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HomeMy WebLinkAboutPALOMAR INVESTMENT ASSOCIATES; 1984-03-09;WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING DEVELOPMENT OF PARCELS 1 THROUGH 4 PARCEL MAP NO. 12855 PALOMAR TECH CENTRE II / This Agreement is entered into on __ M_a_r_c_h_9 _______ , 198i_, be tween COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") anrl PALOMAR INVESTMENT ASSOCIATES (hereinafter "DEVELOPER") with r e sp e ct to the following: A. DEVELOPER. has presented the map identified as "Parcel Map ti o . 1 2 8 5 5 " (the " sub d i vi s i on " ) to the Ci t y o f Ca r l s bad for f i n a 1 app roval under the Subdivision Map Act of the State of California and in compliance with the pro v isions of the City of Carlsbad's ordinances app licable to the filing and approval o f subdivision maps. The prop erty encompassed by the subdivision lies within the boundaries of th e DISTRICT. B. Helix Engineering Service of Solana Beach, California, has p r ep ared plans and specifications for the construction of the water sys tem necessary to provide water service to Parcels 1, 2, and 3. The plans and specifications are identified as "Modifications to Water 1·1 a i n I n s t a l l a t i o n i n I mp a l a D r i v e -· P a 1 om a r T e c h C e n t r e I I " c o n s i s t i n g o f one sheet, and are incorporated herein by reference ("plans"). Water service for Parcel 4 of Parcel Map No. 128S5 will be provided from existing facilities in Impala Road and no offsite construction ·r1i 11 be necessary. The plans and specifications for the onsite water im provements, which are the subject of this Agreement, are set forth o n t h o s e p l a n s ( " i mp r o v e 111 e n t s " ) . T h e D I S TR I C T B o a r d o f D i r e c t o r s h a s a pproved the pl ans. C . No p re s r! n t co 111111 i t 111 e n t i s re q u i red o f t he D I ST R I CT a s t o w a t e r s e r v i c e t o t t1 e l o t s i n t h e a b o v e -d e s c r i b e d s u b d i v i s i o n • -l - -- 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 fQllows: 1. Construction of Improvements. DE·VELOPER 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 from 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 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 • 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 reasoQable amount for the DISTRICT's indirect costs and overhead in connect.ion with this project. The fees and costs shall be charged in accordance with the DISTRICT's standard practice. DEVELOPER shall deposit with the DISTRICT the sum of $2,700.00, being the estimated amount of the DISTRICT's expenses, at the time this Agreement is executed. Should the DISTRICT's expenses be in excess of the deposit, DEVELOPER shall pay the excess expenses to the DISTRICT on demand. Should the DISTRICT'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. -2- 3 • Dedication and Acceptance of Improvements. 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 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, 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 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 and shall 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 Directors shall accept the dedication on behalf of the DISTRICT upon the recommendation of the DIST~ICT 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 Agreement between DEVELOPER and the DISTRICT have been completed and dedication thereof has been accepted by the DISTRICT. -3- -~ • I ~-.~~ 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 DI STRICT, any defect in workmanship or materials which occurs within t hat 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 expeditiously to complete the repairs within a reasonable time. Should DEVELOPER fail to begin I repairs within that time, the DISTRICT is authorized to have the defects repaired at the ex~ense of DEVELOPER, ~nd DEVELOPER shall pay the cost of such repairs upon written demand by the DISTRICT. In the event of an emergency, as determined reasonably and in good faith by the DISTRICT's Board of Directors, Manager or Engineer, the DISTRICT is authorized to have the defect causing the emergency repaired, without notice, at the expense of DEVELOPER, and DEVELOPER shall pay the cost thereof upon written demand by the DISTRICT. 6 • Water Service and Occupancy Upon Completion. There shall not be any permanent water service provided to any parcel of 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 between the DISTRICT and DEVELOPER. 7 • Bond or Other Guaranty. DEVELOPER shall furnish and deliver to the DISTRICT a perf o rmance guaranty in the penal sum of $15,000.00 -4- t o insure faithful performance by DEVELOPER of all obligations under thi s contract. The guaranty shall be in the form of a performance bo nd issued by a reliable surety company authorized to do business in t h e 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 o f 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. 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: PALOMAR INVESTMENT ASSOCIATES c /o Werdin-Darnell Companies 3151 Airway Avenue, Bldg. G-3 Costa Mesa, California 92626 To DISTRICT: William C. Meadows, General Manayer 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 d~d 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 tit·le to all 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 riyhts and obligations under this Agreement are -5- subject to the judgment, judicial declaration, settlement or other determination made in the above-described legal proceeding on June 29, 1Y83. 1 U • 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 Ag reement shall remain in full force and effect as though the invalid or unenforceable provision was not a part of the Agreement. 11. Waiver or Amendment. No provision of this Agreement, nor any breach hereof, can be waived unless in writing. Waiver of any one breach of any provision hereof shall not be construed as a waiver of any other breach of the same or any other provision hereof. This Agreement shall be amended or modified only by a written agreement signed by the party to be charged with the amendment. 1 2 • Governing Law. This Agreement and any amendments hereto shall be governed by, construed and enforced in accordance with the l aws of the State of California. 1 3 . Construction and Interpretation. This Agreement contains 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 l aw 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. -6- 15. Authority to Sign. The individuals who sign this Agreement on behalf of the undersigned joint venture and municipal water d istrict warrant that they have the authority and approval to do so on behalf of such joint venture PALOMAR INVESTMENT ASSOCIATES, a joint venture ·-,, §_;_ Russell Werdin, Jr., President WERDIN DEVELOPMENT CO. Roger D. arnell, Presi DARNELL DEVELOPMENT CO. - 7 - -.·I\·•·- _:~ and municipal water district. COSTA REAL MUNICIPAL WATER DISTRICT ,,. B J -Norman M. Almack, President Board of Di rectors I - INSTRUMENT OF CREDIT THIS .INSTRUMENT OF CREDIT is given to guarantee the. performance of PALOMAR INVESTMENT ASSOCIATES ------------------------' hereinafter for convenience referred to as "Principal", to guarantee performance of the terms and tionditions of .an Agree- ment between the Principal and COSTA REAL MUNICIPAL WATER DISTRICT, a copy of said Agreement on file in the office of COSTA REAL MUNI- CIPAL WATER DISTRICT and incorporated herein by reference. For purposes of this Instrument, the following defini- tions hereafter apply: / (1) Principal: (2) District: ( 3) Agreement: ( 4) Code: The individual or entity so identified at the com- mencement of this Instru- ment. COSTA REAL MUNICIPAL WATER DISTRICT The Agreement executed by the Principal and District and on file in the office of the District. Government Code of the State of California - 1 - •.x-·• • • r _1 • f. .-.. :e--~ ?) 's ;y--~---·r --... . .. '," ... ,. ' _, (5) Improvements: ,• (6) Liens: Construction an~ installa- tion of improvements re- quired by the Agreement between the Principal and the District. ~-. Claims· of subcontractors and persons furnishing labor, materials or equip- ment, required to be re- corded pursuant to Article 3, Chapter II of Title 15 of Part 4 of Division 3 of the Civil Code of the State of California. As a trust fund to guarantee performance of the terms and conditions of the Agreement by Principal, the undersigned hereby establishes a trust fund to guarantee performance of the Agreement by .the Principal in the amount of Fifteen Thousand and NO/100 Dollars ($ 15 , 0 0 0 . 0 0 ) . --------------------------,.------ In accordance with Section 66499.6 of the Code, this Instrument of Credit shall be a trust fund to guarantee perfor- mance by the Principal of the terms and conditions of the Agree- ment and shall not be subject to enforcement of a money judgment by any creditor of the Principal .until .the Agreement with the District, which is secured h~reby, is performed to the satisfac- tion of the District. It is a condition of this Instrument of Credit that the District will release the entire trust fund ripon the performance by the Principal of all of the terms and conditions of the Agree- ment. It is also a condition of this Instrument of Credit . .:.. 2 - I ' that the District may release the trust fund, in whole or ·in part, at the sole discretion of the District, in the following situations: (a) Completion of the Improvements and expir-: ation of .the time within which liens may be recorded and acceptance of the Improve- ments by the District. (b) Partial release upon the partial comple- tion of the Improvements. (c) Partial release after expiration of the time within which :Liens may be recorded to an amount npt less than the total claimed by all claimants for whom claims of liens have been recorded. The undersigned agre~s that this trust fund or any part thereof will not be released bf the undersigned without first re- ceiving written authorization executed by the General Manager of the District. Lloyds Bank California Name of Depository By:~ -~, (Title) Addres~: 1622 North Main Street Suite 500 Santa Ana, CA 92701 Telephone Number: (714) 667-1278 Date of Execution: 5 -9-t? L - 3 -