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Home My WebLink AboutMCMILLIN DEVELOPMENT INC; 1981-05-18;AGREEMffllT II AGREEMENT FOR CONSfRUCTION OF WATER SYSTEM TO SERVE SUBDIVISION LANDS AND FOR PERFORMANCE BOND CARLSBAD TRACT NO. 74-14A TEMPLIN HEIGHTS, UNITS NO. 2 AND NO. 3 OFFSITE WATER SYSTEM --ELM AVENUE THIS AGREEMENT js made this 18th day of May 1981, between COSTA REAL MUNICIPAL WATER DISTRICT, hereinafter called "District", and McMILLIN DEVELOPMENT, INC. hereinafter called "Subdivider", in view of the following facts and for the following purposes: (a) Subdivider is presenting to the City of Carlsbad for final approval a subdivision map covering property, all of which lies within the boundaries of District, pursuant to the provisions of the Subdivision Map Act of the State of California and in compliance with the provisions of the ordinances of the City of Carlsbad relating to the filing and approval of subdivision maps. (b) Subdivider has presented a specific plan for public water service to the Subdivision prep~red by Brian Smith Engineers, Inc. 2656 State Street, Carlsbad, California, 92008 and included as a part of the entire plan for water service are "Plans for the Improvement of Carlsbad Tract No. 74-14(A). Templin Heights No. 2" ------------------------------------' consisting of 8 ---sheets (11 Plans 11 ), which are incorporated herein by reference. The entire specific plan and detailed subdivision plans have been approved by the District. (c) By separate agreement (I), dated May 18, 1981 the Subdivider has agreed to construct the complete onsite public water system as set forth in the approved engineering construction drawings. (d) The entire scope of work which will be constructed pursuant to the terms and conditions of this Agreement is described as --'-t~h~e __ offsite water system --Victoria Avenue and Elm Avenue (future alignment) 6. This Agreement sets fo,th the entire agreement and under- standing of the parties with respert to the transactions contemplated hereby, and supersedes all prior agreements, arrangements, and under- stand i n gs rel at i n g to the subj e ct 111 at t er hereof. 7. This Agreement may be amended, modified, superseded, or cancelled, and any of the terms, covenants, or conditions hereof may be waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. 8. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement~ the prevailing party shall be entitled to reasonable attorneys' fees, costs, and necessary disburse- ments in addition to any other relief to which he may be entitled. IN WITNESS WHEREOF, this Agreement has been executed by Subdi- vider and on behalf of the District by the President of its Board of Directors on the day and year first above written. SEAL SEAL COSTA REAL MUNICIPAL WATER DISTRICT BY ~z~:7 <--<~/a:" -/4-r .;d:-'-v Donald A. Macleod; President Board of Directors, "District" "SUBDIVIDER" McMILLIN DEVELOPMENT, INC. -3- - or Victoria Avenue and existing right-of-way of the District identified as Line 11 B11 and Line 11 B11 -Branch --Improvement District No. 3 as shown on Exhibit 11 A11 attached hereto and incorporated herein by this reference. The Subdivider does not have any responsibility for right- of-way proceedings for the future Elm Avenue. IT IS, THEREFORE, AGREED: 1. In consideration of the approval by the District of the subdivision and the engineering construction plans for the onsite portion of the public water system for Carlsbad Tract 74-14A. Templin Heights Unit No. 2, and the responsibility to provide public water service to Templin Heights Unit No. 3 Subdivider agrees to make a lump-sum cash contribution of$ 21,700.00 to the District at the time of execution of this Agreement. This lump- sum payment represents the value of the portion of the first cost of a 10-inch high-pressure water main that would serve the Templin Heights Unit No. 2 and Unit No. 3 subdivisions as well as the Quail Ridge subdivision to the immediate north and the potential development area to the immediate south of Templin Heights. 2. The District is responsible for the construction of the offsite water main that will actually be a 14-inch high-pressure water main identified as the Tri-Agencies Pipeline Extension (District Project No. 81-108). The District agrees that the offsite pipeline project will be completed within 730 calendar days (2 years) from the date of this Agreement. 3. This Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of the parties hereto. 4. The invalidity or illegality of any provision of this Agreement shall not be deemed to affect the validity or legality of any other provision of this Agreement. 5. This Agreement and any amendments hereto shall be governed by and construed and enforced in accordance with the laws of the State of California. -2- no scale {ALTERNATE ROUTE ------, I I TRI-AGENCIES PIPELINE EXTENSION .. EXHIBIT A AGREEMENT II TEMPLIN HEIGHTS NO. 2 (OFFSITE) 4. Until such time as all public improvements proposed to be constructed in the dedicated streets in which the work covered in this Agreement is installed shall have been completed and accepted by District and all other public authorities having jurisdiction, Subdivider shall be responsible for the care, maintenance of and any damage to the water mains or water system within said dedicated streets. No permanent water service to any parcel of land within the Su6division shall be allowed until after acceptance by the District of such improvements. 5. Subdivider shall be authorized to obtain from the District temporary water services for parcels of land within the Subdivision prior to the completion of all of the improvement work contemplated by the Plans subject to the following conditions: (a) Subdivider has entered into an agreement or agreements with the District to construct all of the improvements required for the entire water system to secure water service to the Subdivision. (b) That no individual meters will be installed for any particular parcel of land, with the District serving water only through the temporary meter of the Subdivider. (c) That the District makes no warranty or guaranty as to the quantity of water or water pressure for any improvements of the Subdivider, or its successors in interest. (d) That the District makes no warranty or guaranty as to the necessary amount of water for fire flow or fire protection for any improvements of the Subdivider, or its successors in interest. 6. The acceptance of the work on behalf of the District, I which Subdivider will install pursuant to this Agreement, shall be made by the Board of Directors of the District upon recommendations of the District's Manager and District's Engineer. Such acceptance shall not constitute a waiver by District of any defects in the work. Subdivider, by this Agreement, guarantees for a period of one (1) year -3- from acceptance, all of the work cov~red by this Agreement, and shall repair and replace any and all work that may prove defective in workmanship and/or materials within said one-year period without expense to the District. In the event of failure to comply with the provisions of the guaranty within ten (10) days after notice in writing, District is authorized to have the defects repaired and made good at the expense of Subdivider, and Subdivider shall pay the cost thereof·on demand. However, in the case of an emergency, District is authorized to have the defects repaired, without notice, at the expense of Subdivider, and Subdivider shall pay the cost thereof on demand. 7. Subdivider shall, upon acceptance of the work by District, provide District with a statement showing the actual cost of construction of the work contemplated herein and formally dedicate all facilities to the District. 8. Subdivider shall furnish to the District, at no expense to the District, surety bonds written by a reliable surety company authorized to do business in the State of California or other acceptable form of guaranty, in the sum of$ 115,000.00 , for the work which shall be performed in accordance with the terms and conditions of this Agreement. Said bonds or deposits shall insure the faithful performance of this contract by Subdivider. Said bonds or deposits shall also inure to the benefit of all persons entitled to the protection of the Mechanic's Lien Laws of the State of California. 9. The Subdivider shall be entitled to reimbursement for the oversizing of all of the facilities as set forth in Exhibit 11 A11 of this Agreement and described as follows: Beginning at the North boundary line of Templin Heights, Unit No. 2, and the East lot line of Lot 57; thence South along the East lot line of Lot 57 to Auburn Street (oversizing 10" to 14" water line); thence West along Auburn Street to Haverhil 1 Drive (oversizing 8 11 to 12"); thence South on Haverhill Drive to Victoria Avenue; thence East on Victoria Avenue to Auburn Street (oversizing 8 11 to 12 11 ); thence continuing on Victoria Avenue to the East boundary line of Templin Heights (oversizing 10" to 14 11 ). :::: {l :::: 10. This Agreement shall inure to the benefit of, and the obligations created hereby shall be binding upon, the successors and assigns of the parties hereto. 11. The invalidity or illegality of any provision of this Agreement shall not be deemed to affect the validity or legality of any other provision of this Agreement. 12. This Agreement and any amendments hereto shall be governed by and construed and enforced in accordance with the laws of the State of California. 13. This Agreement sets forth the entire agreement and under- standing of the parties with respect to the transactions contemplated hereby, and supersedes all prior agreements, arrangements and under- standings ~elating to the subject matter hereof. 14. This Agreement may be amended, modified, superseded, or cancelled, and any of the terms, covenants, or conditions hereof may be waived, only by a written instrument executed by the parties hereto, or in the case of a waiver, by the party waiving compliance. 15. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitJed to reasonable attorneys' fees, costs, and necessary disbursements in addition to any other relief to which he may be entitled. IN WITNESS WHEREOF, this Agreement has been executed by Subdivider and on behalf of the District by the President of its Board of Directors on the day and year first above written. SEAL SEAL COSTA REAL MUNICIPAL WATER DISTRICT By , 4-..,.&"' /4 L' kr ( Donald A. MacLeoa, President Board of Directors, "District" "SUBDIVIDER" McMILLIN DEVELOPMENT, INC. ,· . .. no scale ELM AVE. EXHIBIT A AGREEMENT I TEMPLIN HEIGHTS NO. 2 (ONSITE)