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HomeMy WebLinkAbout1991-08-06; Municipal Water District; 121; Approval of Aviara Phase II CT 89-37CARLSBAD M-IICIPAL WATER DISTRICT - -3ENDA BILL AB # ,a, TITLE: APPROVAL OF AVIARA PHASE II MT& 8-b - 4/ CARLSBAD TRACT 89-37 ENG DEPT. l CMWD PROJECT NO. 90-504 DEPT. HD.~p~& RECOMMENDED ACTION: Adopt Resolution No. 350 for approval of Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and acceptance of Potable and Reclaimed Water System Improvements Agreement. ITEM EXPLANATION: Aviara Land Associates Limited Partnership, developers of Aviara Phase II project have submitted completed plans and agreement for water system site improvements. A performance guaranty in the sum of $733,100 has been posted to guarantee the improvements. This subdivision lies on the north side of Batiguitos Lagoon, east of I-5 and south of Poinsettia Lane. It is recommended that the Board of Directors approve Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504, authorize the District Engineer to sign the improvement plans and the President to sign the agreement. FISCAL IMPACT: None. EXHIBITS: 1. Location Map. 2. Potable and Reclaimed Water System Improvements Agreement (Onsite Improvements) for Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504. 3. Resolution No. 350 approval of Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and acceptance of Potable and Reclaimed Water System Improvements Agreement. CMWD 90-504 PALOMAR AIRPORT Project Site Boundary I\ r ..- . LEUCADIA LA COSTA city of hrldrd AVIARA PHASE II I MP 177(B)/CT 89-37 LCPA 9005/HDP 90-2 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -- - WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 89-37, AVIARA PHASE 2 (Potable and Reclaimed Water Svstems) (Onsite Improvements) *‘. '$$ .-. .., This Agreement%s, entered into on /@f--r, ‘b. $ it: , ? between CARLSBAD,MUNICIPALWATER DISTRICT (hereinafter %&/,i '4% t, /9 "DISTRICT") ,J' and AVIARA LAND ASSOCIATl&LIMITED PARTNERSHIP (hereinafter 'i ‘ _.s ., ‘.: 8 llDEVELOPERil)..with respect to the'following: / FT> A ; "-L p *\ DEVELOPER is about t; present the map identified as I '-. Carlsbad Tract 89-37, Aviara Phas; II (Potable and Reclaimed Water Systems) ,, 'I .* / : ., .! I”.. __ 8 : ;’ : L i i .. $’ :‘i, 1 the llsubdivisionl') to the Cityof Carl&bad for final approval under J' '/ ,+' P 9% .I,. the Subdivision*MapkAct of &e"'State of California and represents that DEVELOPER is,in:komplian<ce with the provisions of the City of .,.' / i f Carlsbad's o&inances\?_applicable to ,the filing and approval of ' / ‘;\ P,.@C . -7. i subdivision map&. L-) :.The property encompassed by the subdivision lies .J- p I ._, within the boundaries,ioE the DISTRICT. ~ :I 1 Iy #+'! + !" " B. P & D Technoloqies,lSan Dieqo, California has prepared,plans and specifications for the construction of the water systems necessary to provide water service to the subdivision. The plans and specifications are identified as Carlsbad Tract 89-37, Aviara Phase II (Potable and Reclaimed Water Systems) consisting of 39 sheets, and are incorporated herein by reference ("plans") . The plans and specifications for the water 1 c/25/91 REV. improvements, which are the subject of this Agreement, are set forth on all sheets of those plans (tlimprovements"). The DISTRICT Board of Directors has approved the plans. C. No present commitment is required of the DISTRICT as to water service to the lots in the above described subdivision. IT "-I ? ,I- --.-* * NOW THEREFORE,!! in consideration of the covenants, V' I. ,&-hi I ; conditions,and promises set forth‘below, and of the approval of the ;2, d "T-c, u-r- #$;'?a plans by the DISTRItT;:-the undersigned agree as follows: i ..-; , ! ' I.,. ,- Construction of Imbrovements. ,' DEVELOPER agrees to / .\ i to be' -*\ construct, or cause constructed, all of the water .' . improvements set forth in the plans as described above within one f"-: P.. (1) year from'Xthe date of this Agreement. The improvements shall Y" : .$? p :; ? r* be constructed in a good&and workmanlike manner under the direction 4 '-,. ,.‘ * = ,,I i . of and subject to the approval'of the DISTRICT, which approval will ..I i i be exercised.ing$d*'faith and ;ili.not be unreasonably withheld. .I ,, ‘,.', ,I : ';+ The improvements '&I be con&ructed in accordance with the plans by",'the ;: ,,",_ ‘j j( . approved DISTRICT ,"'and in-',. conformity with all other ,/-p "'y' applicable standards for‘pipeline construction which have been / d 1' adopted by the "DISTRICT. DEVELOPER shall construct the I ,b i * @ ,,.' / ) * <_ ,i 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 /I 2 6/25/91 REV. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 '21 22 23 24 25 26 27 28 project. The fees and costs shall be charged in accordance with the DISTRICT's Ordinance 29. DEVELOPER shall remit to the DISTRICT the fee of $ 14,754.oo I being the estimated amount of the DISTRICT expenses, at the time this Agreement is executed. 3. Dedication and Accentance of Improvements. Upon -x* " ^ A' completion of the improvements in accordance with the plans, as ,. a /&-% ‘~ * determined in ,-,good: ;f$ith 'by-, the.. DISTRICT's Manager and the I _. L$" : “3 : ,' DISTRICT's Engineer, DEVELOPER shall dedicate and the DISTRICT ,' .L Ji' ) * .4 shall accept,. the improvement& 'as the public property of the a L . ., ., DISTRICT. The'DISTRICT shallfbe under no obligation to accept the "., improvements as public property of the DISTRICT until such time as /-'- f- . B * the following'acts have occurred: ,\ -. i-, ., 'ta) All publi.o'improvements proposed to be constructed ; ‘ in said subdivision, including but not limited to, , I-i I streets, curbs, 'a i‘ *.., drains, sewer, ga&*and utility lines and the improvements required .\: / for the complete'kater system and necessary appurtenances thereto, < *t as set forth' in this.,Agreement, : shall have been completed as " r\ *. ,_ ,-; .d determined reasonably and in good faith by the DISTRICT's Engineer. I ,,i ,‘ (b) DEVELOPER, Pt his own expense, provides to the '1 .-( * DISTRICT all documentsiand title policies necessary to vest and insure record title to the public, to DISTRICT and/or City, 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. 3 6/25/91 REV. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 _.. r.._, to the improvements constructed under‘this Agreement until such &+y +., -'/ time as all water"systems' public' improvements to be constructed _' +,+i '-q* under this Agreement, between DEVELOPER and the DISTRICT have been L I completed and,dedi.cation thereof has been accepted by the DISTRICT. "'\ i i 5 ,I,,“ . Guarantv of i Work and Materials. DEVELOPER i, guarantees, for a period of one (1) year after the DISTRICT accepts ,<y. 1 p ._ dedication thereof, ,' ; " that the improvements shall be free of any ',-. !f? >_ defects in'materials andA& workmanship.; DEVELOPER shall repair or ': .;: ‘ /'. \ replace, without cost to the DISTRICT,"any defect incworkmanship or ,. m-*-- ., 8 a<‘ 'Cl c I 4.. materials which~od~ur~'within that time. The DISTRICT shall notify .., !' DEVELOPER in writingiof any 'such defect. DEVELOPER shall begin : : repairs within, ten (IO) days after receipt of'such notice, and c- ,~ I-?," ' ., 1 shall proceed exped,i-tiously to complete the 'repairs within that time, or the DISTRICT ~is:authorized to have the defects repaired at the expense of DEVELOPER, I- 1 ‘.‘ 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 4 6/25/91 REV. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 .22 23 24 25 26 27 28 _I 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 systems for the subdivision and title of all improvements, appurtenances, easements and rights-of-way which are a part of such system. This provision +.,,” j.* ..~* does not limit DEVELOPER from requesting, *or the DISTRICT from . . ,,#.d’?~;, *. : _. providing, temporary water "servitielto 'the subdivision to be used 1 \,J" "-9 during construction.. . 2, Other tempqrary water service may be allowed ; 4 under the terms .and conditions*&greed to between the DISTRICT and \ DEVELOPER. ‘\'/ 8' ". .!-' "= : 1 ,: 7. Bond or Guaranty. 'DEVELOPER shall furnish and , .., e F... deliverrto the DISTRICT a performance‘guaranty in the penal sum of " : P * 7 $733.100.00~~~' to insure faithful.performance by DEVELOPER of I^ "< * 'i jt i all obligations under thiscontract. ,' The guaranty shall be in the _, 9. ? 1 \ : i form of a'*Paithfu;'Performance/Warranty/Labor and Materials Bond issued by a. reliable surety 'company, as determined by DISTRICT, 1, . authorized to do business in the State-of California, or such other I" :i "'S."w.' form of written/guaranty as is acceptable to the DISTRICT. 1 ,4 "r 8. Notice;.! All notices or other communications P -rq; c. : ."~ f required or permitted .under this Agreement shall be sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: To DEVELOPER Larry Clemens Avlara Land Associates 2011 Palomar Aimrt Road, Suite 206 Carlsbad. California 97009 To DISTRICT Robert J. Greaney, General Manager Carlsbad Municipal Water District 5950 El Camino Real Carlsbad, California 92008 9. Benefit and Burden. This Agreement shall inure to 5 6/25/91 REV. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Ye-'- .. ,,I -.. right to hold legal title::to all public improvements necessary to '"'"Z provide such servige.'~ The DISTRICT-.filed an action for declaratory ., y/f! ‘""4, 'I relief in the North County BranFh of the Superior Court of the ,o 7' * % .- L State of California'for the County of San Diego, I. case no. N20027, to resolve that dispute. The DISTRICT and the City of Carlsbad have settled this lawsuit. jli The parties hereto agree that their _- '2 p; I“ i. */ rights ;'and obligations under this Agreement are subject to the ,,": judgment,"‘judicial declaration, settlement or other determination .r :i .L_ P : made in the above-described~ legal proceeding on June 29, 1983. ^.-- , 4 .,.“ *' 10. Severabilitv -of Provisions. The invalidity or _ illegality of-any provisions 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, ..* .,g k I " A the rest of the Agreement shall remainin full force and effect as ' II Ly /I; + f'+ though the invalid or unenforc$hble provision was not a part of the Agreement. 11. Waiver or Amendment. No provision of this Agreement, nor any breach hereof, can be waived unless in writing. Waiver of any one breach of any provision hereof shall not be construed as a waiver of any other breach of the same or any other provision hereof. This Agreement shall be amended or modified only by a written agreement signed by the party to be charged with the amendment. 6 6,'25/91 REV. . . . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12. Governina Law. This Agreement and any amendments hereto shall be governed by, construed and enforced in accordance with the laws of the State of California. 13. Construction and Interpretation. This Agreement contains the entire understanding and agreement of the parties as ', , ,), r"- t to the construction of: the complete water systems for the : .", 1 subdivision, a@ :, supersedes +-all-.- prior &&y?h+ :. ‘) :>, 1 .$&& 1 +-T%, agreements, statements, c discussions, represe,ytations andunderstandings pertainingtothese 2. \ water systems. - _(^_c_L r' : it /\, 14 >&,Attornev's Fees': The prevailing party in any action i at law or in equity, including arbitration, brought to enforce or ._. . -‘= p 'i prevent{!+e'breach of this: Agreement, or any provision hereof, i .". 2 ., I '.I including '".% 1. but not limitedh to action for $f! ~; any injunctive of declaratory relief, shall be entitled'to attorney's,fees and costs * ,...) 9 ) A,* ,I. J I "I, .a. -.. _*c incurred in such action, including those incurred in any appeal. /// (;$ '.' *::;?;,~.b; j ! ,..- a-:.,< * e ,,S(‘ .; * '1 /// I, z 'a --. ..,j_ ., / ~, * /// .'; c .*" ,/ /f-p 4% . /// d , - ,.‘.J E ,. q “ $ ,< r $ f I^ $ /// /// /// /// /// /// /// /// /// i ;: 7 6/25/91 REV. . . ’ I.4 ,’ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . -- _ 15. Authority to Sisn. The individuals who sign this Agreement on behalf of the undersigned partnership certify that they have the authority and approval to do so on behalf of such partnership . Executed by Developer Executed by District This 2 day of .This Bi' day of [ \ , 194/y?; i ji c) u6uST / I 19x. ," DEVELOPER: /f-j " f AVIARA LAND ASSOCIATESLIMITED I- 'DISTRICT: PARTNERSHIP, a Delaware Limited Partnership -" "ii, (name of,developer By: '++I. 4 n//J-Q/~ i w here) ; i D.L. CLEMENS, Vice Presid'ent (title of signatory) $ %: .,._ i By: i., ~: .j' .,. (sign-here) '. TED L. HOOVER;-Asst. Secretarv (title of signatory) Republic -SE D.L. CLEMENS, Vice President (title of signatory) By: pL ,b+--- TED L. HOOVER, Asst. Secretary (title of signatory) APPROVED AS TO FORM: VINCENT F. BIONDO, JR. CBlWD-90-504 6/25/91 REV. STATE OF CALIFORNIA COUNTY OF San Diego I 1 ss. I On July 2, 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me v . . :e to be the person who executed the within instrument as the Vice President and Ted L. Hoover personally known to me >is . m to be the person who executed the within instrument as the Assistant Secretary of Aviara Land Company, a Delaware corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. &/k/ 0-e ifT&-J\,e/L NOTARY PUBLIC I (Seal) STATE OF CALIFORNIA I 1 ss: COUNTY OF San Diego I On Julv 2. 1991 before me, the undersigned, a Notary Public in and for said State, personally appeared D.L. Clemens, personally known to me me crory cJrrferrce to be the person who executed the within instrument as the Vice President, and Ted L. Hoover, personally known to me wasis r be the person who executed the within instrument as the Assistant Secretarv of Republic Development Company, a California corporation, the corporation that executed the within instrument on behalf of Aviara Land Associates Limited Partnership, a Delaware Limited Partnership, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. (Seal) LWLL NOTARY 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 RESOLUTION NO. 750 RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT FOR APPROVAL OF AVIARA PHASE II, CARLSBAD TRACT 89-32 AND ACCEPTANCE OF POTABLE AND RECLAIMED WATER SYSTEM IMPROVEMENTS AGREEMENT, CMWD PROJECT NO. 90-504 WHEREAS, AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership, have submitted completed plans and agreement for potable and reclaimed water system onsite improvements for Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504; and WHEREAS, it is recommended that the Board of Directors of the Carlsbad Municipal Water District approve Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and authorize the District Engineer to sign the improvement plans and the President to sign the agreement; NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the Carlsbad Municipal Water District as follows: 1. That the above recitations are true and correct. 2. That the approval of Aviara Phase II, Carlsbad Tract 89-37, CMWD Project No. 90-504 and acceptance and authorization for //I /// /// /// /// /// /// /// /// 1 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Distrrict Engineer to sign the improvement plans and the President to sign Water System Improvements Agreement for onsite improvements is incorporated herein by reference, is accepted. PASSED, APPROVED AND ADOPTED at a meeting of the Board of Directors held on the 6th day of August I 1991 by the following vote, to wit: AYES: Board Members Lewis, Kulchin, Larson and Stanton NOES: None ABSENT: Board Member Nyga ATTEST: c!! ALETHA L. RkJTENKRANZ, Secretary (SEAL) CMWD 90-504 2