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Home My WebLink AboutPalomar Oaks Corporate Palomar II; 1985-08-07;WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 82-4/PLANNED UNIT DEVELOPMENT 38 PALOMAR OAKS II Agreement No. 2 - it is entered into f /% #* ,Nv*<s*Ss ^1 V*V\xReimbursement Agreement V Cb *^x. ^V."-^, on u^<^~^^*^h ~? , 198^T between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and PALOMAR OAKS CORPORATE PALOMAR II (hereinafter "DEVELOPER") with respect to the following: A. DEVELOPER is about to present the map identified as "Plans for the Improvement of Palomar Oaks II - Carlsbad Tract 82-4" (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 with the boundaries of the DISTRICT. B. DEVELOPER and the DISTRICT have entered into the following agreement, concurrently with and related to this Agreement, which together provide for the construction of a complete public water system to serve the subdivision: (1) Agreement No. 1 - Onsite Improvements, consisting of seven pages. This agreement will hereinafter be referred to as "the related agreement." -1- C. DEVELOPER will construct, as part of the water system improvements, the following water lines which have been determined by the DISTRICT to be eligible for reimbursement: (1) A 16-inch water line located in Palomar Airport Road, as shown on Exhibit "A" which is attached hereto and incorporated herein (hereinafter referred to as "16-inch Palomar Airport Road line"). (2) A 12-inch water line in West Oaks Way, as shown on Exhibit "A" (hereinafter referred to as "12-inch West Oaks Way line"). D. DEVELOPER has requested reimbursement from the DISTRICT, pursuant to the Subdivision Map Act and DISTRICT Ordinance No. 26, for the cost of constructing the water system improvements described in Recital "C". NOW, THEREFORE, in consideration of the mutual obligations set forth below, and the construction by DEVELOPER of the water system improvements described above, the parties agree as follows: 1. Reimbursement for the 16-Inch Palomar Airport Road Line. The DISTRICT shall reimburse DEVELOPER for fifty percent (50%) of the total cost of construct- ing the 16-inch Palomar Airport Road line. 2. Reimbursement for Increased Size of the 12-Inch West Oaks Way Line. The DISTRICT shall reimburse DEVELOPER for the difference in the cost of con- structing the 12-inch West Oaks Way line as planned and what would have been the cost of constructing a 10-inch water line in the same location. 3. DEVELOPER shall determine and furnish to the DISTRICT the total cost of constructing the 16-inch Palomar Airport Road line, the 12-inch West Oaks Way line. DEVELOPER shall also forward to the DISTRICT the estimated cost of a 10-inch water line in the same location as the 12-inch West Oaks Way line. DEVELOPER shall furnish to the DISTRICT all records for the actual cost of -2- constructing the 16-inch Palomar Airport Road line, the 12-inch West Oaks Way line, plus all records and data involved in making the estimate for the 10-inch water line. The DISTRICT shall make the final determination, reasonably and in good faith, based on the information provided by DEVELOPER, as to the actual construction cost which is to be reimbursed to DEVELOPER. DISTRICT will make payment to DEVELOPER charges collected by DISTRICT for a period of ten (10) years after the date of acceptan.ce of the public water system by the DISTRICT for the 16-inch Palomar Airport Road line in accordance with DISTRICT Ordinance No. 26. The DISTRICT, in its sole discretion, shall elect the method of payment to DEVELOPER for the oversizing of the 12-inch West Oaks Way line, pursuant to Sections 12 through 17, inclusive, of DISTRICT Ordinance No. 26. 4. Notices. All notices or other communications required or permitted under this Agreement shall be sent registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To DEVELOPER: Birtcher Pacific P.O. Box A-l Laguna Niguel, CA. 92677-0100 To DISTRICT William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Camino Real Carlsbad, CA. 92008 5. 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 other, and the right to hold legal title to all public improvements necessary to provide such service. The DISTRICT filed an action for declaratory relief in the North County Branch of San Diego, case no. N20027, to resolve that dispute. The DISTRICT and the -3- City of Carlsbad have settled this lawsuit. The parties hereto agree that their rights and obligations under this Agreement are subject to the judge- ment, judicial declaration, settlement or other determination made in the above-described legal proceeding on June 29, 1983. 6. Severability of Provisions. The invalidity of 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. 7. 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 amend- ment. 8. Governing Law. This Agreement and any amendments hereto shall be governed by, construed and enforced in accordance with the laws of the State of California. 9. 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. 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. 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. -4- 10. 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 riot 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. 11. Authority to Sign. 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. BIRTCHER PACIFIC By SEE ATTACHED SIGNATURE PAGE COSTA REAL MUNICIPAL WATER DISTRICT MargaretvBonas, Jresi dent Board off/ Di rectors STATE OF CALIFORNIA ss. COUNTY OF SAN DIEGO On this / day of -' 19 £o / before me (here insert name and quality of the officer), personally appeared /^)^^^^^- y^ >Q^>^a-sl_^X , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to this instrument, and acknowledged that he (she or they) executed it. (signature of notary) OFFICIAL SEAL &0K(LCf M. WOODWARD Notary PuWte-Calltorn/a SAN DIEGO COUNTY My Comm. Exp. Apr. 17, 1989 -5-awa ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF On Nojfeary Public , ±yv ^ , before me, the undersigned, for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be a partner of BIRTCHER PACIFIC II, a California general partner- ship, which partnership is known to me to be a partner of CAMPBELL-PALOMAR II, a California general partnership, which partnership is known by me to be the general partner of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of BIRTCHER PACIFIC II, that said partnership executed the within instrument on behalf of CAMPBELL-PALOMAR II, and that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II executed the same. WITNESS my hand and official seal. OmCMlSEAl IWTHY A. TEMPLENOTARY pmuc.«uiwwii NOTARY PUBLIC ft / Name(Typed or Printed) (SEAL) ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF ) ss On '/7^-f #J V U 19_*-*, before me, the undersigned, a Notary 'Pub id c inand for "said State, personally appeared ROBERT M. CAMPBELL, personally known to me (or proved to me on the basis of satisfactory evidence) to be a partner of CAMPBELL-PALOMAR II, a California general partnership, which partnership is Known to me to be thp gAn^ral partner o£ BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, a California limited partnership, the limited partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of CAMPBELL-PALOMAR II, that said partnership executed the within instrument on behalf of BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II, and that BIRTCHER BUSINESS CENTER-CORPORATE PALOMAR PHASE II executed the same. WITNESS my hand and official seal. NOTARY SUBLIC OFFICIAL SEAL KATHY A. TEMPLE NOTARY PUBUC • CAUFORN1A PRINCIPAL OfHCEW ORANGE OOUNIY My Canmtatoo Exphw ON. 9,1M7 Name (Typed or Printed) BIRTCHER BUSINESS CENTER - CORPORATE PALOMAR PHASE II, a California limited partnership BY: CAMPBELL-PALOMAR II, a California general partnership, General Partner BY: BIRTCHER PACIFIC II, a •artnership Robert M. Campbell, General Partner C Costa Real - Municipa Water District 5950 El Camino Real, Carlsbad, CA 92008 CERTIFIED MAIL RETURN RECIEPT REQUESTED Telephone: (619)438-2722 Engineering Dept: 438-3367 November 12, 1987 Birtcher Pacific P.O. Box A-l Laguna Niguel, California 92677-0100 Subject: Palomar Oaks II - Carlsbad Tract No. 82-4 CRMWD Project No. 82-201 - Agreements I & II (Onsite & Reimbursement dated August 7, 1985) Dear Sir: This letter is to inform you that Agreement No. 1 - Onsite Improvements and Agreement No. 2-Reimbursement Agree- ment, both dated August 7, 1985 have both expired. The con- ditions as stated in Agreement No. 1 allows for completion of the water system within one year of the date of the Agree- ment. Since this condition has not been met, the agreement is therefore void. Please be advised, however, that the District would be most happy to consider a new agreement and work with you and/or your representatives to reach that goal. The new agreement would involve including the District's latest re- vised standards, may of the original conditions and take into consideration the latest improvements to Palomar Airport Road. These improvements due include District water lines and are part of a City sponsored assessment district. Should you have any questions or comments regarding this subject, please call. Very truly yours, Robert J. Gr District Engineer RJG:sja cc: Henry Worley Associates (w/enc) Jay Olsen, Pountney & Associates (w/enc) Greg Moser, CRMWD Legal Counsel (w/enc) CRMWD 82-201