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
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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
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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