Loading...
HomeMy WebLinkAboutSTANDARD PACIFIC OF SAN DIEGO; 1983-10-28; (3)AGREEMENT II WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT NO. 83-2 "SEA PINES" This Agreement is entered into on Ct:/a&r c:ig , 1983, between COSTA REAL M.UNICIPAL WATER DISTRICT {hereinafter "DISTRICT") and STANDARD PACIFIC OF SAN DIEGO, a California corporation {hereinafter "DEVELOPER"), with respect to the following: A. DEVELOPER is about to present the map identified as "CARLSBAD. TRACT NO. 83-2" {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 Carls~d'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. Manitou Engineering Company of Escondido, 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 No. 83-2 -Sea Pines -Unit No. l,11 consisting of 25 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 pl ans ( 11 improvements 11 ). The DISTRICT Board of Di rectors has approved the plans. C. DEVELOPER and the DISTRICT have entered into the following agreements, related to this Agreement, all of which together provide -1- for the construction of a complete public water system to serve the subdivision: (1) Agreement I -12-Inch Waterline Relocation. ( 2 ) Ag r e em e n t I I I -R-e i m b u r s em e n t Ag re em e n t . These agreements will hereinafter collectively be referred to as "the related agreements." D. 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: Construction of Improvements. DEVELOPER agrees to construct, or cause to be constructed, all of the onsite 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 al 1 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 -2- 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 $10,000.00, being the estimated amount of the DISTRICT's expense~, 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. 3. Dedicatiorl"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 and the related agreements, shall have been completed as determined reasonably and in good faith by the DISTRICT's engineer. (b) DEVELOPER, at its 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. -3- 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 and the related agreements between DEVELOPER and the DISTRICT have been completed and dedication thereof has been accepted by the DISTRICT. ~ 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 tpat 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 -4- to all improvements, appurtenanc~s, 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 Ptrformance guaranty in the penal sum of $250,000.00 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. Robert M. All an Standard Pacific of San Diego 7290 Clairemont Mesa Boulevard San Diego, CA 92111 William C. Meadows, General Manager Costa Real Municipal Water District 5950 El Cami no 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 -5- 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 t~ 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 sub- ject to the judgment, judicial declaration, settlement or other deter- ~. . mination made in the above-described legal proceeding on June 29, 1983. 10. Sev~rability 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 an~ Interpretation. This Agreement is one .of three related agreements between DEVELOPER and the DISTRICT pertaining to the construction of water system public improvements for the subdivision. This Agreement contains the entire understanding and agreement of the parties as to the onsite improvements portion of -6- the water system. Where possible, all three related agreements shall be construed in harmony with eaih other, to effectuate the parties' intent to construct a complete water system for the subdivision. However, the specific provisions of this Agreement shall prevail over any conflicting provision of any other related agreement insofar as they pertain to onsite water improvements. This Agreement, and the related agreements, contain 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, discussJ.ons, 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 app~al. 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. STANDARD PACIFIC OF SAN DIEGO, a California corporation -7- COSTA REAL 'MUNICIPAL WATER DJTRICT ,1~/U~d or an mac , Pres1 ent Board of Directors .... SC 712 50 06 PERf'.ORMANCE BOND uc1nd No. C-__ _ c4 FIREMAN'S FUND INSURANCE COMPANY The premium for this bond is $ 1 , 2 5 0 • 9 0 payable in advance and subject to adjust- ment at current manual rates. FIREMAN'S FUND INSURANCE COMPANIES THE AMERICAN INSURANCE COMPANY NATIONAL SURETY CORPORATION ASSOCIATED INDEMNITY CORPORATION AMERICAN AUTOMOBILE INSURANCE COMPANY KNOW ALL MEN BY THESE PRESENTS: That we, STANDARD PACIFIC OF SAN DIEGO as Principal, and THE AMERICAN INSURANCE COMPANY , a corporation organized under the laws of the State of NEW JERSEY and duly authorized under the laws of the State ofCALIFQRNIA 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 FIFTY THOUSAND AND NO/100------------------------ Dollars, ($ 2 5 0, 0 0 0 • ) , 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: WATER IMPROVEMENTS AS SET FORTH IN LANDS FOR CARLSBAD, SEA PINES C.T. DEVELOPER AGREES TO CONSTRUCT ALL OF THE PLANS FOR WATER SYSTEM TO SERVE SUBDIVISION 83-2 SUBDLVISION, CARLSBAD, CALIFORNIA as is more specifically set forth in said contract, to which contract reference is hereby made; 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 specifications, then the above obligation to be void, otherwise to remain in lull 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 28TH -. 360039-5-65 day of By: _THE OCTOBER ~~ ~~ HELEN MALONEY ~ 19 83 Attorney-in-Fact A TIORNEY IN FACT ACKNOWLEDGMENT ST ATE OF CALIFORNIA County of SAN ...... DIE.G.O. ··················· f ss. On this ·············~·~:i:f.DiE.GO .... day of OCTOBER·· · ·· , in the year•·· 1 .~ ~} ... . .. ....... . , before me, a Notary Public in and for said ••••••••••• ······················w1fLii;·N······MAii51iiEf··················································· ... County' State of California, residing therein, duly commissioned and sworn, personally appeared············-----················································································································~ personally known to me, D proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to this instrument as the attorney in fact of ........ THE ..... AMERI CAN INS URAN CE COMP ANY :::e~:.k::;1;!~:i:eer t::n~:;~a:h:,,s:r~:ct~:~a~t~ name of ·········T.li.l;; •••••• N..'.IB. .• fil..G.AN ...... IN$.Y.~.G.~ ....... G.9.lli'..~.X. .............................. hereto as IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above. 't My commission expires ........................................................................................................... . CAT. NO. NN00737 TO 21945 CA (1-83) (Corporation) aJ TICOR TITlE INSURANCE STATE 0F CALIFORNIA COUNTY OF San Diego } ss. On October 28, 1983 before me, the undersigned, a Notary Public in and for said State, personally appeared ____ R_o_b_e_r_t __ M_._A_l_l_a-;._n_-_:-_-_-_-_-_-_-_-_:-_-_-_-_-_-_-_-_-_-_:-...:-_-_-_-_-_-_-_-_-_:-_-_____________ _ personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the President, and Jen;:y Saxe personally known to me or proved to me on the basis of satisfactory evidence to be the .Pers~>n who executed the within instrument as the Assistant Secretary of the Corporation that executed the within instrument and acknowledged to me that such corporation executed the within instru- ment pursuant to its by-laws or a resolution of its board of directors. WITNESS my han,d an~ offic~~ Signature f ,rb If ::l.....41 .,l c1/ ~~ OFFICIAL SEAL ~ JULIE A. KIRK ~ NOTARY PUBLIC • CALIFOllNIA I PRl[ICIP,\L OFFIC[ IN SAN DICGO COUNTY y Com~iission Exp. /\pr. 26,_ 198_5_!#) ~J!illit§l§l]1j]§~L!iil,ii10\~l§~G (This area for official notarial seal) .GENERiL POWER OF ATil>RNEY \ ~ ' AMERICAN INSURANCE COMP. .,Y KNO~ ALL MEN BY THESE PRESENTS: That THE AMERICAN INSURANCE COMPANY. 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 -----HELEN MALONEY----- 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 Vlll. Section 30 and 31 of By-laws of THE AMERICAN INSURANCE COMPANY no\\ in full force and effect. "Article VIII, Appointment and Authority Assistant secretaries, and Attorney-in-Fact and Agents to accept Legal Process and Make Appearances. Section 30, Appointment. The Chairman of the Board of Directors, the President, any Vice-President or any other person authorized by the Board of Directors, the Chairman of the Board of Directors, the President or any Vice-President, may, from time to time, appoint Resident Assistant Secretaries and Attorneys-in-Fact to represent and act for and on behalf of the Corporation and Agents to accept legal process and make appearances for and on behalf of the Corporation. Section 31, Authority. The Authority of such Resident Assistant Secretaries, Attorneys-in-Fact, and Agents shall be as prescribed in the instrument evidencing their appointment, and any such appointment and all authority granted thereby may be revoked at any time by the Board of Directors Of by any person empowered to make such 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 ar.y Vice-President. Assistant Secretary. and Resident Assistant Secretary of this Corporation. and the seal of this Corporation may be affixed or printed on any power of attorney. on any revocation of any power of attorney. or on an~ 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 AMERICAN INSURANCE COMPANY has caused these presents to be signed by it, Vice-President. and its corporate seal to be hereunto affixed this 1 5th day of __ J~u~n~e ________ 19 _JU . (i:~NSU;;~~ 8Y------------,,V,-ic-e-"Pr_e_"d'e-n,-t ------------ ST ATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO 15th June 81 Richard Wi 11 iams On this _____ day of _____________ , 19 ___ , before me personally came ________________ . to me known, who, being by me duly sworn, did depose and say: that he is Vice-President of THE AMERICAN INSURANCE CO:\1PANY. the Cor- poration described in and which executed the above instrument; that he knows the seal of said Corporation; that the seal affi\ed to the ,aid ;mtrument is such corporate seal; that it was so affixed by order of the Board of Directors of said Corporation and that he signed hi, name thereto by li~e order. IN WITNESS WHEREOF. I have hereunto set my hand and affixed my official seal. the day and year herein first above written ■H .. llt .. t•HtH•• ........................... , ......... ■ i OFFICIAL SEAL i 5 e· ---SUSIE K. GILBERT 5 •• -.• _.. •· ; NOTARY PUBLIC • CALIFORNIA 5 ' ' .. OTY & COUNTY OF SAN FRANCISCO • 5 -My Commission Expires Nov. 17, 1984 I ■••1 .. tt••n .. ••11111-•-•H---NI• CERTIFICATE STATE OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO I, the undersigned, Resident Assistant Secretary of THE AMERICAN INSURANCE COMPANY, a NEW JERSEY Corporation. DO HEREBY CER- TIFY that the foregoing and attached POWER OF ATTORNEY remaim in full force and has not been revoked; and furthermore that Article \'Ill. Se,- tions 30 and 31 of the By-laws of the Corporation, and the Resolution of the Board of Directors, set forth in the Power of Attorney, are nl'" in for,c. Signed and sealed at the City and County of San Francisco. Dated the __ 2_8_T_H __ ~O£ ~ 9 83~ Resident Assi,tant Seactar, 360711-T A-5-81