HomeMy WebLinkAboutAviara Land Associates; 1989-07-12;WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT 85-35
AVIARA -TEMPORARY 8 11 HIGH LINE
8" WATERLINE RELOCATION AND RECONSTRUCTION
AGREEMENT I
This Agreement is entered on -~+cb,1_, 1 9 8 9 ,
W A T E R D I M ; I cl ( h e r e i n a f t e r
into
between CARLSBAD MUNICIPAL
"DISTRICT") and AVIARA LAND ASSOCIATES LIMITED PARTNERSHIP
(hereinafter "DEVELOPER") with respect to the following:
A. DEVELOPER is about to present maps identified as
"Carlsbad Tract No. 85-35 -AVIARA" (the "subdivision") to the
City of Carlsbad for 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. P & D Technologies, of San Diego, California has
prepared plans and specifications for the construction of a
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temporary 8 11 high line public water system the portion of the
public water system that is necessary to allow grading and the
relocation and reconstruction of an existing water main. The
plans and specifications are identified as 11 8 11 Temporary High
Line Waterline (Poinsettia)" consisting of sheets 1 & 2 of two
sheets, dated April 1989, and are incorporated herein by
reference.
C. DEVELOPER and the DISTRICT will be entering into the
future agreements, which will be related to this Agreement, both
of which together will provide for the reconstruction and
replacement of the existing main that will be removed and provide
a complete public water system to serve the subdivision and
present property owners outside of said subdivision.
D • No present commitment is required of the DISTRICT as to
water service to 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:
In consideration of the
approval by the DISTRICT of the plans entitled 11 8 11 Temporary
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High Line Waterline (Poinsettia)" consisting of sheets 1 & 2 of
two sheets, DEVELOPER agrees to do and perform or cause to be
done c: n d performed , at hi s own expense and w i thou t cos t or
liability to the DISTRICT, all of the public work and improvement
required to be done in future subdivision in the construction and
replacement of a complete water system to replace the existing
water mains that are to be relocated. The DEVELOPER will
construct or reconstruct fencing, access road, landscaping and
other appurtenant work along the water line system on said
improvement plans. "Order of Work" schedule regarding "Shutdown
Time" and water main installation shall be strictly adhered to
and are shown on said improvement plans . All work shall be
completed within one (1) year from the date of this agreement.
The construction project is identified on the attached plat map -
Exhibit "A".
The improvements shall be constructed in a good and
workmanlike manner under the 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 conformity with all other
applicable standards for pipeline construction which have been
adopted by the DISTRICT. DEVELOPER shall construct the
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improvements at its sole cost and expense, and without any cost
or expense to the DISTRICT.
2. !~~R!:.£.!i£!!.-.Fees alli_Q~R£~~ 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 i'nspection, right-of-way expenses,
materials furnished, and a reasonable amount for the DISTRICT'S
indirect costs and overhead in connection with this project. The
fees and costs shall be charged in accordance with the DISTRICT'S
standard practice. DEVELOPER shall deposit with the DISTRICT the
sum o f §.l.z...§.~Q.:...QQ be in g the e s t i mated amount of the DI S TR I CT ' S
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.
3 . 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
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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 and the
related agreement, shall have been completed as determined
reasonably and in good faith by the DISTRICT'S Engineer.
(b) DEVELOPER, at its own expense, provides to the
DISTRICT all documents and title policies necessary to vest and
insure record title in the DISTRICT to all easements and/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.
The DISTRICT'S Board of Directors shall accept the
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dedication on behalf of the DISTRICT upon the recommendation of
the DISTRICT Manager and DISTRICT Engineer.
4. l£!erim_~?fil~£~£~_£f_!~E!oveme£!~~ DEVELOPER shall be
responsible for the care, maintenance and repair of all damage to
the improvements constructed under this Agreement between
DEVELOPER and the DISTRICT have been completed and dedication
thereof has been accepted by the DISTRICT.
5 • 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, and defect in
workmanship or materials which occurs within the time. The
DISTRICT
defect.
shall notify the DEVELOPER in writing of any such
DEVELOPER shall begin repairs immediately 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
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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. There
shall not be any permanent water service provided to any parcel
of land within the subdivisi,on, nor shall occupancy of any
permanent improvement within 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 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 services may be allowed under terms and conditions agreed
to between the DISTRICT and DEVELOPER.
7. ~££i_££_Q!h~£_Q~~£~£!X~ DEVELOPER shall furnish and
deliver to the DISTRICT a performance guaranty in the penal sum
of iil~QQ~QQ 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 reliable surety company
authorized to do business in the State of California, or such
other form of written guaranty as is acceptable to the DISTRICT,
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who shall not unreasonably withhold its approval. The bond or
other form of guaranty 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 Agr~ement shall be sent by registered or
certified mail, return receipt requested, postage prepaid,
addressed as follows:
To DEVELOPER:
To DISTRICT:
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Tony German
Hillman Properties
2011 Palomar Airport Road, Suite
Carlsbad, California 92009
Robert J. Greaney,
General Manager, District Engineer
Carlsbad Municipal Water District
5950 El Camino Real
Carlsbad, California 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 this subdivision, among others,
and the right to hold legal title to all public improvements
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necessary to provide such services. 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.
City of Carlsbad have settled this lawsuit.
The DISTRICT and the
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.
.1 0 • The invalidity of
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 th~ugh the invalid or unenforceable provision
was not a part of the Agreement.
11. 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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This Agreement and any amendments
hereto shall be governed by, construed and enforced in accordance
with the laws of the State of California.
13. This Agreement is
between DEVELOPER and the DISTRICT pertaining to the construction
of a temporary and permanent water system and the public
improvements for the subdivision. This Agreement contains the
entire understanding and agreement of the parties as to the
relocation and site improvements portion of the water system and
supersedes all prior agreements, statements, discussions,
representations and understandings pertaining to the water
system.
14. 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 .
1 5 • The individuals who sign this
Agreement on behalf of the undersigned partnership and municipal
water district warrant that they have the authority and approval
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to do so on behalf of such partnership and municipal water
district.
AVIARA LAND ASSOCIATES
LIMITED PARTNERSHIP~ a
California
D.L. Clemens,
Vice President/General Mgr .
CMWD 86 -503G
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CARLSBAD MUNICIPAL
WATER DISTRICT
By