HomeMy WebLinkAboutGRAHAM INTERNATIONAL INC; 1983-09-28;WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT 83-10
LOTS 3 AND 4, GRAHAM INTERNATIONAL PLAZA
This Agreement is entered into on ~c:;Jf/ , 198.5,
between COSTA REAL MUNICIPAL WATER DISTRICT {hereinafter 11 DISTRICT 11 )
and GRAHAM INTERNATIONAL, INC. {hereinafter "DEVELOPER") with respect
to the following:
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A. DEVELOPER is about to present the map identified as 11 Carlsbad
Tract No. 83-10 11 {the "subdivision 11 ) 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. Rick Engineering of Carlsbad, California, has prepared
plans and specifications for the construction of the water system
necessary to provide water service to the sub~ivision. The plans and
specifications are identified as 'Plans for the Improvement -8 11 Water
Main -C.T. No. 83-10 {Graham International Plaza)1 consisting of two
sheets, and are incorporated herein by reference {11 plans 11 ). The
plans and specifications for the water improvements, which are the
subject of this Agreement, are set forth on sheets land 2 of those
plans (11 improvements 11 ). The DISTRICT Board of Directors has approved
the plans.
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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, 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 $1,000.00, 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 DISTRICT'S expenses be less than the amount of the deposit,
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. . l . l
the DISTRICT shall refund the balance to DEVELOPER upon completion
of the work and its acceptance by the DISTRICT,
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 r~cord
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
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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,
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.
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1
7. Bond or Other Guaranty. DEVELOPER shall furnish and deliver
to the DISTRICT a performance guaranty in the penal sum of $25,000.00
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:
Michael L. Loban, Vice President
Graham International, Inc.
2121 Palomar Airport Road
Carlsbad, CA 92008
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
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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. 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 corporation and municipal wate_r district
warrant that they have the authority and approval to do so on behalf
of such corporation and municipal water district.
GRAHAM INTERNATIONAL, INC. COSTA R~AL MUNICIPAL
WATER rfISTRICT ~ -/
-/ .,,.-Ll • 1· •• /I ;,{/ I
/By_-lt,/'~1(l/fM-A~~
.I,,-Norman M. Al mack, President
Board of Directors
State of /!A/ jf-t-1.LL
County of ,, ,£,,~ 40 'ff"
On this the.~day of , ~ Ah ~V 191'3, before me, r ,
//L-UtJ /.2. ddM"-
the undersigned Notary Public, personally appeared
OFFICIAL SEAL
Ml'-ORED R OSBORN !
NOTARY PUBLIC • CALIFORNIA ~
SAN DIEGO COUNlY •.
My comm. expires APR 16, 1986 ,'
CORPORATE ACKNOWLEDGMENT FORM 7120 052
/1/t&J»tl/d.~d&_c~=--CJ· 6!.u__~,
~ personally known to me
□ proved to me on the basis of satisfactory evidence
to ~the per~on s) who executed the within instrument as
if-AL-4 or on behalf of the corporation therein
named, and ac now e ge o me that the corporation executed it.
WITNESS my hand and official seal.
_--'d ~~~
NA T!ONAL NOTARY ASSOCIATION • 23012 Ventura Blvd. • Woodland HUis, C
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Subdivision Bond-California
Faithful Performance-Public Works
C
INSURANCE COMPANY OF THE WEST
P.O. Box 81063
San Diego, CA 92138
SUBDIVISION BOND
Bond No. 39 87 00
PREMIUM $450.00
KNOW ALL MEN BY TH ESE PRESENTS: That __ _,,G.,_,RA"'H,,_A,,_.,M~I,_,_N,..,_T.,,_E,..,,R~=IA~T~IO=N~A=L~I=N=C~. _________ _
as Principal, and the INSURANCE COMPANY OF THE WEST a corporation
organized and existing under the laws of the state of California and authorized to transact surety business in the State of California, as
Surety, are held and firmly bound unto COSTA REAL MUNICIPAL WATER DISTRICT
in the sum of TI·JENTY FIVE THOUSAND AND N0/100--------------------------Dollars ($ 25,QQQ QQ-----l.
for the payment whereof, well and truly to be made, said Principal and Surety bind themselves, their heirs, administrators, successors,
and assigns, jointly and severally, firmly by these present.
The condition of the foregoing obligation is such that, whereas the above-bounden Principal has entered into a contract,
dated SEPTEMBER 28TH __ , 19 83. , with the COSTA REAi MIJNICIPAI HATER
DISTRICT
to do and perform the following work, to wit: HATER SYSTEM IMPROVEMENTS AGREEMENT FOR CARLSBAD
TRACT 83-10 LOTS 3 AND 4, GRAHAM INTERNATIONAL PLAZA
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 4TH ____ day of OCTOBE __ R ________ _ 1983
Witness:
ICW CAL 137
State of ___ CA .... L=-=I=-=-F-=O..:...RN=I=A...__ ___ f
-__,.,,.__.._.__.............,. ___ ss. County of SAN DI EGO
-
Of'FICJA!. SEAL
DEBRA J. BUXCEL •
• NOTARY PUBLIC • CALIFORNIA . SAN DtE00 COUNTY
• My eo..,,,,_ £■piq,1 March l, 1987 ---
1 Y319 ( 1/83) Corporate. Ca
on OCTOBER 4TH, 1983 , before me,
DEBRA J, BUXCEL
the undersigned Notary Public, personally appeared
JACK G. l IIPIEN
[XI personally known to me
D proved to me on the basis of satisfactory evidence
to be the person(s) who executed the within instrument as _____ _
ATTORNEY-IN-FACT or on behalf of the corporation therein
named, and acknowledged to me that the corporation executed it.
Notary's Signature
..
"' ,i
INSUR~CE COMPANY OF Tl1E WEST
HOME OFFICE: SAN DIEGO, CALIFORNIA
Certified Copy of
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the Insurance Company of the West, a Corporation duly organized and existing under the laws of
the State of California and having its principal office in the City of San Diego, California, does hereby nominate, constitute and appoint:
John L. Gilmore, A. Philip Merrill, Jack G. Lupien, Henry E. Harriman, Jr.
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 ___________ _
This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the
Board of Directors of the Insurance Company of the West at a meeting duly called and held on the 6th day of February, 1973, which said
Resolution has not been amended or rescinded and of which the following is a true, full, and complete copy:
"RESOLVED: That the President or Secretary may from time to time appoint Attorneys-in-Fact to represent and act for and on behalf of the
Company, and either the President or Secretary, the Board of Directors or Executive Committee may at any time remove such Attorneys-in•Fact
and revoke the Power of Attorney given him or her; and be it further
"RESOLVED: That the Attorney•in-Fact may be given full power to execute for and in the name of and on behalf of the Company any and all
bonds and undertakings as the business of the Company may require, and any such bonds or undertakings executed by any such Attorney-in-
Fact shall be as binding upon the Company as if signed by the President and sealed and attested by the Secretary."
IN WITNESS WHEREOF, Insurance Company of the West has caused its official seal to be hereunto affixed and these presents to be signed by
its duly authorized officers this Thirteenth day of May , 19R.
ST.A.TE OF CALIFORNIA
COUNTY OF SAN DIEGO SS:
On this Thirteenth day of May A.O., 19....!!Q_, before the subscriber, a Notary Public of the State of California, in and for the
County of San Diego, duly commissioned and qualified, came KARL W. KOCH President, of INSURANCE COMPANY OF THE WEST, to me
personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution
of the same, and being by me duly sworn, deposeth and saith, that he is the said officer of the Corporation aforesaid, and that the seal affixed to
the preceding instrument is the Corporate Seal of the said Corporation, and that the said Corporate Seal and his signature as such officer were
duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal, at the City of San Diego, the day and year first above written.
•
. OFP'ICIAL 8EAL
CAROLYN STONE
NOTARY PUBLIC • CALIFORNIA
Prlnclp~t Office in San Dieso County
My Commission E~ p. April 15, 1983
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO SS:
I, the undersigned, ________ R_ic_h_a_rd~S_. _K_in~g.,___ ______ Secretary of the Insurance Company of the West, do hereby certify
that the original POWER OF ATTORNEY, of which the foregoing is a full, true and correct copy, is in full force and effect, and has not been
revoked.
IN WITNESS WHEREOF, I have hereunto subscribed my name as Secretary, and affixed the Corporate Seal of the Corporation, this 4 TH
day of OCTOBER 19 __aJ_.
ICW CAL 37 (REV, 5180)
...
PAYMENT BOND -PUBLIC WORKS Bond No .. 39 87 00
INSURANCE COMPANY OF THE WEST
KNOW ALL MEN BY THESE PRESENTS:
That we,
and
GRAHAM INTERNATIONAL, INC.
Insurance Company of the West
HOME OFFICE • SAN DIEGO
ds Principal.
, incorporated under the laws of the State of California and
authorized to execute bonds and undertakings as sole surety, as Surety, are held and firmly bound unto any and all persons named
in California Civil Code Section 3181 whose claim has not been paid by the contractor, company or corporation, in the aggregate
total of TWENTY FIVE THOUSAND AND N0/100--------------------------------------------------
--------------------------------------------------------------------oouars, ($ 25,000. 00----),
!or the payment whereof, well and truly to be made, said Principal and Surety bind themselves, their heirs, administrators, successors
and assigns, jointly and severally, firmly by these presents.
The Condition of the foregoing obhgation is such that; whereas the above bounden Principal has entered into a contract, dated
SEPTEMBER 28TH , 19 Bl with the COSTA REAL MUNICIPAL WATER DISTRICT
to do the following work, to-wit:
WATER SYSTEM IMPROVEMENTS AGREEMENT FOR CARLSBAD TRACT 83-10 LOTS 3 AND 4, GRAHAM \
INTERNATIONAL PLAZA
Now, Therefore, if the above bounden Principalii contractor, person, company or corporation, or his or its sub-contractor, fails to pay
any claimant named in Section 3181 of the Civil Code of the• State of California, or amounts due under the Unemployment Insurance
Code, with respect to work or labor performed by any such claimant, that, the Surely on this bond will pay the same, in an amount
not exceeding the aggregate sum specified in this bond, and also, in case suit is brought upon this bond, a reasonable attorney's fee,
which shall be awarded by the court to the prevailing party in said suit, said attorney's fee to be taxed as costs in said suil
This bond shall inure to the benefit ol any person named in Section 3181 of the Civil Code of the State of California so as to give a
right of action to them or their assignees in any suit brought upon this bond,
This bond is executed and filed to comply with the provisions of the act of Legislature of the State of California as designated in
Civil Code, Sections 3247-3252 inclusive, and all amendments thereto.
Signed and Sealed this 4TH day of
ICW-CAL-123
OCTOBER , 1983
G~T~
Principal/)«., ~
INSURANCE COMPA ,Y OF THE WEST
'
Attorney-in-Fact
State of __ _...CA...,L=-=I ... F_,O...,.RN'""'I._A ______ ~
County of _ ____.S .... 8....,H~D .... I E .... G .... O.__ ___ ) ss.
OFFICIAL SEAL
DEBRA J. BUXCEL
NOTARY PlJBi,c. Cllll.lF SAN DlliGQ~RNIA
My c...n.,. E...._....,.t 1987
1 VJ19 (1/83) Corporate• Ca
on OCTOBER 4TH. 1983 , before me,
DEBRA J. BUXCEI
the undersigned Notary Public, personally appeared
JACK G. IIIPIEN
(Xl personally known to me
0 proved to me on the basis of satisfactory evidence
to be thP. person(s) who executed the within ins.trument as _____ _
ATIDRNEY-IN-FACT or on behalf of the corporation therein
narned,.and acknowledqed to me that the corporation executed it.
WITNESS my hand and official seal.
£)_~ i-~~Y. Q
Notary's Signature ~
. ... ... ·, •.. ,,; -, ('':', ( .
INSURXNCE COMPANY OF TFlE WEST
HOME OFFICE: SAN DIEGO, CALIFORNIA
Certified Copy of
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the Insurance Company of the West, a Corporation duly organized and existing under the laws of
the State of California and having its principal office in the City of San Diego, California, does hereby nominate, constitute and appoint:
John L. Gilmore, A. Philip Merrill, Jack G. Lupien, Henry E. Harriman, Jr.
its true and lawful Attorney(sHn-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 ___________ _
This Power of Attorney is granted and is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the
Board of Directors of the Insurance Company of the West at a meeting duly called and held on the 6th day of February, 1973, which said
Resolution has not been amended or rescinded and of which the following is a true, full, and complete copy:
"RESOLVED: That the President or Secretary may from time to time appoint Attorneys-in-Fact to represent and act for and on behalf of the
Company, and either the President or Secretary, the Board of Directors or Executive Committee may at any time remove such Attorneys-in-Fact
and revoke the Power of Attorney given him or her; and be it further
"RESOLVED: That the Attorney-in-Fact may be given full power to execute for and in the name of and on behalf of the Company any and all
bonds and undertakings as the business of the Company may require, and any such bonds or undertakings executed by any such Attorney-in-
Fact shall be as binding upon the Company as if signed by the President and sealed and attested by the Secretary."
IN WITNESS WHEREOF, Insurance Company of the West has caused its official seal to be hereunto affixed and these presents to be signed by
its duly authorized officers this Thirteenth day of May , 19~-
ST.Iii.TE OF CALIFORNIA
COUNTY OF SAN DIEGO SS:
On this Thirteenth day of May A.D., 19...fil!.., before the subscriber, a Notary Public of the State of California, in and for the
County of San Diego, duly commissioned and qualified, came KARL W. KOCH President, of INSURANCE COMPANY OF THE WEST, to me
personally known to be the individual and officer described in and who executed the preceding instrument, and he acknowledged the execution
of the same, and being by me duly sworn, deposeth and saith, that he is the said officer of the Corporation aforesaid, and that the seat affixed to
the preceding instrument is the Corporate Seal of the said Corporation, and that the said Corporate Seal and his signature as such officer were
duly affixed and subscribed to the said instrument by the authority and direction of the said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal, at the City of San Diego, the day and year first above written.
. CAROLYN STONE
' NOTARY PUBLIC • CALIFORNIA
• · Prlnclp:il Office in San Die10 Coun
My Commission Exp. April 15, 198
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO SS:
I, the undersigned, Richard S. King Secretary of the Insurance Company of the West, do hereby certify
that the original POWER OF ATTORNEY, of which the foregoing is a full, true and correct copy, is in full force and effect, and has not been
revoked.
IN WITNESS WHEREOF, I have hereunto subscribed my name as Secretary, and affixed the Corporate Seal of the Corporation, this 4TH
day of OCTOBER 19 __83_.
ICW CAL 37 !REV. 51801