HomeMy WebLinkAboutPoinsettia Investment Co Inc; 1983-10-19;,'
WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARD ING
CARLSBAD TRACT 81-6
SOUTHWEST CORNER INTERSTATE 5/POINSElTIA LANE
This Agreement is entered into on October 19 , 1981_,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter ''DISTRICT")
and POINSETTIA INVESTMENT CO., INC. (hereinafter "DEVELOPER"} with ~ .
respect to the following:
A. DEVELOPER is about to present the map identified as "Carlsbad'
Tract No. 81-6'' (the "subdivision'') 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. Buccola Engineering, Inc. of Newport Beach, 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 identified as ''Improvement Plans for:
Carlsbad Tract No. 81-6'' consisting of ten sheets, and are incorporated
herein by reference ("plans''). The plans and specifications for the
water improvements, 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.
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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 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 direction of and subject to the approval
of the DISTRICT, w~ich approval will be exercised in. good faith and
will not be unreasonably withheld. The improvements shall be constructec
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
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 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 $5,000.00, 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 shall pay the excess expenses to the DISTRICT on demand.
Should the DISTRJCT'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.
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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 improve-
ments 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 thireto,
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 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 dedication on
behalf of the DISTRICT upon the recommendation of the UISTRICT Manager
and DISTRICT Engineer.
4. Interim Maintenance of Improvements. 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 system 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.
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5. Guaranty 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 (10} days 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 s'hal l 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 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. However,
at the discretion of the DISTRICT'S ~oard of Directors, other temporary
water services may be allowed under terms and conditions agreed to
between the DISTRICT and DEVELOPER.
7. Bond or Other Guaranty. DEVELOPER shal I furnish and deliver
to the DISTRICT a performance guaranty in the penal sum of $101,000.00
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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, 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 Agreement shall be sent by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
9.
To DEVELOPER:
To DISTRICT:
Mr. R,C. Jewett
Poinsettia Investment Co., Inc,
1150 East Elm Street
Fullerton, CA 92631
Wi 11 i am C. Meadows, Genera 1 Manager
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, California 92008
Benefit and Burden, 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 necessary to provide such service. The DI~TRICT
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
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subject to the judgment, judicial declaration, settlement or other
determination made in the above-described legal proceeding on June 29,
198 3.
10. Severability of Provisions. The invalidity or 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 dS though the invalid
or unenforceable provision was not a part of the Agreement •.
11. Waiver or"' Amendment. No provision of this' Agreemen_t, 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.
12, Governing 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 system for the subdivisi6n, 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.
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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.
POINSETTIA INVESTMENT CO., INC.
By __ -11-~~lQ__~'-+-~-+----......-r-e_s.,..id..-e-n-,-t
By~'-4L-.,L-4-~-_ ~ Secretary
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COSTA REAL MUNICIPAL
WATER DISTRICT
Board of
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Subdiviaion Bond -California
Faithful Performance -Public Work
Direct All CorretW"JmffiJ? At BARK· .
P. 0. Box 5790-1
Los Anl,16~, c.~ 90057-0903
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3SM 567 790 Bond No ............................... ..
PREMIUM $1,414.00
AMERICAN MOTORISfS133JifsURANCE COMPANY
KIMPER
IN■UIIANC■
Home Office: Sheridan Road at Lawrence Avenue, Chicago, IIIJnoi, 60640
SUBDIVISION BOND
ICnnw ~11 tl,n bg aa,,11, ,r,11,nts: That ..... P.Q.~!:'.?.~?::i:.!:A.J!'.IY.1-':~P.1~!:'.'!: .. ~Q~.~~.! ... !'.!~.'. ............. ..
............................................................................... 81 Principal, and the American Motorists Insurance Company,
a corporation organized and existing under the laws of the State of Illinois and authorized to transact surety
business in the State of California, as Surety, are held and firmly bound unto .~Q~!A .. ~!l-!;, ... ~l<;;.~P./l-!;, ........
. WA1'E.R .. Dl.S.!RI.c.T. .................................. in the sum of .......... o.m;; .. lW@.J.l.J?)?. .. 9.fil: .. .T.!!9..lJ.~.-M!!? .. ~P. .. ~9/~QQ::-.:-.:-.::.
--------------------. -·----------101 000 00 ..................................................................................... _ ............................................. .Dollars ($ ........ , ....... · .............. ),
for the payment whereof, well and truly to be made, aaid Principal and Surety bind themaelves, their heirs,
administratoro, succe11ora, and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that, whereas the above•bounden Principal has entered
into a contract, dated ........................................................ , 19 ........ , with the ..... 9J!?.IA .. ~/l,!;, ... ~.~.<;;.f.P.Af: ............ ..
. ..... WATEJLDL'll'.RICI.. ................................................................... to do and perform the following work, to,wit:
*TO PAY FOR ALL NECESSARY SUBDIVISION WATER IMPROVEMENTS
AND APPURTENANCES FOR TRACT NO. 81-6, IN THE COUNTY OF
SAN DIEGO*
NOW, THEREFORE, if the above-bounden Principal shall well and truly perform the work contracted
to be performed under ·said contract, then this obligation shall be void; otherwise to remain in full force and
effect.
SIGNED and SEALED this.. .. 28.th ... day oL ... llQY.llk@.J,;!L ......................... , 19 ... ~} ..
FM 602 7•68 2M
.. ?.Q.:rnr:ml'l'.J.A .. .UN.Ef?J!it!'IT ... 9.0 .MIT., .. )J::1.<;;., ... (Seal)
.. BY: ..... ~ u2., .A ... .PRESIDENT ................. ..
. ..1:n:~ ...... ~ ... .LJ.. . .................................. ..
ECRETARY Principal
NCE COMPANY
Attorney•in•Fact
~RINT£0 IN U.S.A
~,vw11&:1 ... ~,,\\\•~aw;~,,,,,~,~~~'-Y4
ii STATEOFCALIFORNIA ) 55 I ~ COUNTY OF LOS ANGE LES ) . ij
I§ ON NOV 2 81983' 19 __ , before I I me a Notary P1,1blic in.and for said State, personally appe~red iiilill S Jacqueline Rhodes P-9Tsona11y ~ known to me to be the person whose name is subscribed to the ~ ~~ within Instrument as the Attorney-in-Fact of AMERICAN §! ~ _................................ ............... MOTORISTS INSURANCE COMPANY, and acknowledged to S
: ~•• QF~I A.I SlAL , s 1;2 : /' l:·i·-i, SUSAN TOGINO : me that he subscribed the name of said Company thereto as I I : ~'lf}·\:): N01ARY ,0cuL1c _ cAuroRN1A : Surety, and his own name as Attorney-in-Fact. IS ~ : \~~/ PRINCIPAL OFFICE !N : i ~ • ~".e~._,~~~ LOS ANGELES COUNTY • A
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STATE OF CALIFORNIA O
COUNTYOF -range
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0~ 29➔ __ 19_8_3__ _ __ before me, the undersigned, a Notary Public in and for
said State, personally appeared ____ ~R~_C_. __ Jew_ett ---and
__ __.E-".vJLa"-.1.J) ic.01..1.e<-.l.F'--1....1°.J:U.~------~ personally known to me (or proved to me on the
basis of satisfactory evidence) to be the persons who executed the within instrument as ______ _
____ President an~-----Secretary, on behalf of _______ _
Poi nsetti a Investment Co._,._ Jn.c._~~-IF'°:;~~===~,;,:,,,_, .... ..,....., ..
the corporation therein named, and acknowledged to me th
such corporation executed the within instrument pursuant to i
by-laws or a resolution of its board of directors.
WITNESS my hand and official seal. My Commission Expires Sept. 22, 1984
(This area for official notarial seal)
AMERICAN MOTORISTS l~)!(JRANCE COMPANY
Home Office: Long Grove, IL 60049
POWER OF ATTORNEY
Know All Men By These Presents:
. ' ,
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GROUP
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That the American Motorists Insurance Company, a corporation organized and existing under the laws of the
State of Illinois, and having its principal office in Long Grove, Illinois, does hereby appoint • • • • • • • •
A. F. Barker and Jacqueline Rhodes of Los Angeles, California (EACH)*******i
its true and lawful agent(s) and attorney(s)-in-fact, to make, execute, seal, and deliver during the period begin-
ning with the date of issuance of this power and ending December 31, 1984, unless sooner revoked for and
on its behalf as surety, and as its act and deed: Any and all bonds and undertakings provided
the amount of no one bond or undertaking exceeds ONE MILLION DOLLARS------
($1,000,000.00)************************************************************•
EXCEPTION: NO AUTHORITY is granted to make, execute, seal and deliver any bond or undertaking which
guarantees the payment or collection of any promissory note, check, drafl or letter of credit.
This authority does not permit the same obligation to be split into two or more bonds in order to bring each
such bond within the dollar limil of authority as set forth herein.
This appointment may be revoked at any time by the American Motorists Insurance Company.
The execution of such bonds and undertakings in pursuance of these presents shall be as binding upon the said
American Motorists Insurance Company as fully and amply to all intents and purposes, as if the same had been
duly executed and acknowledged by its regularly elected officers al its principal office in Long Grove, Illinois.
THIS APPOINTMENT SHALL CEASE AND TERMINATE WITHOUT NOTICE AS OF DECEMBER 31, 1984
This Power of Attorney is executed by authority of a resolution adopted by the Board of Directors of said
American Motorists Insurance Company on May 15, 1939 at Chicago, Illinois, a true and accurate copy of
which is hereinafter set forth and is hereby certified to by the undersigned Secretary or Assistant Secretary as
being in full force and effect:
"VOTED, That the President or any Vice Presiden1 or Secretary or any Assistant Secrelary shall have power and aulhorily lo ap-
point agents and allorneys in lacl, and lu aurhuri1e them lo execute on behJII of !he company, and allach the seal of the
company !hereto, bonds and undertaking~, recognizances, contracts ol indemnily and other writings obligatory in the nature
thereof, and any such officer ol lhe compcmy rn<.1y appoint agents !or acceptance ol process."
This Power of Attorney is signed, sealed and certified by facsimile under and by authority of the following
resolution adopted by the Board of Directors of the company at a meeting duly called and held on the .22nd
day of May, 1963:
"VOTED, Thal lhe signalure ol lhe Presicienl, Jny Vice PresitJenl, Secretary or Assislant Secretary, and lhe Seal of the Com•
pany, and lhe certification by an~· Sl'crelary ur Assistanl Secre1ary, may be aft1xed by tacsirnile on any power of atlorney
execuled pursuanl lo resolution adopled by the Board of Direclors on May 16, 1962, and any such power so execuled, sealed
and certified with respecl to any bond or undertaking to which ii is al1achec.l, shall continue to be valid and binding upon the Company."
In Testimony Whereof, the American Motorists Insurance Company has caused this instrument to be signed
and its corporate seal to be affixed by its authorized officers, this 20th day of September , 19 82 •4•~, AM•IDCAN M::o•;;;:;OAN~
R.H. Johnson, Secretary G. H. Kasbohm, Vice President
STATE OF ILLINOIS}
COUNTY OF COOK ss
I, Genevieve B. Huff, a Notary Public, do hereby certify that G. H. Kasbohm and R. H. Johnson personally known to
me to be the same persons whose names are respectively as Vice President and Secretary of the American
Motorists Insurance Company, a Corporation of the State of Illinois, subscribed to the foregoing instrument,
appeared before me this day in person and severally acknowledged that they being thereunto duly authorized
signed, sealed with the corporate seal and delivered the said instrument as the free and voluntary act of said
corporation and as their own free and voluntary aC! for the uses and purposes .therein set forth. , ' u : -. ' ~) -'
My commission expires: May 5, 1986
fM636-2 6·62 1M
Power of Attorney-Term
Genevieve B. Huff, Notary Public
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