HomeMy WebLinkAboutLincoln Seascape; 1985-06-10;WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
MINOR SUBDIVISION 661
SEASCAPE
Agreement No. 1 -Onsite Improvements
This Agreement is entered into on _____ J_u_n_e_l_O ____ , 198§_,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter 11 DISTRICT 11
)
and LINCOLN SEASCAPE (hereinafter 11 DEVELOPER 11 ) with respect to the
following:
A. DEVELOPER is about to present the map identified as "Minor
Subdivison 661 11 (the "subdivision") to the City of Carlsbad for final
approval under the Subdivision Map Act of the State of California and
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. 0 1 Day Consultants of Rancho la Costa, Carlsbad, California,
has prepared plans and specifications for the construction of the
water system necessary to provide water service to the subdivision.
The plans and specifications are identified as "Improvement Plans
. ~ ~~
for Seascape -Carlsbad M.S. 661" consisting of J( sheets, and
are incorporated herein by reference (11 plans 11 ). The plans and
specifications for the onsite water improvements, which are the
-1-
subject of this Agreement, are set forth on all sheets of those plans
("improvements"). The DISTRICT Board of Di rectors has approved the
plans.
C. DEVELOPER and the DISTRICT have entered into the following
agreement, concurrently with and related to this Agreement, both of
which together provide for the construction of a complete puhlic
water system to serve the subdivision:
(1) Agreement No. 2 -Reimbursement Agreement.
These agreements will hereinafter collectively be referred to as
"the related agreements."
D. 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. Construction of Improvements. DEVELOPER agrees to construct,
or cause to be constructed, all of the onsite water improvements set
forth in the plans as described above within one (1) year from the
date of this Agreement. The improvement~ 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
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-
2. Inspection Fees and Deposits. DEVELOPER agrees to pay to
the DISTRICT, on demand, the full amount of all costs incurred by the
DISTRICT in connection with the work to be performed under this
Agreement including, but not limited to, engineering plan checking,
construction inspection, right-of-way expenses, materials furnished,
and a reasonable amount for the DISTRICT 1 s indirect costs and overhead
in connection with this project. The fees and costs shall be charged
in accordance with the DISTRICT 1 s standard practice. DEVELOPER shall
deposit with the DISTRICT the sum of $4,000.00, being the estimated
amount of the DISTRICT 1 s expenses, at the time this Agreement is
executed. Should the DISTRICT 1 s expenses be in excess of the deposit,
DEVELOPER shall pay the excess expenses to the DISTRICT on demand.
Should the DISTRICT 1 s expenses be less than the amount of the deposit,
the DISTRICT shall refund the balance to DEVELOPER upon completion
of the work and its acceptance by the DISTRICT.
3 • Dedication and Acceptance of Improvements. Upon completion
of the improvements in accordance with the plans, as determined in
good faith by the DISTRICT 1 s Manager and the DISTRICT's Engineer,
DEVELOPER shall dedicate, and the DISTRICT sh~ll accept, the improve-
ments 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:
(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 and the related agreements, shall have
been completed as determined reasonably and in good faith by the
DISTRICT's engineer.
-3-
-
(b) DEVELOPER, at its own expense, provides to the DISTRICT
all documents and title policies necessary to vest and insure record
title in the DISTRICT 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
anrl shal 1 not be unreasonably withheld.
(c) DEVELOPER provides to the DISTRICT a statement setting
forth the actual cost of constructing the improvements.
The DISTRICT's Board of Di rectors shall accept the dedication on
behalf of the DISTRICT upon the recommendation of the DIS TRICT Manager
and DISTRICT Engineer.
4 • Interim Maintenance of Improvements. DEVELOPER shall be
responsible for the care, maintenance and repair of all damage to the
improvements constructed under this Agreement until such time as all
water system public improvements to be constructed under this and the
related agreements between DEVELOPER and the DISTRICT have been
completed and dedication thereof has been accepted by the DISTRICT.
5. Guaranty of Work and Materials. 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 hegin repairs within ten (10) days after
receipt of such notice, and shall proceed expeditiously 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
-4-
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 Di rectors, Manager or Engineer, the DISTRICT
is authorized to have the defect causing the emergency repaired,
without notice, at the expense of DEVELOPER, and DEVELOPER shall pay
the cost thereof upon written demand by the DISTRICT.
0 • Water Service and .Occupancy Upon Completion. 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
to 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. However,
at the discretion of the DISTRICT's Board of Directors, other temporary
water services may be allowed under terms and conditions agreed to
hetween the DISTRICT and DEVELOPER.
7. Bond or Other Guaranty. DEVELOPER shall furnish and deliver
to the DISTRICT a performance guaranty in the penal sum of $118,500.00
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 authorized to do business in
the State of California, or such other form of written guaranty as is
acceptable to the DISTRICT, who shall not unreasonably withhold its
approval. The bond or other form of guaranty shall be for the benefit
of the DISTRICT and all persons or entities entitled to the protection
of the California Mechanics Lien Law in connection with the construction
of the improvements governed by this Agreement.
-5-
8. Notices. All notices or other communications required or
permitted under this Agreement shall be sent by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To DEVELOPER:
To DISTRICT:
Mr. Andrew Wright
Lincoln Property Company
701 11 8 11 Street, Suite 845
San Diego, California 92101
Wi lliam C. Meadows, General Manager
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, California 92008
9. Benefit and Burden. This Agreement shall inure to the benefit
of, and the obligations created hereby shall be binding upon the heirs,
successors and assigns of the parties hereto. The DISTRICT acknowledges
that there did exist a dispute between it and the City of Carlsbad as
to which entity has the right to provide retail water service to this
subdivision, among others, and the right to hold legal title to a l l
public improvements necessary to provide such service. The DISTRICT
filed an action 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. The DISTRICT and
the City of Carlsbad have settled this lawsuit. The parties hereto
agree that their rights and obligations under this Agreement are sub-
ject to the judgment, judicial declaration, settlement or other deter-
mination made in the above-described legal proceeding on June 29, 1983 .
10. Severability of Provisions . 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 unenforceahle provision was not a part of the Agreement.
-6-
14. Waiver or Amendment. No provision of this Agreement, nor
any breach hereof, can he waived unless in writing. Waiver of any
one breach of any provision hereof shall not be construed as a waiver
of any other breach of the same or any other provision hereof. This
Agreement shall be amended or modified only by a written agreement
signed by the party to be charged with the amendment.
12. Governing Law. This Agreement and any amendments hereto
shall be governed hy, construed and enforced in accordance with the
laws of the State of California.
13. Construction and Interpretation. This Agreement is one of
two related agreements between DEVELOPER and the DISTRICT pertaining
to the construction of water system public improvements for the
subdivision. This Agreement contains the entire understanding and
agreement of the parties as to the onsite improvements portion of the
water system. Where possible, both related agreements shall be
construed in harmony with each other, to effectuate the parties'
intent to construct a complete water system for the subdivision.
However, the specific provisions of this Agreement shall prevail
over any conflicting provision of any other related agreement
insofar as they pertain to onsite water improvements. This Agreement
and the related agreement contain the entire understanding and
agreement of the parties as to the construction of the complete water
system for the subdivision, and supersede all prior agreements,
statements, discussions, representations and understandings pertaining
to that water system.
14. Attorney's Fees. The prevailing party in any action at
law or in equity, including arbitration, brought to enforce or prevent
the breach of this Agreement, or any provision hereof, 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.
-7-
15. Authority to Sign. The individuals who sign this Agreement
on behalf of the undersigned California limited partnership and
municipal water district warrant that they have the authority and
approval to do so on behalf of such California limited partnership
and municipal water district.
STATE OF CALIFORNIA )
) §
COUNTY OF SAN DIEGO )
COSTA REAL MUNICIPAL WATER DISTRICT
LINCOLN SEASCAPE
a California limited partnership
By : LINCOLN PROP TY COMPANY N 077 ,
p
By_~=-i,._~:::........,,L..J.:&.:::l..=::::::........::... _______ _
GREG ' •
A Gene ral Partner
By ________________ _
On t:\A--1 fJ8 , 1985 , before me, the under signed,
a Notary Public in an& for said State, personally appeared GREG R.
NEVILLE, personally known to me to be one of the General Partners
of LINCOLN PROPERTY COMPANY NO. 1077, A California Limited Partner~
ship, the partnership that executed the within instrument and known
to me to be the person who executed the within instrument on behalf
of said partnership, said partnership being known to me to be one of
the partners of LINCOLN SEASCAPE, A California Limited Partnership,
the Partnership that executed the within instrument, and acknowledged
to me that such partnership executed the same as such partner and
that such partnership executed the same.
WITNESS my hand and official seal.
OFFICIAL SEAL
VICKI A. LAROCHE
Notary Public-California
SAN DIEGO COUNTY
My Comm. Exp. Aug. 9, 1988
-8-
0£.Q_QLJ
Notary Public in and for
San Diego County, State of
California