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HomeMy WebLinkAboutPALOMAR TECH CENTRE PARTNERSHIP; 1983-01-25;\ ' ' ) WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING DEVELOPMENT OF PARCEL 1 OF PARCEL MAP NO, 11573 PALOMAR TECH CENTRE -CARLSBAD ·, This Agmmeat is e,tmd ioto oo \. ,,..._?J z) , ,;a.3, between COSTA REAL MUNICIPAL WATER DISTRi.,C'T (he~nafter !DISTRICT") and PALOMAR TECH CENTRE PARTNERSHIP, a California Limited Partnership (hereinafter ''DEVELOPER"), with respect to the following: A. DEVELOPER is about to present a Parcel Map presently described as a Resubdivision of Parcel 1 of Parcel Map No. 11573 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. Helix Engineering Service, 723 Santa Camelia Drive, Solana Beach, California, 92075, has prepared plans and specifications for the construction of the system and all offsite facilities necessary to provide water service to the subdivision. The plans and specifications are identified as "Palomar Tech Centre -Drawing No. 215-7" consi~ting of 2 pages, and are incorporated herein by reference ("plans"). The Plans and specifications for the onsite water improvements, which are the subject of this Agreement, are set forth on sheets 1 and 2 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. -1- ) NOW, THEREFORE, in consideration of the covenants, ~onditions and promises set forth below, and of the approval of the plans by the DISTRICT, the ~ndersigned 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 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 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 standard practice. DEVELOPER shall deposit with the DISTRICT the sum of $2,300.00, 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- C ' ) 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 and the related agreements, shall have been completed as determined reasonably and in good faith by the DISTRICT'S engineer. (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 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 DISTRICT 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 -3- ) agreement between DEVELOPER and the DISTRICT have been c?mpleted 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 an~ 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 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 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 t\tle 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. -4- ) 7 • Bond or Other Guaranty. DEVELOPER shall furnish and deliver to the DISTRICT a performance guaranty in the penal sum of $26,000.00 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 b~nefit 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. 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: 9. To DEVELOPER: To DISTRICT: Palomar Tech Centre c/o Interamerican Development Company 3151 Airway Avenue, Bldg. G-3 Costa Mesa, CA. 92626 William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Camino Real Carlsbad, California 92008 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 exists 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 has 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 entered into a stipulation, filed in the above-described case on August 19, 1982, regarding water service -5- ( ✓ ) provided while that action is pending. That stipulation-is incorporated herein by reference. The parties hereto agree that their rights and obligations under this Agreement are subject to that stipulation and any judgment, judicial declaration, settlement or other determination made in the above-described legal proceeding. 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 provisio~ 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. 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 t~e amendment. ' 12. 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. 13. Construction and Interpretation. This Agreement contains the entire understanding and agreement of the parties as to the onsite improvements portion of the water system. 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, repre- sentations 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 -6- C ., J not limited to any action for injunctive or declaratory ~elief, shall be entitled to attorney's fees and costs incurred in such action, including those incurred in any appeal. 15. Authority to Sign. The individuals who sign this Agreement on behalf of the undersigned joint venture and municipal water district warrant that they have the authority and approval to do so on behalf of such limited partnership and municipal water district. By _____________ _ -7- • I ' , INSTRUMENT OF CREDIT '!HIS AGREEMENT, made this 4th day of February 1983, by and among COSTA REAL MUNICIPAL WATER DISTRICT, hereinafter called "District", and PALOMAR TECH CENTRE PARTNERSHIP, hereinafter called "Subdivider", and UNITED SAVINGS AND LOAN ASSOCIATION, hereinafter called "Financial Institution". WHEREAS, Subdivider and District have entered into that certain Water Systems Improvements Agreement regarding Development of Parcel 1 of Parcel Map 11573, Palomar Tech Centre -Carlsbad, a copy of which is attached hereto and marked Exhibit "A", for offsite pipeline and appurtenant facilities to service that certain real property described as Parcel 1 of Parcel Map No. 11573 in the City of Carlsbad (the "Property"); and WHEREAS, Financial Institution is a financial institution subject to regulation by the State or Federal Government, and Financial Institution by this Agreement pledges that funds in the sum of $26,000.00 necessary to meet the performance required to make the improvements provided by the Improvements Agreement are oh deposit in trust funds, and said funds are guaranteed for payment; and WHEREAS, the Improvements Agreement requires Sub- divider to deliver to District an approved improvement security insuring the faithful performance of the terms of the Improvements Agreement, free of liens. I ) -~ • ✓ -- NOW, THEREFORE, IT IS AGREED by and among Sub- divider, District and Financial Institution, in order to carry out the Improvements Agreement and to give assurance to the District that said improvements will be made in accordance with the Improvements Agreement, and that Finan- cial Institution has on deposit the sum of $26,000.00, hereinafter referred to as "Improvement Security". Said Improvement Security has been deposited into an irrevocable trust fund for the following purposes: 1. Guaranteeing faithful performance of the Improvements Agreement between Subdivider and District; and 2. Securing Payment to contractor, subcontrac- tor, and to persons renting equipment or furnishing labor or materials for the improvements to be installed pursuant to the Improvments Agreement. The Improvement Security shall be used only for the purposes hereinabove specified and shall not be termin- ated by reason of the death, dissolution, insolvency, or bankruptcy of the Subdivider and/or the Financial Institution. Financial Institution agrees to hold the Improve- ment Security hereinabove pledged to have been deposited in the trust account to guarantee the performance of said agreement and Financial Institution agrees that the Im- provement Security or portion thereof shall be paid out upon the written authorization of both the District and Subdivider which authorization shall state the amount of the Security Improvement to be released and the party to whom it shall be released. ) Subdivider and District agree that Financial Institution shall serve as a depository of the Improvement Security and as agent to disburse the Improvement Security pursuant to the terms of this Agreement. It is further agreed that other than the amount held as the Improvement Security, Financial Institution shall have no liability to District, Subdivider, or any other party for work to be per- formed in or adjacent to the Property or pursuant to the Improvements Agreement between District and Subdivider or otherwise. In no event shall the Security Improvement be reduced to an amount less than the total of all claims on which an action has been filed and notice thereof given in writing to District and to Financial Institution. Financial Institution hereby stipulates and agrees that no change, extension of time, alteration or addition of the terms of the contract or to the work to be performed in connection with the Improvements Agreement or the speci- fication accompanying the same shall in anywise affect its obligations under this Agreement; provided, however, Finan- cial Institution shall be given notice of any change, ex- tension of time, alteration or addition to the terms of the Improvements Agreement or to the work or to the specifi- cations referred to therein. Financial Institution is authorized and directed to issue this Agreement to the District to the effect that Financial Institution holds the sum of $26,000.00 in irre- vocable trust funds for the aforesaid purposes. -3- ) In the event suit is brought to enforce or inter- pret any part of this Agreement, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable attorneys' fees to be fixed by the court. Dated: February 1i, 1983 "Subdivider" PALOMAR TECH CENTRE PARTNERSHIP, a California limited partnership By: Interamerican Development Company, a California limited partnership, as its General Partner By: Trembley Limited, a California corporation, as its General rtner By "Financial Institution" UNITED SAVINGS AND LOAN ASSOCIATION Its: Senior Vice President By: Its: Signatures continued on Page 5. -4- .. ) , ' ,J' "District" COSTA REAL MUNICIPAL WATER DISTRICT By: ////J17i__ /l h'IAA~ c[ /4orman M. Almack It; President, Board of Directors -5-