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HomeMy WebLinkAboutTAMARACK POINTE VENTURE; 1985-02-14; (3)... -• ' -• I 1-, WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 84-14 TAMARACK POINTE, UNIT NO. 2 AGREEMENT I This Agreement is entered into on February 14 , 198~, between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and TAMARACK POINTE VENTURE (hereinafter "DEVELOPER 11 ) with respect to the following: A. DEVELOPER has presented the map identified as "Carlsbad Tract No. 84-14" (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. Rick Engineering Company, of Carlsbad, 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 Tamarack Pointe Unit No. 2" consisting of 6 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. -1- 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 descrihed 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 $2,800.00, 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. -2- - 3 • Dedication and Acceptance of Improvements. Upon completion of the improvements in accordance with the plans, as determined in good faith by the DISTRICT's Manager and the DISTRICT's Engineer, DEVELOPER shall dedicate, and the DISTRICT shall accept, the improve- ments as the public property of the DISTRICT. The DISTRICT shall be under no obligation to accept the improvements as public property of the DISTRICT until such time as the following acts have occurred: (a) All public improvements proposed to be constructed in said subdivision, including but not limited to, streets, curbs, drains, sewer, gas and utility lines and the improvements required for the complete water system and necessary appurtenances 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 OISTRICT'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. -3- --. ; 5. Guaranty of Work and Materials. DEVELOPER guarantees, for a period of one (1) year after the DISTRICT accepts dedication thereof, that the improvements shall be free of any defects in materials and/or workmanship. DEVELOPER shall repair or replace, without cost to the DISTRICT, any defect in workmanship or materials which occurs within that time. The DISTRICT shall notify DEVELOPER in writing of any such defect. DEVELOPER shall begin repairs within ten (10) days after receipt of such notice, and shall proceed expeditiously to complete the repairs within a reasonable time. Should DEVELOPER fail to begin repairs within that time, the DISTRICT is authorized to have the defects repaired at the expense of DEVELOPER, and DEVELOPER 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 $73,000.00 -4- to insure faithful performance by DEVELOPER of all obligations under this contract. The guaranty shall be in the form of a performance bond issued by a reliable surety company authorized to do business in the State of California, or such other form of written guaranty as is acceptable to the DISTRICT, who shall not unreasonably withhold its approval. The bond or other form of guaranty shall be for the benefit of the DISTRICT and all persons or entities entitled to the protection of the California Mechanics Lien Law in connection with the construction of the improvements governed by this Agreement. 8. Notices. All notices or other communications required or permitted under this Agreement shall be sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: 9. To DEVELOPER: To DISTRICT: Mr. Don Woodward The Woodward Companies 5100 Campus Drive Newport Beach, California 92660 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 -5- 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. -6- _,. --• f . 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. TAMARACK POINTE VENTURE, a joint venture ~~~ '"~?~ By~--~ ~ By _______________ _ COSTA REAL MUNICIPAL WATER DISTRICT By ,. Margaret J. Bonas, President Boa rd Uf Di rectors GENERAL ACKNOWLEDGMENT 7110 122 State of Countyof ~ I OFFICIAL SEAL _ DEBORAH A. GREGORY • NOTARY PUBllC-CALIFORNfA PRINCIPAL OFFICE IN SAN 8£RNARDtk0 COUNTY My Commission u.pites Jan. 4, 1985 before me, the un~ Notary Public, personally appe ed l. Nwwd / D personally known to me ~proved to me on the basis of satisfacto.ry evidence to be the persori~hose name~ • _,,,(..J ~ subscribed to the within instrument, and acknowledged that _;......::L...=:=---executed it. WITNE N NATIONAL NOTARY ASSOCIATION • 230!2 Ventura B11,d, • P.O. Bo• 4625 • Woodland H .. , CA -7- ·~-~"'t..,,~~--,}----~~4 l t ~,111Atco ~ ••• ,11. The lnsco/Dico Group BOND NO: ' DIX): 907152S I INITIAL PREMIUM: $ ] JO • O O SUBJECT TO RENEWAL. i SUBDIVISION IMPROVEMENTS I KNOW ALL MEN BY THESE PRESENTS: PERFORMANCE BOND (I That we, Tamarack Pointe Ventures , as Principal, rt and DEVELOPERS INSURANCE COMPANY, a corporation organized and doing business under and by virtue of the laws of the State t of California a~::u;~ic;:e:t ::;cai::;l ;:e:e:si;z~:::::te of California as Surety, are held and firmly bound unto , ll.-----"--------- ~ 5950 El Camino Real Carlsbad, Ca., 92008 i I as Obligee, in the sum of ($ 7 3 , 0 0 0 • 0 0 ) Dollars, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and successors, jointly and severally firmly by these presents. SEVENTY THREE THOUSAND & NO/lOOths (I THE CONDITION OF THE OBLIGATION IS SUCH THAT: (I WHEREAS, the above named Principal, as a condition of the filing of the final subdivision map of (Tract/ Parcel) Map No. , (I Tr a Ct NO • 84 -14 entered into an agreement or agreements with said Obligee to complete the improvements specified in . (it said agreement or agreements. . I NOW THEREFORE, the condition of this obligation is such, that if the above Principal shall well and truly perform said agreement or agreements during the original term thereof or of any extension of said term that may be granted by the Obligee with or without notice to the Surety, this obligation shall be void, otherwise it shall remain in full force and effect. I =~::N:0 ::::~:~t:k:•~ ~~ ::~::o:::::~:::~ affixed and::. co:::;: and the name m the ,a~ ' @ California, this 22nd day of February 19 ~. ,: Iii. • : '@; "PRINCIPAL" "SURETY" • ' t I I t------BY: (1 ____________________ 333 Wilshire Ave. Iii.. Anaheim, CA 92801 I'« I /4. ----------------(714)999-1471 : ,'l ; <i;;;~•~wwwwwwwwwwwwwwwww~ jg fol -II, < 1-- rl.l CORPORATION DIC() STATE oF CALIFOR1f!~ 6 Al.1.s?e les } ss. COUNTY Of t' :lL.nd 1fooruary 190::> On _______________________ , before me, the undersigned. a Notary Public in and for said State, De-.mis ;~. ,::;o 1.'lJ personally appeared ---------------------~---_-_-_-_-_-_-_-_-_-_-_-_-_:_-_-_-_-_-_-_-_-_-_-_:_-_-_-_-_-_-_-_:_-_-_-_-___ _ personally known to me (or proved to me on the basis of satisfaclory evidence) to be the person who executed the within instrument as Power of Attorney on behalf of Developers Insurance Company, the corporalion therein named, and acknowledged to me that the corporation executed it. r---------------··:i • OFACIALIEAL I J. GOSE . NflfARY PUBLIC • CALIFORftlA PRIHCIPAL. OfFICE IN LOS ANGELES COUNTY L~~~ DIC 304 (REV. 7/84) This area for Ojjicuil Notarial Seal " ., r'; POWEROFATTO~NEY ') Nf! 00951tl DEVELO~RS INSURANCE ~OMPANY ·- P.o. Box 3343, Anaheim, Calif .. 92803 EXPIRATION DATE: December 31, 1985 KNOW ALL MEN BY THESE PRESENTS: That DEVELOPERS INSURANCE COMPANY, A corporation, duly organized and existing under the Jaws of the State of California, and having its Home Office in the City of Anaheim, California, does hereby make, constitute and appoint DENNIS E. GOLAY its true and lawful Attorney(s)-in-Fact, to make, execute, seal and deliver for and on its behalf as surety, any and all bonds or undertakings in an amount not exceeding $1,500,000 in any single undertaking in accordance with its charter 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 the acts of Attorney(s)-in-Fact may do to these presents. This power of Attorney does not cover the following: Bank depository bonds, mongage deficiency bonds, mortgage guarantee bonds, guarantees of installment paper, note guarantee bonds, bonds on financial institutions, lease bonds, insurance company qualifying bonds, warehouse bonds, self-insurer's bonds, fidelity bonds, bail bonds, wage law bonds, and fiduciary bonds. This power of attorney is granted pursuant to Article IV, Section 11 and 12 of By-Jaws of DEVELOPERS INSURANCE COMPANY adopted on the thirtieth day of March, 1979, and now in full force and effect. Article IV. Appointment and Authority of Resident Assistant Secretaries, and Attorney-in-Fact and agents to accept Legal Process and Make Appearances. Section 11. The Chairman of the Board, the President, any Vice President, any Secretary or any Treasurer may appoint attorneys•in-fact or agents with power and authority, as defined or limited to their respective power of attorney, for and on behalf of the corporation to execute and deliver, and affix the seal of the corporation thereto, bonds, undertakings, recognizances, consents of surety or other written obligations in the nature thereof and any of said officer. may remove such attorney-in-fact or agent and revoke the power and authority given to him. Section 12. Any bond, undertaking, recognizance, consent of surety or written obligation in the nature thereof shall be valid and binding upon the corporation when signed by the Chairman of the Board, the President, any Vice President or any Treasurer and duly attested and sealed, if a seal is required, by any Secretary or when signed by the Chairman of the Board, the President, and Vice President or any Treasurer and countersigned and sealed, if a seal is required, by a duly authorized attorney-in-fact or agent and any such bond, undertaking, recognizance, consent of surety or written obligation in the nature thereof shall be valid and binding upon the corporation when duly executed and sealed, if a seal is required by one or more attorneys-in-fact or agents pursuant to and within the limits of the authority granted by his or their powers of attorney. This power of attorney is signed and sealed under and by authority of the following Resolution adopted by the Board of Directors of DEVELOPERS INSURANCE COMPANY at a meeting duly called and held on the third day of August, 1982, and that said Resolution has not been amended or repealed: ~RESOLVED, that the signature of any Vice-President or Assistant Secretary of this corporation, may be affixed or printed on any power of attorney, on any revocation of any power of attorney, or certificate bearing such facsimile signature but <hall not be valid and binding upon the corporation unless the seal of the corporation is affixed on such power of attorney, revocation of any power of attorney, or cenificate bearing a facsimile signature.~ NOTICE: 1. This Power void unless corporate !ieal perforates power next to signatures. l. This Power void if altered or er111ed. 3. Power or attorney llhould not be returned to Attomey-m•Fact, but should remain a permanent part or the obUgee 's records. 4. This Power Is void unless the seal Is rnd■ble, text Is In brown ink, sl11n■tures are In blue Ink and notic:1 is In red ink. IN WITNESS WHEREOF, DEVELOPERS INSURANCE COMPANY has caused these presents to be signed by its Secretary, and its corporate seal to be hereunto affixed this fifth day of December, 1984. STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. On this fifth day of December, 1984, before me personally came Paul E. Griffin, Jr., to me known who being by me duly sworn, did depose and say: that he is Secretary of DEVELOPERS 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 instrumenl is such corporate seal; that it was so affixed by order of the Board of Directors of said corpora1ion and that he signed his name there50 by like ord:r._ • OFFICIAL SEA!. MARY ROSEN lljOTARY PUBLIC • CAUF0RNtA LOS A."&l;fl£S COUNTY My comm. expires DEC 20, 1985 STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. BY: I the undersigned Vice-President of DEVELOPERS INSURANCE COMPANY, a California corporation, DO HEREBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been revoked; and furthermore that Anicle IV, Sections 11 and 12 of the By-Jaws of the corporation, and the Resolution of the Board of Director.;, s~~'=~~~~~ power ::,nare now in force. Ii r Signed and sealed at Anaheim, California, this ay of _ -(( ~-;r:; , 19 ___ . Thomas H. Ty~ WARNING! This is a copyrighted document. Any unauthorized reproduction is prohibited. C DEVELOPERS INSURANCE COMPANY, 1985 All Rights Reserved.