HomeMy WebLinkAbout1991-08-06; Municipal Water District; 121; Approval of Aviara Phase II CT 89-37CARLSBAD M-IICIPAL WATER DISTRICT - -3ENDA BILL
AB # ,a, TITLE: APPROVAL OF AVIARA PHASE II
MT& 8-b - 4/ CARLSBAD TRACT 89-37 ENG DEPT. l
CMWD PROJECT NO. 90-504
DEPT. HD.~p~&
RECOMMENDED ACTION:
Adopt Resolution No. 350 for approval of Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and acceptance of Potable and Reclaimed Water System Improvements Agreement.
ITEM EXPLANATION:
Aviara Land Associates Limited Partnership, developers of Aviara Phase II project have submitted completed plans and agreement for water system site improvements. A performance guaranty in the sum of $733,100 has been posted to guarantee the improvements. This subdivision lies on the north side of Batiguitos Lagoon, east of I-5 and south of Poinsettia Lane.
It is recommended that the Board of Directors approve Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504, authorize the District Engineer to sign the improvement plans and the President to sign the agreement.
FISCAL IMPACT:
None.
EXHIBITS:
1. Location Map.
2. Potable and Reclaimed Water System Improvements Agreement (Onsite Improvements) for Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504.
3. Resolution No. 350 approval of Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and acceptance of Potable and Reclaimed Water System Improvements Agreement.
CMWD 90-504
PALOMAR AIRPORT
Project Site Boundary
I\ r ..- .
LEUCADIA
LA COSTA
city of hrldrd
AVIARA PHASE II I MP 177(B)/CT 89-37
LCPA 9005/HDP 90-2
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WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT 89-37, AVIARA PHASE 2
(Potable and Reclaimed Water Svstems)
(Onsite Improvements) *‘. '$$ .-. ..,
This Agreement%s, entered into on
/@f--r, ‘b. $ it: , ?
between CARLSBAD,MUNICIPALWATER DISTRICT (hereinafter %&/,i '4% t, /9 "DISTRICT") ,J' and AVIARA LAND ASSOCIATl&LIMITED PARTNERSHIP (hereinafter 'i ‘ _.s ., ‘.: 8
llDEVELOPERil)..with respect to the'following: / FT>
A ; "-L p *\ DEVELOPER is about t; present the map identified as I '-. Carlsbad Tract 89-37, Aviara Phas; II (Potable and Reclaimed Water Systems)
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i .. $’ :‘i, 1 the llsubdivisionl') to the Cityof Carl&bad for final approval under
J' '/ ,+' P 9% .I,. the Subdivision*MapkAct of &e"'State of California and represents
that DEVELOPER is,in:komplian<ce with the provisions of the City of .,.' / i f Carlsbad's o&inances\?_applicable to ,the filing and approval of ' / ‘;\ P,.@C . -7. i subdivision map&. L-) :.The property encompassed by the subdivision lies .J- p I ._, within the boundaries,ioE the DISTRICT. ~ :I 1 Iy #+'! + !" "
B. P & D Technoloqies,lSan Dieqo, California
has prepared,plans and
specifications for the construction of the water systems necessary
to provide water service to the subdivision. The plans and
specifications are identified as Carlsbad Tract 89-37,
Aviara Phase II (Potable and Reclaimed Water Systems)
consisting of 39 sheets, and are incorporated herein by
reference ("plans") . The plans and specifications for the water
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improvements, which are the subject of this Agreement, are set
forth on all sheets of those plans (tlimprovements"). The DISTRICT
Board of Directors has approved the plans.
C. No present commitment is required of the DISTRICT as
to water service to the lots in the above described subdivision. IT "-I ? ,I- --.-* * NOW THEREFORE,!! in consideration of the covenants, V' I. ,&-hi I ; conditions,and promises set forth‘below, and of the approval of the ;2, d "T-c, u-r- #$;'?a plans by the DISTRItT;:-the undersigned agree as follows: i ..-; , ! ' I.,. ,- Construction of Imbrovements. ,' DEVELOPER agrees to / .\ i to be' -*\ construct, or cause constructed, all of the water .' .
improvements set forth in the plans as described above within one f"-: P..
(1) year from'Xthe date of this Agreement. The improvements shall Y" : .$? p :; ? r*
be constructed in a good&and workmanlike manner under the direction 4 '-,. ,.‘ * = ,,I i . of and subject to the approval'of the DISTRICT, which approval will
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be exercised.ing$d*'faith and ;ili.not be unreasonably withheld. .I ,, ‘,.', ,I : ';+
The improvements '&I be con&ructed in accordance with the plans
by",'the
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approved DISTRICT ,"'and in-',. conformity with all other ,/-p "'y'
applicable standards for‘pipeline construction which have been / d 1'
adopted by the "DISTRICT. DEVELOPER shall construct the I ,b i * @ ,,.' / ) * <_ ,i improvements at its sole*cost'and expense, and without any cost or
expense to the DISTRICT.
2. Inspection Fees and Deposits. DEVELOPER agrees to
pay to the DISTRICT, on demand, the full amount of all costs
incurred by the DISTRICT in connection with the work to be
performed under this Agreement including, but not limited to,
engineering plan checking, construction inspection, right-of-way
expenses, materials furnished, and a reasonable amount for the
DISTRICT's indirect costs and overhead in connection with this
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project. The fees and costs shall be charged in accordance with
the DISTRICT's Ordinance 29. DEVELOPER shall remit to the DISTRICT
the fee of $ 14,754.oo I being the estimated amount of
the DISTRICT expenses, at the time this Agreement is executed.
3. Dedication and Accentance of Improvements. Upon -x* " ^ A' completion of the improvements in accordance with the plans, as ,. a /&-% ‘~ *
determined in ,-,good: ;f$ith 'by-, the.. DISTRICT's Manager and the I _. L$" : “3 : ,'
DISTRICT's Engineer, DEVELOPER shall dedicate and the DISTRICT ,' .L Ji' ) * .4 shall accept,. the improvement& 'as the public property of the a L . ., ., DISTRICT. The'DISTRICT shallfbe under no obligation to accept the ".,
improvements as public property of the DISTRICT until such time as /-'- f- . B * the following'acts have occurred: ,\
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'ta) All publi.o'improvements proposed to be constructed ; ‘ in said subdivision, including but not limited to, , I-i I streets, curbs,
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drains, sewer, ga&*and utility lines and the improvements required .\: / for the complete'kater system and necessary appurtenances thereto, < *t
as set forth' in this.,Agreement, : shall have been completed as " r\ *. ,_ ,-; .d determined reasonably and in good faith by the DISTRICT's Engineer. I ,,i ,‘
(b) DEVELOPER, Pt his own expense, provides to the '1 .-( *
DISTRICT all documentsiand title policies necessary to vest and
insure record title to the public, to DISTRICT and/or City, to all
easements and/or rights-of-way necessary to the ownership and
maintenance of the improvements. DISTRICT shall have the right to
approve the acceptability of said easements, documents and title
policies, which approval shall be exercised in good faith and shall
not be unreasonably withheld.
(c) DEVELOPER provides to the DISTRICT a statement
setting forth the actual cost of constructing the improvements.
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The DISTRICT's Board of Directors shall accept the
dedication on behalf of the DISTRICT upon the recommendation of the
DISTRICT Manager and DISTRICT Engineer.
4. Interim Maintenance of Improvements. DEVELOPER shall
be responsible for the care, maintenance and repair of all damage _.. r.._, to the improvements constructed under‘this Agreement until such &+y +., -'/ time as all water"systems' public' improvements to be constructed _' +,+i '-q*
under this Agreement, between DEVELOPER and the DISTRICT have been L I
completed and,dedi.cation thereof has been accepted by the DISTRICT.
"'\ i i 5 ,I,,“ . Guarantv of i Work and Materials. DEVELOPER i, guarantees, for a period of one (1) year after the DISTRICT accepts ,<y. 1 p ._
dedication thereof, ,'
; " that the improvements shall be free of any ',-. !f? >_
defects in'materials andA& workmanship.; DEVELOPER shall repair or ': .;: ‘ /'. \ replace, without cost to the DISTRICT,"any defect incworkmanship or ,. m-*-- ., 8 a<‘ 'Cl c I 4.. materials which~od~ur~'within that time. The DISTRICT shall notify .., !'
DEVELOPER in writingiof any 'such defect. DEVELOPER shall begin : :
repairs within, ten (IO) days after receipt of'such notice, and c- ,~ I-?," ' ., 1
shall proceed exped,i-tiously to complete the 'repairs within that
time, or the DISTRICT ~is:authorized to have the defects repaired at
the expense of DEVELOPER,
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and DEVELOPER shall pay the cost of such
repairs upon written demand by the DISTRICT. In the event of an
emergency, as determined reasonably and in good faith by the
DISTRICT's Board of Directors, Manager or Engineer, the DISTRICT is
authorized to have the defect causing the emergency repaired,
without notice, at the expense of DEVELOPER, and DEVELOPER shall
pay the cost thereof upon written demand by the DISTRICT.
6. Water Service and Occupancy Upon Completion. There
shall not be any permanent water service provided to any parcel of
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land within the subdivision, nor shall occupancy of any permanent
improvement within the subdivision be permitted, until the DISTRICT
has accepted dedication of the complete water systems for the
subdivision and title of all improvements, appurtenances, easements
and rights-of-way which are a part of such system. This provision
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does not limit DEVELOPER from requesting, *or the DISTRICT from . . ,,#.d’?~;, *. : _.
providing, temporary water "servitielto 'the subdivision to be used 1 \,J" "-9
during construction.. . 2, Other tempqrary water service may be allowed ; 4
under the terms .and conditions*&greed to between the DISTRICT and \
DEVELOPER. ‘\'/ 8' ". .!-' "= : 1 ,:
7. Bond or Guaranty. 'DEVELOPER shall furnish and , .., e F...
deliverrto the DISTRICT a performance‘guaranty in the penal sum of " : P * 7
$733.100.00~~~' to insure faithful.performance by DEVELOPER of I^ "< * 'i jt i
all obligations under thiscontract. ,' The guaranty shall be in the _, 9. ? 1 \ : i form of a'*Paithfu;'Performance/Warranty/Labor and Materials Bond
issued by a. reliable surety 'company, as determined by DISTRICT, 1, .
authorized to do business in the State-of California, or such other I" :i "'S."w.'
form of written/guaranty as is acceptable to the DISTRICT. 1 ,4 "r
8. Notice;.! All notices or other communications P -rq; c. : ."~ f required or permitted .under this Agreement shall be sent by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
To DEVELOPER Larry Clemens Avlara Land Associates
2011 Palomar Aimrt Road, Suite 206 Carlsbad. California 97009
To DISTRICT Robert J. Greaney, General Manager Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, California 92008
9. Benefit and Burden. This Agreement shall inure to
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the benefit of, and the obligations created hereby shall be binding
upon the heirs, successors and assigns of the parties hereto. The
DISTRICT acknowledges that there did exist a dispute between 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
Ye-'- .. ,,I -.. right to hold legal title::to all public improvements necessary to
'"'"Z provide such servige.'~ The DISTRICT-.filed an action for declaratory ., y/f! ‘""4, 'I
relief in the North County BranFh of the Superior Court of the ,o 7' * % .- L
State of California'for the County of San Diego, I. case no. N20027,
to resolve that dispute. The DISTRICT and the City of Carlsbad
have settled this lawsuit. jli The parties hereto agree that their _- '2 p; I“ i. */
rights ;'and obligations under this Agreement are subject to the ,,":
judgment,"‘judicial declaration, settlement or other determination .r :i .L_ P : made in the above-described~ legal proceeding on June 29, 1983. ^.-- , 4 .,.“ *' 10. Severabilitv -of Provisions. The invalidity or _
illegality of-any provisions of this Agreement shall not affect the : ,
validity or enforcement-~of the remainder of this Agreement. If any $ '*..- , provision or term hereof is found to be invalid or unenforceable, ..* .,g k I " A the rest of the Agreement shall remainin full force and effect as ' II Ly /I; + f'+
though the invalid or unenforc$hble provision was not a part of the
Agreement.
11. Waiver or Amendment. No provision of this
Agreement, nor any breach hereof, can be waived unless in writing.
Waiver of any one breach of any provision hereof shall not be
construed as a waiver of any other breach of the same or any other
provision hereof. This Agreement shall be amended or modified only
by a written agreement signed by the party to be charged with the
amendment.
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12. Governina Law. This Agreement and any amendments
hereto shall be governed by, construed and enforced in accordance
with the laws of the State of California.
13. Construction and Interpretation. This Agreement
contains the entire understanding and agreement of the parties as ', , ,), r"- t to the construction of: the complete water systems for the : .", 1
subdivision, a@ :, supersedes +-all-.- prior &&y?h+ :. ‘)
:>, 1 .$&& 1 +-T%, agreements, statements, c
discussions, represe,ytations andunderstandings pertainingtothese 2. \ water systems. - _(^_c_L r' : it /\,
14 >&,Attornev's Fees': The prevailing party in any action i
at law or in equity, including arbitration, brought to enforce or ._. . -‘= p 'i prevent{!+e'breach of this: Agreement, or any provision hereof, i .". 2 ., I '.I including '".% 1. but not limitedh to action for $f! ~; any injunctive of
declaratory relief, shall be entitled'to attorney's,fees and costs * ,...) 9 ) A,* ,I. J I "I, .a. -.. _*c incurred in such action, including those incurred in any appeal.
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15. Authority to Sisn. The individuals who sign this
Agreement on behalf of the undersigned partnership
certify that they have the authority and approval to do so on
behalf of such partnership .
Executed by Developer Executed by District This 2 day of .This Bi' day of [ \ , 194/y?; i ji c) u6uST / I 19x. ,"
DEVELOPER: /f-j " f
AVIARA LAND ASSOCIATESLIMITED I- 'DISTRICT:
PARTNERSHIP, a Delaware Limited Partnership -" "ii,
(name of,developer
By: '++I. 4 n//J-Q/~ i w here) ; i
D.L. CLEMENS, Vice Presid'ent (title of signatory) $ %: .,._ i
By: i., ~: .j' .,. (sign-here) '. TED L. HOOVER;-Asst. Secretarv (title of signatory)
Republic
-SE
D.L. CLEMENS, Vice President (title of signatory)
By: pL ,b+---
TED L. HOOVER, Asst. Secretary (title of signatory)
APPROVED AS TO FORM: VINCENT F. BIONDO, JR.
CBlWD-90-504
6/25/91 REV.
STATE OF CALIFORNIA
COUNTY OF San Diego
I 1 ss.
I
On July 2, 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me v . . :e to be the person who executed the within instrument as the Vice President and Ted L. Hoover personally known to me >is . m to be the person who executed the within instrument as the
Assistant Secretary of Aviara Land Company, a Delaware corporation, the corporation that
executed the within instrument on behalf of Aviara Land Associates Limited Partnership,
a Delaware Limited Partnership, the partnership that executed the within instrument, and
acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same.
WITNESS my hand and official seal.
&/k/ 0-e ifT&-J\,e/L
NOTARY PUBLIC I
(Seal)
STATE OF CALIFORNIA I 1 ss: COUNTY OF San Diego I
On Julv 2. 1991 before me, the undersigned, a Notary Public in and for said
State, personally appeared D.L. Clemens, personally known to me me
crory cJrrferrce to be the person who executed the within instrument as the Vice President, and Ted L. Hoover, personally known to me wasis
r be the person who executed the within instrument as the
Assistant Secretarv of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates
Limited Partnership, a Delaware Limited Partnership, the partnership that executed the
within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same.
WITNESS my hand and official seal.
(Seal)
LWLL
NOTARY
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RESOLUTION NO. 750
RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT FOR APPROVAL OF AVIARA PHASE II, CARLSBAD TRACT 89-32 AND ACCEPTANCE OF POTABLE AND RECLAIMED WATER SYSTEM IMPROVEMENTS AGREEMENT, CMWD PROJECT NO. 90-504
WHEREAS, AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership, have submitted completed plans and
agreement for potable and reclaimed water system onsite
improvements for Aviara Phase II, Carlsbad Tract 89-37, CMWD
Project No. 90-504; and
WHEREAS, it is recommended that the Board of Directors of
the Carlsbad Municipal Water District approve Aviara Phase II,
Carlsbad Tract 89-37, CMWD Project No. 90-504 and authorize the
District Engineer to sign the improvement plans and the President
to sign the agreement;
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors
of the Carlsbad Municipal Water District as follows:
1. That the above recitations are true and correct.
2. That the approval of Aviara Phase II, Carlsbad Tract
89-37, CMWD Project No. 90-504 and acceptance and authorization for
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the Distrrict Engineer to sign the improvement plans and the
President to sign Water System Improvements Agreement for onsite
improvements is incorporated herein by reference, is accepted.
PASSED, APPROVED AND ADOPTED at a meeting of the Board of
Directors held on the 6th day of August I 1991 by the
following vote, to wit:
AYES: Board Members Lewis, Kulchin, Larson and Stanton
NOES: None
ABSENT: Board Member Nyga
ATTEST:
c!! ALETHA L. RkJTENKRANZ, Secretary
(SEAL)
CMWD 90-504
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