HomeMy WebLinkAboutPDP 02; LAKE CALAVERA HILLS SEWER TREATMENT PLANT; Precise Development Plan (PDP)APPLICAT4It~ FOR ~RECISE DEVELOPMEN~~4AN
CITY OF CARLSBAD
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(Please Type or Print) Date':' November 20, 197.8
I} REQUEST: A Precise Development Plan to develop a waste water treatmeht
(briefly explain).
facility and a zone change for' the site from P.C .. to P.o.
2) . LOCATION: The subject property is generally located on the
3)
4)
5)
6)
7)
East and
North
South of
side of El Camino Real between
Highway 78
AP167-100-11: AP168-040-12: AP167-100-17:
ASSESSOR'S NUMBER: Book
Book Page
. ~ag. . Parcel ..L-Ji::rz.
APt67-040-11: AP208-...l-O.=08 and 03 ~.rt?~~
Parcel (If more, pleas list on -----
bottom of this page).
OWNER(S) : Name Address City Zip Pho:rle
Lake Cal avera Hills Associates,3088 pio Pico,Carlsbad, 92008 729-4912
Roy J. lti]ard
PERSON RESPONSIBLE FOR 'PREPARATION OF PLAN:
Roy J. ~vard 3088 pio Pico Carlsl;>ad 920:{).8 729-4912
Name Address City Phone
In Conjunction with Lowry & Associates, Dennis O'Leary 283-7145
REGISTRATION OF LICENSE NO:
APPLICANTS SIGNATURE: ~7J.. '-t4.J~.
I hereby declare that all in~~~'conta~ned wlthin this application
t and that'all standard conditions as indicated on the attach-
been read, understood and agreed.to.
~~8 pio Pico Carlsbad 92008 729-4912
Address City Zip Phone
Lake Calavera Hills Associates
(Representing (Company or Corporation )
(Relationship to.Property Owner(s) Owner
The City of Carlsbad Planning Department would appreciate the
opportunity to work with the .applicant throughout the Planning stages
'of the proposed development. In an effort to aid the applicant, the
Planning Department requests that it be given an opportunity to
evaluate and discuss the application and plans prior to submittal.
This request is not a requirement.; however, it may avoid major re-
drafting or revision of the plan which only serves to lengthen the
processing time. ._~~~
A.TTACHMENTS: Supplemental Information Form -PlannRJEiC E ]I. V ED'·
Standard Conditions -Planning 27
FORM:
Preparation .Check List _. Planning 31 NOY 2 S 19~8
Procedures -Planning 36
Planning 12
CITY OF CARLSBAil
-Date of Planning Commission App!,ta1difos OeRartme~t.
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CITY OF CARLSBAD
1200 ELM AVENUE • CARLSBAD. CALIFORNIA 92008
729·1181
DATE ~\...:7~Y;....::/~J.::..~..:.)~7....::J:....-__ _
A IC. NO. DES~RIPTION AMOUNT
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TOTAL dOC (}O 01"\ • (1<)(;.3 UU$VL0
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If after thc information you have submitted has been reviewed, it is determined
that furlthcr <information ,is re,quire<;1, you will be so advised.
Lake Calavera Hills Associates, a limited partnership
APPLICI~N: -Roy J. -Ward General Partner
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AGENT:
MEI.ffiERS :
Name (individual, partnership, joint venture, corporation, syndication)
3088 Pio pico
Business Address
729-4912
Te,~ephone Number
'Name
Business Address.
Telephone Number
Roy J. Ward
Name (individual, partner, joint
venture, corporation, syndication)
,
3088 Pio Pico, Carlsbad
Business Address
729-4912
Telephone Number
'II f m '(M.~~~b "\ Kl e er' .trust, _ \<.\kLG~~
Name
Don Bowk~r, Trustee
Business Address
729-4912
Telephone Number
1508 Galaxy Dr. Newport Beach
Home Address
Telephone Number
c/o-Roy J. Warq_
3088 pio pico
Home Address
P. O. Drawer -792
Oxnarq, CA.
Telephone Number
(Attach more sheets if-necessary)
I/We declare under penalty of perjury that the information contained in this dis-
closure'is true and correct and that it will remain true and correct and may be-
relied, upon as being true and correct until amended • .. -;~ ..... ~
Lake Calavera Hills Associates
BY
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i; 0, ."", .AMENDED CATION TO LOCA'r,;E, DESIG.AND CONSTRUCT, ~ , '
ELLITE SEWER 'J'REATMENT· FACILITY / ~ fl.. 'I ~ fMfOJA:L.)
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LAKE CALAVERA HILLS ~
History:
August, 1977, Lake Calavera Hills submitted a proposal to the City
Council for the approval of PUD-4, Tract 76-12 in the City. of Carls-
bad including an alternative Sewer Service Plan using a satellite
treatment facility to be located within Lake Calavera Hills. The
tentative map was approved wi·th no guarantee by city that the
sewer plant would be allowed.
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In March, 1977, an Amended Master Plan for Lake Calaver.a Hills was
acc~pted. by the City .of. Car,l~bad s:taf.:!= l ·.which i,nclwled .. a ~eque~.t
~s part of the Master Pl~ri',a "pr~posal for' an 'exte:nded aeration
. .
·oxidation ditch sewe~. treatment facility to .be ~ocated.·on .La~e
C~lavera. Hills property with sufficient. capacity to serve·Lake
',::.~.~'.:. ' .. Calavera Hills.· This" inclusion in the' i-laster ·:Pl"a.:ri cOhstitutes an
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. application for the facility (Pages 67, 68, 69).
Additionally, application was made to the· San Diego Regional Wat?r
Quality Control Board for a discharge permit using the proposed
£a'cilitY'in the Naster Plan as the discharger •. , 'A ·tentative letter
of discharge conditions was:sent to the City of Carlsbad in March,
1978 as a guideline of wha.t the Regional Water. Quality Control
Board Staff would recommend to the Board of Directors.
" September, 1977 -'City Council authorized a 'study to.be performed
~ .. ' ' .... by Lowry & Associates known as "Overview of Waste Water' Reclama-
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'} .' ., tion for the City of Carlsbad", wherein some ten potential si te .
~J locations were discussed and alternate service potentials jncluding
~ reclamation potential:were studied.
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, " • !',":::' •• f!" '\ . . " ,The Phase II st* of this report included. specific proposal by Q.
Lake Calavera H~s for a treatment facility to'be located on Lake
Calavera Hills property.
The draft of that proposal including a c~mparison of the optimum
site was give the city in March, 1978. , " '-·.ff-;f
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The City Council then authorized the City Manager to perform an
independent study to consider the impact on the 9rainage .basin of
a satellite plant being located within the northe~st drainage basin.
to be established and defined by Public ~vorks Director and the city
~tudy .• . ~ .. :' t '. ., : . ,
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The contract for this study was let to J.M. Montgomery to be com-
pleted in 70.days from June 20, 1978. . ','
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~ , k: .: . '. .... • . . • \~'i:/~~ :" ,.: " The' Public Works Director, the ·Pl~nning. Director a~d all parties
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.. ;. '-, ".:~ a'~ ~ having reviewed the Montgom.ery Report, ··an amendment to' the· original .'
<.v:, ~ application based on the general. guid.elines as .to. basin ~erv.ice .. '
<:~\~',~~'~::', -needs, was recbrrimended'bY'~it'aff to be'made'and is'herewith sU:bmitted~
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Original Proposal
"~~""':>.' The' original proposal as described 'in the·.lfaster Plan ~Amendment
:'~::./, .. :,., .... :> submitted I-larch, 1977, . (Pages 65, 66, 67, 68) consists of the,
:'~:.::_,:':~ .. , fOliowing: (See Page IV -5, 6, 7; Design Report) •
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1. Lake Calavera Hills Associates to plan, design, and co~
struct at its expense a 500,000 gallon per day capacity
satellite waste water treatment faciltiy as ~er alter-
native #9 of the Lowry & Associates Feasibility Study
dated April, 1977 •
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In addition, Lake Calaver~ Hills plans to reclaim wat~r
through _ use of wells at the n~_ property line for @
redistribution and use throughtout the project for irri-
gation purposes.
2.' The treatment facility would be located at the southwest
corner of the property; the influent treatment, then 'dis-
charged in the percolation field located in the northwest
portion of the property_ (See Page 67, Amended Master
Plan, March, 1977; Preliminary Design Report by Lowry
& Associates, March, 1978; ErR 403, Chapter 9, Utilities,
Pages 31,32, 33,34, November 9,1977).
Refer to Exhibits A, Band C attached.
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Hontgomery' ,Report Recommendation'
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4~i~;,;<··· The Montgomery Ba·sin Report estimates a requirement ·of 1. 2 million
r~\:.;\':::' gal~ons per day treatmeJ;1t facility.,
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Montgomery reco~~ends an extended aeration type of plant utilizing,
'. aerobic' digestion an'd the oxidatib'n ditch type 'of physical plant
consisting: of:
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2 -600,000 gallon ~xidation ditches with compressed
air inj ection.'
2 clarifiers.
I sludge belt compressor in lieu of sludge drying beds.
chlorinator contact chamber.
auxiliary building.
pumps, lines, for collector system
added percolation fields.
fail safe~line to Encina outfall.
-storage facilities for reclaimed water.
~ distribution system for reclaimed water.
This constitutes scope of the entire basin service treatment system
including reclamation •
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IV. Existing Liaations' and AVailable Se ts of Full Develo
of Proposed Basin Service System. ~ ~
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Available Site:
Lake Calavera Hills has an available site for the treatment
facility.
Lake Calavera Hills has a limited percolation
discharge capacity of which will be limited by
Quality Control Board to approximately 500,000
pond area.' the
Regional Water
gallons per day.
~d~~t~9.~~ercolation area must be located within the basin
that can be acquired if all 1.2 mgd is to ultimately be perco-
lated and reclaimed. ,\
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Lake Calavera Hills has d~veloped a plan for storage of reclaimed' .
water up to approximately 1.0 mgd.
o _~,to:age of reclaimed water outside of Lake Calavera Hills would
have to be" ~cq~ired "a-rid "c~nstructed~' .. , ..... ' :'.,' . :'. ", '. " ,
8' Added eumpl.ng facilities for collector, system to treatment plant~ _ ~ __ .
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',0. :, .collector. System' for Lake,. Calavera ,Hills furnished and, constructed .' .... _.' ".:.
by develo'per at 'nocost to 'city. ' -','
,~ ,Reclaimed water distrib~tio~ through tout Lake Cal avera Hills . . ..'.' .. .
furnished by developer at no cost 'to c{ty'~
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~ Segments outside control of Lake Calavera Hills
v. Preliminary Proposal by Lake Calavera Hills for Construction
of Satellite \vaste 'vater Treatment Fa!==ility.
Lake Calavera Hills Associates proposes to build on its property an
extended aeration oxidation ditch type satellite waste water treat-
ment facility on approximately a 5 acre (300' X 600') site., (See
Exhibit A). An easement for effluent line to the percolation field
and a percolation field of approximately 4.8 acres shall also be
included wit6 flood control channels and checkdams as required'
(See Exhibit B) •
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d" ~aKe Calavera H1LLS W1LL amena their original proposal of construc-
.< .... ' •• tion of a 500, OOe1gd plant to a 600, 00'0 mg~lant, realizing tha~)
maximum discharge capacity with this facility to the percolation ~
field would be 500,000 mgd.
Anticipating the future needs of the basin, Lake Calavera Hills
will also size the plant segments on site to the 1.2 mgd capacity
needed to serve the basin. Lake Cal avera Hills is willing to con-
struct the entire 1.2 million gallon facility at this time provided
that satisfactory financial arrangements for reimbursement of the
ad~itional idle and/or presently unusable capacity is arranged with
Lake Calavera Hills
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Lake Calavera Hills will aid in the facilitation of the construc-
tion and implementation of the entire system to serve the basin .. : . .. ?:«::. .' by .. granti.ng eas~ments over its prope:rty as required.
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. ~<;;~~r:~:',.·· .. .:-.. Lake Calavera Hills. ~?~s not consider that it 'is our responsibility
to "see to it" that the entire service or system is completed.
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The .city wou~d b~ .. ob~igated ,in our view to. comp~et:e the syst~m to
t:he .degree that it desires it to be completed to service the basin'.
Lake· Calavera· Hills can .. only .provide those segrnents' .~r phases of
the system that fall within:its boundar~es •. Other phases' or seg-
ments within the basin system must be acquired 'and construct'ed by
the 'city and the other basin land owners to be served.
The one exception to this should be the fail safe line to the
'Encina Outfall, which all users should participate in sharing of
its cost, including Lake Calavera Hills.
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~ompensation of Lake Calaver~ llills Associates for Construction
of Facili tie.i thin its Property and/o.~-o-n-t-r-o-l-.----~---([) ...
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After the Public Works Director has approved the design and engin-
eering, and accepted an~ approved the cost figures for the. agreed
.'. ": . upon facilities to be constructed by Lake Calavera Hills, the City ··'~::*r:.'.· ,':'. of Carlsbad and Lake Cal avera Hills Associates will enter into· a
:;·f~'·<"·:.~~ : " reimbursement agreement for the repayment of'the costs of planning,
design engineering and construction costs including land and inter-
est carry.
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Lake Calavera Hills proposes that each new user of the treatment
facility will pay their fair share of the cost of the system plus
a reserve for a future fail safe line to the Encina Outfall to
serve the entire. drainage basin.
shall pay a basic sewe~ service. fee to Lake Calavera Hills of one
th~~~and d~llars per'unit to' be collected by' the' City' of Carlsbad'
as a portion. of th~ sewer hook ·up.fe~ for the life of the buildout
of the planned community. ..' ..
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Lake Calavera Hills would receive credit against its fair share
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of the entire basin treatment system at this rate until such
.-tim~ as the segments and/or .phases constructed by.La~e Calaver~.
Hills have been reimbursed in full and Lake Calavera Hills'
fair share of the entire basin system is paid •
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SPECIFI~I-TENTATIVE SUBDIVISI MAP
CONDOMINIUM PERMI~RECISE DEVELOPMEN~ITE DEVELOPMENT PLAN
INFORMATION 'F G)
SPECIAL USE PERMIT
1. Gross Acres (or square footage if less than acre) 300' X 600'
'2. Number of Lots
3. Type of Development waste water treatment Public utility
Residential, Commercial, Industrial
4. Present Zone P.u. ___ P __ .C __ . _________________ '~, Propose~ Zone
(If change requested)
5. General Plan Land Use Designation Open Space
6. Source of Water Supply __ '_C_M_W_D ____________________________________________ __
7. Method of sewage disposal To be provided by the proposed facility
8. Types of Protective Covenants to be recorded Zoning and use only.
Conditions considered appropriate by City Council.
9. Transportation modes available to service the development __________ ~ __
Not applicable.
10. School District serving the Property ~C~.~u~.wS~.D~. ________________________ __
Not applicable.
11. Methods proposed to reduce sound levels' 'Sound 'alteratTon' a"s: required
by City Council -to ~hclud~r btit'ftot' limited toe'regulations and res-
trictions of MP-150A
12. Method;:; proposed to conserve eneFgy The use of, the most' ,efficient
electrically powered: motors' available/See 'EPA '600/2-78'-'0'5'1' ehclosed. ' ,
Additional ;:;heets may be attached if nece;:;sary to answer any of the above
q':le;:;tions.
See attached history of project and written proposal as to scope of
proposal. See Technical Folder submi'tted to Planning and Public 1fJorks
by Lake Calavera Hills Associates for preparation of Montgomery Study
and EIR.
FORM PLANNING 20 Date of Planni~9 Commission approval 6/24/78
s U iL U1 E NT ALI N F 0 . 11 A T ION FOR M.
PRE.eISE PLAN / ZONE· CHANGE
l) Gross Acres (or square footage if less than ac~e) ----------------
2) Zone P.C. -Planned Com'11unity Zone ----------------------~~~~~-------------------------
3) General Plan Land Use Designation Open Space --~----~-----------------------
4) The Present Use of the Subject Property ----------------------------Undevelooerj
5) By law a Conditional Use Permit may be approved only if certain
facts are found to exist. Please read these required facts
carefully and explain how the proposed pro.iect meets each of
these facts.' Use additional sheets if necessary:
a) Explain why the requested use is necessary or desirable
for the development of the community, is essentially in harmony
with the various elements and objectives of the General Plan,
and is not detrimental to existing uses or to uses specifically
permitted in the zone in which the proposed use is to be located:
~he pro~o;ed use is a s~tellite waste water treat~ent Dlant oro-lJropos e to serve fu ture res lden ts of Lake Ca laver a ill I Is. '_'he
locat1.6n and c'ieVE:-"!i6pTTlent 6:£ Ellis ta.ciiity lS necessar'! because
of recent stucilos by the C1ty ard subsequ(~nt moratoriul" due to
the 1nab1I1ty ot the Enc1na Plant to handle sewage flow. The
developMent ot a thlS plant serves a two-told purpose; 1ncreas1ng
sewage treatment taclIlty capaclty 1n the C1ty and secondly, (over)
b) Explain why the site for the intended use is adequate in
size and shape to aCCOmUGdLe the use;Location of the proDosed use
. is in a designated op~n s~ace area in the ~ake Calavera Ilills P.C.
plan. Tho siting of tho Droposed use is a?proxi~ately 2000 feet
from the nearest residenti<tl unit. !n ariiition, the ~Acilit,.' is
aI~ost odorless. Preliminar,' landscaoinq plans will also assist
111 sinelcilDrJ tlw facJ_Ilty trom proposeC"1 n~~J,d8ntird develorment.
Because of the topography the pro~osed'plant IS not v1s1ble trom(ov(
c) Explain why you believe the proposed yards, setbacks, walls:
fences, landscapinq, etc., will be adequate to adjust the
requested use tq existing or permitted future uses in the
neighborhood: ThlS PP/ZC is to establish that the oroposed use
is acceptable to the City. It is proposed that sllbject to
acce~tance of the waste water treatment olant as an appropriate
use that detu.il:ed site plans of the facilitv would be sllb]Pct
to reVle1V and approval of the City Sta·ff.
d) Explain why you believe the street system serving the
proposed use is adequate to properly handle all traffic gener-
ated by the proposed use:~n~o~t~A~o~_LP~l~i~c~a~b~l~e~. ________________________ _
*~ If you need more snace to
reverse 'side of this form
to this form.
answer t~e above, please use
or separ.ate sheets and attach t '
FORM P1onnin~ 22 Date of PlonninC'l Cornmission Approvi\1 ___ _
" , PREPARATION CHECK LIST
PRECISE 'eVELOPMENT PLA~/SPECIE·ic aU-I
A) Documents Required for Submittal:
~ ~~ Application with supplemental ,information sheet completed.
~. Standard Condition list. ~~~~ Pho~ostatic copy of deed with complete legal description, of
7 (.. t). L---' sub] ect property. 'I. J1. '.. _ . (/
~• Twen'ty-eight (28) ozalid prints of the plan/L+('t~
• ". Environmental Impact Assessment or Report with Fees (if required).
~ 6. Fee for Specific Plan: $100.00 + $2000 per lot or dwelling unit
~ (whichever is greater). Amendments: $,100.00 + $1.00 per affected
.,. ~dwelling unit.
V. 300 Foot Radius Map "-A map to scale not less than 1" = 200'
showing each lot within 300 feet of the exterior boundaries of
the subject property. Each of these lots shall be consecutively
. ~ numbered and correspond with the property owner's list. '
O~ ~~ Property Owner's List -A typewritten list of the name and address
~ of all property owners within 300 feet as noted on 'the property
owner map. This list must be accurate and taken from the latest
equalized assessmerit' roll on file in the office of the Assessor
of San Diego County, 1600 Pacific Highway, Room 103, San Diego, J ~California (phone (714) 236-3771) 0 '
~ Disclosure Statement 0 .
'IC '@ A "t"ritten 'statement by the City Engineer that he finds there
~~ ~ is adequate sewer capacity available for the proposed use
at the site' or'that he finds that the proposed use' and site
can be adequately served by alternative City approved on-
site sewel: system. ' Applicant, please note, this determination
must be done prior to submitting application and it may
require preparation on your part to p~ovide sufficient evidence
, to the City Engineer. ~t is suggested you make early contact '~ with, the Engineering Department for such determination.
~ For ~esidential developments only a guarantee is requLred that
'school facilities will be available at time of ,need. If the
project is located in the San Dieguito High School, Encinitas
Elementary, or San Marcos Unified School District, 'the,~ City
will contayt the district to arrange the meeti~g of this require-
ment.
If, however, the project is ~ithin the Carlsbad Unified School
District, it is the responsibili,ty of the applicant to make
arrangements for the' guarantee of school facilities. This O/'}/J m ent mu~t.be submitted prior to acceptance of application. ~cl~t.lng--eJf Specl'flc' Plan: . ' ,
1. Sheets to be 24" x 36" with 1" border (Standard IID" size)
2. Scale to indicate: 1" = 80' is generally sufficient, however,
Lhe scale is to be appropriate for sheet size; but in no case
smaller than I" = 100'. If project is too large for recommended
scale, additional sheets will be necessary; and a reduced composit
of the plan be submitted on a 29" x 3611 reproducible.
3. North arrow oriented to top or left side of sheet~
4. Lettering must be legible. It is preferred that it be shown by
mechanical means, in ink, and heavy,upper case. ,
5. Location map showing the distance to the center line of the
nearest intersection.
6. Title block with name and address of applicant and drafter and
pertinent information such as number of lots, total acreage and
date prepared.
C) Information on Map:
1. Existing adjacent public right-of-way, showing dimensions and
distance from, property line to center line.
........
2. Location of existing improvements, pavement, curbs, sidewa,lks, etc.
3. Easements; type and location.
4. Location and dimension of all proposed public right-of-way.
S. Location and dimension of all public or private easemen'ts.
6. Location and description of existing utilities.
FORM PLANNING 31 Date of Planning Commission Approval-
Page One ---------
rN~t-'t·""·'r'--!-.. ; c ~ ~-~. - -'7 -.. u_ .n • tt'
'-; .' e
/: .--, /~;TER RECORDING RETURN TO: •
SAN r-!ARCOS COUNTY HATER DISTRICT
7813 \vest San Narcos Boulevard
San Marcos, ealifornia 92069
RIGHT OF Ei~TRY AGREEr.1EaT
BETNEEN
LA COSTA LAND COMPANY AND SN~ MARCOS COUNTY WATER DISTRICT
"THIS AGREE!',1ENT is entered into by and between LA COSTA LAND
. COHPANY (LA COSTA), an Illinois corporation authorized to do business
in the State of California, and SAN f.1ARCOS COur-tTY HATER DISTRICT
(DIS'l'RICT), a County Hater District created and oI;>erating pursuant
~o,Section 30000 et. seq. of the State of California Water Code.
R-E-C-I-T-A-L-S
1.. LA COSTA and th.e DISTRIC'l' concurrently entered into an
Ag'reement entitled .. AGREEHENT FOR DESIGN AND CONSTRUCTION OF RECLAHATION
FACILITIES BETVillEN LA COS'l'A LAl.'JD CONPANY ·AND SAH MARCOS COUNTY
"WATER DISTRICT" n-iASTEWATER RECLAMATION AGREEHENT). As part of
this WASTE~vATER RECLAt."1ATIOH AGREEMENT, LA COSTA will construct
£or the DISTRICT certain wastewater treatment facilities. This
Agreement is intended to give the DI$TRICT the right to examine
,and'inspect all phases of design and construction covered by the
i;WASTEWATER RECL]l._HATIOH AGREEHENT until the DISTRICT has accepted
the wastewater facilities to be con~tructed by LA ,COSTA as satisfactory.
2., "The lvASTE~vATER RECLAr·1ATION AGREEHEN'r also enti tIes LA
~COST1~ to use of a certain portion of the' wa~t'ewater to be provided
by the completed wastewater treatment facili ty. , Under current
law users of reclained water must use thnt reclaimed ,water only
£or cer~aiQ purposes. This Agreement is intended to give the
DISTRICT the right to enter upon the land of LA COSTA, including
-1-
EXlIIBIT "F"
such land as may be deeded to subsequent parties, to insure tha.t
LA COSTA and' its subsequent transferees 'comply' Vii th applicable
provisions of law and the rules and regulations of'the DISTRICT
as adopted from ti~e to time governing the use of reclaimed water.
C-O-V-E-N-A-N-T-S
Ie DISTRICT RIGHT OF ENTRY DURING DESIGN AND CONSTRUCTION OF
FACILITIES.
LA COSTA hereby grants the DISTRICT, its agents, officers,
e~ployees, or designees, the right to enter ~pon all or any portion
of the real property of LA COSTA as more particularly described
in Exhibit "A", attached hereto and incorporate~ herein by reference.
This right of entry shall extend to the DISTR-ICT at all tine
d~ring either design or construction of any facilities pu=suant
to the NASTE\vATER RECLAHATION AGREEMENT. The DISTRICT shall be
enti tIed to ent'er upon the land of LA CosrrA' as r.1ore particularly
described in Exhibit "A" at such times and in such manners as the
, ,
DISTRICT deems necessary, in its sole discretion, to insure the
proper design ,.and construction of all \vastewater treatment facilities
to be cons tructed under the NASTE~\lATER RECLAHATION AGREEHEHT.
LA COSTA, further agrees to make such papers and other documents
available as the DISTRICT deems necessary, from time to time, to
verify that reclamation 'facilities are being constructed in compliance
with the plans and specifications.
2. DIS'l'RICT RIGH'l' OF ENTRY l~FTER CmlPLETION OF RECLAHATION
FACILrrI:8S.
The DIS'l'RIC'r shall further be enti tled t.o ent.er upon those
portions of the land of LA COSTA described in Exhibit "B", where
reclaimed Vlater is to be used for non-potable purposes, follqwing
-2-
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" ; ----tJ--25m .... 4ZW
0-..
• .
acceptance of the wastewater treatment facilities to be constructed
pursuant to the HASTm\1ATER RECLAMA1'ION AGREEHEHT at such' times
and in such manner as the DISTRICT deems necessary, in its sole'
discretion, to verify that LA COSTA or any transferee of the land
of LA-COSTA is using the reclaimed \Vater in a manner which complies
with all applicable laws ,and regulations,' including all rules ahd
regulations adopted by the DISTRICT from time to time Q LA COSTA
agrees to cooperate with agents of the DIS1'RICT or its desi.gnees
and to provide the agents or designees of the DISTRICT with such
-, keys, documents, or other -devices as may be necessary or that the
DISTRICT's agents or designees may request from time to time
to carry -out the purposes of this paragraph 2.
, 3. LA COSrrA TO PRESERVE THE DISTRICT I S RIGHT' OF ENTRl; UPON
'l'RANSFER OF THE PROPERTY DESCRIBED IN EXHIBIT "BII.
LA COSTA further agrees to insert such'language in land
sale documents as may be necessary from time to time to insure
that all tranferees of the land described in Exhibit "n", where
reclaimed \vater is to be used, are subject to the rights of entry
described-in this Agreement. Exhibit liB" shall be revised from
time to time as the development of the property permi,ts in order
to specifically define those areas where reclaimed water is to
be used.
4. LHlITATIONS ON DISTRICT I S RIGHTS OF ENTRY.
The DISTRICT agrees to use its best efforts to exercise
the rights of entry contained ,in this Agreement in n mar-mer \vhich
will not interfere with the day-to-day use, occupancy or operation
of the property described in Exhibi t II B" e, The DISTRICT further
agrees to use its best efforts to minimize the inconvenience caused
to parties O\vning or possessing the land dcscrib(~d in Exhibit IIn"
as a result of the DISTRICT's exercise of these rights of entry.
-3-
"
~ .
"=::=:
-.
5. I.~~DEMNIFICATION l\GREEI·1ENT.
5.1 The DISTRICT agrees to inpemnify, assume the defense
of, and hold free and harmless, LA COSTA, its officers, directors,
agents, and employees from any and all obligations, liabilities,
.liens, claims, demands, losses, damages, or expenses, of whatever
type or nature,. including, but not limited to, 2t.torneys' fee~
~nd all litigation costs arising out of entrance upon the real
property described in Exhibit "B" by the DISTRICT or its designated
..agents.
5_ 2 LA' COS'rA shall indemnify, assume the defense of, and hold
£ree and harmless, the DISTRICT, its officers, directors, agents,
·employees or designees from any and all obligations, liabilities,
~i:ens, claims, demands, losses, dal"Tl.ages I or expenses, of vlhatever
.type or nature, including, but not limited to, attorneys' fees
,and all litigation costs arising out of LA COSTA.' s improper use
~f any reclaimed water made available to LA COSTA as a result of
.-the WASTElvATER RECLAMATION AGREEr·1ENT 0
~he effective date of this Agreement, e~ecuted in count~rparts
,by the parties hereto in the Nor'th County Judicial District, County
:-of San Diego, State of California, is March -' 19790
'*LA COSTA LAND COHPANY -SAN HARCOS COUNTY !VATER DJ;S'l'RICT
.By BY~~~~~~~~-= __ ~~~~ ____ ___ OBY BLANCHARD, President
'By -------------------------------------ATTEST:
·By -------------------------------------By~~~~~~~~~~--~--------JAnES F. HcKAY, Secretary
'(S E A L)
* "]'he s.ignatures on bc!1alf of Lt~ COSrfA LAND COj·1Pl\HY must be notarized
as to identi ty of the illdi vidual ar1d the authori ty to execute the a(]ree-
'lncnt on behalf of LA COSTA Ll\ND CO~'IPANY or, alternatively, a corporate
,resolution sctt.ing forth the authority of the individuals to. execute
the document on behalf of LA COSTI\ LAND COMPANY cmd the corporate seal
~ust be affixed and attached.,
-4-
'" I
.AFTER RECORDING NAIL TO:
LA COSTA LAND COJ.1PANY
Costa Del Mar Road
Carlsbad, California 92008
Attention:
·OPTION OF
LA COSTA LAND COMPANY
~O REPURCHASE PROPERTY TO BE GRANTED TO
"'THE SAN l1ARCOS COUNTY ·~'lATER DISTRICT
'THIS OPTION is executed by the SAN MARCOS COUNTY NATER DISTRICT,
.. -a County Water District organized under Division 12 of the California
.:Water Code (DISTRICT), to the LA COSTA LAND CmlPANY, an Illinois
~corporation (LA COSTA) I for valuable consideration, receipt and
.--adequacy of which is hereby acknowledged by the DISTRICT e
-R-E-C-I-T-A-L-S
l. This option is part of a general agreement bet\oJeen LA
~COSTA and' the DISTRICT to construct,' renovate and enlarge certain
-Mastewater reclamation facilities on DISTRICT's property entitled
"~AGREENENT FOR DESIGN & CONSTRUCTION OF RECLJi2·1ATIOlJ FACILITIES
-'BETNEEN LA COSTA LAND COHPANY AND SAN !'-lARCOS COUNTY T,vATER DISTRICT"
rJt'l~STJ?WATER RECLlU'1ATION l\GREEr-1ENT") e All terms of this option.
should be read in confornity with that agreement between LA COSTA
--and the DISTRICT c
2. ~o the extent any term of this option is inconsistent
'wi th the Clbovc-refercnccd Nl\STmvNl'ER RECLl,:1A'I'ION l\crmmmwr the
terms of 'the tvl\STEI·vATER RECLAHA'l'I.0N AGREEtiENT shall' control.
-1-
EXHIBIT "D"
':'o;:_l~~~;",~"K'I~':'J;~~~?t~"'~~~~";'''''''·~'~-;;~~~~~''.~.''''l~~~~~~t'eS~~"~'-'R'':~~~~~~~~~t>Y~~t"~~~l<.~o:: ... ~~~~+-; ~ ---_.-.... _----_. . . -.",
~------------------------~
•• ~ • f • II
. .'
'C-O-V-E-N-A-N-'I'-S
1. Grcint of Option.
'The DISTRICT hereby grants to LA COSTA this option to
purchase the' real property more specifically descr,ibed in Exhibit
~A"6 attached hereto and incorporated herein by reference, artd
all \vas tewater treatmen t facilities thereon at the time the option
is exercised.
2* Preconditions to Exercise of Option.
~A COSTA shall be entitled to exercise this option only
if the DISTRICT decides, in its sole discretion, to terminate use
of the water storage reservoir and appurtenant facilities which
.. will be constructed by LA COSTA on the real property subject to
·this option.
3.. Term of Option.
~his option shall terminate ·ten (.10) years from the date
·the option, has been recorded at 12: 00 o· clock midnight.
4. Assignability 'of Option.
'This option shall not be assignable by LA COSTA without
.the prior consent of the DISTRICT.
S. La Costa to Notify District of Exercise of Option.
In the event the DISTRICT terminates continued use of
. .
the water treatment facilities constructed on the land described
i·n Exhibit. "A", the DISTRICT shall notify LA COSTA, in writing,
~f its termination of the continued use of those facilities. Upon
·receipt of such termination notice I LA COSTA shall advise the DIS'l'InCT,
in writing, of its intention to exercise this option not later
than sixty (60) days £0110\.;in9 receipt of the notice and failure
·.of LA COSTA to so <ldvise DISTRICT shall automatically terminate
this option.
-2-
~._~~"'~":"~~~~~~~'!f'.'':::~~~~~~?'':f.~~Il~~",~~~}'~!'l='IM~''''''.'''~'''''''''¥-~~£"~~''~""~''''~'''~~''''''~~~'''''';:--''t:-~'~''P.I;<~~~'''~:~~,,*,Ia!o!,,~Pr,):-\'f''''lo~i~.!-~~:-;?~-"''l''~~:-i~.", ... \. ~':'f..::&?~,~f~~.rt
, ' ,
" "f e ,--------1
,6. " Interest on the Purchase Priceo
Upon DISTRICT's receipt of notification by LA COSTA of
the intention to exercise this option in accordance with paragraph,
5, LA COSTA shall be obligated to pay the option purchase price
specified in paragraph 7 below. The purchase price specified in
-paragraph 7 shall earn interest at the rate of seven (7%) percent
per annum commencing from the date the DISTRICT receives notification
;of LA COSTA's intention to exercis~ this option. The DISTRICT
~ball not be obligated to reconvey any of the land described in
:.Exhibit "A" ox any facility thereon until such time as LA COSTA
has paid the total purchase price including any interest thereon •
. LA COSTA 'shall pay the full amount due in cash or 'by certified
£hecko This payment shall be delivered to DISTRICT not later
_ -than 12:00 o'clock Noon, one hund'red and 'eighty (lBO) days after
, ,LA COSTA receives the termination notice from DISTRICT and failure
to make such p~yment renders this option null and void~
'7. Purchase Price Upon Exercise of Option~
In accordance with paragraph 3 of the WASTEWATER RECLA~mTION
,AGREE!l1ENT an HAl appraiser will have established a fair market
value for the land described in Exhibit "A". Paragraphs 1.4 and
2 of the t'VASTEtvATER RECLANATION AGREEHENT will further establish
~ value for the water storage reservoir and appurtenant structures
:',which will be constructed by LA COSTA on the real property. subject
to this option. Upon exercise of this option, LA COSTA shall
~pay DISTRICT jl}" the audited value'of the land plus (2) all costs
.associated with design and construction of the water storage facility
-a'nd appurtenant structures in accordance with the figures stated
.on the final cost statement specified in paragraph 2 of the vlASTEI"lATER
RECLAt1ATION AGREErJ!ENT, (3) plus the interest paid by or on behalf of
DISTRICT on Items (1) and (2), provided LA COSTA has been fully reimbursed
f.or these costs together wi th interest as provided in the -WASTmvATER
~ECLru1ATION AGREEMENT and in this option. Any amounts which are un-
paid to LA COSTA at the time this option is exercised by LA COSTA,
shall be deducted from the amount to be paid by LA COSTA to DISTRICT
-3-(Option -Revised 3/20/79
~:~~.~'r"'~~n:~~~~P~~;~~~~~~?<~.t,~~~.1.::~'\~'i(.""W;1'.< ..... ~ .. ~:r.:':.M~~~~~~"';"'~;:~~~~:'~~~~~Y"l'~~~~~":It~~·~.!~-~~~~~J!"'.,~~t:l~"tt.'!<~ .. :-.= J '~'t.";-.r.,. ~~"'''. . +,':'~~"" . ~ ...
upon the exercise of this option .
. 8. Reconveyance of Title by District.
,:Upon full payment of the purchase price and interest as
specified in paragraph 7 of this option, the DISTRICT shall reconvey
,to LA COSTA title to the real prope'rty specified in Exhibit II A"
.and all water treatment facilities on that land to which the ·DIST~ICT
then h.olds title. LA COSTA shall bear all costs of this reconveyance
.<and shall prepare all documents subj ect to the approval of DISTRICT
to carry out the terms of this paragraph (8)e
.9. La Costa to Execute Documents to Remove Cloud on Title.
LA COSTA agrees to execute, acknowledge, and delivery
to the DISTRICT, upon expiration of the term of this option, a
,qui tclaim deed or such other document' as may be required by any
~itle company to remove the cloud of this option from the property
described in Exhibit" An.
J.O., Covenant of Nutuq.l Cooperation.
Each party to this option agrees to cooperate to the
-IDlaximum feasible extent in carrying out the terms of this option.
'~his covenant shall include, among other things, an agreement by
~ach party to carry out all steps required of it pursuant to this
Agreement at the earliest possible time and to execute such documents
·cr other papers as may be required from time to time to carry out
the terms of this Agreement.
11.. Notice of Payment.
·-Any notice or payment required by ·this Agreement shall
·be deemed delivered at the time of deposi t, certified mail, in
the United States mail and addressed as follows:
-4-
· ,.' .,
LA CQSTA LAND CONPANY
Costa· Del Uar Road
Carlsbad, California 92008
SAN MARCOS COUNTY !'lATER DISTRICT
788 West San Narcos Boulevard
San Marcos, California 92069
·Notice of any' change of address shall be delivered in the
.same manner as any other notice provided by this Section but shall
not'be deemed effective until received by the other party to this
_ ,Agreement.
J.2. Venue.
In the event of any legal or equitable proceeding to
~nforce the terms or conditions of this Agreement, the parties
agree that venue shall 'lie only in the federal or state courts
i·n or nearest to the North County Judicial District, County of
.-S.an Diego, State of California.
~.3., Hodification.
'~his Agreement supergedes. all prior agreements between
the parties pertaining to this option, whe~her.oral or written,
~nd shall not be altered in \vhole or in part except by a modification
.in writing executed by both. parties to this Agreement.
~4_ Attorneys' Fees.
-.In the event any arbitration pr-o·ceeding, adrninistrati ve
.-proceeding or l.i tigation in la\v or in equity 1 including any action
.for declaratory relief, is brought to enforce or interpret the
.provisions or performance of this Agreement,· the prevailing party
shall be entitled to an'award of reasonable attorneysl fees and
all costs associated with the proceeding as determined by the Court,
the presiding officer, or the arbitrator authorized to make a det0rmination
of the issues in addition to any other relief to which the prevailing
party may be entitled.
-5-
-. ....... @
#.' •
~n the event opposing parties have each p~evail~d on
one or more causes of action actually contest~d or admitted by
pleadings, discovery or pre-hearing documents on file, the arbitrator
~r presiding officer, as the case may be, may offset such fees
~nd costs between prevailing parties after consider~ng the necessity
of the proceeding ,and the importance of the issue. or issues upon
Mhich each party has prevailed. For the purposes of this Agreement
the term "prevail'" shall include any action at law, in equity,
or pursuant to arbitration, 'in which either party has been successful
including 1 but not limited to, demurrers, summary judgmen·ts,. or
.. any other .motion of whatever type or nature.
~5. Binding Effect •
. -'This Agreement shall bind and inure to the benefit of
the respective heirs, personal representatives, successors, and
.:assigns of the parties hereto.
~he effective date of this option, executed in' counterparts
by the parties hereto and to be performed by the. parties in the
North County Judicial District, County of San Diego, State of California,
is 1-1arch --' 1979.
-*LA COSTA LAl'lD COIlPANY ,. ·.SAN HARCOS COUNTY HATER DISTRICT
By ________________________________ __ By
,~O~n~Y~B71~~N~~C~t~llillV~~/--=P-r-e-s-~~'~d-e-n~t--------------
:BX ____________________________ ~----
ATTEST:
.By ------------------~-----------------'By ~~~-=~~-~~~~----~---------------.JN1ES, F. HcKi\Y, Secretary
(S E l\ L)
* The siSi11atures on behalf of U\ COSTA L1'~.ND aJ!1PN.J'1 must be notarized as to .
identity of the individual and the authority to execute the agrec!'n..~nt on behalf of
Ll\. COSTA Ll\..l\JO Ca·lPNJY or I altcn1tltively, a corporate resolution setting forth the
authority of the individu<.l.ls to exe~utc the docurrent on beh.:llf of IA COSTA IAl\JD
·ca1I?A.~ and the corrx>rate seal must be affixed a'1d. attached.
'-6-
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", .'.~ ,~. . . • AGREEMENT . .:. CD '.
FOR
DESIGN AND CONSTRUCTION
OF
~SATELLITE WASTE WATEE TREATMENT AND RECLAMATION
.FACILITIES BETWE'EN
~LAKE CALAVERA HILLS ASSOCIATES AND CITY OF CARLSBAD
:THIS AGREEMENT is entered into by and between Lake Calavera
-:Hills Associates' "Calavera", a California limited partnership and
the City of Carlsbad "City", a County Water District. ..: -.t.""
"R-E-C-I-T-A-L-S
~4 '''Calavera'' is the owner of certain real property wi thin
the City of Carlsbad which"Calavera"desires to develop for resi-
~ential and other purposes .
.2.. "Calavera" is unable to develop this property at this
time because of limited sewage treatment facilities and capacity
in the area.
3., At this time, the"City~'does .not have capacity to provide
sewage service to "Calavera's" property.
4 .• 'The "City" is willing to permit ~xpansion of "City's"
Iacilities to provide additional capacity, with the understanding
that a portion of this capacity is to be reserved for the sole and
,·exclusive use "of "Calavera" as provided in this agreement and the
-remainder of the capacity is to be available to "Calavera" and
~thers to the extent provided in this agreement and in the rules
.. ,and regulations of th.e. "Ci:ty" as may be adopted from time to time,.
5. This Agreement for waste water reclamation is intended to
';provide the "City" \'li th additional waste t,'later capacity for both
"'Calavera" and other property m'lners within the "City's" service
area to the extend and in the ~anne! described in this Agreement.
It is mutually understood that without the reservation of capacity
£or tlCalavera" as provided in this Agreement, nCalavera" would not
, ·:enter into thls AgJ:eement and the availability of such capacity
.. to -t'Calavera" is a condition precedent to all obligations of "Cala-
'vera" as subsequently described in this Agr~ement.
1 -
"
-, ..
~.,~ "f..z:,~1t~~~rr:.W;.ffl~~JYf'ttY-~~J~50* .. "'~~~"""\I"''''l'~ .......... !~~ .. !oe~I't*'~~-'~~~''~~~l\"l~~~~~.t'~"r~~,1\f~"~$-~,~;\~t;;~'"r!.\i!~~~~~{t~t$t~.I"'1o:r+~t~~Yv~'I'$.i;!<'7iF": -.t.~«-,f'~~~hrt" . I' . . • ..•. . (i)"
6. "Calavera" is willing to add to the exi~ting waste water
treatment facility of the "City" and to design and constru.ct addi-
tional f~cilities at the site designated on property owned by .
. .
"Calavera ".; upon completion, the ftCi ty" is to have the capacity
to r~clai;n·.an.average·daily ~ry weather flow of 1,200,0'00 gallon~
·of waste water (g.p.d./a.d.d.w.f.).
7. In addition, "Calavera" is willing to design, construct
~nd dedicate bo "City", percolation field and fail safe system
.for the "City" with a minimum capacity of 500,000 gallons exclu-
sive 01: surface water runoff so thC!-t the "City" will have a reserve
capacity for a period of ninety (90) days at the anticipated flmv
of 500,000 g.p.d./a.d.d.w.f. All of the foregoing facilities des-
-.cribed in Section 6 and 7 of this Agreement are "the Project", as
.more specif.ically described in Exhibit "A" as items 1" 2, and 3.
In addition, "Calavera" intends to provide facilities in conjunc-
, tion with that percolation field and fail safe system for the use
{disposal) of 500,000 g.p.d./a.d.d.w.f. of reclaimed water. It is
acknowledged that while this U$e (disposal~ is not part of lithe
~roject", assured disposal is an essential element of a program to
attain a permit to operate the system. This essential element 'of
the program is not included as part of lithe Project" because "Cala-
vera" and "City" intend that "Calavera" will provide this use of
the reclaimed water on IICalavera IS" .own intended land development
programs. The technical components of th~ Proposed Calavera Hills
.Reclamation Facility (Items 1, 2, and 3 comprise the Project) are
l.isted in Exhibit "All to this Agreement.
2. "Calavera" intends to bear all initial costs to de~ign,
~nd construct the Project. The'II City" intends. to reimburse ."Calavera"
~or these costs by charging users of the f~cilities a service con-
~ection fee anq.by delivering as herein provided a portion of this
.fee to "Calavera". This p~yback is to terminate when all capacity
.in the Project has been sold or, on the expiration of the ten(lO)
year defined period, whichever occurs first, even though "Calavera"
may not have been reimbursed fOF all costs or interest at the end
~f the payback period.
9. "Cala~era" intends to sell to the "City" such real property
4S will be necessary for the proposed waste water facility and dis-
posal system. "Calavera" is to be entitled .to ~epurchase this pro-
.perty in the event that "City" has terminated its use of the "project"
for reclamation use within ten (10) years from the date the option
to purchase has been recorded .
. ; \., 2 , "
.' --_ .... ··.···1····-. -.. . .~-. . '. ,<
' . . \.' I
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.,' ... , . . .'
10. The "City" intends to reserve~ for the sole and excl:usi ve
use of "Calavera" 500,00 g.p.d./a.d.d.w.f. of capacity from the
"Project" which accommodates 3000 dwelJ.ing unit equivalents (DUEs)
for the ten (10) year option period fo.r development of "Calavera's"
property (located within "city's" sewer serv;ice area) by"Calavera,'i'
or its transferees.
11. "Cal~vera" has agreed'to supply the "City" in conjunc-
tion with the proposed "Project" with a disposal area for' the
reclaimed wat.er sufficient to dispose of 500,000 g.p.d./a.d.d.w.f.
120 DEFINITIONS
Whenever, the following terms occur in this Agreement, the
meaning shall be interpreted as follows:
12.1 Acceptance -The formal action by the "City" accepting
the project or a severable portion of 'the project as being complete.
12.2 Average Daily Dry Weather Flow -200 gallons per day per
dwelling unit equivalent.
12.3 project,-The construction of the sewage treatment plant,
to a capacity of 600,000 g.p.d./a.d.d.w.f., the disposal system,
percolation field, and the pumping/piping system for conveyance of
effluent from the sewage treatment plant to ,the percolation field.
SEE: Exhibit "A" (Items 1,2, & 3).
12.4 Project Cost -Includes all dollar costs of "the Project"
for 'engineering and environmental studies~ testing, surveying,
design, inspection and construction of the Project; ,it also includes,
.but is not limited to, cost of land and rights-of-way, legal and
administrative expenses associated with the Project, ,the cost of
borrowe'd' funds, insurance and bond .premiums, and expenses for
meetings with and presentations to government agencies which permit
'or otherwise regulate project design, construction or operation.
Reimbursable Project costs shall be reduced by the amount of any
contribution or prepayment by the "City" or parties other than
"Calavera" and such contribution or prepayment may'be made by the
"City" or on the "City's" behalf at any time at ,the "City's" dis'!'"
cretion.
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12.5 Work -Any and all obligations, duties, and responsi-~
bilities necessary to the successful complet.i0n of the projcct
assigned to, or undertaken by "Calavera" pursuant to this Agree-
ment, including, but not limited to, all labor, materials, equip-
ment and ·other incidentals and furnishing thereof.
12.6 . Transferees Any party who· acquires land (located
within the '~City's" sewer service area) from "Calavera" under any
·circumstances whether by gift, inheritance, devise, or any other
transfer of whatever type or natu~e.
C-O-V-E-N-A-N-~-S
10 CONSTRUCTION OF FACILITIES
1.1 Construction of Waste Water Facilities.
·"Calavera" agrees to design and construct sufficient waste
.-Mater facilities to collect, treat, reclaim and dispose of an
-additional average daily dry weather flow of waste water in an
amount of 600,000 g.p.d./a.d.d.w.f. "Calavera" shall bear all
,costs associated with this design and construction as more speci-
£ically set forth in Section 1.2 below. These costs shall be part
,·of the Pr6j-ect cost. All design, contract award and construction
phases shall be initiated subject to the ~pproval of the "City"
in the manner as provided in Section 1.2 of this Agreement includ-
ing.resolving any questions thereto as to which the parties· dis-
agree. Upon completion of the facilities discussed in this Sec-
tion (1.1) and in Section l.~ of the proj~~t,. the "City" shall have
total additional average daily dry weather flow of waste water
treatment capacity in an amount of 600,000 g.p.d./a.d.d.w.f.
1.2 Renovation of Existing Treatment Facilities
41Calavera further agrees to bear all concept, design and
:construction costs associated with and including but not limited
to, a11 professional fees, all permit fees, all taxes or other
,assessments, and all labor and material costs (the project costs). All
-4 -
design, contract award and
-"City" within fifteen (15) days
1 be approved by the
of the plans ax:d
specifications and the contra9. the Project. An'y
q.isagree~.er:-~ between th~'clty" and "Calavera" w~ th res~ect to
t.hese ~atters, Whi~~ r:-ot resolved by mutua~ agree~ent betwe~n
the parties, sh~be resolved in accordance with the arbitration . .
provisions set forth in this Agreement.
A lega+ description of the location of the proposed treat-
ment facilities is attached as Exhibit ."B" and incorporated herein
:by reference.
While "City" shall have treatment capacity for 600,000 g.p.d./
a.d.d.w.f.,. until additional use is established over and above
that 500,000 gallons to be used by "Calavera" or transferees, the
"City's" .operation shall be limited to the 500,000 g.p~d./a.d.d.w.f.,
added fail safe disposal by some party other than "Calavera". The
configuration of the Project shall allow "City" or "City's"
designee to construct additional facilities to'expand treatment . .
to not less than 1,200,000 g.p.d./a.d.d.w.f. on "City's" existing
:plant site.
1.3 Tamarack Line· .
.It is mutually agreed that the 10" force main sewer collection
pipeline in the Tamarack Avenue area will be used for transporting
raw sewerage from lands not immediately tributary to the waste
~ater reclamation plant.
~~4. Cooperation During Design and Construction
"Calavera" and the "tity" mutually agree to cooperate to
·.obtain any and all permits,' licenses, or other documents which
~ay b~ necessary to design and construct the proposed facility in
,compliance with all applicable laws and regulations and to take
• all such additional steps as may be necessary to complete the
'design and constr~ction of the proposed facilities at the earliest
possible time. Upon request "City" shall approve in the manner
provided in Section 1.2, a preliminary or final design report on
the Project or any portion of the Project. Whenever this Agree-
ment r~quire~ a p~rty to "approve" such approval shall not unrea-
$onably be withheld.
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1.5 yesting of Title.
Upon completion of construction and design and upon approval
by thE7 ':eity", "Calavera" shall execute .and deliver to the "Clty"
. all documents' necessary to vest title to the cOIfstructe.d facilities
in the "City". as "City" may designate in its. sole discretion. For
pur.poses o~ taxation, the "City" shall. be treated as the owner of
the property on the date title is legally vested in its name.
1.6 Constr.uction Procedures. .
The "City" and "Calavera" shall mutually pre-select not less
than three (3) reputab~e contractors to submit bids on the proposed
project. Bids shall remain open for a period. of thixty (30) days.
The "City" shall be entitled to ap~rove the successful bidder.
"Calavera" agrees not to approve any change order in excess of
$25,000.00 without obtaining the prior approval of the "City".
Upon completion of construction (or a major segment of the con-
struction)' "Calavera" sball submit to the. "City'~ ··.a cost statement
setting forth the project cost. The "City'" shall audit this Cost
Statement and such books of "Calavera" as it deems necessary to
verify the ac;:curacy of the final cost statement. The "City"
shall bear all costs of the audit and shall be entitled to appoint
$uch independent auditor.or auditors as it deems necessary to
adequately verify th~ final c6st statement. "Calavera" agrees
to make such documents and other information available as the
"C~ty" deems necessary in its sole discretion, for this pu-!"pose.
2G REIMBURSEMENT OF COSTS
'2.1 Reimbursement from the Cost Statement.
'The "City" agrees to reimbu.rse "Calavera" for the project
cost (including the value' of the percolation site provided for in
Sec. 3) as stated on the final cost statement following such audits
·and audit approvals as the "City" deems necessary, in its sole
discretion, less the amount of any contri~ution or. prepayment made
by "City" or parties other than "Calavera".
2.2 Reimburse Agreement.
'The "City" shall charge all users of the Project, including
~'Calavera", a service connection. fee.
"Upon receipt of service' connection fee payments, the "City"
'shall pay to "Calavera" 80% of such payments, but not less than
~l,OOO per service connection upon payment in full for each such
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service connection. This reimbursement agreement shall commence ~
upon the "City's" receipt of any service connection fees appli-
cable to the Project and shall continue for a period of ten (10)
years f~om ~he.reco~dation date of the Notice of Completion on
·the final phase of construction on the Project or until "Calavera"
has been reimbursed for all costs of the Project or from all con-
,nection fees, treatment capacity of the'plant'site and percolation
£ield for the 600,000 g.p.d./a:d!d:w;f; capacity, ·whichever occurs
£irst~·.
Reimbursement shall include the cost of the t~unk sewer line
'on Tamarack Avenue. In no event shall reimbursement include the
~ost of reclaimed water distribution lines to convey reclaimed
water from the reclaimed water transmission main to the points
·0£ use.
~he project may be constructed in one or more segments. The
cost as herein defined of each s~gment shall be determined by audit
upon completion and acceptance or commencement of use of each
-segmente Interest shall be paid upon such arr,ounts from the date
of .acceptance or commencement of use of each segment, whichever
'occurs firstc The rate of interest shall be seven percent (7%)
.per annum on the unpa'id balance of any unpaid reimbursable amounts
until paid. Quarterly unpaid interest shall be added to the
unpaid reimbursa!=>le amount to be paid. to . '~CB:lavera" from the connec-
tion fees as herein provided. At the end of each quarter or por-
tion thereof, payment shall be made by "City" to "Calaverall'within
~en (10) calendar days and the amount thereof shall be deducted
£rom the amount as to which interest shall accrue for the next
succeedi~g quarter.
In the event the term of the reimbursement agreement expires
.before all reimbursements have been completed, the obligation of
the "City" to make further payrr:tents to "Calavera" shall terminate.
~'Ca:lavera" understands that this reimbursement program may not
compensate "Calavera" for all reimbursable costs or .interests on
the Project. Any monies held by "City" on the expiration date of
the reimbursement. agreement to which "Calavera" would be entitled
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at the next following payment period shall be paid within ten (10)
days following the expiration date. In the event "City" has received.
partial payment on connection fees as of the expiration date, ·"ei ty"
shall continue. to m~ke payments as the remaining amounts are received
·.on these fe'es, notwithstanding the expiration of the reimburs'ement
peri09, u~til such time as all partially paid connection fees are
. paid' i~' fui'l or the payment of that connection. fee is terminated
pursuant to the rules and regulations of th'e' "City" ·of general
. ,application which may be adopted from time to time.
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3. CALAVERA TO SUPPLY LAND WITH OPTION TO RE~URCHASE
3.1 Calavera to Supply Land.
"Ca~avera" agrees to supply the "City" ,sufficient real property
for the proposed waste water, treatment facility with appurtenant
pumps and other ancillary facilities, a part of the Project. "Cala-
vera" £~rther, agrees through the "City" or otherwise, to acquire
such easements and other-rights-of-way as may be necessary to
~roperly serve the proposed percolation facility. These costs
,are a part of the Project cost. This real property shall be deemed
to the "City" upon completionand acceptance of the waste water
treatment and percolatj,on facilities by the "City". A copy of the
general legal description of the land (the description to be
~efined following construction) to be sold is attahced as Exhibit
'tIC" and incorporated herein by reference.
3.2 Valuation of Land.
Upon execution ,of this Agreement the parties shall select
a mutually acceptable MAl appraiser t~ determine the fair market
value of the tr,eatroent: faciTJ:±.y property as of the date this Agree-
"ment is executed. The value which the MAl appraiser establishes
.Ior the treatment faeili ty property shall be deemed final and con-
elusive and not subject to unilateral review or appeal by either
party. In tpe event that the MAl appraiser determines that the
fair market value of the land to be deede§ for the waste ,water
treatment facility and'percolation f.ield exceeds $20,000 per acre,
~oth parties agree to accept a figure of $20,000 per acre as the
accepted fair market value. The agreement to ,accept a maximum
value of $20,000 per: acre shall be final and finding as to both
parties.
3~3 Option to Repurchase.
The nCity" shall grant to "Ca'lavera" an option to repurchase
the land "Calavera" has conveyed for the proposed treatment facil-
ity. This option shall extend for a period of ten (10) years
,from the date the option is re90rded by "Ci ty" and shall be exer-
cisible by "Calavera" only if the "City" terminates the use of
the treatment facility and appurtenant structures within ten (10)
years from the date the option has been recorded. The option
9
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·agreement between the parties has been attached hereto as Exhibit
-".D" and incorporated herein by reference. This option sha;tl be
.recorded immediately following acceptance and recording of the deed
-of the treatment facility site from "~alavera" t<;> "City"." -".'~ ""
4 •. CITY GU~RANTEE OF 500,000 GALLONS OF WAST~ WATER CA~ACITY
TO CALAVERA
4.1 Guarantee of 500,000 Gallons.
~he "City" agrees to provide "Calavera", its'su~c~ssor or
designee, with 500,000 g.p.d./a.d.d.w.f. c~apcity from the Pro-
ject. However, "Calavera" or "Calavera's" designees shall pay
the then existing capacity or connection charg~s of the "City".
Until all the proposed facilities comprising the Project are
completed and accepted by the "City", "Calavera" shall be entitled
solely to service on a prorated portion of the 500,000 g.p.d.1
a.d.d.w.f. ultimately guaranteed determined by dividing the dis-
posable average daily dry weather flow capacity.of operational
facilities by 1,200,000 gallons and multiplying this fraction by
500,000 g.p.d.la.d.d.w.f.
-,f'Calavera Ii shall not be entitled to any priority by reason
-0£ this Agreement as to the remaining 700,000 gallons of average
.daily dry weather flow of capacity from the. Project but shall be
-entitled to participate in the use of thi~ remaining capacity in
accordance with the Rules and Regulations of the "City" then in
-effect •
. 4.~ Execution of "Will Serve" Letters.
Upon execution of this .Agreement, the "Cityll agrees to issue,
at "Calavera's" request, from time to time, such conditional "will
servell letters or verifications of the availability of service up'
to a total of 500,000 gallons of average daily dry weather flow
of' capacity as may be required by the City of Carlsbad, or the
County of San Diego to prove that sewer service will be made
..available at the time of need for projects of "Calavera" up to
the maximum limit of 500,000 g.p.d.la.d.d.w.f. However, in no ,
event shall "Calaverall receive service connections for. greater
·than the total periodic capacity to which "Calavera" is then
'-fenti tIed to in accordance with Sec. 4.1 set forth :above.
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5.1 Disposal of 500,000 G.P.D.
The parties understand that regulatory agencies require,' that
the "City'" demonstrate the ability to dispose of' 'a minimum of
-506,000 gallpns of the total ·600,000 gallons of average daily 'dry
we~ther' waste water flow contemplated by the 'proposed ,project of
t',Calavera" • "Calavera" agrees to develop or cause to be developed
the real property described in Exhibit "Ell" ,located within the
"City", so that after ultimate development a minimum of 500,000
-gallons of average daily dry weather flow of reclaimed water will
be utilized for irrigation purposes to satisfy this governmental
requirement. The "City" agrees to use its best efforts to locate
other legal users of the reclaimed water so as to minimize the
total amount of property which IICalavera" must make available to
satisfy this governmental condition and also to provide for use -
,of the additional 100,000 g.p.d. which can be provided by the Pro-
ject bp.t not used by "Calavera".
_5.2, Inspection and Entry.
The IICity" shall be further entitled to inspect from time
-to time the manner in which "Calavera" is utlizing the reclaimed
~ater for disposal purposes to insure compliance wlth various
-,governmental r:ule and regulations includi.ng, such rules and regu:-
lations ,as the "City" may adopt from time ,to time. The ,"City's"
right of entry on the "Calavera" land for this purpose shall be
'carried out in accordance with Exhibit
,incorporated herein by reference.
5.3 Disposa1 Guarantee.
"F" , , attached hereto and
·Calavera" shall ensure by deed restrictions and CC&R's that
-~isposal of 500~000 g.p.d./a.d.d.w.f. is guaranteed to "City", and
'that such use is subject to "City" inspection, and !lci ty' s"
rules and regulations for water, sewer and reclaimed water ser-
vice, as may be adopted, from time to time; for general applica-
tion for this Project.
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6. IND~MN.lTY OF THE CITY
<
"Calavera" shall indemnify, assume the defense of, and. hold
.£re~ and .harmless, the "City", its officers, directors, agents, -
• • • ." 0 eo ."
employees and any enginee~, architect or other consultant utilized
.by the "City" on the project from any and all obligations, lia-
.bilities, liens, claims, demands, losses, damages and expenses,
of whatever type or nature, including, but not limited to, attor-
neys' fees and all litigation cost;; arising out of "Calavera's"
·~esign or construction of the proposed· facilities or any other
...act or omission to act by "Calavera", its agents, servants, employees,.
invitees, or independent contractors which are required by this
Agreement.
'Notwithstanding the foregoing,·the indemnity agreement created
by this Sec. 6 shall not indemnify the "City", its officers, direc-
tors, agents or employ.ees against any liability arising from the
negligence or willfull misconduct of the "City", its officers,
directors, agents, employees or independent contractors.
7 . ., ,CALAVERA TO MAINTAIN INSURANCE
"Calaverall or its contractors shall maintain in force during
·the full period of construction pursuant to this Agreement a full
,comprehensive public liability and property damage insurance policy
insuring against any and all claims for injuries or death of persons
or damage to property occurring in, upon, or about'· the property
~ub~ect to this agreement. The proposed insurance contract shall
be submitted to the "City" for its approval prior to init,iation
of insurance coverage. The insurance contract shall have limits
of not less than $1,000,000.00 single limit coverage and the "City"
shall be 'listed as an additional named insured. Prior to comrnence-
-ment of actual construction, "Calavera" shall submit a certificate
'of the insurance to the "City" which shall provide for at least
:forty-five (45) days notice of cancellation or modification of
~overage or limits.
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8. AHBI'I'PJ"\TION OF DISPUTES
L~ .'-. :,--.~"f-:: .. ::~''f':~ . --'-: --..-.
Any controversy o~laim bettveen the-parties to this 1\g:>::eement.,
including, but not Ij.mited to, any claims .. disputes ... dernands r differences;.
controversies, or misunderstandings arising under, out of, or-in
'. . ...
relation to this Agreement, or any alleged breach-of this Agreement.
shall be submitted to and deterQined by arbitration in accordance
.wi th the California Arbi tra-tion provisions contained in Ci \TiJ~ Procedure
§1280 et. seq~, as amended from time to time" except as to those
provisi?ns of this Agreement excluded from Arbitration (Section
10).
-The arbitrator---or-·arbitrators:shall : determine---the-__ riahts-:.:c.:----~--
of t,he parties in accordance with the law and the a,v-ard shall be:
subj ect to revie,'17 as to the arbitrator Us application of the law
by, any court having jurisdiction of the matter f whether or not
any mistake of the 1a'!,-J shall appear upon the face of the aw-arcL
AS' to all questions of fact .. however i ,the determination of the
arbitrator'"or a~b~trators shall be binding upon all parties -and
shall be deemed final and conclusive 0 Each party' shall be ent:itled
to "vri tten findings of fact and conclusions' of la\v as to all issues
determined by the a\vard~ . Subject to the above limitations, the: .
award granted by ~he arb{trator shall be binding upon all parties
to the arbitration' and judgment upon, the a\.,~rd rendered by the
arbi trator or arbi t-rators may b~ entered .in-any court having; -jurisdiction
over the matter.
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9. CALAVERA AND TRANSFEREES TO COMPLY WITH ALL APPLICABLE
LAWS AND REGULATIONS
9.1 ·"Ca1avera·~' to Comply with' Applicable Laws' and Reglilations.
"Calavera, its agents, s~rvants, employees,' assignees, or
. ,designe~d ?-gree to comply with all applicable governmental laws,
rules, regulation~ and policies necessary to design,. construct,
and utilize ~ne transferred land and proposed facilities. In
particular, "Calavera" agrees to provide for utilization of re-
·claimed water on its-property in the manner provided by law
including, but not limited to, all rules and regulations of the
"City" of general application imposed from time to time.
9.2 Transferees of Calavera to Comply with Applicable
Laws and Regulations.
t'Calavera" has been informed and understa1)ds that transferees
of its-property must use reclaimed water for all non-potable water
uses made available as a result of completion of these proposed
facilities in the anner herein provided and in the manner provided
by law. In particular, "Calaverall agrees to insure that all trans-
£erees of its property are obligated to observe the terms of this
Agreement to the extent necessary .to continue-operation of the
facilities in a legal manner and IICalavera" further agrees to
insure that all transferees of its property are obligated to
utilize the reclaimed water in a manner compatible with all appli-
cable laws, rules, ~egulations, or ot~er governmental policies
.in effect from time to time. Among other things, this requires
~Calavera" to insert restrictive covenants in deeds, CC&R's or
·other contracts between "Calavera II and its transferees to ins'ure
-compliance with thi's Sec. 9.2.
14
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1 CALAVER~S RIGHT TO TERMINATE CONTRACT
-"Calavera" or its successors may terminate the obligation
to ,receive re~laimed water in accordance with this ~greement . '. . . . .' ' .
. ,provided "Calavera" or their successors in interest have'pro-
. .
'. ' vided .the "City" with, or' the "City" shall otherwise have, an
, ,
_alternative means of dispo'sing of the resulting reclaimed water
·or other alternative means of treating and disposing of the
, ,
-500,000 g.p.d./a.d.d.w.f. waste water which is acceptable to
±he IICity" in its sole discretion. The decision of the "City"
in this regard shall be final and binding on "City" or its trans-
£erees and shall not be subject to review by artitration or through
any court proceeding.
11_ CALAVERA AS THE CITY'S AGENT
"Calavera" shall be. deemed 'the "City's" agent to enter in
and upon such property of the "City" as may be required from
time to time to accomplish the purposes of this Agreement. How-
ever, .IICalavera" shall' indemnify the "City" fqr acts of itself
:or for other parties present on the "City's" property with "Cala-
vera's" consent or approval in accordance with the indemnity
-agreement discussed in Sec. 7 of this Agreement.
~t is understood by the parties that the agency right granted
. ~Calavera" pursuant to this Sec. 11 is not a license or other
possessory or taxable interest of "Calavera" in the property of
the "City".
12. NOTICE AND PAYMENT
Any notice and payment or instrument. required by this Agree-
'ment shall be deemed delivered if d~posited, certified mail, in
the United States mail and addressed as follows:
--~'Calavera "
Lake Calavera Hills Associates
~207-D Elm Avenue
-Carlsbad, CA. 92008
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"City"
City of Carlsbad
1200 Elm Avenue
Carlsbad, CA. 92008
Notice 'of a change of address shall be delivered ~n the same
,manner 'as any other notice provided,by this Section but shall not
~e deemed effective until received by the other party to this
Agreement .
..13.. ASSIGNMENT
4Calavera" shall not assign the right to receive reimburse-
ment pursua'nt to the provision's of this Agreement without prior
approval of the "City"; provided, however, "City" reserves the
right to limit the assignments so as not to be required to make
payments to mUltiple assignees under circumstances which may
create an administrative burden for "Cityll. Notwithstanding the
foregoing, "Calavera" may grant a security inte.rest in, or pledge,
the rights of "Calavera" to receive reimbursement hereunder to
institutional leaders for the purpose, of securing obligations of
,w'Calavera" to such lenders.
., .. : ....
14. TIME OF THE ESSENCE , ;
Both parties understand that ti~e is of the essence in the
,completion of all matters contemplated by this Agreement because
of potential changes in governmental regulations applicable to
the proposed project and because of potential changes in the
public's acceptance of the proposed project. Both parties agree
to use all due diligence to complete all phases of the work con-
templated by this Agreement at the earliest possible time.
oi'Calavera II and "City" intend that transfer of the land and ~ccep
tance of the total project by the "City" shall be 'completed by
December 3D, 1979; except for delays caused by matters beyond con-
trol of the parties such as, but not limited to, strikes, war,
inclement weather, force majeure, or regulatory approvals.
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. 15. NOTICE OF TAXABLE POSSESSORY INTEREST
If this Agreement results in the creation of a possessory
interest ,", and sUGh 'po~sessory interest is
party to this document, the private party
vested in a private . , .
may be sQbjected to the . . . .
payment of personal property taxes levied on such interest.
16. ANTI-TRUST CLAIMS OF CALAVERA OR SUCCESSORS
By entering into this Agreement or any sub-contract pursuant
to this Agreement, "Calavera",'each contractor, and each sub-
-contractor who .performs work or who supplies goods, services or
materials in accordance with the terms of this Agreement hereby
offers and agrees to assign' to the '.'City" all rights, title, and
interest in and to all causes of action it may have under federal
·or state anti-trust law including, but not limited to, any anti-
trust action any of them may have under Section 4 of the Clayton
Act (15 U.S.C. ~15) or under the Cartwright Act (Chapter 2 com--.
mencing with ~16700 of Part 2 of the Division 7 of the Business
and Professions Code), arising from the purchases of goods, ser-
:vices or materials pursuant to this ~greement or any related sub-
contract. This assignment is made and becomes effective at the
. time the' "City" accepts the proposed facilities and land transfer
without further acknowledgement of the parties. "Calavera" agrees
to insure that a comparable provision is included in all contracts
or sub-contracts at .all tier levels which are executed pursuant to
this Agreement:
17. VENUE
~n the event of any legal or equitable proceeding to enforce
·the terms or conditions of this Agreement, 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.
lB. MODIFICATION
~his Agreement may not be altered in whole or in part except
·by Eodification in writing, executed by both parties to this Agree-
~ment.
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'ceeding or litigati9n in law or in equity, including any action
, .
'for declar~tory relief', is br,ough to enforc'e or interpret the
p~ovisions,or performance of this ~greement, the prevailing party
or.parties shall be entitled to an award of reasonable attorneys'
fees and all costs associated with the proceeding as determined
.by the Court, the presiding officer, or the arbitrator authorized
to make a determination of the issues in addition to any other
relief to which the prevailing party may be entitled.
If ·either party to this Agreement beco~es ~ party to liti-
gation, an administrative proceeding or arbitration concerning
the enforcement or interpretation of the provisions of this Agree-
IDent or the performance of this Agreement by reason of any act or
omission of the other party, its agents, employees, officers,
directors, or any other representative of the other party, and
not by a~y act 'or omission of the party that becomes a party to
that proceeding or its authorized representatives, the party that
-causes the other party to become involved in the 'proceedings
shall b,e liable to that party for reasonab,le attorneys' fees ,and
,all costs of the proceeding incurred by that party. The awaFd
of reasonable attorneys' fees and all costs shall be determined
as provided above.
~n the event opposing parties have each prevailed on one or
'more cause of action actually contested or admitted by pleadings,
",discovery or prehearing documents on file, the arbitrator or
presiding officer may offset such fees and costs between prevailing
'parties after considering the necessity of the proceeding and the
~mportance of the issue or issues upon which each party has prevailed.
20. RIGHT OF CITY TO INSPECT
.Both parties to this Agreement understand that "City" intends ..
to approve, or inspect and approve,' all phases of design and
. :construction of the proposed facilities. "Calavera" shall supply
the "City" with such information as the "City" deems necessary
.-18
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from time to time in, the "Citytsll sole discretion to properly
review all design and construction phases of the contract and
to provide the IICity" with the opportunity to inspect the pro-:-
posed facilities 'from'to time'upon request.
21. RECLAIMED NATER QUALITY
~he parties understand that the presence of dissolved min-
erals and other substances in reclaimed water above certain con-
~entrations can be deleterious to i~s use for irrigation of land-
scaping, crops and other vegetation. The "City" agrees to exercise
.all reasonable efforts to maintain quality of reclaimed water
which permits its use for green belt, parkway, and agricultural
irrigation without undue damage to vegetation. As a g.eneral
. guideline, it is agreed that the "City" shall direct its efforts
,towards limiting the lncrease of dissolved minerals (total dis-
solved solids) concentrations in the reclaimed water to not more
than 300 milligrams per liter above the total dissolved solids
concentration in the "City's" potable water supply. In addition,
the "City" shall not permit 't:he tGtal dissolved solids concentra-
tion of reclaimed water to exceed 1200 milligrams per liter at
any time, nor permit substances toxic to plant life to be present
in the reclamation system in concentrations that would be damaging
to ve~etation being irrigated. "Calavera" agrees to support and
,cooperate with "City" in actions to maintain or improve the quality
~of the reclaimed water.
22. 'OPERATION OF THE PROJECT
Upon completion and acceptance of the Project, ",City" shall
thereafter operate and maintain the Project in accordance with
~ound engineering operation and maintenance criteria for like and
~imilar waste water facilities so as to meet applicable waste
~ischarge requirements and permits for the use of reclaimed water
subject the applicable provisions of this Agreement as to the
duties ~f "Calavera" and its transferees to use such reclaimed
·water in accordance with the applicable provisions of such permits.
19
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23. INTEGRATED AGREEMENT
The reimbursement provisions for payments to "Calavera" by
the ~ICi ty!~ (which is, c:ondi tioned on "City's" receipt of connection
fees as a source of funds for payment) is severable. Except for
that severabl~ provision, this Agreement is an integrated agree-
·Eent and in the event any provision of this Agreement is held to
be invalid, void or unenforceable for any reason so as to defeat
the objectives that either party seeks to attain pursuant to
this Agreement, the entire Agreement shall be null and void.
All clauses containe~ in this Agreement shall be interpreted
in a manner which renders them valid under applicable provisions
,of state or federal law to the maxi~um-feasible extent.
24. CONSTRUCTION AND PERFORMANCE BONDS
~Calavera" agrees to insure that all construction carried out
pursuant to this Agreement is covered by a performance bond or a
standby letter of available funds in an amount equal'to 100% of
.the construction contract and a material bond in a like amount
naming the "City" and "Calavera" as named insured and providing
.£or costs including attorneys' fees in the event of a dispute
under the terms of any such construction contract or bond.
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The effective date of this Agreement, executed. in counter-
parts by the parties hereto in t.he North County Judicial District, .
County of San Diego, State of California is March 1979.
LAKE CALAVERA HILLS ASSOCIATES
A California Limited Partnership
* By =---~--~~~---------------------.Roy J. Ward
General Partner
CITY OF CARLSBAD
By
=R-o-n-a~l'd~~P~a-c~k~a-r~d--------------------
Mayor
ATTEST:
BY~ __ ~~ __ ~ ____ ~ ______________ _
Aletha L. Rautenkranz
City Clerk
(SEAL)
* The signature on. behalf of Lake Calavera Hills Associates must
be notarized as to identity on the individual and the authority to
execute the agreement on behalf of Lake Calavera Hllls Associates.
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. . .AGREE~1ENT
FOR
•
DESIGN AND CONSTRUCTION
OF
:RECLAr.1ATION FACILITIES BET~VEEN
.LA -COSTA LAND COMPANY AND SAN -MARCOS COUNTY WATER DISTRICT
~HIS AGREEr1ENT is entered into by and between LA COSTA LAND
:CO~1PANY (liLA COSTA"), an Illinois c~rporation authorized to do
-" business in the State of California and THE SAN r1ARCOS COUNTY
~W.ATER DISTRICT ("DISTRICT"), a County l'later District created and
-operating ~ursuant to §30000 et. seq~ of the State of California
-l'later Code.
R-E-C-I-T-A-L-S
~. LA COSTA is "the owner of certain real property within
the SAN MARCOS COUNTY t-lATER DISTRICT which LA -COSTA desires to
:develop for residential-and-other purposese
-2. LA COSTA is unable to develop this property at this time
;because of limited se\'lage trea-tment facilities and capacity "in
'the areae
3. At this time the DISTRICT does not have capacity to provide
sewage service to LA COSTA's propertye
4. ~he DISTRICT is willing to'permit reactivation and expansion
-of DISTRICT's treatment facilities to provide additional capacity,
. "'lith the understanding that a portion 0:( thi.s capacity is to be
-reserved for the sole and exclusive use of LA COSTA as provided
in this agreement and the remainder of the capacity is to be avail-
-able to LA COSTA and others to the extent provided in this agree-
~ent and/in the rules and regulations of the DISTRICT as may be
-adopted from time to time. .
--1-
Revised 3/20/79 /
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. 5. This Agreement for wastewater reclamation is intended
to provide the DISTRICT with additional waste~ater capacity for
both LA. COSTA and other property owners within the DISTRICT's
'service area to the extent and in the manner described in this
Agreement. It is mutually understood that without the reservation
of c~paci ty for LA COSTA as provided in t'his Agreement i LA COSTA
wQuld not enter into this Agreement and the availability of such
capacity to LA COSTA is a condition precedent to all obligations
of LA COSTA, as subsequently described in this Agreement.
6. ,LA COSTA is willing to renovate the exi~ting wastewater
treatment facility of the DISTRICT and to design and construct
additional facilities at 'the DISTRICT's plant site; upon completion,
the DISTRICT is to have the capacity' to reclaim an average daily
dry weather flow of 600,000 gallons of wastewater (g.p.d./a.d.d.w.f.).
7. In adddition, LA COSTA is willing to design, construct
and dedicate to DISTRICT, a reclamation water storage reservoi~
for the DISTRICT ~ith a minimum storage capacity of 54,000,000
'gallons exclusive of surface water runoff so that the DISTRICT
will have ~ reserve storage capacity 'for a period of ninety (90)
. .
days at the anticipated flow of 600,000 g.p.d./a.d.d.w.f. All
of the foregoing facilities described in Section 6 and 7 of this
Agreement are "the Project", as more specifically described in Exhibit
II A" as items 1, 2 and 3. In addit1on, LA COSTA intends to provide
facilities in conjunction with that reservoir for the use (disposal)
,of 500,000 g.p.d./a.d.d.w.f. of reclaimed wate,r. It is acknowledged
that while this use (disposal) is not part of "the Project", assured
disposal is an essential element of a program to attain a permit
to operate the system. 'rhis essential element of the pro~iram
is not included as pa~t of "the Project" because LA COSTA' and DISTRICT
-2-
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intend that LA COSTA will provide this use of the r~claimed water
on LA COSTA's own intended land development programs. The technical
components of the Proposed San Marcos Reclamation Facility (Items 1,'
2 and 3 comprise the Project) are listed in Exhibit liN' to this Agree-
mente
8. LA COSTA intends to bear all 'initial costs to design,
renovate, and construct the Pro~ecto The DISTRICT intends ,to reim-
burse LA COSTA for these costs by charging users of the facilities
a service connection fee and by delivering. as herein provided
a portion of this fee to LA COSTA. This, payback is to terminate
when all capacity in the Project has been sold or, on the expiration
of the ten (10) year defined period, whichever occurs first, even
.though LA COSTA may not have been reimbursed for all costs or
interest at the end of the payback period.
,9. LA COSTA intends to sell to the DISTRICT such real 'property
as will be necessary for the proposed storage reservoir., LA
COSTA is to be entitled to repurchase this property in the event
that D'ISTRICT has terminated its use of the reservoir for reclamation
use within ten (10) years from the date the option to purchase
has been recorded.
10. DISTRICT intends to reserve for the sole and exclusive
use,of LA COSTA 200,000 g.p.d./a.d.d.w.f. of capacity from the
Project which acconunodates 800 dwelling unit equivalents (DUEs) for
the,ten (10) year option period for development of LA COSTA's
property (located within DISTRICT's sewer service ~rea) by LA
COSTA or its transferees.
11. LA COSTA has agreed to ,supply the DISTRICT in conjunction
with the proposed 54,000,000 gallon rqservoir with a disposal
area for the reclaimed water sufficient tci dispose of 500,OOD
g.p.d./a.d.d.w.f.
-3-
'Revised 3/20/79
.....
l2~ DEFINITIONS
Nhenever the following terms occur in this l\greement, the
meaning shall be interpreted as follows:
12.1 Acceptance --The formal action by the DISTRICT aCGepting
. the project or a severable portion of the project as beiag complete.
12,,2 Average Daily Dry tveather Flow 250 gallons per
day per dtvelling unit equivalent"
12.3 Project --The existing DISTRICT sewage treatment plant,
to. be rehabilitated and expanded to a capacity of 600,000 g.p.d./a~d.d.w.f
the 54,000,000 gallons of surfa~e storage reservoir and dam, and
. .
the pumping/piping system for conveyance of effluent from the
sewage treatment plant to the reservoir.. SEE: Exhibit "An (-Items
1, 2 & 3)
12.4 Project Cost --Includes all dollar costs of "the project"
for engineering and environmental studies, testing, surveying,
design, inspection and construction of the Project; it also includes,
but is not limited. to, cost of land and rights-of-way, legal and
administrative expenses associated with the Project, the cost
of borrowed funds, insurance and bonq premiums, and expenses for
meetings with and presentations to government agencies which permit
or otherwise regulate project design, cons~ruction or operation.
Reimbursable Project costs shall be.reduced by the amount qf any
contribution or prepayment by DISTRICT or parties other than LA COSTA
and such contribution or prepayment may be made by DISTRICT or on
DISTRICT's behalf at any time at DISTRICT's~discretion.
1~.5 Work --Any and all obligations, duties, and responsibilities
necessary to the successful completion of the project assigned to, or
undertaken by LA COST,A pursuant to this Agreement, including·,
but not limited to, all labor, materials, equipment and other
incidentals and the furnishing thereof.
-4-Revised 3/20/79
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12.6 'Transfere'es Any party who 'acquires land (Ioca ted wi thin
DISTRICT's sewer service area) from LA COSTA under any circumstances
whether by gift, inheritance, devise, or any other transfer of
what9ver type or naturee
C-O-V-E-N-A-N-T-S
Ie CONSTRUCTION OF FACILITIES·
1.1 Renovation of Existing Treatment Facilities.
LA COSTA agrees to rehabilitate and reactivate the DISTRICT's
existing: wastetV'ater treatment facilities' ·so that this' facility
can receive and treat for reclamation an average daily dry weather
flow of wastewater in the total amount of 270,000 gallons. LA
,COSTA shall be solely responsible for completing all phases of
concept, design and construction with respect to this rehabilitation.
LA COSTA further agrees to bear all concept, design and const'ruction
. .
costs associated with reactivation of the existing treatme~t facility
including but not limited to, all professional fees, all permit
fees, all taxes or other assessments, and all labor and material
costs (the "Project costS")e All design f contract award and
construction shall be approved by the DISTRICT within thirty (30)
days after receipt of the plans and specifications and the contract
docum~nts'for the Projecte Any disag~eement between DISTRICT and LA
COSTA with respect to these matters, which is not resolved by
mutual agreement between the parties, shall be resolved in accordance
with the arbitration provisions set.fortp 'in this.Agreement.
A legal description of the location of the existing treatment
facilities is attached as Exhibit "B" and fnco~porated herein by
reference.
1.2 Construction of Other Wastewater Facilities.
LA 'COS'l'A further agrees to design and construct sufficient
additional wastewater facilities to collect, treat, reclaim and
dispose of an additional average daily dry weather flow of wastewater
-5-Revised 3/20/79
, "
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. .
in an amount of 330,000 g.p.d./a.d.d.w.f. LA COSTA shall bear
all costs associated \vi th this design and .construction as more
specifically set forth in Section 1.1 above. These costs shall
be·part of the Project cost. All design, contract award and construction
p.hase·s shall be initiated subject to the approval of the DISTRICT
in the same manner as provided in Sec.· 1.1 of this Agreement including
..
resolving any questions thereto as to which the .parties disagree.
Upon completion of the facilities discussed in this Section (1.2)
and in Section (1.1) of the Project, the DISTRICT shall have total
additional average daily dry weather flmv of wastewater treatment
capacity in an amount of 600,000 g.p.d./a.d.d.w.f ..
~vhile DIST~ICT shall have treatment capacity·for 600,000 g.p4d./
a.d.d.w.f., until additional use is established over and above that
500,000 gallons to be used by LA COSTA or transferees, DISTRICT's
operation shall be limited to the 500,000 g.p.d./a.d.d.w.f.,. until
such time as disposal· a~d use of the additional 100,000 gallons is
provided for in connunction with the 54,000,000 gallon reservoir by
some party other than LA COSTA. The configuration of the Project
shall allow DISTRICT or DISTRICT·'s designee to ~onstruct additional
facilities to expand treatment to not less than.800,000g.p.d/a.d.d.w.f.
on DISTRICT's existing plant site.
1.3 Meadowlark Line.
It is mutually agreed that the existing 8" gravity sewer collection
pipeline in the Meadowlark area wilf not·be used for transporting raw
sewerage from lands not immediately tributary to the \vastewater
reclamation plant.
1.4 Construction of a Storage Reservoir.
LA COSTA further agrees to design and construct, subject
to the DISTRICT's approval, ~ r~claimed wa~er storage reservoir
~ith a minimum capacity of 54,000,000 gallons of storage for reclaimed
. -6-
[
water exclusive of capacity for local surface waters or including
.facilities to by-pass such surface flow. Any 9uestion as to the
design and approval of this portion of the' Project shall be resolved
as provided in Section 1.1 of this Agreement and the cost shall
be included in the Project cost.
1.5 Cooperation During Design and Construction.
LA COSTA and the DISTRICT mutually agree to cooperate to
obtain any and all permits, licenses, or other docUments which
may be necessary to design and construct the proposed facility
in compliance with all applicable la,vs 'and regulations and to
take all such additional steps as may be necessary to complete
the design and construction of the proposed facilities at the
ea.rliest possible time. Upon request: D~ST:::UCT \vill approve in the
manner provided in Sec. 1.1, a preliminary or final ~esign report
on the Project or any portion of the Project.' \vhenever this ,
1>.gr,eement requires a party to "approve" such ppproval shall not
unreasonably be withheld.
Upon completion of const~uction and design and upon approval
,by the DISTRICT, LA COSTA shall execute and deliver to the DISTRICT
all docum~nts necessary tq vest title to the constructed facilities
in the DISTRICT as DISTRICT may'designate in its sole discretion.
, ,
For purposes of taxation, the DISTRICT shall be treated as the
owner of the property on the date title is legally vested in its
name.
1.7 Construction Procedures. , '
. ,
DISTRICT and LA COSTA shall mutually pre-select not less
than three (3) reputable contractors to submit bids on the proposed
project. Bids shall remain open for a period of thirty (3D) days.
-7-
(j)
',-
. A, .... •
The DISTRICT shall be entitled to approve the successful bidder.
LA COSTA agrees not to approve any change'order in excess of $25,000.0'
without obtaining the prior approval of the DISTRICT~ Upon completion
of construction, for a major segment of tpe construction)' LA COSTA
shall submit to the DISTRICT a cost statement setting forth the • t
~roject cost~ The DISTRICT shall audit this Cost Statement and
such books of LA COSTA as it deems necessary to verify the accuracy
of the final cost statemente The DISTRICT shall bear all costs
of the audit and shall be entitled to appoint such independent
auditor or auditors as ·it deems necessary to adequately verify
the final cost statement. LA COSTA agrees to make such documents
and othe'r information available as the DISTRICT deems necessary
in its sole .discretion, for this purposea
2e REIMBURSEMENT OF COSTS
2.1 Reimbursement from the Cost Statement.
The DISTRICT agrees to reimburse LA COSTA for the Project
cost ("including the value of the reservoir site provided for in
Sece 3) as stated on the final cost statement following such audits
and audit approvals as the DISTRICT d~ems necessary, in its sole
discretio'n, less the amount of any contribution or prepayment made
by DISTRICT or parties other than LA COSTA.
2.2 Reimbursement Agreement.
The DISTRICT shall charge all users of the Project, including
LA COSTA, a service connection feeo
Upon receipt of service connection fee payments, the DISTRICT
shall pay to LA COSTA 80% of such payments, but not less than
$1,000 per service connection upon payment in full for each such
service corinection. This reimbursement agreement shall comm~nce upon.
-8-
Revised 3/20/79
-------.• 0::,--,_.
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the QISTR~~T'S receip~ o~ any service connection f~es applicable ~o
the Project and shall continrie for a period of ten (10) years
from the recordation date of the Notice' of Completion on the final
phase of construction on the Project or until LA COSTA has been
reimbursed for all costs of the Project or from all connection fees
for the 600,000 g .p. d./a. d.d. \v. f. capacity, \<Thichever occurs .first ..
. "Reimburs,ement shall include the cost of the reclaimed water
. transmission main to convey reclaimea water from the surface storage
,I'
reservoir and/or reclamation plant to the equalization storage tank.
In no event shall reimbursement include the cost of reclaimed water
distribution lines to convey reclaimed water from the reclaimed water
transmission main to the points of use.
The.project may be constructed in one or more segments. The
cost as herein defined of each segment shall be determined by audit
upon completion and acceptance or commencement of use of each segment.
Interest shall be paid upon such amounts from the date of accept.ance 1 i
The. \
rate of interest shall be seven pe~cent (7%) per annum on the unpaid 1
or commencement' of use of each segment, whichever occurs f~r~t.
balance of any unpaid reimbursahle amounts.until paid .. Qua.rterly un-
paid interest shall be added to the unpaid reimbursable amount to be·
paid to LA COSTA from the connection fees as herein provided. ]l.t the
\
,.
I \.
end of each quarter or portion thereof, payment shall be made by DISTIRCTI
I to LA COSTA within ten (10) calendar' days and the amount thereof shall ..
be deducted frpm the amount as to which interest shall accrue for the
. nex·t succeeding quarter.
In the event the term of the reimbursem'ent agreement expires be-
fore all reimbursements. have been completed,' the obligation of the
DISTRICT to make further payments to LA COSTA shall termil,ate. LA
COSTA understands that this reimbursement program may not cumpensate
LA COSTA for all reimbursable costs or interests on the Project. Any
monies held by DISTRICr on ~he expiration date of the reimbursement
agreement to which LA COSTA would be entitled at the nex~ following
payment period shall be paid within ten (10) days following the expi.ra-
-9-Revised 3/20/79
....... i\f.:P.T."'21 __ 1"J .C!\!i~!"'''''''''.:'''''k;S ........ , ."X; 1&4 WI ... UI' .... ,........'_. _"'_ ........ ___ ._..,..,. ,-•• -.--.......... -.... -.. ---.. -...:.......--------------
.'
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..
tion date. In the event DISTRICT has received partial payment on
.~connection fees as of the exniration date, DISTRICT shall continue . ... .
xo make payQents as the remaining amounts are received on these fees,
··notwi thstanding the expiration of the reimbursement period, until such
time as all partially paid connection fees are paid in full or the
-.payment of that connection fee is terminated pursuant to the rules
~and regulations of the DISTRICT of general application which may be
.. adopted from time to time.
,3~ LA COSTA TO SUPPLY LAND ~VITH OPTION TO REPURCHASE
3.1 La Costa to Supply Land.
LA COSTA agrees to supply 'the DISTRICT sufficient real
-.:property for the proposed 54,000,009 gallon storage ~eservoir
~ith appurtenant pumps and other ancillary facilities, a part
of the Project. LA COSTA further agrees through the DISTRICT
I~r otherwise, to acquire such easements and other rights-of-way
as may be necessary to properly serve the proposed storage faciiity •
. ~hese costs are a part of the Project cost. This real prope~ty
shall be deeded to the DISTRICT upon completion and acceptance
-'.of the water storage reservoir by the DISTRICT. A copy of the
'7general legal description of the land (the description to be refined
"following construction) to be sold is attached as Exhibi t "C"
.-·and incorporated herein by reference.
3.2 Valuation of Land. .
. -Upon execution of this Agre~ment the parties shall select
,a .-mutually acceptable Ml\I appraiser to determine the fair market
v.alue of the storage reservoir property as of the elate this Agreement
is executed. The value which the MAl appraiser establishes for
the storage reservoir property shall be deemed final and conclusive
and not subject to unilateral review or appeal by either party.· .
:-In the event. that the ~·1l\I appraiser determines that the fair. market
-10-
, '.
value of th~ land to be deeded. for the ~torage rese~voir exceeds
$20,000 per acre, both parties agree to accept a figure of $20,000
·per acre as the accepted fair market value. The agreement to
ac~ept a maximum value of $20,000 per acre shall be final and
binding as to both parties.
3 ... 3 Option to Repurchase_
~he DISTRICT· shall grant to LA COSTA an cption to repurchase
the land LA COSTA has conveyed for the proposed storage reservoir.
~his option shall extend for a period of ten (10) years from the
rlate the option is recorded by DISTRICT and shall be exercisib1e
by LA COSTA only if the DISTRICT terminates the use of the storage
reservoir and appurtenant structures with~n ten (10) years from
the date ·the option has been recorded. The option agreement between
the parties has been attached hereto as Exhibit "D" and incorporated
,herein by reference. This option shall be recorded immediate~y
~ollowing acceptance and recording of the deed of the reservoir
·.si.te from LA COSTA to DISTRICT.
'4" DISTRICT GUARANTEE OF 200,000 GALLONS OF WASTEHA'fER CAPACITY
·IfO LA COSTA
4 .. 1 Guarantee of 200,000 Gallons.
~he DISTRICT agrees to provide LA COSTA, its successor or
·~esignee/·with 200,000 g.p.d./a.d.d.w.f. capacity from the Project.
·lIowever I LA COSTA or LA COSTA I s. designees shall· pay the then existing
capacity or connection charges of the DISTRICT. Until all the proposed
-facilities comprising the Project are complet~d and accepted by the
nISTRICT, LA COSTA shall be entitled solely to service on a prorated
~ortion of the 200,000 g.p.d.!a.d.d:w.f .. ultimately guaranteed
·det~~mined by dividing the disposable average daily dry weather flow
~apacity of operational facilities by 500,000 gallons and multiplying
this fraction by 200,000 g.p.d./a.d.d.w.f.
·'EXAr·1P LE S : (1) Treatment is available fo~ 600,000 g.p.d./a.d.d~w.f.
but only 100,000 g.p.d./a.d.d.w.f.
is capable of being used or disposed of in
the manner provided ~y law. (100,000 di~ided
by 500,000) x 200,000 equuls 40,000 g.p.d./a.d.d.w.f.
-11-
..
~) Treatment is available for 270,009
~.p.d./a.d.d.w.f. bpt only 300,000
·g.p.d./a.d.d.w.f. is capable of being
~sed or disposed of in the manner
.provided by law. . (270, 0 ° ° divided by .
500,000) X 200,000 equals 108,000
g.p.d./a.d.d.w.f.
LA COSTA shall not be entitled to any priority by reason of this
Agreement as to the remaining 400,000 gallons of average daily
-~ry weather flow of capacity from the Project but shall be entitled
.to participate in the use of this remaining capacity in accordance
.~ith the Rules and Regulations of the DISTRICT then in effect.
4.2 E*ecution of "Will Serve" Letters •.
,Up.on execution of this Agreement, DI~TRICT agrees to issue,
'-.at LA COSTA's request, from time to time, such conditional "will
',serve" letters or verifications of the availability of service
-up to.a total of 200,000 gallons of averag~ daily dry weather
flow of ~apacity as may be required by the City of Carlsbad, the
~ity of San Marcos, or the County of San Diego to prove that sewer
service will be ~ade available at the time of need for projects
,~of LA COSTA up to the maximum limit of 200 ,000 g.p.d./a.d.d.w.f •
.:However, in no event shall LA COSTA rece i ve. service connections
Ior greater than the total periodic capacity to which LA COSTA
is then entitled to in accordance with section 4.1 (and the examples)
·:set forth above.
5.; LA COSTA DEVELOPMENT OF USE OF t'lASTmvATER
.500,000 ~ALLONS G.P.D.
5.1 Disposal of 500,000 G.P.D.
~he parties understand that regulatory agencies require that
the District demonstrate the ability to dispose of a minimum of
~oo,ooo gallons of the total 600,000 gallons of average daily
dry weather wastewater flow contemplated by the proposed project
-12-Revised 3/20/79
~t~~~'$.~?l!~~J~,,*'il.~~~""~~,,?~~~~.$.~_ .• !!:l __ ~-::;:;!l.ll!(.;;~c-"tJ, •. !'!!.l11'I'.~., .. !Il\'_if\1':_~_:...""'~-z.~:"§1l:c~-::~.:::...~_~'~1--~~~~~· .. ~ -.. --~--.-.--.----a.-----~e ____ ~~~._w
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.. ,0£ LA COSTA~' LA COSTA agrees to develop or cause' to be developed
the real property described in Exhibit "E", located within the
District; so that after ultimate development a minimum of 500,000
"gallons of average daily dry weather flow of reclaimed water will
~e utilized for irrigation purposes to satisfy this governmental
-Iequirement. The DISTRICT agrees to use its best efforts to locate
~ther legal users of the reclaimed water so as 'to minimize the
total amount of property which LA COSTA must make available to
satisfy this governmental condition and also to provide for use
-of the additional 1,00(,000 g.p.d. which can be provided by the Project
~ut not used by LA COSTA.
-5.2 Inspection and Entry.
<-The DISTRICT shall be further entitled ,to inspect from time
eto time the manner in which LA COSTA is ut~lizing the reclaimed
-water for disposal purposes to insure compliance \-li th various
. ,
-governmental rules and r.egulations including such rules and regu-
lations as the DISTRICT may adopt from time, to, time. The DISTRICT" S
right of ,entry on the LA COSTA land for this purpose shall be
,carried out in accordance with Exhibit "F"p attached'hereto and
~ncorporated herein by reference.
~5.3 Disposal Guarantee.
LA COSTA shall ensure by deed restrictions and CC&R's that
~isposal of 500,000 g.p.d./a.d.d.w.f. is guaranteed to DISTRICT~
.nd that such use is subject to DIS~RICT.inspection, and DISTRICTls
r'ules and regulations for water, sewer and reclaimed water service,
·as may be adopted, from time to time, for general application for
this Project.
-13-
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INDEMNITY OF THE DISTRICT
LA COSTA shall indemnify, assume the defense .of~ and hold
:free and harmless, the DISTRICT, its officers, directol;s, agents,
_-employees and any engineer, archi tect or other consultant utilized
~y the DISTRICT on the project from any and all ob~igations, liabilities,
_-~iens I claims, -demands, losses, damages and expenses, of whatever
type or nature, including, but not limited to, -attorneys 1 fees
and-all litigation costs arising out of LA COSTA's design or construction
nf the proposed facilities or any other act or omission to act
~y LA COSTA, its agepts, servants, employees, invitees, or independent
~ontractors which are required by this Agreement.
~Notwithstanding the foregoing, the indemnity agreement created
~by this Section (6) shall not indemnify the ~ISTRICT, its officers,
<directors I agents or employees against any liability arising from
the negligence or wilfull misconduct of the DISTRICT, its officers,
~irectors, agents, employees or independent contractorse
'7.. LA COSTA TO r-1AINTAIN INSURANCE
LA COSTA or its contractors shall maintain in force during
-the full period of construction pursuant to this Agreement a full
'comprehensive public liability and property damage insurance pqlicy
insuring against any and all claims for inj~ries or death of persons
. -oOr -damage to property occurring in, upon, or about the property
$ubject to this agreement. The proposed insurance contract shall
-.he submitted to the DISTRICT for its. approval prior to initiation
'of insurance coverage. The insu~ance contract shall have limits
-.of not less than $1,000,000.00 single limit coverage and the DISTRICT
-;shall be listed as an additional named insured. Prior to commencement
of actual construction, LA COSTA shall submit a certificate of
the insurance to the DISTRICT which shall provide for at least
forty-five (45) days notice of canccllatibn or modification of
coverage or limits.
-14-
" .
. .. .. ~ ~-" .. "': : . "
.e.
8. AHBI'I'PJ'l.TION OF DISPUTES
. Any -,controversy .or claim between the parties to'this Agreement,
ancluding, but not limited to I any claims', disputes, demands, differences I
~ontroversies, or misw1derstandings arising under, out of, or in
xelation to this Agreement, or any .alleged breach.of this .Agreement,
shall be submitted to and deter@ined by arbitration in accordance
.with the California Arbitration Drovisions contained in Civil Procedure .' .>..
~l280 et. seq., as amended from time to time, except as to those
'provisions of this Agreement excluded from Arbitration (Section
1.0)c
. 'The arbitrator or arbitrators shall determine the rights
of the parties in accordance with the law and the award shall be
~Ubject to review as to the arbitrator's application of the law
.by .any court having jurisdiction of' th.e matter, whether or not
=any mistake of the law shall appear upon the face of the award.
~s to all questions of fact, however, the determination of the
~rbitrator or arbitrators shall be binding upon all parties and
.. shall be deemed final and conclusive. Each party shall be entitled
.to written findings of fact and conclusions of law as to all issues
'<determined by the award. Subj ect to the above limitations I the
~ward granted by the arbitrator shall be binding upon all pa~ties'
to the arbitration and judgment upon the award rendered by the
. a'rbi trator or arbitrators may be entered in any cour't having jurisdiction
.,over the matter.
-15-
9.. LA COSTA AND TRAr-TSFEREES TO COMPLY WITH
.. ALL APPLICABLE LAWS AND REGULATIONS
-
'9.1 La Costa to Comply with Applicable Laws and Regulations.
LA COSTA, its agents, servants, employees, assignees, or
:,designees agree to comply with all applicable governmental laws,
--;:rules, regulations: and policies necessary to design, construct,
. .and utilize the transferred land and proposed facilities. In
~articular, LA COSTA agrees to provide for utilization of reclaimed
wate~ on its property in the manner provided by law includin~,
but not limited to, all rules and regulations of the DISTRICT of
~eneral application imposed from time to timec
9.2 T~ansferees of La Costa to Comply with
Applicable La\vs and Regutations c
.LA COSTA has been informed and understands that transferees
·of .its property must use reclaimed water for all non-potable water
" . "'Uses made available as a result of completion of these proposed
;facilities in the manner herein provided and in the manner provided
by' law. In particular, LA COSTA agrees to insure that all transfer~es
~f its property are obligated to observe the terms of this Agreement
to the extent necessary to. continue operation of the facilities
~n a legal manner and LA COSTA further agrees to insure that all
transferees of its property are obligated to. utilize the reclaimed
~ater in a manner compatible with all applicable laws, rules, regulations,
~r other governmental policies ln effect from time to time. Among
· .. other things, this requires LA COSTA to insert restrictive covenants
in deeds, CC&R's or other contracts between LA COSTA and its transferees
to insure compliance with this Section (9~2)~
-16-
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'" '. - --.---------------,1
@
10. .LA CO~TlI.'S nIGH'+' TO TERMIHlI.TE CONTRlI.CT
.LA COSTA or its successors may terminate the obligation to
.recei ve reclaimed '..vater in accordance with this Agreement provided
,LA COSTA or their successors in interest have provided the DISTRICT
:with, or the DISTRICT shall otherwise have, an alternative means
:0£ disposing of th~ resulting reclaimed water or other alternative
-means of treating and disposing of the 500,000 g.p.d./a.d.d.w.f.
wastewater which is acceptable to the DISTRICT in its sole discretion.
The decision of the DISTRICT in this regard shall be final and
'. ,binding on LA COSTA or its transferees and' shall not be subject
to review by arbitration or through any court proceeding~
.110 LA COSTA lI.S THE DISTRICT "s AGENT
LA COSTA sha'll be deemed the DISTRICT's agent to enter iIi
.. -.and upon such property of the DISTRICT as may be required from
.time to time to accomplish the purposes of this Agreement. However, LA
COSTA shall indemnify the DISTRICT for acts of itself,or for other
parties present on the DISTRICT's property with LA COSTA's consent
or .approval in accordance with the indemnity agreement discussed
in Section 6 of this Agreement.
It is understood by the parties that the agency right granted
. -
.LA 'COSTA pursuant to this Section (11) is not a license or other
possessory or taxable interest of LA COSTA in the property of the
°DISTRICT •
. 12. NOTICE AND PAYf.lENT
..Any notice and payment or instrument required by this Agreement
~hall ,be deemed delivered if deposited, certified mail, in the
United States mail afid addressed as follows:
-1,7-
..
.lILA. COSTA II
LA COS'l'A LAND COHPANY
Costa Del Mar Road
Carlsbad, California 92008
-TAI'DISTRICT"
.'san Harcos County Water District
.788 t'lest San Harcos Boulevard
.:San Narcos, California 92069
•
~otice of a change of address shall be delivered in the same
. manner as any other notice provided by this Section but shall not
be deemed effective until received by the other party to this Agree-
.mente
~3e ASS I GNr1ENT
@
·.LA COSTA shall not assign the right to receive reimbursement pur-
~uant to the provisions of this Agreement without prior approval of
the DISTRICT; provided, however, DISTRICT reserves the right to limit
-the assignments so as not to be required to make payments to multiple
assignees under' circumstances which may create an administ~ative burden
Lor DISTRICT. Notwithstanding the .foregoing, LA COSTA may grant a
security interest ,in, or pledge, the right~ of LA GOSTA to receive
xeir:1bursement hereunder to institutional lenders for the purpose of
securing obligations of LA COSTA to such lenders.
l4. ~IME OF THE ESSENCE
-Both parties understand that time is of the essence in the
.~ompletion of all matters contemplated by this Agreement because
,~f potential changes in governmental regulations applicable to
:the proposed project and because of potential changes in the public's
acceptance of the proposed project. Both 'parties agree to use all
due diligence to complete all phases of the ·work contemplated by
this Agreement at the earliest possible time. LA COSTA and DISTRICT
intend that transfer of the land and acceptance of the total project
·-18-
", -"
. , •
by the DISTRICT shall be completed by June 30, 1982; except for
delays caused by 'ma'tte-rs beyond control of the parties such as,
.but not limited to, strikes, \var, inclement weather, force majeure',
~r regulatory approvals.
-.15<> -NOTICE OF TAXABLE POSSESSORY INTEREST
If this Agreement results in the creation ~f a possessory
interest, and such possessory interest is vested in a private party
,to this document, the private party may be subjected to the payment
.of personal property taxes levied on such interest.
~6. ANTI-TRUST CLAIHS OF LA COSTA OR SUCCESSORS
~y entering into this Agreement or any sub-contract pursuant·
to this Agreement, LA COSTA, each c'ontractcir I and each sub-contractor
~vho performs work or who supplies goods, services or materials
in ·accordance with the terms of this Agree~ent hereby offers and
agrees to assign to the DISTRICT all rights, title l and interest
,in and to all causes of action it may have under federal or state
,anti~trust law including, but not limited to, any anti-trust action
-~ny of them may. have under Section 4 of the Clayton Act (lS.U.S.C.
515) or under the 'Cartwright Act (Chapter 2 commencing with §16700
of Part 2 of the Division 7 of the Business 'and Professions Code),
,,arising from the purchases of goods, services or materials pursuant
to this Agreement or any related sub-contract. This assignment
is made and becomes effective at the time the DISTRICT accepts
. the proposed fa.cilities and land transfer vlithout further acknowledgement
:of the parties. LA COSTA agrees to insure that a comparable provision
is included in all contracts or sub-contract!;> at all tier l.evels
·whi·ch are executed pursuant to this Agreement.
-19-
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"'--. _.-_. _ .•... __ ._---.-
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~ 7. VENUE,;
:In the event of any leg'al or equi.table proceeding to enforce
the terms or conditions of this A9reement, the parties agree that
venue shall lie only in the federal or state courts in or n,earest
to the North County Judicial District, County of San Diego, State'
'.0£ California.
18. ...:MODIFICATION
This Agreement may not be altered in whole or in part except
~y modification in writing, executed by both parties to this Agreement.
19~ ATTORNEYS' FEES
In the event any arbitration proceeding, administrative proceed-
±ng or litigation in laT,v or in equi.ty·, including any action for
.. declaratory relief, is brought to enforce or inte'rpret the provisions
~or performance of this Agreement, the prevailing party or parties
~
shall be entitled to an award of reasonable attorneys' fees and
.all costs associated t.rli th the proceeding as determined by the Court,
··the presiding officer, or the arbi trator authorized to make a de'termination
,0£ the issues in addition to any other relief to which the p~evailing
;party may be entitled •
. Ifeither party to this Agreement becomes a party to litigation,
an administrative proceeding or arbitration concerning the enforcement
or interpretation of the provisions of this Agreement Gr.the performance
~f this Agreement by reason of any act or omission of the other
·,:party, its agents, employees, officers, directors, or any other
representative of the other party, and not by any act or omission
~f the'party that becomes a party to that proceeding or its authorized
representatives, the'party that causes the other party to become
invol vcd in t.hc proceedi ngs shall be liablt.:! to that party for rcnson-
:able attorneys' fees and 'ull costs of the proceeding incurred by
that party.. The award of reasonable attorneys-f fees and ul1 costs
shall be determined as provided above.
-20-
. ' !,,...-
~n the event opposing parties have each prevailed on one
or more causes of action actually contested or admitted by pleadings,
,discovery or prehearing documents on file, the arbitrator or pre~id{ng
~officer may offset such fees and costs between prevailing parties '
"after considering the necessity of the proceeding and the importance
. 'of the issue or issues upon which each party has prevailed.
20c RIGHT OF DISTRICT TO INSPECT
Both parties to this Agreement understand that DISTRICT
intends to approve, or inspect and approve, all phases of design and
construction of the proposed facilities. LA COSTA shall supply
the DISTRICT with such information 'as the DISTRICT deems necessary
.:from time to time in the District's sole ~iscretion to properly
:xevievl all design and construction phases of the contract and
to provide the DISTRICT with the opportunity to ~nspect the proposed
£acilities from time to time upon request:
21e RECLAIMED WATER QUALITY
~he parties understand that the presence of dissolved minerals
and other substances in reclaimed water above 'certain concentrations
~an be deleterious to its use for irrigation of 'landscaping, crops
and other vegetation. The 'DISTRICT agrees to exercise all reasonable
~f£orts to maintain quality of reclaimed water which permits its
-~use for green belt, parkway, an~ agricultural irrigation without
~ndue damage to vegetation. As a general guideline, it is agreed
. t-hat the DISTRICT shall direct its efforts towards limiting the
increase of dissolved minerals (total diss~~ S~lidS) concentrations .~ ~. --~ (.
in the reclaimed water to not more than 'JOO· milligrams per liter . '-----.-
above the total dissolved solids concentration in the DISTRICT's (
~otable water supply_ In addition, the DISTRICT shall not permit
the total dissolved solids concentration of reclaimed water to
~xceed 1200 milligrams per liter at any time, nor permit substances
-21-
Revised 3/20/79
.... _ :t._:;; ...... w ..... 4
toxic to plant life to be present in the reclamat,ion sys~em in
concentrations that would be damaging to vegetation being irrigated.
LA COSTA agrees to support and cooperate with'DISTRICT,in actions
to maintain or i~prove the quality of the reclaimed water.
::22 co. OPERATION OF THE PROJECT
Upon completion and acceptance of the Project, DISTRICT shall
thereafter operate arid maintain the Project in accordance with sound
,engineering operation and maintenance criteria for like and similar
,wastewater facilities so as to meet applicable waste discharge require-
.ments and permi,ts for the use of reclaimed water' subject to the appli-
:<cable provisions of this Agreement as to the duties of LA COSTA and
~ts transferees to use such. reclaimed water in accordance with the
-applicable provisions of such pe.rmi ts .
. 23.. I~\j'TEGRATED AGREEr,lENT
. .
~he reimbursement 'provisions for payments to LA COSTA by the
.~ISTRICT (which is conditioned on DISTRICT's receipt of connection
.xees as a 'source of funds for payment) is severable. Except for that
severable provision, this Agreement is an integrated agreement
and in the event any provision of this Agreement is held to be
invalid, void or unenforceable for any reason so as to defeat
'" the objectives that either party seeks to attain pursuant to this
·Agreement, the entire Agreement shall be null and void.
All clauses contained in this Agreement shall be interpreted,
~n a manner ,which renders them valid under applicable provisions
of state or federal law to the maximum feasible extent.
-22-
--1~'tt~~~~~~~~~~~~~~~l'!t'~~~~ ..... * .......... -:-'.~.~_~_ """"" ... I!TI'N ....
-~-------------
.,
~. ..
24. CONSTRUCTION AND PERFORHANCE BONDS
LA COSTA agrees'to insure' that all construction carried out
pursuant to this Agreement is covered by a .performance bond in
,.an amount equal to 100% of the construction contract and a material
-hond in a like amount naming the DISTRICT and LA COSTA as named
.insured and providing fc;>r costs including attorn.eys' fees in the
-~vent of a dispute 'under the terms of ~ny such construction con-
tract or bond.
~he effective date of this Agreement, exe~uted'in counterparts
by the parties hereto in the North County Judicial District, County
-of San Diego, State of California is Harch --' 19790
'*.LA COSTA LAND COHPANY SAN ~1ARCOS COUNTY WATER DISTRICT
~y-.--------------------------------By~~~~~~~ __ =-__ ~~~ ________ ___ DBY BLANCHARD, President
By ____________________________ ~--
ATTEST:
By ________________________________ _ By~~=_~~~~~~-----------------.JAMES F. McKAY, Secretary
·(S E A L)
*'The signatures on behalf of LA COSTA LAND COHPANY r:1Ust be notarized
4S to identity of the individual and the authority to execute the
·,agreement on behalf of LA COSTA LAND COHPANY or, al ternati vely,
a corporate resolution setting forth· the .authority·of the individuals
to ·execute the document on behalf of LA COSTA LAND COHPANY and
:the corporate seal must be affixed and attached.
-23-
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