HomeMy WebLinkAboutTREETOPS UNLIMITED (PACIFIC SCENE INC & FINANCIAL SCENE INC); 1984-10-09;WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT 83-21 IN UNIT 1 OF
VILLAGES "O AND P-1" -CALAVERA HILLS
AGREEMENT I
This Agreement is entered into on October 9 , 198 4,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT")
and TREETOPS UNLIMITED, a Joint Venture of PACIFIC SCENE, INC. and
FINANCIAL SCENE, INC. (hereinafter "DEVELOPER") with respect to the
following:
A. DEVELOPER has presented the map identified as "Carlsbad
Tract No. 83-21 11 (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. HCH & Associates of San Diego, 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 "Plans for the Improvement of Carlsbad Tract 83-21
in Unit 1 of Villages 1 0 and P-1' ," consisting of twenty 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, 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
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 $9,900.00, 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 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.
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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 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 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 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
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 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 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 Board 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 shall furnish and deliver
to the DISTRICT a performance guaranty in the penal sum of $266,000.00
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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. Gary Carter, Vice President
Pacific Scene, Inc.
3900 Harney Street
San Diego, California 92110
William C. Meadows, General 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 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
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subject to the judgment, judicial declaration, settlement or other
determination made in the above-described legal proceeding on June 29,
1983.
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 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 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 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.
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15. Authority to Sign. The individuals who sign this Agreement
on behalf of the undersigned joint venture and municipal water district
warrant that they have the authority and approval to do so on behalf
of such joint venture and municipal water district.
TREETOPS UNLIMITED, a Joint
Venture of PACIFIC SCENE, INC.
and FINANCIAL SCENE, INC.
By: PACIFIC SCENE, INC.
By:
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COSTA REAL MUNICIPAL
WATER DISTRICT
of Directors
t
PERFORMANCE BOND
A
nREMAN'S FUND
AMERICAN INSURANCE COMPANIES
HOME OFFICE; SAN FRANCISCO
FIREMAN'S FUND INSURANCE COMPANY
THE AMERICAN INSURANCE COMPANY
NATIONAL SURETY CORPORATION
ASSOCIATED INDEMNITY CORPORATION
AMERICAN AUTOMOBILE INSURANCE COMPANY
B.::1d No. C-· 731 42 _9_2 ___ _
The premium for this bond is $ J , 3 30 00
payable in advance and subject to adjust-
ment at current manual rates.
KNOW ALL MEN BY THESE PRESENTS: That we, TREETOPS UNLIMITED, A JOINT VENTURE COMPOSED OF
PACIFIC SCENE, INC. AND FINANCIAL SCENE INCORPORATED
as Principal, and'-'-___ T_H_E_AM __ E_R_I_C_AN __ I_N_S_U_RAN __ C_E_C_O_MP __ ANY ______ , a corporation organized under the laws of the State
of NEW JERSEY and duly authorized under the laws of the State of CALIFORNIA to become sole surety on bonds and under-
taking, as Surety, are held and firmly bound unto
COSTA REAL MUNICIPAL WATER DISTRICT
as Obligee
in the full and just sum of TWO HUNDRED SIXTY SIX THOUSAND AND N0/100-------------------------------
Dollars, ($ 266,000.00 ), lawful money of the United States of America, to be paid to the said Obligee, successors or assigns;
• for which payment, well and truly to be made, we bind ourselves, our heirs, executors, successors, administrators and assigns, jointly
and severally, firmly by these presents.
The Condition of the above Obligation is such that whereas the said Principal has entered into a contract of even date herewith with
the said Obligee to do and perform the following work, to-wit:
DEVELOPER AGREES TO CONSTRUCT WATER SYSTEM TO SERVE SUBDIVISION LANDS FOR
CALAVERA HILLS UNIT Ill, CARLSBAD TRACT 83-21 OF VILLAGES :to and P-1" -IN ACCORDANCE
WITH AGREEMENT Ill -CARLSBAD, CALIFORNIA
as is more specifically set forth in said contract, to which contract reference is hereby made;
y.
'
Now therefore, if the said Principal shall well and truly do the said work, and fulfill each and every of the covenants, conditions and
requirements of the said contract in accordance with the plans and specifi=tions, then the above obligation to be v,)i<l, otherwise to
remain in full force and virtue.
No right of action shall accrue under this bond to or for the use of any person other than the Obligee named herein.
Sealed with our seals and dated this 5th day of OCTOBER
Kc; //~ Principal
THE AMERICAN INSURANCE COMPANY
Surety
Attorney-in-Fact
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO) ss:
On this 9th day of October , 19 84 before me, the undersigned, a Notary
Public in and for said county and state, personally appeared Peter J. Hall
known to me to be the Exec. Vice President, and Nancy A. Daly
known to me to be the Admin Offer ~R)l'., of FINANCIAL SCENE INCORPORATED,
the corporation that executed the within instrument, said persons being known to me to
t·e the persons who executed the within instrument on behalf of said corporation, said
corporation being known to me to be on~ of the joint venturers of TREETOPS UN LIMITED,
the joint venture that executed the within instrument, and acknowledged to me that such
corporation executed the same, both individually and as joint venturer of said joint
venture, and that such joint venture also executed the same.
Notary
fil'ATE OF CALIFORNIA)
CXXJN1Y OF SAN DIEID)
for said county and state.
ss:
~-~-~-::...,::,.~~..::,,.,,:....::.,o,,,:""°"ii
OFFTClAL SEAL
LAURA M WITHERS
NOTARY PUBLIC -CALIFORNIA
SAN DIEGO COUNTY
My comm. expires SEP 30, 1985
On this 8th day of October , 19 84 before me, the undersigned, a Notary Public in and
for said County and State, personally appeared ,JPresobo i,JdenStiJIIJPP, anrp , proved to me on the basis
of satisfactory evidence to be the y; ce a -==-=Do::::---n-=Ma"'==c;.;a,Ka='"-y,..,.... ____ ---: __ _
known to me to be the Vice President ~. of PACIFIC &:ENE, INC., the corporation
th:..t executed the within U1Stn.ment on behalf of said corporation, said corporation being known
to me to be one of the joint ventures of 'IREEIOR3 UNLDUTED, the joint venture that executed the
within instrunent, and acknowledged to me that such corporation executed the srure, both indi-
vidually and as joint venturer of said joint venture, and that such joint venture also executed
the same.
WITNESS my hand and official seal. . ............................... .... t ./¥1"=,,:,,. OFFICIAL SEAL : f Robin Lynn Stroman :
• Nalary Public·california •
: Principal Office In •
: ,~..:,_:.•,.;•~•; SAN DIEGO COUNTY ; ♦ My Comm. Exp June 17. 1988: .......................................
ATTORNEY IN FACT ACKNOWLEDGMENT
STATE OF CALIFORNIA t
County of -. .S.AN ..... D.IEGQ, _____ ( ss.
On thl·s 5th day of OCTOBER . th 1984 befi --------, m e year , ore me, a Notary Public in and for said
-·-········--SAN .... DIEGO"-_____________ County, State of California, residing therein, duly commissioned and sworn, personally
appeared NANCY E • GROVER IX) personally known to me, D proved to me on the basis ofsatisfactory_evidence
to be the person whose name is subscribed to this instrument as the attorney in fact of............ THE AMERICAN INSURANCE COMP ANY
and acknowledged to me that D he [X she subscribed the name of __ _THE_AME.RI.CAN ..... I.N.S..U.B.AN..ClL.COMP ANY thereto as
surety, and D bis []t her own name as attorney in fact.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate a e.
~) .• . ½ ~/'/<
.......... ~.e' .,;--✓~ ,.,__., ~.:.. •• f. .·: .. <...C .< ,,.-.~.-c,.../
34KJCM2-l-83
GEN~~AL
POWER OF
ATTOR»EY TH£ AMERICAN INSURANCE C0!\.1PA , i .
KNOW ALL MEN BY THESE PRESENTS: That THE AMERICAN INSL'RA~CE COMPA:-:Y. a Corporation duly organized and existing under the
laws of the State of New Jersey. and having its principal office in the City and County of San Francisco. California. has made. constituted and
appointed, and does by these presents make. constitute and appoint
WAYNE G. PLAZAK and NANCY E. GROVER
jointly or severally
its true and lawful Attorney(s)-in-Fact. with full power and authority hereby conferred in its name. place and stead. to execute. seal. acknowledge and
deliver any and all bonds. undertakings. recognizances or other written obligations in the nature thereof----------------------------
and to bind the Corporation thereby as fully and to the same extent as if such bonds were signed by the President. sealed with the corporate seal of the
Corporation and duly attested by its Secretary. hereby ratifying and confirming all that the said Attorney(s)-in-Fact may do in the premises.
This power of attorney is granted pursuant to Article VIII. Section 30 and 31 of By-laws of THE AMERICAN INSURANCE COMPANY now in full
force and elf ect.
•• Article VIII. Appoinlmtnl und Authoril_\ uf Rl'5idtnr As.,.islant Stt rtlarits. and A11ornt•_\·-in-Fa< r und ARtnB tow terr Ltllul ProaH and Makt Appt'dranct.\.
Section 30. Appoinrmenr. The Chairman of the Board of Directors. lhe President. any Vice-President or dn) other persor. authorized b)' the Bnctrd of Directors. the Chairman of the Board of
Din:ctors, the Prcsiden1 or any Vice-President. may. from time to time. appoint Resident Assistant Sccrecaries and Anorne} s-in-Fact 10 represen1 and act for and on behalf of the Corporation and
Agents to accept legal process and make appearances for and on beha1f of the Corporation.
Section 3 t. Authorir~·-The Authority of such Resident Assistant Secretaries. Attorncys-in-F act. and Agents shall ~ ::.s prescrihed m the instrum(nt evidencing their appointment. and an} such appomtmen1 and all authoril} granted there~) ma) be re"voked at any time by the Board of Directors or by an) person empo\l, ered to make ,uch appointment ••
This power of attorney is signed and sealed under and by the authority of the following Resolution adopted by the Board of Directors of THE
AMERICAN INSURANCE COMPANY at a meeting duly called and held on the 28th day of September. 1966. and said Resolution has not been
amended or repealed: •
.. RESOLVED. that the signature of any Vice-President. Assistant Secretary. and Resident Assistant Secretary of this Corporation. and the \eal of this
Corporation may be affixed or printed on any power of attorney. on any revocation of any PO"-er of attorney. or on any certificate relating thereto. by
facsimile. and any power of attorney. any revocation of any power of attorney. or certificate bearing such facsimile signature or facsimile seal shall be
valid and binding upon the Corporation.··
IN WITNESS WHEREOF. THE A~!ERICAN INSURANCE COMPANY has caused these presents to be signed by its Vice-President.
and its corporate seal to he hereunto affixed this 29th day of _____ A~u~g~U_S~t~-------· 19.lL
THE AMERICAN INSURANCE COMPANY
~ w -~-•...b -.., By ___________________________ _
\,' u.:(. Presiden1
ST ATE OF CALIFORNIA,
CITY AND COUNTY OF SAN FRANCISCO
0n tnis.2.91.bday of August . 19--28...._. before me personal!~ came Wi l 1 i am W. Lauber .
to me known. who. being by me duly sworn. did depose and say: that he is Vice-President of THE AMERICAN INSURANCE COMPANY. the
Corporation described in and which executed the above instrument: that he knows the seal of said Corporation: that the seal affixed to the said instrument
is such corporate seal: that it was so affixed by order of the Board of Directors of said Corporation and that he signed his name thereto by like order.
IN WITNESS WHEREOF. I have hereunto set my hand and affixed my official seal. the day and year herein first above written.
■HHIUlllllUll1lllllllllllllllllllllllllllllllllllllll ■
: OFFICIAL SEAL : i e· --. SUSIE K. GILBERT 5
: .-... ·' ..._ NOTARY PU'BUC • CAIJFORNIA 5 ! • 01Y I COOHTY Of SAIC AAHClSCO : 5 " • My Comminion bpires How. 17, 1980 I ■IIIIHIIIIIIIIIIUfll___,tHUI .......... I CERTIFICATE .. .... ST ATE OF CALIFORNIA,
CITY AND COUNTY OF SAN ~-~CISCO
1. the undersigned. Assistant Secretary pf THE AMERICAN INSURANCE COMPANY. a NEW JERSEY Corporation. 00 HEREBY CERTIFY
that the foregoing and attached POWER.,OF ATTORNEY remains in. full force and ha, not been revoked and furthermore that Article V111.
Sections 30 and 31 of the By-laws of the Corporation. and the Resolution of the Board of Directors. set forth 1n the Power of Attorney. are now
in force. . , " ,1/f) AT ~A~ Q,,/ .f
Signed and sealed at the City and Coqf1t~ of San Francisco. Dated th~_-_Cl{_=---_da} of ___ _,,~<----=cc:...."'-'~"---'-«-----------· 19f~L
360711 (HOl-TA-3-78