HomeMy WebLinkAboutTreetops Unlimited/Pacific Scene Inc/Financial Scene Inc; 1985-11-21;AMENDMENT NO. 1
TO
REIMBURSEMENT AGREEMENT
REGARDING
CARLSBAD TRACT NO. 83-21 - UNIT NO. 2
VILLAGES 0 AND P-l, CALAVERA HILLS
Amendment No. 1 - Agreement No. 4 - Reimbursement Agreement
THIS AMENDMENT NO. 1 is made this gist day of November >
1985, between COSTA REAL MUNICIPAL WATER DISTRICT, hereinafter called
"DISTRICT", and TREETOPS UNLIMITED, a Joint Venture of PACIFIC SCENE, INC.
and FINANCIAL SCENE, INC., hereinafter called "DEVELOPER"-, with respect
to the fol1owi ng:
A,. DEVELOPER and DISTRICT have entered into an agreement dated
June 11, 1985, providing for the reimbursement to DEVELOPER of the expenses
incurred by DEVELOPER for public water system facilities and portions of
facilities that provide a benefit to properties not a part of the subdivision
of DEVELOPER.
B. The Reimbursement Agreement sets forth terms and conditions
by which the reimbursement amount is established, collected, and reimbursed
to DEVELOPER.
C. The Reimbursement Agreement includes a "benefit area" as
established by DISTRICT that will be assessed the "acreage charge".
D. DEVELOPER has made a separate agreement with a property owner
included within the currently approved benefit area with respect to
payment of the "acreage charge".
E. DEVELOPER and DISTRICT agree that an amendment to the agreement
is appropriate to adjust the total reimbursement amount and the Benefit
Area Map.
NOW, THEREFORE, in consideration of the covenants, conditions and
promises set forth below, the undersigned agree as follows:
1. Section 3 of Agreement shall be modified as follows:
The total "actual construction cost" as determined
by the agreement shall be reduced to forty-seven
and one-half percent (47-1/2%) of that total amount.
2. Section 4 of Agreement shall be modified as follows:
The District shall establish a benefit area map as
set forth on Exhibit "A" of this Amendment No. 1.
3. All other terms and conditions of the agreement shall remain
as in place and full force.
TREETOPS UNLIMITED, a Joint
Venture of PACIFIC SCENE, INC.
and FINANCIAL SCENE, INC.
BY: FINANCIAL SCENE, INC.
COSTA REAL MUNICIPAL WATER
DISTRICT
largafat J. Bo/las, President
BoardU>f Directors
187-03 OCtANSIOC UN
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EXHIBIT "A"
AMENDMENT NO. 1
PROPOSED BENEFIT AREA
FOR
REIMBURSEMENT AGREEMENT
CARLSBAD TRACT NO. 83-21 - UNIT NO. 2
VILLAGES 0 AND P-l, CALAVERA HILLS
DEVELOPER: TREETOPS UNLIMITED
sura
MAP 823-RHO AGUA HEDIONOA
STATE HWy MAP 61,68
JUNE 3, 1985
REVISED NOVEMBER 20, 1985
BENEFIT AREA PER AMENDMENT NO. 1
AREA DELETED FROM ORIGINAL BENEFIT AREA
SOUTH COAST ASPHALT PRODUCTS CO., INC.
LIC NO 252913
A Subsidiary of Koppers Company, Inc
February 21, 1986
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, Ca. 92008
Re: Amendment No.l, Reimbursement Agreement No. 4, Carlsbad
Tract No. 83-21 - Unit No.2.
Gentlemen:
The above referenced document (copy enclosed) was executed
by and between Costa Real Municipal Water District and Treetops
Unlimited, a Joint Venture of Pacific Scene, Inc. and Financial
Scene, Inc. as part of the consideration for South Coast Asphalt
Products Co., dedicating property to the City of Carlsbad for
the benefit of Pacific Scene, Inc.
This amendment delineates the fact that property owned by
South Coast Asphalt Products Co. has been excluded from the
benefit area maps for Reimbursement Agreement No. 4.
The purpose of this letter is to place the district on
notice that South Coast Asphalt Products Co. has a third party
interest in the above referenced Amendment No. 1, and to request
that South Coast Asphalt Products Co. be notified by mail should
Treetops Unlimited, or its successors in interest, request any
changes in the referenced Amendment No. 1.
Our check in the amount of $10.00 is enclosed with this
letter as reimbursement to the district for any clerical or
postal fees that may be incurred to comply with our request.
Sincerely,
D>an Hickethier
Executive Vice-President
DHrlf
COS'i'A ioit.MUNICIPAL WATER DISTRICT
P O. BOX 1OO8 CARLSBAD. CALIFORNIA 92O08 619- 7S7-2010
CHK.#. 27448
SOUTH COAST ASPHALT PRODUCTS CO., INC.
A SUBSIDIARY OF KOPPERS COMPANY, INC.
ACCOUNTS PAYABLE
P.O. BOX 1008
CONTROL NO. 27448
CARLSBAD, CALIFORNIA 92008
INVOICE DATE
02/21 /86
.. ,„ -..»..»•* *-*»»V •• *•»•
INVOICE NUMBER
FILING FEES
DESCRIPTION
TOTALS
GROSS AMOUNT
10.00
10.00
DISC. / ADJ.
.00
.00
NET AMOUNT
10. OC
10.00
COSTA REAL MUNICIPAL WATER DISTRICT
5950 El Camino Real
Carlsbad, California 92008
Phone: 619-438-2722
08353
FOR
Amount of Account. $.
Amount Paid $
Balance Due .... $
Cash O Check K MODForm No 1793 "J ~ -
THANK YOU!
By-
MEMORANDUM
DATE: December 3, 1985
TO: William Blakesley, Deputy District Engineer
Costa Real Municipal Water District
FROM: Jack Y. Kubota, Special Engineering Consultant
SUBJECT: CT 83-21 -- Unit No. 2 -- Amendment No. 1 to
Reimbursement Agreement -- Project No. 85-302
Treetops Unlimited, South Coast Asphalt Company, and HCH & Associates,
the consulting engineers, have all expressed their sincere appreciation
and "thank you" to the District for the timely processing of Amendment
No. 1 to their reimbursement agreement. These people have worked for
some period of time with the Water District on these matters and we
are certainly gratified that we could respond to their urgent needs
at this time.
There is attached the District's original Amendment No. 1 as executed
by the developer and this is for your official files. We note that
President Bonas has not yet executed this original so that should be
done prior to your filing.
One last matter involving this project is the preparation of the
formal "benefit area map" and the posting of the information on the
appropriate exhibit maps of the District as well as processing same
through the Board of Directors. I know we have touched upon this
from time to time at our staff meetings but as we continue to process
these reimbursement agreements, the overall administration of same is
going to be a substantial chore so that each of these as they come
along should be integrated into a workable system as far as the
District is concerned. We still have several more of these reimburse-
ment agreements that may or may not be on the so-called "active lists"
in your office so that we will be checking our files to insure that
there is full and complete information that has been transmitted on
to you folks .
J/abk Y. KAibota
Enclosure
cc: Mr. L.R. Burzell (w/o enc)
JYK:paf
CMWD 85-302
D106/12
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REIMBURSEMENT AGREEMENT
REGARDING
CARLSBAD TRACT NO. 83-21 - UNIT NO. 2
VILLAGES 0 AND P-l, CALAVERA HILLS
Agreement No. 4 - Reimbursement Agreement
This Agreement is entered into on _ June 11 _ , 198 5,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT")
and TREETOPS UNLIMITED, a Joint Venture of PACIFIC SCENE, INC. and
FINANCIAL SCENE, INC. (hereinafter "DEVELOPER"), with respect to the
f ol 1 owi ng :
A. DEVELOPER is about to present the map identified as "Carlsbad
Tract No. 83-21 - Unit No. 2" (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 within the
boundaries of the DISTRICT.
B. DEVELOPER and the DISTRICT have entered into the following
agreements, related to this Agreement, all of which together provide
for the construction of a complete public water system to serve the
subdivision:
(1) Agreement No. 1 - Onsite Improvements.
(2) Agreement No. 2 - Offsite Improvements.
(3) Agreement No. 3 - Temporary Offsite Water System.
ACTWEi) - Tb» $ praed- fTMS I" be
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b.>..< •'•••••- •••••••'
These agreements will hereinafter be referred to as "the related
agreements."
C. DEVELOPER will construct, as part of the offsite improvements,
a 14-inch main as set forth in Exhibit "A". This 14-inch water main is
located in Tamarack Avenue from the easterly boundary of Carlsbad Tract
83-21 - Unit No. 2 to the intersection of Tamarack Avenue with the
DISTRICT'S existing 12-inch water main serving the Tri-Agencies Pipeline
Terminal Reservoir and in an easement paralleling the easterly boundary
of Carlsbad Tract 83-21 - Unit No. 2 from Tamarack Avenue north to the
north boundary line of Carlsbad Tract 83-21 - Unit No. 3, all of which
has been determined by the DISTRICT to be eligible for reimbursement.
D. DISTRICT agrees to reimburse DEVELOPER 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 Increased Size of the 14-Inch Water Main
in Tamarack Avenue. DISTRICT shall reimburse DEVELOPER for the difference
in the cost of constructing the 14-inch water main in Tamarack Avenue
and what would have been the cost of constructing a 12-inch water main
in the same location.
2. Reimbursement for 14-Inch Water Main in Easement. DISTRICT
shall reimburse DEVELOPER for the total cost of constructing the 14-inch
water main in the easement area.
3. Calculation of Amount to be Reimbursed. DEVELOPER shall
determine and furnish to the DISTRICT the estimated cost of constructing
the 12-inch water main in Tamarack 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
-2-
of constructing the 14-inch water main in Tamarack Avenue and in the
easement area. 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.
4. Process of Reimbursement. DISTRICT shall establish a benefit
area as set forth in Exhibit "B". This benefit area shall be assessed
an acreage charge as set by DISTRICT at the time water service is
provided to any property as shown on the map. The acreage charge shall
be the total actual project cost divided by the total acreage of the
benefit area.
5. Time of Reimbursement. DISTRICT shall establish the total
time of ten (10) years after the date of project completion and acceptance
by DISTRICT. Reimbursement to the DEVELOPER will be made from time to
time as the acreage assessment is collected by DISTRICT.
«s^ *.
'<*6. Notices. All notices or other communications required or c$>
permitted under this Agreement shall be sent by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
To DEVELOPER: John J. Summers, Vice President
Pacific Scene, Inc.
3900 Harney Street
San Diego, CA 92110
To DISTRICT: William C. Meadows, General Manager
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, CA 92008
7. 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 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
-3-
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 sub-
ject to the judgment, judicial declaration, settlement or other deter-
mination made in the above-described legal proceeding on June 29, 1983.
8. 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 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.
9. 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 amendment.
10. 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.
11. Construction and Interpretation. This Agreement is one of
four related agreements between DEVELOPER and the DISTRICT pertaining
to the construction of water system public improvements for the
subdivision. Where possible, all 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 agreements 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,
-4-
discussions, representations and understandings pertaining to that
water system.
12. 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 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.
13. Authori ty to Si gn . 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 Joint Venture and municipal water district.
TREETOPS UNLIMITED, a Joint
Venture of PACIFIC SCENE, INC.
and FINANCIAL SCENE, INC.
By: PACIFIC SCENE, INC.
By: FINANCIAL SCENE, INC.
By
By
V?
COSTA REAL MUNICIPAL
WATER DISTRICT
Marga/^t J.
Boards/of Di
as, President
ors
"™ 0 ™"
cr- 85 -2t
INDICATES OVERSIZING FROM 12" to 14" IN TAMARACK AVE.
^INDICATES 14" LINE IN AN EASEMENT AREA
107-03 OCEANSIDE UN
1A(- CARLSBAJ UN
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167-04
PROPOSED BENEFIT AREA
FOR
REIMBURSEMENT AGREEMENT
CARLSBAD TRACT NO. 83-21 - UNIT NO. 2
VILLAGES 0 AND P-l, CALAVERA HILLS
MAP 823-RHO AGUA HEDIONDA
STATE HWY MAP 61,68
JUNE 3, 1985
DEVELOPER: TREETOPS UNLIMITED
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)BS:
On this 4th day of June _ , 19 85 before me, the undersigned, a Notary Public in and
for said County and State, personally appeared JOHN J. SUMMERS proved to roe on the basis
of satisfactory evidence to be the VICE President, and p.w. MACKAY
known to me to be the VICE PRESIDENT
_
, of PACIFIC SCENE, INC., the corporation
that executed the within instrument on~Behalf of said corporation, said corporation being known
to me to be one of the Joint ventures of 'IKKL'IUHS UNLIMITED, the Joint venture that executed the
within instrument, and acknowledged to me that such corporation executed the same, both indi-
vidually and as Joint venturer of said Joint venture, and that such Joint venture also executed
the same. If^VVVWdVWdvwrtJvwA»jijLi..
5**^^^^*"**™**
WITNESS my hand and official seal.
Notary Pub(Ljf.c in
OFFICIAL
KATHY LYNN GOMEZ f
NOTARY PUBLIC-CALIFORNIA:!
PRINCIPAL OFFICE IN
SAN DIEGO COUNTY
Expires April 22. 1988
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STATE OF CALIFORNIA
COUNTY OF ' «*O SS.
On this J£ _ day of O L/' <-c 19 JO before me, the undersigned, a Notary
Publicjn and for said county and state, personally appear
known to me (or proved to me on the basis of satisfactory evidence) to be the
_ V\C( President and Astf. \/iif flvg. Secnrtwy,
respectively of TJiWn^A> '5ctM MTWpO/OJied __
the corporation that executed the within instrument, said persons being known to
me to be the persons who executed the within instrument on behalf of said
corporation, said corporation being known to me to be one of the joint venturers of
~Ti^jrirp5 tinlint'^d _ , the joint
venture that executed the within instrument and acknowledged to me that such
corporation executed the same both individually and as joint venturer of said joint
venture and that such joint venture also executed the same.
WITNESS my hand and official seal.
Sanctity ol Contract
FOR NOTARY SEAL OR STAMP
OFFICIAL SEAL
ROBIN K DE KOLD
NOTARY PUBLIC - CALIFORNIA
SAN DIEGO COUNTY
My cotiun. expires AUG 30, 1988
FORM - CJV
Notary Public in and for said county and state.