Loading...
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. )- - 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. -2- 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. -3- 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 -4- 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 -5- "-··- 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. -6- " , 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 -7- COSTA REAL MUNICIPAL WATER DISTRICT Board of .,'"'J, . '. ' . ' ...... ~---·•-_,.. __ ,. . ' Subdiviaion Bond -California Faithful Performance -Public Work Direct All CorretW"JmffiJ? At BARK· . P. 0. Box 5790-1 Los Anl,16~, c.~ 90057-0903 -' 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 -L.~:.~~~-~!~~'.~~.:~~:'.:~.:~~~.:::.~:~: .. .i ~ ~ ~ § ~ublic I ~\\\'-WIIIIKAJA\\\\\\~~'-~ll'A9~"\VAJi~\\\'-W!.UIIJ w .. i= C rn u -~ E <: >, -~ ~ 0. LL E -o C (J .Q Q) • u " C o rn 0. " " 0 0 C S2, -= I "' ~ se, N 0 0 '" STATE OF CALIFORNIA O COUNTYOF -range I )ss. -I 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: . ' , • I I GROUP I I 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 PRINTED IN U.S.A.