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HomeMy WebLinkAboutThe Shores at Carlsbad; 1985-07-05;WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 84-18 "THE SHORES" AGREEMENT I This Agreement is entered into on _________ , 198_, between COSTA REAL MUNICIPAL WATER DISTRIST (hereinafter "DISTRICT") and THE SHORES AT CARLSBAD (hereinafter "DEVELOPER") with respect to the fol- lowing: A. DEVELOPER is about to present the map identified as "Carlsbad Tract No. 84-18" (the "subdivi:sion") 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. B & B Engineers, Inc., Vista, California, 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 identifies as "Plans for the Improvement 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 improve- ments, which are the subject of this Agreement, are set forth on all sheets of those plans ("improvements"). 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. -1- NOW, THEREFORE, in consideration of the covenents, conditions and promises set forth below, and of the approval of the plans by the DISTRICT, the undersigned agree as follows: 1. Construction of Improvements. 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 di rec ti on of and subject to the approva 1 of the DISTRICT, which approval wi 11 be exercised in good faith and will not be unreasonably withheld. The improve- ments 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 improve- ments 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 project. The fees and costs shall be charged in accordance with the DISTRICT's standard practice. DEVELOPER shall deposit with the DISTRICT the sum of $900.00 being the estimated amount of the DISTRICT's expenses, at the time this Agreement is executed. Should the DISTRICT' s expenses be in excess of the deposit, DEVELOPER sha 11 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. 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 deicate, and -2- the DISTRICT shall accept, the improvements as the public property of the DISTRICT. The DISTRICT shall be under no obligation to accept the improve- ments 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. (b) DEVELOPER, at his 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/or rights-of-way necessary to the owner- ship 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 unreason- ably 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 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 to the improvement con- structed under. this Agreement until such time as all water system public im- provements to be constructed under this Agreement between DEVELOPER and the DISTRICT have been completed and dedication thereof has been accepted by the DISTRICT. -3- 5. Guaranty of Work and Materials. DEVELOPER guarantees, for a period of one (1) year after the DISTRICT accepts dedication thereof, that the im- provements 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 (10) days after receipt of such notice, and shall proceed expeditiously to complete the repairs within a reasonable time. Should DEVEL- OPER 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, 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 land within the subdivision, nor shall occupancy of any permanent improvement within the subdivision be per- mitted, 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 providing, temporary 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 condi- tions agreed to between the DISTRICT and DEVELOPER. 7. Bond or Other Guaranty. DEVELOPER shall furnish and deliver to the the DISTRICT a performance guaranty in the penal sum of $13,000.00 to insure faithful performance by DEVELOPER of all obligations under this con- tract. 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, -4- ,_ ,, ' - or such other form of written guaranty as is acceptable to the DISTRICT, who shall not unre~sonably 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 th~ protection of the California Mechanics Lien Law in connec- tion 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 mail, return receipt requested, postage prepaid, addressed as follows: To DEVELOPER: To DISTRICT Mr. Gill Saenz Gemini Development Corp. 323 West Court Street, Suite 404 San Bernardino, California 92401 William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Camino Real Carlsbad, California 92008 9. Bene~it and Burden. This Agreement shall insure to the benefit of, and the ob,ligations 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 sub- division, 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 I I legal proceedi:ng on June 29, 1983. 10. Seve~ability of Provisions. The inavalidity or illegality of any provision of this Agreement shall not affect the validity or enforcement I I of the remain4er of this Agreement. If any provision or term hereof is -5- I • ,,..... ' ' 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. 11. Waiver or Amendment. No provision of this Agreement, nor any branch hereof, can be waived unless in writing. Waiver of any one breach of any pro- vision 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. 12. Governing Law. This Agreement and any amendments hereto shall be gov- erned 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 com- plete water system for the subdivision, and supersede all prior agreements, statements, discussions, representations and understandings pertaining to that water system. 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 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. 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 corporation and municipal water district. THE SHORES AT CARLSBAD a limited California artnership r - -6- COSTA REAL-MUNICIPAL WATER DISTRICT By: =Ma_r_g_a_r_e_t_J~.~B-o-na_s_,~P-re-s~i-d~en t Board of Directors - STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) SS -I • ✓ On this 15th day of July , 1985, before me, the undersigned, a Notary Public in and for said County and State, personally appeared Willia!'\ Mead 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.I/"~~"""'!!.!!~~~~--"""'"""~~ {OFFICIAL SEAL) JEAN R. HELLMAN NOTARY PUBLIC· CALIFORNIA SAN BLRNAllOINO COUNTY ~¥ Com~~.~~lon Expires Aug. 19, 1987 My Commission expires: 8/19/87 --~'--~------------ STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) SS On this 15th day of July , 1985, before me, the undersigned, a Notary Public in and for said County and State, personally appeared C. Wayne Wood 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 • 0 ~1. _ !OFFICIAL SE.AL) • • • Cy/Mr, i{ )dµgua,.__ 7 My Commis~!~." Expi!!~ Aug. 19~ 1987 ► My Commission expires :--"8.,_/-=1~9~/_8'-7'------------·· ... JEAN R. HELLMAN NOTARY PUBLIC· CALIFORNIA SAN BERNARDINO COUNTY ,r•, .) STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) SS On this 15th day of July , 1985, before me, the undersigned, a Notary Public in and for said County and State, personally appeared James J. Witwer 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. . . . . . . My STATE OF CALIFORNIA) COUNTY OF SAN BERNARDINO) SS On this 15th day of Julv , 1985, before me, the undersigned, a Notary Public in and for said County and State, personally appeared William Was 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 · · · · · (OFFICIAL SEAL) :JEAN R. HELLMAN NOTARY PUBLIC· CALIFORNIA SAN BERNARDINO COUNTY • My Commission Expires Aug. 19, 1987 • My Commission expires:_~8~/=1~9~/_8_7 _________ _