknowledged by each party to be adequate,
CONTRACTOR agrees to accept the specifications and payments fox5 ..
enlarged capacity of the Project as contained in the plans, speci-
fications.and contract documents prepared by CM Engineering, en-
titled, "Contract Documents for the- Constkction of a 12-Inch
Failsafe Outfall Sewer for Daon Corporation, w ati referenced
/ in the'separate Memorandum of Understanding for Enlargeraent of
San Xarcos County Water District Ocean Outfall Failsafe Pipeline,
and to proceed with the, design and construction
as so modified. . .
of the Project
. - - -
If legal action is necessary to enforce or interpret -; - --
.any provision of this Memorandum of Understanding, the pre-. .
- vailing party shall be entitled to all costs and reasonable
attorneys8 fees incurred relative to that action, -_
Except as provided to the contrary in this Men-
orandum of Understanding the San Marcos-Daon Agreement is
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hereby ratified and reaffirmed,
"CONTRACTOR"
DA03 CORPORATIOX
BY
.
BY .
"DEVELOPERS" .
.
DAON-SHADOIV RIDGE (THE moN C~RP~R~~TI~N),- a Delaware corporation authorized to do
-business in California
Bv
_-._ _ ,._-. - ..-..... . . ..w. -.
BY
. CARLSBAD PACIFIC BUSINESS CENTER, a general partnership composed of Miller-Davis Company, a Colorado general partnership and Koll Car&bad Associates, a generkl partnership composed of the Koll Company, Inc,, and Koll Carl&ad, Inc,
BY
BY . -
LAKE CALAVARA~HILLS ASSOCIATES, a California partnership
. BY Roy J. Vard, general partner
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LA COSTA LAND COXPANY
.- .-
. . ** .
-
BY.
.BY
PALOXAR BUSINESS PARK, a .
tngint venture composed of Signal Landmark, a California corporation, Paloxnar Air- . - . por;'Park, Ltd., a California limited partner- ship, and Donald C, MeHone, an individual
BY . .
BY
CARLSBAD Santa Fe 7 - . of Lomas
OAKS, by company, a partnership composed Santa Fe, Inc., and Fairhomes, Inca _ - . .
BY
.
BY
MARY BRESSI
BY 4
.
. .- -
- -
_ - .
a -.
.* -
.
-.
BY .
. PONDEROSA HOMES, a California general partnership
.
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. . -:
. . ~ . . . . - - . -. __ . . .
l : *’ (’ ’ -* I CT-.
.- .- -
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TARNUTZER~HA.M;ltTON-HUNT,
l .
a 'California general parf;ership
BY Floyd William Hunter III
CARRILLO ASSOCIATES, .
a California general partnership composed of Woodward Cqrrrpany, Inc-, and Meister Company, Xnc
. BY -.‘*
. -
BY’. - * . - * . ..-.. . .
AETNA CAPITAL COMPANY, a California corporation
.
BY- . . -. . ..m
Don E. Woodward, attorney-in-fact
DAON-CARRILLO RANCH (DAON CORPORATION), a Delaware corporation authorized to do business in California
.By . . . . . . . . . . . . . . . . . .: . . . . . . . . . _
.
By.: . . . . . . . . . . . . . . ..: . . ...*.. . . . .
BYRON WHITE (CARRILLO RANCHO.PARTNERSHXP) - :- ,: . -. .
Bv. . . . . . . . . . . . I . . . . . * - . . . - . . - . . . - . . .
. . - .
Bv. . . * . . . . . . I . . . . . . . . . - . . . . . . . . . - . . .
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CARLSBAD RACEWAY COXPANY,
- by Belsan Investment Company, a California _ Corporation; Rubel Investment Company, a California corporation; and Sandru Investment
Company, a California corporation . -_
.
BY .
. . BY *
. - . . MITSUI FUDOSAN '(USA), INC.,. d.b,a, Palomar Aikport Business Park . . - BY - .
BY .
. .
. .
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6/6/W . ': Final.Dra.ft L . . . . . .- .‘h (- .- . . ‘I - . b
MEMORANDU&l OF UNDERSTANDING BETWEEN
DEVELOPERS AND CARLSBAD PACIFIC BUSINESS CENTER
-.
THIS MEMORXNDU&l OF UNDERSTANDIh7G is entered into -
by and between CARLSBAD PACIFIC BUSINESS CENTER, a general .
partnership composed of Miller-Davis Company, a Colorado- _
general partnership and Koll Carlsbad Associates, a gene&l -
partnership composed of the Koll Company, Inc., and Ho11
Carlsbad, Inc,, (hereinafter referred to as VCARLSBAD PACIF3Cn)c
and the following owners and/or developers of real property,.
who are hereinafter collectively referred to as "DEVELOPERS":
'LAEE CALAVERA HILLS ASSOCIATES, a California partnership .
I
. .
.
LA COSTA LAND COMPtiY
PALO>kR BUSINESS PARK; a joint venture composed of Signal Landmark, Inc-, a California corporation; Palomar Air- port Park, Ltd., a California limited partner- ship; and Donald C. McHone, an individual . .
CARLSBAD OAKS (SANTA FE COXPANY),
a partnership composed.of Lomas Santa Fe,
Inc., and Fairhomes,.Xnc, .
MARY BRESSI
PONDEROSA HOLMES, a California general partnership
TARNUTZER-HAMILTON-HUXTER, a California general partnership .
CARRILLO ASSOCIATES, a California general partnership composed of - - .~
. -
.
Woodvard Company, MC., and Meistcr Company, Xnc-
MTNA CAPITAL COMPANY, a California corporation
EXHIBIT "E"
c L Y’ . -. .- . . . . -: . l ’ c.
- . .
(,
.** .’ .‘.
. .
DAoN-CARRILLO RANCH [~A023 CORPORATION), . a Delaware corporation authorized to do business in California
/BYRON WHITE (CARRIL1LO RANCH0 PARTNERSHIP)
CARLSBAD RACEWAY CONPANY
.
MITSUI FUDOSAN (USA), INC-, - 'd-b, a, Palomar Airport Business Park . -
DAON-SHADON RIDGE IDAON CORPORATION), f a Delaware corporation authorized to do -
business in California
.
.
RECITA'LS
A. Pursuant to an agreement dated March 3, 3980,
between The Daon Corporation, hereinafter referred to as nCon-
. tractor" as to its obligations pursuant to sasd agreement,
and the San Marcos County Water District, hereinafter referred .
to as "San Marcos," which agreement is hereinafter referred to as .
the v San Marcos-Daon Agreement," Contractor has agreed to.con- _ . -
struct a pipeline more specifically .described therein, consist- - .
ing in part of a pipeline described in plans, specifications and - * contract documents prepared by CM Engineering entitled, "Contract
Documents for the Construction of a 12--Inch Failsafe Outfall .
Sewer for Daon Corporation," dated May 7, 1980, and the remaining
portion of which pipeline is an approximately 1300-foot segment
. . to be constructed on the site of the Encina Water Pollution Con-
trol Facility, which two portions of the pipeline are hereinafter
-2- .
. .
. . . l * * . -: . . .* . * c- - * (- . . - . : ‘; l . , . 1 s
collectively referred to as the "Project", The Project
extends from San Marcos' Meadowlark Treatment Plant to the
Encina Ocean Outfall downstream of the Encina Water Pollution
Control Facility, as shown on Exhibit "A" to this Agreement,
which Exhibit is by this reference incorporated herein,
B, Pursuant to the San Narcos-Daon Agreement,
Contractor and San Marcos agreed to permit an enlargement of
. -
the Project,' the cost of said enlargement $0 be borne com-
pletely by the party or entity making such a request for en-
largement.
C, At the'request and expense of CARLSBAD PACIFIC,
the Project was designed in alternative sizes -to faci.litate -
enlargement-thereof.
I
D. DEVELbPERS and CARLSBAD PACIFIC have entered
into a separate nemorandum.of understanding entitled, %emo-
randum of Understanding for Enlargement of gan Marcos ‘County
Water District Ocean Outfall Failsafe Pipelineru dated June 12,
1980, pursuant to which DEVELOPERS and CARLSBAD PACIFIC have
agreed to fund such an enlargement of the Project on 'a pro rata * -.
basis. - .
. E: The parties desire to document their understanding _ .
with respect to their proceeding with the funding of-an enlarge:
ment of the Project.
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.- . . . -. l : . .* . , r mpAw;~~: c . b _- ’ -. .
l- DE\i,LOPERS hereby adknowledgt that neither
CARLSBAD PACIFIC's request for enlargement nor its parti-
cipation in the enlargement of the Project shall be construed-
as either an express or implied representation by CARI;SBAD
PACIFIC that the enlarged capacity, or any capacity, will be
ultimately made available to the DEVELOPERS, or any of them,' -
and that any such ultimate availability of capacity-is a mat-- _ . .
ter strictly.between DEVELOPERS, their respective sewer agencies .
and San Mardos, and not a matter affecting CARLSBAD PACIFIC,
except as to its owe share of the capacity in the Project,'
The parties ?gree that CARLSBAD PACIFIC's obligations are
those expressly stated in the Memorandum of Understanding for
Enlargement of San Marcos County Water District Ocean Outfall
Failsafe Pipeline and involve only its participation.in the fund-
, ing of the enlargement on a prorata'basis with the other
DEVELOPERS that become "PARTICIPATI~~G DEVELOPERS': under said .
Memorandum of Understanding, as therein defined, .
2. The parties acknowledge that there have been _ -
no express or implied representations by CARLSBAD PACIFIC as
. -_
to &hen or whether sewer service perkits will ultimately be made
available to DEVELOPERS, or'wheii or whether CARLSBAD PACIFIC
will accom&ish or-participate in the ftidipg or construction -. . .
of any facilities for sewage collection, treatment, storage or .
reuse to serve the DEVELOPERS' and/or CARLSBAD PACIFICWs pro-
perties.
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_ _ . -. - - . . . - . . . . . . _.._.-..__ __ ." _ . ..____...w- --.-..- - -----.-- .._..-. . . . . . ..- .--. .--e-w, _
-. -:
. "DEVELOPERS"
. , a l * CA
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z *I
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’ 1 J r .
If legal action is necessary to enforce or
interpret any provision of this Memorandum of Understanding,
the prevailing party shall be entitled to recover all costs
and reasonable attorneys' fees incurred relative to that
action. . - s -. e
CARLSBAD PACIFIC BUSINESS CENTER, . e a general partnership composed of Miller-Davis Company,. a Colorado -
general partnership, and Koll Carlsbad Associates, a general partnership composed of the Roll Company, Inc,, and X011 Carlsbaa,‘ 1x-q.
DAON-SHADOW RIDGE (THE DAON CORPbR4TION), a Delaware corporation authorized to do business in California
BY
LAKE CAT24VERA HILLS ASSOCIATES,
a California partnership
. .
ROY J. Ward, general partner
-5-
-. .- . . .’ l ’ c- ” . *. . . I. ._- LA COSTA &ND';=OXPANY ( .- . * -8 .
. . .
PALOXAR BUSINESS PARK, a joint venture composed of Signal Landmark, Inc., a California corporation, Palomar Airport Park, Ltd., a California limited . . partnership, and Donald C, McHone, an individual
BYB
CARLSBAD Santa Fe . of -Lomas
OAKS, by e Company, a partnership composed Santa Fe, Inc, *. and Fairhomes. Xnc,
BY -
BY :
MARY BRESSI
f -
BY' w 1
PONDEROSA HOMES, a California general.partnership
BY
.
BY
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- .__.___ -em.- _-m.-e-.._-_ -. a-..- -_______._______- e._...---a.-I . . . . --.. - ----.--- -_-- ___*- - .-.-. . -.C_.- _ . . . - -..
.
.
c . :. w c . ; -
-- TARNUTZER=HAkTON-HUNT'-k l ‘. 4 . . .
a California general pa,;nership
BY, Floyd William Hunter III
CARRXLLO ASSOCIATES, a California general partnership composed of
Woodward Company, Inc,, and Eleister Company, Inc,
By’ . . . . . - _ _ _ . . .
BY' -. .- * _-.. - _ . ..e -
AETNA CAPITAL COMPANY, a California corporation .
BY' - ". ' - - . . .-...-
Don'E. Woodward, attorney-in-fact, . .
DAON-CARRILLO RANCH (DAON CORPORATION), a Delaware corporation authorized to do business in California
. By’ -.-* . . . . . . y.‘..-.w -em_____.._
.
.BYRON WHITE (CARRILLO RANCHC PARTNERSflIP). -
- .
By.. . . . . . . . . . . . . . . . . . . . *.--* *.-_. -_._
- .
-
By . . . . . . . . . . . . _ . . . . . _ _ . . _ . _ _ _ . . _ _ .
.___ -. . - . . .--.. .-..- - . ..- _ . . _- -......._..a.“. mm -me..- - . . . . ..-_- .e._*.- _- e. - . -*-_.. .
I l .* . , c- . . ; . rcL . c- c 1. *#I .- w c
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CARLSBAD RACEWAY CONPANY, by Belsan Investment Company, a California corporation; Rubel Investment Company, a California corporation; and Sandru Investment Company, a Calkfornia corporation
BY
BY
MITSUI FUDOSAN (USA), INC., d.b,a, Palomar Airport Business Park -. - i
. BY
.
Br
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.$ - ?i $ x z % 3,<,\--., a . .
DEVELOPMENTAL
SERVICES
k$ Assis!rnt City Manager (714) 4305596
Cl Building Department (714) 432-5525
0 Engineering Department (714) 438-5541
0 Housing h Reddsw Departme&
(714) 438-5611
0 Planning Department (714) -1
atp of 4CarlsbalB
1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008
January 20, 1982
San Marcos County Water District 788 San Marcos Boulevard San Marcos, CA 92069
ATTENTION: Jim McKay, General Manager
RE: SAN MARCOS TREATED EFFLUENT OUTFALL
The City of Carlsbad and Roy Ward, General Partner, 'Lake Calavera
Hills Associates, signed a revised agreement on January 20, 7982.
The tems of that agreement provide that all of Lake Calavera Hills
Associates' interests in the Lake Calavera Satellite Treatment and
Reclamation Facility, appurtenant pipelines and pump stations and
outfalis become the property of the City of Carlsbad.
A memcrandum of understanding dated June 16, 1980 and signed by
Lake Cafavera Hills Associates and the San Marcos County Water Dis-
trict provides for the transfer of Lake Calavera Hills capacity
rights Zn the San Marcos County Water District treated effluent out-
fall p'peline. The memorandum also provides that the transfer shall
be effective upon notice to the District of such transfer of owner-
ship.
This loiter and the attached certified document shall constitute p,orj=j zazjgn jc; t:he Dfstrict of such transfer of capacity rights
effecci~re aJar.uar:/ 20, :982.
L-k-u
RONALD A. BECKMAN
Assistant City Manager/
Developmental Services
Attachments
cc:
City Manager
City Attorney
City Clerk/
City Engineer
Utilities Director
(all w/o attachments)