HomeMy WebLinkAbout1992-02-11; Municipal Water District; 152; Approval of Water System ImprovementsCARLSBAD MYICIPAL WATER DISTRICT - “_GENDA
: APPROVAL OF WATER SYSTEM IMPROVEMENTS
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FOR UNIT B SITE UTILITIES, AVIARA GARDEN ClTYATTY WING, FOUR SEASONS RESORT, CMWD 89-509 C ACCEPTANCE OF ONSITE IMPROVEMENTS AGREEMENT ClTYMGR.
RECOMMENDED ACTION:
Adopt Resolution No. 138 for approval of water system improvements for Aviara Garden Wing, Unit B Site Utilities, Four Seasons Resort, CMWD Project No. 89-509 and acceptance of Water System Improvements Agreement for onsite improvements.
ITEM EXPLANATION:
Aviara Resort Associates, developers of water system improvements for Aviara Garden Wing Buildings, Unit B Site Utilities, Four Seasons Resort, CMWD Project No. 89-509 have submitted completed plans and agreement for water system onsite improvements. A performance guaranty in the sum of $76,544.00 has been posted to guarantee the improvements. This subdivision lies on the south side of Alga Road east of El Camino Real.
It is recommended that the Board of Directors approve the water system improvements for Aviara Garden Wing Buildings, Unit B Site Utilities, Four Seasons Resort, CMWD Project No. 89-509, authorize the District Engineer to sign the improvement plans and the President to sign the agreement.
FISCAL IMPACT:
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EXHIBITS:
1. Location Map.
2. Water System Improvements Agreement (Onsite Improvements) for Aviara Garden Wing Buildings, Unit B Site Utilities, Four Seasons Resort, CMWD Project No. 89-509.
3. Resolution No. 938 approval and acceptance of water system improvements for Aviara Garden Wing Buildings, Unit B Site Utilities, Four Seasons Resort, CMWD Project No. 89- 509 and acceptance of Water System Improvements Agreement for onsite improvements.
CMWD 89-509
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PROJECT NAME :
AWAFZA FoL/R $EASOIz/s RESORT
PROJECT Na EXHIBlT
89-509 l
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WATER SYSTEM IMPROVEMENTS AGREEMENT
RBGARDING
Four Seasons Resort - Aviara Garden Wing Euildinqs
Unit B Site Utilities - CMWD Project No. 89-509
(Onsite Improvements)
This Agreement I lg90t/
between CARLSBA after "DISTRICTll)
and Aviara Resort a California Limited Partnership~hereinafter .-* 25. f 1
"DEVELOPER'!):-withU respect 47 :, to "; - th,e following: P, _I
+f 's, _**_/*..- *.: - .' ', ,. A.""DEVELOPER is about to%present the map identified as t $
Four Seasons Resort, Aviara Garden Wins Buildinss, Unit B Site Utilities, ,._ .' ."
the 81subdivisiont1) to t inal approval under
alifornia<and represents
that DEVE ions of the City of
Carlsbad's o&i filing ;'and approval of
subdivision m ncompassed by,,the subdivision lies
within the boun R:s$Pp, .I "i “i B. P & D Technologies'of'San Diego, 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 Four Seasons Resort, Aviara Garden
Wing.Buildings, Unit B Site Utilities, U'4WD Project No. 89-509
consisting of 6 sheets, and are incorporated herein by
reference ("planstt) . The plans and specifications for the water
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improvements, which are the subject of this Agreement, are set
forth on all sheets of those plans (ltimprovementslt). The DISTRICT
Board of Directors has approved the plans.
C. No present commitment is required of the DISTRICT as
to w.ater service to the lots in the above described subdivision.
NOW THEREFORE, in consideration of the covenants,
conditions,and promises set forth below, and of the approval of the
plans by the DISTRICT, the undersigned agree as follows:
1. Construction of Imnrovements. DEVEIsPER agrees to
construct, or cause to be constructed, all o‘f the water
improvements set forth in the plans as described above within one
(1) year from the date of this Agreement. The improvemtits shall .
be constructed in a good and workmanlike manner undert&"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 conforrttfty with all other
applicable standards for pipalim cr5liJibi%&tian 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. Insnection Fees and Denosits. 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
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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 $ 2,300.oo I being the estimated amount of
the DISTRICT expenses, at the time this Agreement is executed.
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 improvements 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, shall have been completed as
determined reasonably and in good faith by the DISTRICT's Engineer.
lb) DEVELOPER, at his own expense, provides to the
DISTRICT all documents and 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.
(cl DEVELOPER provides to the DISTRICT a statement
setting forth the actual cost of constructing the improvements.
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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 Imnrovements. 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 systems 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. Guarantv 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 any such 'defect. DEVELOPER shall begin
repairs within ten (30) days after receipt of such notice, and
shall proceed expeditiously to cosrpietar the repairs within that
time, or the DISTRZ'CT 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 Comnletion. There
shall not be any permanent water service provided to any parcel of
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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
does not limit DEVELOPER from requesting, or the DISTRICT from
providing, temporary water service to the subdivision to be used
during construction. Other temporary water service may be allowed
under the terms and conditions agreed to between the DISTRICT and
DEVELOPER.
7. *Bond or Guarantv. .DEVELOPER shall furnish and
deliver to the DISTRICT a performance guaranty in the per+ sum of
$76,544.00, to insure faithful performance by DmLOPER of
all obligations under this contract. The guaranty shall be in the
form of a Faithful Performance/Warranty/Labor and Materials Bond
issued by a reliable surety caapgaky, as determined by DISTRICT,
authorized to do business in the State of California, or such other
form of writtenguaranty as is Z%XX@%#Ze to the DISTRICT.
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:
To DEVELOPER Robert S. Green, Jr. Aviara Resort Associates 6986 El Camino Real, Suite B336 Car&bad, California 92009
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
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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 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
judgment, judicial declaration, settlement or other determination
made in the above-described legal proceeding on June 29, 1983.
10. Severabilitv of Provisions. The invalidity or
illegality of any provisions of this Agreement shall not affect the
validity or enforcement of the reminder of this Agreement. If any
provision or term hereof is fouild 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 the
amendment.
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12. Governincr 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 construction of the complete water systems for the
subdivision, and supersedes all prior agreements, statements,
discussions, representations and understandings pertainingtothese
water systems. t
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 provfsfc@: hereof,
including but not limited to any action for injxktive of
declaratory relief, shall be entitled to attorney's fees and costs
incurred in such action, including those incurred in any appeal.
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1 , 15. Authority to Sian. The individuals who sign this
Agreement on behalf of the undersigned
certify that they have the authority and approval to do so on
behalf of such .
Executed by Developer Executed by District This 36th day of s , lgd:-
DEVELOPER: /$$F~ \
AVIARA RESORT ASSOCI%TES,"a' California Limited',Par<nership
(name of developer) P' -c- ,I-;- __ By: (See "Attached Signature
(sign here) 4 fb ?f P '? (titl;e.ofysignatory) ,_ t.j I,.
; t.1 ,k z,
By: i : ; t$ '2 " .. " "I: p*
(sign here) t. ?> $ j ,t: P .: ‘%,. ‘,' : i 3 ; t .*, “....T _,.,. . ," r* 1 '" ' j ‘; .! L (title of signatory) i -'?. 'Y +*A~. " I. LI "
.T,
APPROVED AS TO FORM:, ,'
VINCENT F.'BIONDO;JR. t ,"_,
GENERAL COUNS,EL
BY:
ti;)i,.\*I,~ ,,^.(, **: ~
D&PUTY GENERAL &QUNSEL '. / :c:, :: t;:,, ', ." ' *- .I
.“I > -1. ! :i /^ , "~ _. ; J5 I i t.
CMWD 89-509
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WATER SYSTEM IMPROVEMENTS AGREEMENT - FOUR SEASONS RESORT -
AVIARA GARDEN WING UNIT B, SITE UTILITIES, CMWD PROJECT NO. 89-509
DEVELOPER:
AVIARA RESORT ASSOCIATES, a California Limited Partnership
By: AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP,
a Delaware limited partnership, its General Partner
By: Aviara Land Company, a Delaware corporation,
General Partner
(sign here)
7LJ c: ltaop-Lf-
(print name here)
v? H 2; n4ilCL
(title and organization of signatory)
By: Republic Development Company, a California corporation,
General Partner
By: 391 ! k’@--
(sign here)
7-L-i L /jr * WA&
(print name here)
r/p q=1~4YC~
(title and organization of signatory)
By: TAT AVIARA, LTD. ration, its General Partner
By:
/sign here)
I‘ CL.&; tlau&L,
(print hame here)
rl& e’c kY
(title aid organization of signatory)
CORPORATION AS PARTNER OF A PARTNERSHIP,
WHICH IS A PARTNER OF A PARTNERSHIP,
WHICH IS A PARTNER OF A PARTNERSHIP
STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE )
Oil December 26th 192, before me, the undersigned, a Notary Public in and for said State, personall; appeared m L- hde , and personally known to me (or proved to me on the basis of sati facto evidence) to be the person(s) who executed the within instrument as \r.e. -&UN- and of REPUBLIC DEVELOPMENT COMPANY, the corporation therein named, and acknowledged to me that said corporation executed the within instrument pursuant to its by laws or a resolution of its board of directors, said corporation being known to me to be one of the general partners of AVLARA LAND ASSOCIATES LIMITED PARTNERSHIP, said partnership being known to me to be one of the partners of AVIARA RESORT ASSOCIATES 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 partner executed the same.
WITNESS my hand and official seal.
CORPORATION AS PARTNER OF A PARTNERSHIP,
, WHICH IS A PARTNER OF A PARTNERSHIP,
WHICH IS A PARTNER OF A PARTNERSHIP
STATE OF CALIFORNIA) ) ss. COUNTY OF ORANGE )
O* December 26th 19 91 , before in and for said State, personall; appeared dersigned, a Notary Public
’ \-tm~ and personally known to me (or proved to me on thg basis to be the person(s) who executed the within instrument as and of AVIARA LAND COMPANY, the corporation therein named, and acknowledged to me that said corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors, said corporation being known to me to be one of the general partners of AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP, said partnership being known to me to be one of the partners of AVIARA RESORT ASSOCIATES 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 partner executed the same.
WITNESS my hand and official seal.
i.
CORPORATION AS PARTNER OF A PARTNERSHIP,
STATE OF HAWAII
- CITY AND COUNTY OF HONOLULU )
On Dee . x6 19 --l 9 , before me, the undersigned, a.Notary Public
c in and for said State, personally appeared J-tddc(’ l-t&j&& , and
f
personahy known to me (or prove3 to me on the basis of satisfactory evidence) to be the persone who executed the within instrument as
ti 5OQ-d~ and on behalf of TAT AVIARA, KID the corporation that executed thewithin instrument on behalf of AVIAR4 RESORT AkOCIATES 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.
Notaflublic
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RESOLUTION NO. 778
RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT FOR APPROVAL OF WATER SYSTEM IMPROVEMENTS FOR UNIT B SITE UTILITIES, AVIARA GARDEN WING, FOUR SEASONS RESORT, CMWD PROJECT NO. 89-509 AND ACCEPTANCE OF ONSITE IMPROVEMENTS AGREEMENT
WHEREAS, AVIARA RESORT ASSOCIATES, a California limited
partnership, have submitted completed plans and agreement for water
system onsite improvements for Unit B Site Utililies, Aviara Garden
Wing, Four Seasons Resort, CMWD Project No. 89-509; and
WHEREAS, it is recommended that the Board of Directors of
the Carlsbad Municipal Water District approve water system
improvements for Unit B Site Utilities, Aviara Garden Wing, Four
Seasons Resort, CMWD Project No. 89-509, and author&e 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.
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2. That the approval of water system improvements for
Unit B Site Utilities, Aviara Garden Wing, Four Seasons Resort,
CMWD Project-No. 89-509, and acceptance and authorization for the
District 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 Carlsbad
Municipal Water District held on the 11th day of February I
1992 by the following vote, to wit:
AYES: Board Members Lewis, Kulchin, Larson, Stanton and Nygaard
NOES: None
ABSENT: None
ATTEST:
AZL bp Gs)d.L ALETBA L. FkJTENKRANZ, Secrejtary
(SEAL)
CMWD 89-509