HomeMy WebLinkAboutSHORE ASSOCIATES LTD; 1987-10-21;(
WATER SYSTEM IMPROVEMENTS
AND
REIMBURSEMENT AGREEMENT
REGARDING
"THE SHORES"
CARLSBAD TRACT 84-18
This Agreement is entered into on ~ ,,;?I , 198,?,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter
"DISTRICT") and SHORE ASSOCIATES, LTD., a Ca 1 if ornia 1 imi ted
partner ship, (hereinafter "DEVELOPER") with respect to the
following:
A. DEVELOPER has obtained from the City of Car 1 sbad f ina 1
approval under the Subdivision Map Act of the State of California
and in comp 1 iance with the provisions of the City of Car 1 sbad' s
ordinances applicable to the filing and approval of subdivision
maps for "CARLSBAD TRACT NO. 84-18 (the "subdivision"). The
property encompassed by the subdivision lies within the
boundaries of the DISTRICT.
B. B & B Engineers, Inc., Vista, Ca 1 ifornia, 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 "Plans for the Improvement
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of Carlsbad Tract No. 84-18 -'"The Shores"' consisting of three
sheets, and are incorporated herein by reference ("plans"). The
plans and specifications for the water improvements, which are
the subject of this Agreement, are set forth on all sheets of
those plans ("water improvements"). The DISTRICT Engineer 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.
D. DISTRICT agrees to reimburse DEVELOPER for the cost of
constructing the water system improvement.
NOW, THEREFORE, in consideration of the covenants,
conditions and promises set forth below, and of the approval of
the plans by DISTRICT, it is agreed as follows:
1. Construction of Water Improvements; Reimbursement.
A. DEVELOPER 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
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approval of the DISTRICT, which approval will be exercised in
good faith and will not be unreasonably withheld. The
improvements shal 1 be constructed in accordance with the plans
approved by the DISTRICT and in conformity with a 11 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; provided, however, that DISTRICT
agrees to reimburse DEVELOPER the additional cost for sizing up
the 4 11 to 8 11 1 ine connecting Chinquapin Avenue service to
Carlsbad Blvd., as described herein.
B. Reimbursement for Increased Size of the 4 11 Water
Main in Chinquapin Avenue. DISTRICT shall reimburse DEVELOPER
for the difference in the cost of constructing the 4 11 water main
in Chinquapin Avenue and what would have been the cost of
constructing an 811 water main in the same location.
(a) Calculation of Amount to be Reimbursed.
DEVELOPER shal 1 determine and furnish to the District the
estimated cost of constructing the 4 11 water main in Chinquapin
Avenue. DEVELOPER shall also forward to the DISTRICT for review
all records and data involved in making that estimate. DEVELOPER
shall also furnish to the DISTRICT the actual cost of
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constructing the 8" water main in Chinquapin Avenue. 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.
(b) Time of Reimbursement. Reimbursement to the
DEVELOPER will be made within 30 days after offer to and
acceptance by DISTRICT.
2. Inspection Fees and Deposits. DEVELOPER agrees to pay
to the DISTRCT, 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.
DEVELOPER shall deposit with the DISTRICT the sum of $1,300.00
being the estimated amount of the DISTRICT'a 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_AcceEtance_of_Irn£rovements. 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
shal 1 accept, the water improvements as the public property of
the DISTRICT. The DISTRICT'S Board of Directors shall accept
the dedication on behalf of the DISTRICT upon the recommedation
of the DISTRICT Manager and DISTRICT Engineer. The DISTRICT
shall be under no obligation to accept such improvements as
public property of the DISTRICT until such time as the following
acts have occurred:
(a) All public improvements in the vicinity of the
water improvements proposed to be constructed in said
subdivision, including but not limited to, streets, curbs,
drains, sewer, gas and uti 1 i ty 1 ines and the improvements
required for the complete water system and necessary
appurtenances thereto, as set forth in this Agreement, shall have
been installed so as to allow their completion without
jeopardizing the condition or maintainance of the installed water
improvements as determined reasonably and in good faith by the
DISTRICT'S Engineer.
(b) DEVELOPER, at his own expense, provides to the
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DISTRICT all documents and title policies necessary to vest and
insure record title to 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 exerqised 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 water
improvements .
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 .
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
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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 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, with out 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 improvements 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 pert of such system.
This provision does not limit DEVELOPER from providing temporary
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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 Security. DEVELOPER shall furnish and
deliver to the DISTRICT a performance guaranty in the penal sum
of $13,000.00 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 surety company authorized
to do business in the State of California, and approved by
DISTRICT or such other form of security authorized by law. The
bond or other form of security 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.
8. Notices. All notices or other communications required
or permitted under this Agreement shall be sent by registered or
certified mai 1, return receipt requested, postage prepaid,
addressed as follows:
To DEVELOPER Mr. Gregory G. Heydon, President
Beneficial Equities, Inc.
1301 Dove Street, Suite 750
Newport Beach, CA 92660
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To DISTRICT
9. Benefit and Burden.
Thomas Brammell, General Manager
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
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 their subdivision, among others,
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 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
subject to the judgement judicial declaration, settlement or
other determination made in the above-described legal proceeding
on June 29, 1983.
10. Serverability_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.
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If any provision or term hereof is found to be invalid or
unenforceable, the rest of this Agreement shall remain in full
force and effect as though the invalid or unenforceable provision
was not a part of the Agreement.
11. Waiver of Amendent. No provision of this Agreement,
nor any branch hereof, can be waived unless in writing. Waiver
of any one breach of any provision hereof shall not be
constructed 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 by, construed and enforced in accordance
with the laws of the State of California.
13. Construction and Inter£E~!~t!£g. 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.
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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 1 imi ted 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.
15. Authority to Sign. The individuals who sign this
Agreement on behalf of the undersigned corporation and municipal
water district warrant that they have the authority and approval
to do so on behalf of such coproration and municipal water
district.
SHORE ASSOCIATES, LTD.,
a California limited
partnership, By:
BENEFICIAL EQUITIES, INC.,
general partnership
By:
CRWMD 83-108.30
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COSTA REAL MUNICIPAL
WATER DISTRICT
By:
Haasl, President
Directors
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STATE OF CALIFORNIA
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COUNTY OF --SAN BEIHlARDI N€>
On this S" th day of Oc../.ob V , 1981 , before me, the
undersigned, a Notary Public in and for said County and State,
personally appeared Gregory G. Reydon, personally known to me (or
proved to me on the basis of satisfactory evidence) to be one of
the General Partners of the Limited Partnership that executed the
within instrument, and acknowledged to me that such partnership
executed the same. witness my hand and official seal.
WITNESS my hand and official seal.
My Commission expires:
OfFICIAL IEAL
DIANE MONDINI NOTARY PUBUC-cAUFORNIA ORANGE COUNTY My Commission exp. May 4, 1990
CRMWD 83-108.30
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Notary Public