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HomeMy WebLinkAboutFARADAY DEVELOPMENT CORPORATION; 1984-07-20;• I ,. .. • WATER SYSTEM IMPROVEMENTS AGREEMENT REGARDING CARLSBAD TRACT 83-37 FARADAY BUSINESS PARK AGREEMENT I This Agreement is entered into on ___ J_u_l_y_2_0 _____ , 198~, between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") and FARADAY DEVELOPMENT CORPORATION (hereinafter "DEVELOPER") with respect to the following: A. DEVELOPER has presented the map identified as "Carlsbad Tract No. 83-37u (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. Masson & Amox, Inc., of Escondido, California, has prepared. plans and specifications fqr th~ construction of the water system necessary to provide water service to the subdivision. The plans and specifications are identified as "Master Utility Plan for Faraday Business Park 11 consisting of one sheet, 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 sh~ets of those plans (11 improvements 11 ). The DISTRICT Board of Directors has approved the plans. C. ~o 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: 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 constructec 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 ~erformed 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 $1,700.0D, 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 1 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 neces~ary appurtenances thereto, as set forth in this Agreement, shall have bee.n 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 ~xercised 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 1 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 1 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 par~el 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 1 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 $15,000.00 -4- to insure faithful performance by DEVELOPER of all obligations under this contract. The guaranty shall be in the form of a performanc~ 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 co~nection 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. James R. Hollenbeck c/o Hollenbeck Development Co. 1566 Cherokee Street San Marcos, CA 92069 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 provjsion 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 h~reto 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 agre~ment 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 1 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 1 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 _corporation ~nd municipal water district warrant that they have the authority and approval to do so on behalf of such corporation and municipal water district. FARADAY DEVELOPMENT CORPORATION, a California corporati n COSTA REAL MUNICIPAL WA:,~~4; ~-/1~N_o_r_m_a_n_M_._A_l_m_a_c_k_, ___ P_r_e_s_i_d_e_n_t ~ _ /~ B o a rd o f D i rec t o rs -'y)Mr: -7- DICO Developers Insurance Company 333 Wilshire Anaheim, California 92801 SUBDIVISION IMPROVEMENTS PERFORMANCE BOND WATER IMPROVEMENTS KNOW ALL MEN BY THESE PRESENTS: ' ) BOND NO: 711109S PREMIUM: $270 • OO That we, FARADAY DEVELOPMENT CORPORATION , as Principal, and DEVELOPERS INSURANCE COMPANY, a corporation organized and doing business under and by virtue of the laws of the State of California and duly licensed to conduct a general surety business in the State of California as Surety, are held and firmly bound unto COSTA REAL MUNICIPAL WATER DISTRICT as Obligee, in the sum of FIFTEEN THOUSAND ($ 15 000 ) 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. THE CONDITION OF THE OBLIGATION IS SUCH THAT: WHEREAS, the above named Principal, as a condition of the filing of the final subdivision map of (Tract/Parcel) Map No. 83-3 7 __________ entered into an agreement or agreements with said Obligee to complete the improvements specified in said agreement or agreements. 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. IN WITNESS WHEREOF, the seal and signature of said Principal is hereto affixed and the corporate seal and the name of the said Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at __ A_N_AHE __ I_M ____________ _ California, this ___ 2_3_r_d ______ day of _______ J_u_l_.,__ ______________ ~, 19 ~- "PRINCIPAL'' "SURETY" FARADAY DEVELOPMENT CORPORATION DEVELOPERS INSURANCE COMPANY DAVID C. BANFER Attorney-in-Fact .. FORM DI 113 518 3 ATrORNEY-IN-FACT DICO STATE of __ C_A_L_I_F_O_RN----=-I=A-=-=------ Developers Insurance Company . COUNIT of______________ SS. ORANGE } On July 23, 1984 , before me a Notary Public in and for said County and State, residing therein, duly commissioned and swom, personally appeared DAVID C. BANFER ~nally known to me ( or proved to me on the basis of satisfactory evldepce) to be Attorney-In-Fact of DEVEWPERS INSURANCE COM- PANt": the corporation described in and that executed the within and foregoing imtrument, and known to me to be the person who exe- cuted the said lnsttument in behalf of the said corporation, and who r duly acknowledged to me that such corporation executed the same. , IN WITNESS WHEREOF, I have hereunto set my hand and affixed my ,::~£~::_ STATE Of CALIFORNIA, OFFICIAL SEAL DOROTHY THOMAS NOTARY PUBLIC • CALIFORNIA PrlAc!pel Office In ORANQl County My Comml11lan Explr11 Jun, 11, 1988 Tbls area for Olfldal Notarial Seal ~ u. COUNTY 0f __ ......1..,Ou.r..,;;aun~g~e;:.._ ________ ON July 24, 1984 , 19---, ,~~,i,7/,..,.-.....,...~,;;,;;;,--~6"~~ -~ ~£ ,, OFFICIAL SEAL 1 \0cift. -~ n~NY R~SALIE H_GLLENBECK ,r '.c'~:.'.,,,,l',-·\r ~ NU I ARY PU3ll C -\.All I ORN!A ~ \:._;::.:",;.; Pi<.liKiP1\L OFflCE IN ·J '-'·~:.,--' ORr\/•IGE COUNTY t MY CO'IIMISS!ON E<P1;t::S JNJ. 25 1935. :·,:;"'" .••• ' ., ' ''<' ·:'~-~;,-;::..~:>!\:!.,~>~-~;~:.~<~~'.-~~..?.,?~;:-._ ACMOWlEDGIIENT-Corponti-WOlc:oth Flll'III ..... .,. 3-64 before me, the undersigned, a Notary Public in and for said State, personally appeared K@ith D. Roberts __________________ _, known to me to be the Vice President of the Faraday Dev€llopment Corra, the Corporation that executed the within Instrument, ~nown o . me to be the person who executed the within Instrument, on behalf of the Corporation, therein named, and acknowledged to me that such Corporation executed the same. DICO Developers Insurance Company 333 Wilshire Anaheim, California 92801 , BOND NO: 711109S SUBDIVISION IMPROVEMENTS LABOR AND MATERIAL BOND PREMIUM: INCL. IN PERF. BOND WATER IMPROVEMENTS KNOW ALL MEN BY THESE PRESENTS: That we, FARADAY DEVELOPMENT CORPORATION , as Principal, and DEVELOPERS INSURANCE COMPANY, a corporation organized and doing business under and by virtue of the laws of the State of California and duly licensed to conduct a general 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 FIFTEEN THOUSAND ($ 15 000 ) 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. THE CONDITION OF THE OBLIGATION IS SUCH THAT: WHEREAS, the above named Principal, has entered into an agreement or agreements which are made a part of this bond, with the ---~C~O_S~I-A~RE~A-L~M=U=N~I-C=I~P~AL~~W=A=T=E=R~D~I~S~T=R=I=C~T~-----------as Obligee for the improvements in the subdivision designated as (Tract/Parcel) Map No. --~T~r~,~8~3._-_,3~7~------------------, as required by the Government Code of California. NOW THEREFORE, the condition of this obligation is such, that if the above Principal fails to make payment to any contractor, his subcontractors, or to persons renting equipment or furnishing labor and materials to them for the improvement required by said agreement or agreements, the Surety on this bond will pay the same, in an amount not exceeding the sum specified in this bond. This bond is executed and filed to comply with Section 66499 through and including Section 66499.10 of the Government Code of California as improvement security, and shall inure to the benefit of any and all contractors, their subcontractors and persons renting equipment or furnishing labor or materials to them for the improvement. Notice of extension of time for completion is waived by the Surety. IN WITNESS WHEREOF, the seal and signature of said Principal is hereto affixed and the corporate seal and the name of the said Surety is hereto affixed and attested by its duly authorized Attorney-in-Fact at ____ ~AN==A=H=E=I=M"'------------ California, this ---~2~3~r~d~-----day of ____ ~J~u~l'-J------------------, 19 ~- "PRINCIPAL" "SURETY" FARADAY DEVELOPMENT CORPORATION DEVELOPERS INSURANCE COMPANY ~---~'~-L BY:---------------~~-- DAVID C. BANFER Attorney-in-Fact FORM DI 112 5183 i: Ii ,, ·1 I 111:i Ill 111:i = 111:i .. .. < ... U'l ATIORNEY-IN-FACT STATE of CALIFORNIA COUN1Yof ORANGE 0n JULY 23, 1984 } ss. ,a Nmary Public in and for said County and State, residing therein, duly co ' DAVID C . BANFER . personally known to me (or proved to me on the bas.ls of satisfactory evidence) to be Attorney-in-Fact of DEVELOPERS INSURANCE COM- PANY, the corporation described in and that executed the within and foregoihg instrument, and known to me to be the person who exe- cuted the said instrument in behalf of the said corporation, and who ' duly acknowledged to me that such corporation executed the same. l. ,. _IN ~l1NE~ WHEREOF, I have hereunto set my band and affixed my \Jffictal seal, the day and year stated In this certlfi.c above. DICO Developen Insurance Company , before me Tbls area fer Official Notarial Seal STATE OF CALIFORNIA, ~ u. COUNTY OF Orange ACKNOWl[D811111T-4orpntlon-Wolcett1 F-m--ar,, 3-14 ON July 24, , 19...BA._ before me, the undersigned, a Notary Public in and for said State, personally appeared Keith D. Roberts ------,---------------known to me to be the Vice President of the Faraday Deuelopment c~ the Corporation that executed the within Instrument, knofm0 to me to be the person who executed the within Instrument, on behalf of the Corporation, therein named, and acknowledged to me that such Corporation executed the same. -, • '* ........ vowyA,.,.:RNEY _Q_u CJ ..J No. 006299 uEVELOPERS INSURANCE COMPANY P.O. Box 3343, Anaheim, Calif. 92803 EXPIRATION DATE: December 31, 1984 KNOW ALL MEN BY THESE PRESENTS: That DEVELOPERS INSURANCE COMPANY, A corporation, duly organiied and existing under the laws of the State of California, and having its Home Office in the City of Anaheim, California, has constituted end appointed and/does by these presents make, constitute and appoint DAVID C. BANFER ite true and lawful Attome~(!J)-in-Fact, specifically and only on Contract Bonds, Court Bonda and issued in the Stete of Cal 1 forn la , in an amount note:s:ceeding $1,600,000 • single Subdivision and D.R.E. Bonds, rand to bind the corporation duly attested by its Secretary, there by as fully and to the same e:s:tent as if such bond& were signed by the Pres· hereby ratifying and conf1I1Ding the acts of Attorney(s)-in-Fact may do Thie power of Attorney does not cover the following: Bank depository bonds, mortgage deficiency bonda, institutions, lease bonds, insurance company quali Ne Exeat or fiduciary bonds. Article IV. Appoi Section II. The Ch and authority, es defin corporation there to. hon such attorney-in-fact or a Section 12. Any bond, u nd agent& to accept Legal Proce88 and Make Appearance& reaaurer may appoint attorneys-in-factor agent.a with power the corpora lion to en cute and deliver, and affix the seal of the n obligations in the nature thereof and any or aaid officers may remove n obligation in the nature thereofshall be valid end binding upon the corporation when signed by the Chairman y Vice . 1dentor any Treasurer end duly attested and sealed, if uealis required, by anySecretery or when signed by the Chainn authorized attorney-in-fact ora binding upon the corporation wh the authority granted by his or th nt, and Vice President or any Treasurer and countersigned end sealed, if a aeal is required, by a duly ndertaking, recognizance, consent of surety or written obligation in the nature thereof shall be valid and sealed, if a seal is required by one or more attorneys-in-fact or agents pursuant to and within the limits 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 or 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 aff'aed or printed on any power of attomey, on any revocation of any power of attorney, or certificate hearing such facsimile signature but shall not be valid and binding upon the corporation unless the seal of the corporation is afthed on such power of attorney, revocation of any power of attorney, or certificate bearing a facsimile signature." NOTICE: 1. This Power void unle911 corporate seal perforates power next to signatures. 2. This Power void if altered or erased. 3. Power of attorney should not be returned to Attorney-in-Fact, but should remain a permanent part of the obligee's records. IN Wl'INESS WHEREOF, DEVELOPERS INSURANCE COMPANY has caused these presents to be signed by its Secretary, and itacorporate seal to be hereunto affi:s:ed this third day or August, 1982. STATE OF CALIFORNIA COUNTY OF LOS ANGELES ss. DEVELOPERS INSURANCE COMPANY .~~/ On this thirtieth day of September, before me personally came Paul E. Griffin, Jr., to me known who being by me duly sworn, did depose and IIBY: that he ia Secretery of DEVELOPERS INSURANCE COMPANY, the corporation described in and which executed the above inatrument.; that he lmowa the seal of said corporation; that the seal affixed to the said instrument ia BUch corporate see~ that it was ao affixed by order of the Board of Directors of said corporation end that he aigned his name thereto by like order. 8 . . OFFICIAL SEAL MARY ROSEN NOTAA'Y PUBLIC • CAI.JFORNIA LOS A:'~l£S COUNTY My comm. 111.pires DEC 20, J985 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 A TIORNE Y remains in full force and hes not been revoked; and furthermore that Article IV, Sections 11 and 12 of the By-laws of the corporation, end the Resolution of the Board of Directors, aet forth in the power of attorney, are now in force. Signed and sealed at Anaheim, California, thi9 23rd day of July , 19 ---8a.., WARNING! Thi• is a cop)'righted document Any unauthorized reproduction is prohibiud. THIS POWER IS VOID unle•• the seals are readable, u,t is in brown ink. aignatures are in blue ink and waming i.s in red ink. "DEVELOPERS INSURANCE COMPANY, 1982 All Rights Reserved.