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WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT 85-35
AVIARA PHASE I UNIT A
Agreement
CARLSBAD
is entered
MUNICIPAL
in to on
WATER
~rfl2-~t, 1989 ,
DIS~ICT (hereinafter
"DISTRICT") and AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP
(hereinafter "DEVELOPER") with respect to the following:
A. DEVELOPER is about to present the map identified as
"City of Carlsbad Tract 85-35, Aviara Phase I Unit A" (the
"subdivision") to the City of Carlsbad for final approval under
the subdivision Map Act of the State of California and represents
that DEVELOPER is in compliance with the provisions of the City
of Carlsbad's ordinances applicable to the filing and approval of
subdivision maps. The property encompassed by the subdivision
lies within the boundaries of the DISTRICT.
B. Crosby, Mead, Benton & Associates of Carlsbad,
California has prepared plans and specifications for the
construction of the water system necessary to provide water
service to the subdivision. The p 1 ans and spec i f i cations are
identified "Carlsbad Tract 85-35, Aviara Phase I Unit A"
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consisting of __ L".VA1(Z-,V-.::..~.&(§ __ (._~j__ _______ sheets, and are
incorporated herein by reference ("plans"). The plans and
specifications for the water improvements, which are the subject
of this Agreement, are set forth on all sheets of those plans
("improvements"). The DISTRICT Board of Directors has approved
the plans.
C. No present commitment is required of the District as to
water service to the lots in the above described subdivision.
NOW, THEREFORE, in consideration of the covenants,
conditions, and promises set forth below, and of the approval of
the plans by the DISTRICT, the undersigned agree as follows:
1 . DEVELOPER agrees to
construct, or cause to be constructed, all of the water
improvements set forth in the plans as described above within one
(1) year form the date of this Agreement. The improvements shall
be constructed in a good and workmanlike manner under the
direction of and subject to the approval of the DISTRICT, which
approval will be exercised in good faith and will not be
unreasonably withheld. The improvements shall be constructed in
accordance with the plans approved by the DISTRICT and in
conformity with all other applicable standards for pipeline
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construction which have been adopted by the DISTRICT. DEVELOPER
shall construct the improvements at its sole cost and expense,
and without any cost or expense to the DISTRICT.
2. DEVELOPER agrees to pay
to the DISTRICT, on demand, the full amount of all costs incurred
by the DISTRICT in connection with the work to be performed under
this Agreement including, but not limited to, engineering plan
checking, construction inspection, right-of-way expenses,
materials furnished and a reasonable amount for the DISTRICT' s
indirect costs and overhead in connection with this project. The
fees and costs shall be charged in accordance with the DISTRICT's
Ordinance 29 approved June 15, 1988. DEVELOPER shall remit with
the DISTRICT the fee of $_L4..J:.~~:PP ____ , being the estimated
amount of the DISTRICT expenses, at the time •this Agreement is
executed.
3 • Upon
completion of the improvements in accordance with the plans, as
determined in good faith by the DISTRICT' s Manager and the
DISTRICT' s Engineer, DEVELOPER shall dedicate, and the DISTRICT
shall accept, the improvements as the public property of the
DISTRICT. The DISTRICT shall be under no obligation to accept
the improvements as public property of the DISTRICT until such
time as the following acts have occurred:
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(a) All public improvements proposed to be constructed
in said subdivision, including but not limited to, streets,
curbs, drains, sewer, gas and utility lines and the improvements
required for the complete water system and necessary
appurtenances thereto, as set forth in this Agreement, shall have
been completed as determined reasonably and in good faith by the
DISTRICT's Engineer.
(b) DEVELOPER, at his own expense, provides to the
DISTRICT all documents and title policies necessary to vest and
insure record title to the public, either DISTRICT and/or City to
all easements and/or rights-of-way necessary to the ownership and
maintenance of the improvements. DISTRICT shall have the right
to approve the acceptability of said easements, documents and
title policies, which approval shall be exercised in good faith
and shall not be unreasonably withheld.
(c) DEVELOPER provides to the DISTRICT a statement
setting forth the actual cost of construction the improvements.
The DISTRICT's Board of Directors shall accept the
dedication on behalf of the DISTRICT upon the recommendation of
the DISTRICT Manager and DISTRICT Engineer.
4. DEVELOPER shall be
responsible for the care, maintenance and repair of all damage to
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the improvements constructed under this Agreement until such time
as all water system public improvements to be constructed under
this Agreement between DEVELOPER and the DISTRICT have been
completed and dedication thereof has been accepted by the
DISTRICT.
5. DEVELOPER guarantees,
for a period of one (1) year after the DISTRICT accepts
dedication thereof, that the improvements shall be free of any
defects in materials and/or workmanship. DEVELOPER shall repair
or replace, without cost to the DISTRICT, any defect in
workmanship or materials which occurs within that time. The
DISTRICT shall notify DEVELOPER in writing of any such defect.
DEVELOPER shall begin ·repairs within ten (10) days after receipt
of such notice, and shall proceed e~peditiously to complete the
repairs within a reasonable time. Should DEVELOPER fail to begin
repairs within that time, the DISTRICT is authorized to have the
defects repaired at the expense of DEVELOPER, and DEVELOPER shall
pay the cost of such repairs upon written demand by the DISTRICT.
In the event of an emergency, as determined reasonably and in
good faith by the DISTRICT's Board of Directors, Manager or
Engineer, the DISTRICT is authorized to have the defect causing
the emergency repaired, without notice, at the expense of
DEVELOPER, and DEVELOPER shall pay the cost thereof upon written
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demand by the DISTRICT.
6. There
shall not be any permanent water service provided to any parcel
of land within the subdivision, nor shall occupancy of any
permanent improvement within the subdivision be permitted, until
the DISTRICT has accepted dedication of the complete water system
for the subdivision and title of all improvements, appurtenances,
easements and rights-of-way which are a part of such system.
This provision does not limit DEVELOPER from requesting, or the
DISTRICT from providing, temporary water service to the
subdivision to be used during construction. Other temporary
water services may be allowed under terms and conditions agreed
to between the DISTRICT and DEVELOPER.
DEVELOPER shall furnish and
deliver to the DISTRICT a performance guaranty in the penal sum
of $.--?:-!fl..:/_,(?,_~~~££-to insure faithful performance by DEVELOPER
of all obligations under this contract. The guaranty shall be in
the form of a performance bond issued by a reliable surety
company, as determined by DISTRICT, authorized to do business in
the State of California, or such other form of written guaranty
as is acceptable to the DISTRICT, and all persons or entities
entitled to the protection of the California Mechanics Lien Law
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in connection with the construction of the improvements governed
by this Agreement.
8. Notices. ------All notices and other communications required
or permitted under this Agreement shall be sent or registered or
certified mail, return receipt requested, postage prepaid,
addressed as follows:
To DEVELOPER
To DISTRICT
D.L. Clemens, Vice President/
General Manager
Hillman Properties
2011 Palomar Airport Road, Suite 206
Carlsbad, California 92009
Robert J. Greaney, General Manager/
District Engineer
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, California 92008
This Agreement shall inure to the
benefit of, and the obligations created hereby shall be binding
upon the heirs, successors and assigns to the parties hereto.
The DISTRICT acknowledges that there did exist a dispute between
it and the City of Carlsbad as to which entity has the right to
provide retail water service to this subdivision, among others,
and the right to hold legal title to all public improvements
necessary to provide such service. The DISTRICT filed an action
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for declaratory relief in the North County Branch of the Superior
Court of the State of California for the County of San Diego,
case no. N20027, to resolve that dispute.
City of Carlsbad have settled this lawsuit.
The DISTRICT and the
The parties hereto
agree that their rights and obligations under this Agreement are
subject to the judgement, judicial declaration, settlement or
other determination made in the above-described legal proceeding
on June 29, 1983.
1 0 • The invalidity or
illegality of any provision of this Agreement shall not affect
the validity or enforcement of the remainder of this Agreement.
If any provision or term hereof is found to be invalid or
unenforceable, the rest of the Agreement shall remain in full
force and effect as though the invalid or unenforceable provision
was not a part of the Agreement.
11. No provision of this Agreement,
nor any brea<:h hereof, can be waived unless in writing. Wa;:_ver
of any one breach of any provision hereof shall not be construed
as a waiver of any other breach of the same or any other
provision hereof. This Agreement shall be amended or modified
only by a written agreement signed by the party to be charged
with the amendment.
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1 2 . This Agreement and any amendments
hereto shall governed by, construed and enforced in accordance
with the laws of the State of California.
1 3 . This Agreement
contains the entire understanding and agreement of the parties as
to the construction of the complete water system for the
subdivision, and supersedes all prior agreements, statements,
discussions, representations and understandings pertaining to
that water system.
14. The prevailing party in any action at
law or in equity, including arbitration, brought to enforce or
p rev en t th e b re a ch o f th i s Ag re em en t ,. o r an y p r o v i s i on he r e o f ,
including but not limited to any action for injunctive or
declaratory relief, shall be entitled to attorney's fees and
costs incurred in such action, including those incurred in any
appeal.
1 5 • The individuals who sign this
Agreement on behalf of the undersigned partnership and municipal
water district warrant that they have the authority and approval
to do so on behalf of such partnership and municipal water
district.
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AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware Limited
Partnership, who acquired title of Pacific Rim Land Associates
Limited Partnership, a Delaware Limited Partnership, as Owner:
By: Aviara Land
Partner.
By: Republic De
a General P
ompany, a Delaware Corporation, a General
lopment Company, a California Corporation,
tner,
By-------------------~----------------------D.L. Clemens, Vice President/General Manager
CARLSBAD MUNICIPAL WATER DISTRICT
By
CMWD 86-503
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