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HomeMy WebLinkAboutCARLSBAD RESEARCH CENTER; 1984-12-06;-l WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING COLLEGE BOULEVARD OFFSITE IMPROVEMENTS CARLSBAD TRACT 81-10 CARLSBAD RESEARCH CENTER, UNIT NO, 2 December 6 This Agreement is entered into on 198 4 -----------· -· between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and CARLSBAD RESEARCH CENTER (hereinafter "DEVELOPER") with respect to the following: A. DEVELOPER is about to present the map identified as "Carlsbad Tract No. 81-10 -Carlsbad Research Center, Unit No. 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 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, 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 Grading and Improvement of College Boulevard -Carlsbad Research Center" 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 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 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 appN>val 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 $5,000.00, 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, 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 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. -3- -7 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 $109,000.00 -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. Michael Dunigan The Koll Company 7330 Engineer Road San Diego, CA 92111 William C, Meadows, General Manager Costa Real Municipal Water District 5950 El Cami no Rea 1 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- - 15. Authority to Sign. The individuals who sign this Agreement on behalf of the undersigned partnership and municipal water district warrant that they have the authority and approval to do so on behalf of such partnership and municipal water district. CARLSBAD RESEARCH CENTER, a California general partnership BY: THE KOLL COMPANY, Managing Agent I (?' (t' -7- t CAT. NO. NN00637 TO 1955 CA 11-83) (Partnership as a Partner of a Pannership) 1J TICOR TITLE INSURANCE STATE OF CALIFORNIA On ...&;::,M,,X,.l'""u,l,'"L-....1,,1 ..... L.l,.~..ll,&,l~"-...... - said S perso the wi ss. tile partnership that executed th withi instrument, and acknowledged ,Jo me :hat th!: qecu~he sam!:°11 behalf of rPll, ~4 ~ IA,,. ~{) CJ '4™ __________ , a partnership, and that said last named partnership executed the same. WITNESS my hand and official seal. Signature f~ s.5~ e undersigned, a Notary Public in and for evidence to be the person_who executed ers of A\ • OFFTClAL S~AL CHRISTIE SARANTHA \ NOTARY PUBLIC • CALIFORNIA \1, ORANGE COUNTY ''· MJ CIIIIIII. api181 AUG 16, 1985 {Thill uea for official notarial aeal) ACKNOWLEDGMENT BY CORPORATE SURETY State of Caltfomta County of Orange On November 19, 1984 , before me, the undersigned, .a Notary Public of said county and state, personally appeared Mary A. Jenny OFFICIAL SEAL I .. · ,;." '· JUDITH K. CUNNlrJGHI\M ~~-~ 1\ NOTARY PUBUC -CALIFORNIA ' PRINCIPAL OFFICE IN , ORANGE COUNTY \ MY COMMISSION EXPIRES SEP. 30~8~ penonally known to me to be the Attorney-in-Fact of _..;:S:.;,;A:.:.F.;;;E;.;:.CO.;:;....,;;;;IN;;.;;S;..;U:.:RAN=.:..:C:.::E:......;;C..;;;.OM=PA;.;;N;,;.;Y::......;0:.:F;.....:.AME=:.;;.;R;.;:.I..;;;.CA;.;;,_ _____ , the Corporation that executed the within instrument, and known to me to be the person who executed the said instrument on behalf of the Corporation therein named, and acknowledged to me that such Corporation executed the same. 1.£de~ ~ ~ ... RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO r---, IIAIIE STREET ADDRESS CITY STATE ZIP L-.------------------------------SPACE ABOVE THIS LINE FOR RECORDER'S USE ffl SUBDIVISION IMPROVEMENT BOND FAITHFUL PERFORMANCE SAFECO INSURANCE COMPANY OF AMERICA GENERAL INSURANCE COMPANY OF AMERICA FIRST NATIONAL INSURANCE COMPANY SAFECO (CALI FORNI A) OF AMERICA HOME OFFICE: SAFECO PLAZA SEATTLE, WASHINGTON 98185 Bond No. 4822755 Initial Premium Sl,081.00 KNOW ALL BY THESE PRESENTS, That CARLSBAD RESEARCH CENTER 7330 Engineer Road, San Diego, California 92111-1464 as Principal and the SAFECO INSURANCE COMPANY OF AMERICA, a Corporation organized and existing under the laws of the State of Washington and authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto COSTA REAL MUNICIPAL WATER DISTRICT , as Obligee, in the sum of ONE HUNDlmD NINE THOUSAND AND NO/100--------------------------------- ($ 109. 000, 00---------------1, 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 presents. THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, the Principal on November 19, 19 ...B.4...entered into a certain Agreement or Contract with the Obligee wherein the Principal agreed to complete the following improvements: WATER SYSTF.M FOR COLLEGE BOULEVARD TRACT 81-10 CARLSBAD RESEARCH CENTER, UNIT NO. 2 as more fully set forth in said Agreement. NOW THEREFORE, if the Principal shall well and truly perform and fulfill all of the covenants, terms and conditions of the said Agreement, then this obligation shall be null and void; otherwise to remain in full force and effect. Provided, however: (1) That as a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by Obligee in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered; (2) That the Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in anywise affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Agreement or to the work or to the specifications; (3) That no right of action shall accrue hereunder to or for the benefit of any person, firm or corporation other than the Obligee namtd herein. Signed, sealed and dated November 19 ,19....8..i. CARLSBAD RESEARCH CENTER BY• KOw, ctf~AD ASS0CIATE$ SAFECO INSURANCE COMPANY OF AMERICA .. '"'~ a ~-..-~ Mary. -~nf'¥ .(Attor~y-in-Fact 17570 Brookhurst Street Fountain valley, CA 92708 Address ACKNOWLEDGMENT OF SURETY STATE OF CALIFORNIA } • ____ ......, ..... ~.___________ SS. County of ORANGE • on this ___ 19..,_t_h ____ day of __ __,N ... o.._yNe""mb=e"-r=---------,in the year 1984 , before me Judi tb X. Cn nni ngham Notary Public personally appeared Marl( JL Jenny STREET ~DDAESS CITY STATe ZIP / " ._ RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO 7 L _J ---------------------------SPACE ABOVE THIS LINE FOR RECORDER'S USE ffl SAFECO SUBDIVISION IMPROVEMENT BOND LABOR AND MATERIAL (CALIFORNIA) SAFECO INSURANCE COMPANY OF AMERICA GENERAL INSURANCE COMPANY OF AMERICA FIRST NATIONAL INSURANCE COMPANY OF AMERICA HOME OFFICE: SAFECO PLAZA SEATTLE, WASHINGTON 98185 Bond No. 4822755 --The Prcr.tinm rh:ir;;ed ror th111 Dontl is included in th:it sho"'fl on the Performance ,Dopd,n KNOW ALL MEN BY THESE PRESENTS, That CARLSBAD RESEARCH CENTER 7330 Engineer Road, San Diego, s;alifornia 92111-1464 as Principal, and the SAFECO INSURANCE COMPANY OF AMERICA, a Corporation organized and existing under the laws of the State of Washington anci authorized to transact surety business in the State of California, as Surety, are held and firmly bound unto COSTA REAL MUNICIPAL WATER DISTRICT for the use and benefit of any and all persons entitled to me claim under Title 1 S (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California, in the sum of ONE HUNDRED NINE THOUSAND AND NO/100--------------------------------------------------($109,000.00--------), 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 presents. THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, the Principal entered into a certain Agreement or Contract with the Obligee, dated the 19th day of November , 19. 84, wherein the Principal has agreed to complete the following improvements: WATER SYSTEM FOR COLLEGE BOULEVARD TRACT 81-10 CARLSBAD RESEARCH CENTER, UNIT NO. 2 annore fully set forth in said agreement. NOW THEREFORE, if the Principal shall pay all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of the Agreement, for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, then this obligation shall be null and void; otherwise, to remain In full force and effect. Provided, however: (1) That said Surety will pay the same in an amount not exceeding the amount hereinafter set forth, and also in case suit is brought upon this bond, wlll pay, ln addition to the face amount thereof, costs and reasonable expenses and fees, including attorney's fees, incurred by County (or City) in successfully enforcing such obli- gation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered; (2) That the Surety hereby stipulates and agrees that no change, extension of tlme, alteration or addition to the terms of said Agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition. (3) That the time for filing suit on thJs bond shalt be limited to six (6) months from date of completion of said improvements as "completion" is defined under applicable sections of the Clvll Code of The State of California. Signed and sealed this 19th day of November • CARLSBAD RESEARCH CENTER , 19.!L, BY: KOLL CARLSBAD ASSOCIATES SAFECO INSURANCE COMP ANY OF AMERJCA By \r) BY: Ma rney-in-Fact 175 rs BY: Fountain Valley, CA 92708 Address ·m SAFECO POWER OF ATTORNEY '-.,J SAFECO INSURANCE COMPANY OF AMERIC GENERAL INSURANCE COMPANY OF AMERI HOME OFFICE: SAFECO PLAZA SEATTLE, WASHINGTON 98185 No. 3059 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA.each a Washington corporation, does each hereby appoint -----------------------MARY A. JENNY, Santa Ana, California-------------------- its true and lawful attorney(sHn-fact. with full authority to execute on its behalf fidelity and surety bonds or undenakings and other documents of a similar character issued in the course of its business. and to bind the respective company thereby. IN WITNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and attested these presents this ____ 3_0_t_h _____ day of ___ _....:J:;.,;u;:..;n;::..e"-----. 19..§Q___ CERTIFICATE Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA: "Anicle V, Section 13. -FIDELITY AND SURETY BONDS ... the President, any Vice President, the Secretary, and ar.y Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other aocuments of similar character issued by the com::,any in the course of its business ... On any instrument making or evidencing such appointment, the signa,ures ma'( be affixed by facsimile. On any instrument conferring such a~thority or on any bond or undertaking of the company, the seal, or a facsimile thereof, mav be impressed or affixed or in any other manner reproduced; provided, however, that the seal shall r.ot be necessary to the validity of any such instrume.'lt or undertakin~." Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28, 1970. "On any cenificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The ::,revisions of Article V, Section 13 of the By-Laws, and {ii) A copy of the power-of-attorney appointment, executed pursuant thereto, and (iii) Cenifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof.'" I, W.D. Hamm~rsla, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA. do hereby certify that the foregoing extracts of the By-Laws and of a Resolution of the Boerd of Directors of these corporations, and of a Power of Attorney issued pursuant theretl.l, are true and correct. and that both the By-Laws, the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, ! have hereunto set m•t hand and affixed the facsimile seal of said corporation this ____ 1_9_t_h _____ day of ---"N'-'o:...v'-e.;,,;mbe=~r ____ , 19 84 5.974 R9 9/81 PRINTED 1N U.S.A. STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) ss On this 28th day of November, 1984 before me, the undersigned, a notary public in and for said County and State, personally appearled Orrin W. Miller, known to me to be Senior Vice President of The Koll Company, a California corporation, the corporation that executed the within instrument, and known to me to be the person who executed the within instrument on behalf of said corporation, said corporation being known to me to be general partner of Koll Carlsbad Associates, the partnership that executed the within instrument, and acknowledged to me that it executed the same as general partner of Carlsbad Research Center and that Carlsbad Research Center executed the same. WITNESS my hand and official seal.