HomeMy WebLinkAboutPALOMAR TECH CENTRE PARTNERSHIP; 1983-01-25;\ '
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WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
DEVELOPMENT OF PARCEL 1 OF
PARCEL MAP NO, 11573
PALOMAR TECH CENTRE -CARLSBAD
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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.
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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
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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.
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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
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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.
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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
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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.
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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
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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 _____________ _
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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.
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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.
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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.
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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.
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"District"
COSTA REAL MUNICIPAL WATER DISTRICT
By: ////J17i__ /l h'IAA~ c[
/4orman M. Almack
It; President, Board of Directors
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