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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 1 ( 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 2 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 3 ( 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. 4 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 5 ( 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 6 ( _,.,,,-· 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 7 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 8 ( 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. 9 _ _,,-· 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. 10 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 11 COSTA REAL MUNICIPAL WATER DISTRICT By: Haasl, President Directors ( STATE OF CALIFORNIA ~~~ 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 12 Notary Public