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1973-0220_WESTPORT PLANNED UNIT DEVELOPMENT CO._Agreementi C� AGREEMENT REGARDING OFFSITE IMPROVEMENTS THIS AGREEMENT, made and entered into this day of February 1973 by and between: CITY OF SAN JUAN CAPISTRANO, a municipal corporation, hereinafter referred to as "CITY"; and WESTPORT - PLANNED UNIT DEVELOPPIENT CO., a Limited Partnership, hereinafter referred to as "WESTPORT"; and GUARDIAN MORTGAGE INVESTORS, a Massachusetts Trust, hereinafter referred to as "LENDER". W I T N E S S E T H: THAT WHEREAS, WESTPORT has submitted to the City Council of the City of San Juan Capistrano a Tract Map for Tract No. 7273 and has requested the City Council to finally approve said Tract Map and such action has been taken by said City Council; and WHEREAS, as a condition to the approval of said Tract Map for Tract No. 7273 and the authorization for the recording thereof, and the acceptance of the dedication of the streets, alleys and other improvements in said subdivision, WESTPORT is required to enter into an Agreement with the CITY to do and perform the work hereinafter specified and to pay all labor and materials in connection therewith, as required by Sections 11611 and 11612 of the Business and Professions Code of the State of California; and WHEREAS WESTPORT has agreed to furnish or cause to be furnished and pay for all labor, materials and equipment, and perform or cause to be performed and pay for all work to make and complete the following improvements inside of Tract No. 7273 to wit: Install and lay all curbs, gutters, construct all streets and excavating, paving, etc., lay and install all street signs; to lay and install all sewer mains and lines, including manholes, house connections and structures, and all water mains, meters, house laterals, and any miscellaneous requirements inside of Tract No. 7273 , and to install certain offsite improvements consisting of storm drains, sewers, flood control, drainage and slope easements, and to pay all costs of engineering necessary in connection therewith, all in accordance with the plans and specifications of the Engineers of the CITY, said improvements to be completed on or before one (1) year from date hereof; and -1- 0 WHEREAS, in lieu of the posting with the CITY of a surety bond or deposit, as required by Section 11612 of the Business and Professions Code of the State of California, WESTPORT desires to deposit with LENDER, cash in lawful money of the United States, in an amount estimated to be necessary to pay for the cost of all labor, materials and equipment and the performance of all work for the installation and completion of said improvements, as a guarantee that WESTPORT will make and complete said improvements as herein required and pay the cost thereof. NOW THEREFORE, FOR AND IPJ CONSIDERATION OF THE MUTUAL COVENANTS AND PROM- ISES OF THE PARTIES HERETO, AND UPON THE EXPRESS TERMS AND CONDITIONS HEREINAFTER SET FORTH, IT IS AGREED BY AND BETWEEN THEM, EACH FOR THE OTHER, AS FOLLOWS: FIRST: That in consideration of the final approval of the map of said Tract No. 7273 and the recording thereof, WESTPORT does hereby agree to deposit with the LENDER, pursuant to Section 11613 of the Business and Professions Code of the State of £alifornia, the sum of $74,200.00 in lawful money of the United State, to be held by the LENDER in accordance with said Section 11613 of the Business and Professions Code. 1. (a) WESTPORT agrees to furnish or cause to be furnished all labor, ma- terials and equipment and to perform or cause to be performed all work, and to make the improvements hereinabove specified and described in a good and workmanlike manner, all in accordance with the plans and specifications of the City Engineer of the CITY and to pay all costs of such labor, materials and equipment and for the performance of said work at the time and in the manner as required by the CITY, said dmprovements to be completed on or before one (1) year from date hereof. (b) That the money deposited BY WESTPORT with LENDER to be held as security for the furnishing of all labor, materials and equipment, and the performance of all work to make and complete the improvements aforesaid in Tract No. 7273 _, may be used from and after the execution of this Agreement to make progress payments to pay 'for materials furnished and labor performed for the making, installation and completion of said improvements as follows: (c) That progress payments shall be made not more often than twice monthly, and in the manner hbre provided. (d) That all. such progress payments shall be made directly by LENDER to the person, firm or corporation furnishing such materials or performing such labor. (e) That LENDER shall be provided with an approved inspection to certify to the quantity of work performed for the purposes of paying for said work, Mme' the inspection to be made by or under the supervision of R. M. Galloway & Associates, Inc., Civil Engineers licensed by the State of California, and approved by the City Engineer; said certification to be submitted with invoices or bills to the City Engineer. (f) That no progress payments shall be made until the City Engineer has reviewed and approved the certification and given written notice to the LENDER. (g) That no progress payment shall be made for more than ninety (90%) percent of the value of any installment of work. (h) That certification of work performed shall not constitute final acceptance by the CITY. (i) That no progress payments shall be paid except for materials and equipment furnished for such improvements or labor performed on the improvements and no payments shall be made, unless or until itemized statements of such materials furnished, equipment used, or labor performed has been approved by WESTPORT or its authorized agent, designated in writing to the LENDER. (j) That all of the funds deposited with LENDER for payment of labor, materials, etc., and not paid out in progress payments, as hereinbefore set forth, shall be held by the LENDER until the City Engineer has certified to one hundred (100%) percent completion on the project and for a further period of thirty-five (85) days after the filing of notice of completion of said tract improvements, or in the event of failure to file a notice of completion, until ninety (90) days after certification of completion by the CITY. (&) That the City Engineer will be furnished with a copy of the recorded notice of completion. (1) That the City Engineer will be furnished with true and conformed copies of the contract documents for all improvement work performed under this -Agreement. SECOND: That if WESTPORT shall well and truly furnish or cause to be furnished all labor, materials, and equipment and perform or cause to be performed all work hereinabove specified to be performed within said period ead made said improvements as herein agreed, then this obligation shall be void upon the delivery to the LENDER of a statement signed by the City Engineer of the CITY OF SAN JUAN CAPISTRANO, certifying to the completion of said improvements to the satisfaction of the CITY and in accordance with the specifications of the City Engineer of the CITY, but, in the event that WESTPORT shall fail to furnish or cause to be furnished all labor, materials and equipment and perform or cause to be performed all work required to - 3 - make and complete said improvements as herein specified and to pay therefor, all within the time and in the manner herein set forth, then and in that event said LENDER shall, upon demand by the CITY, pay to said CITY said sum deposited with it, or so much thereof as the City Engineer of the CITY shall certify is required to make and complete said improvements, or so much thereof as shall remain in said fund in the event that a portion thereof has been paid out in progress payments, -provided that no payment shall be made by LENDER until ten (10) days after demand by the CITY. The LENDER hereby agrees to hold said funds so deposited withit, in accordance with all of the terms and conditions herein set forth, and upon failure of WESTPORT to furnish or cause to be furnished all labor, materials and equipment, and perform or cause to be performed all work herein required to be furnished and performed by WESTPORT and to make and install the improvements hereinabove specified, and upon receipt of a certificate of the City Engineer of the CITY; certifying that . said labor, materials and equipment have not been furnished and said work has not. been performed and said improvements have not been made, installed and completed in accordance with the plans and specifications of the CITY, as furnished by the City Engineer and within the time herein required, that said LENDER will pay to the CITY the amount of money deposited with it by WESTPORT and held as security for the making of said improvements in said Tract No. 7273 , as hereinabove more particularly set forth in the performance of this Agreement, or so much thereof as may be certified by the City Engineer of the CITY would be rgquired to make and complete said improve- ments, or in the event progress payments have been made prior to default hereunder, then pay to the CITY so much of said funds as shall remain in the hands of said LENDER at such time. But, if said WESTPORT shall well and truly furnish or cause to be furnished all labor, materials and equipment and perform or cause to performed all services and work necessary to make and complete the improvements in Tract No. 7273 as hereinabove more particularly mentioned and described in accordance with the specifications of the City Engineer, within the time required, the City Engineer of the CITY shall deliver to said LENDER a certificate, in writing, certifying that said improvements have been made and completed as herein required, and, upon receipt of such certificate, the funds deposited with said LENDER, or so much thereof as shall remain in its hands, shall be disposed of as directed by WESTPORT with the consent and approval of the LENDER. Upon failure of the LENDER to hold and disburse said funds as herein - 4 - provided, or comply with the terms of this Agreement, it shall become liable to the CITY for all loss or damage suffered by the CITY by reason of the failure of WESTPORT to make and install improvements in said Tract No. 7273 as herein required, but not exceeding the amount of the deposit herein required to be made by WESTPORT with the LENDER. All charges and fees shall be paid by WESTPORT, and the CITY shall be at no expense or otherwise obligated under this Agreement. THIRD: It is hereby understood and agreed that the time for completion of said improvements in said Tract No. 7273 is one (1) year from and after the date hereof; subject, however, to delays caused by reason of a suspension ordered by the City Engineer for a cause not due to an act, default or omission of WESTPORT or because of any other act of neglect of the CITY or its agents, officers or employees, without contributory fault or negligence on the part of WESTPORT, its agents, employees or subcontractors, or if the work should be delayed by fire, storm, flood or other acts of God, by war, or acts of public enemies, by strikes, by unusual delays, unavoidable casualties or, causes beyond the control and without the fault or negligence of WESTPORT or for any other reason which, in the opinion of the City Engineer is proper justification for such delay, the time of completion shall be extended for a length of time equal to the delay caused by any of the above mentioned causes. FOURTH: WESTPORT agrees to execute and file a notice of completion promptly upon the completion of the furnishing of all labor and materials and the making and completion of said improvements. FIFTH: WESTPORT shall take out and keep in force until the completion of the work herein agreed to be done by WESTPORT, at WESTPORT's expense, public liability and property damage insurance in which CITY shall be named as an additional insured to protect CITY against any and all liability to the public incident to the use of or resulting from any accident occurring in, or about the streets, h;ghways and public places dedicated to the public by Tract No. 7273 , the liability under such insurance to be not less than One Hundred Thousand Dollars ($100,000.00) for any one person injured, or Three Hundred Thousand Dollars ($300,000.00) for any one accident, or Five Thousand Dollars ($5,000.00) property damage. SIXTH: It is mutually agreed to an understood by all parties hereto that, whetever herein mention is made of a deposit of funds held by the LENDER, it is meant - that such funds consist of an absolute and irrevocable commitment of money to the CITY, pursuant to the terms of this Agreement. - 5 - SEVENTH: It is mutually agreed to.and accepted by all parties that con- current with the execution of this Agreement, WESTPORT shall make an assignment of all its rights under all contracts which it has entered into with the subcontractors for performance of the work herein described to the CITY. Such assignment shall be delivered to and held by the LENDER and, in the event that for any reason whatsoever, wilful or non -wilful, with or without fault, WESTPORT shall not complete as herein contemplated, then said assignment shall be handed to the CITY for its use and benefit in the completion of the herein described work. .Date: 22. !� 4 ;0 Dated- February 20, 1973 Dated: February 20, 1973 Dated: Dated: CITY Of SAN JUAN CAPISTRANO, a municipal corporation `.:.444a iMayor 7 Ae / i City Clerk WESTPORT'- PLANNED UNIT DEVELOPMENT a Limited Partnership B \. WES ORT HOME BUILDERS, INC. Ge P rtner By: can is ei President By: 4 Je n McLachlan Secretary GUARDIAN MORTGAGE INVESTORS, a Massachusetts Trust By: G� �— Attested: The name Guardian Mortgage Investors is the designation of the Trustees for the time being under a Declaration of Trust, dated March 29, 1966, as amended. This agreement and every undertaking made pursuant hereto is executed in the name of and on behalf of the Trustees of Guardian Mortgage Investors by one of the Trustees of the Trust, duly authorized by all of the Trustees, in his capacity as such, and not individually, _ under the aforesaid Declaration of Trust, and the obligations thereof shall be understood and expressly stated to be not binding upon any of - the Trustees, shareholders, officers, or agents of the Trust, personally, but binding only upon the trust estate of Guardian Mortgage Investors. All persons dealing with Guardian Mortgage Investors must look solely to the trust property for the enforcement of any claims against Guardian Mortgage Investors. 0 0 STATE OF ) ss. COUNTY OF ) On this day of , before me, a Notary Public in and for the said STATE, personally appeared known to me to be the and known to me to be the of the that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of siad and acknowledged to me that executed the same. STATE OF CALIFORNIA 5s. COUNTY OF ORANGE Notary Public On this 20th day of Fehr uar 1973 before me, Jane Fawrun a Notary Pu b1ic in an for said State personally appeared, Dean Rickbeil known to me to be the President, and Jean McLachlan known to me to be the Secretary of WESTPORT HOME BUILDERS, INC. the corporation that executed the within instrument on behalf of said corporation, said corporation being known to me to be one of the partners of WESTPORT - PLANNED UNIT DEVELOP- ILIENT CO. the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. e0♦04400♦♦♦000:•ODNJOo?@•000♦O♦♦ ♦ ESTHF_R R. GARCIA "a°,:+' ��/^W JJ GT' -IN Pl:GI_IC -CALIFORNIA ♦ j' 1'^I I: ,:17,-1 OFFICICES IN 6 'w�"``• /\ • :: 0MC1AL SEAL C" AN,-, �.— COJNTY My Comm.46May 11, 1974 _ / Notary Public ♦♦♦1♦♦O♦♦000f 0000000♦♦0000♦♦♦♦ STATE OF CALIFORNIA ss. COUNTY OF ORANGE ) On this 22nd day of February, 1973 before me, the undersigned, a Notary Public in and for the State, personally appeared Patrick M. Ahern 314d: known to me cfC�hYxcC�Cx of the corporation that executed the within instrument, and also known to me to be the persons who executed it on behalf of such corpora- tion, and acknowledged to me that such corporation executed the same, and further acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its Board of Directors, e♦♦eOOe♦eeeeeSTERR.G RCIA ,' `� \ EITHER R. GARCIA j D tt' P:CLIC- CALIFORNIA ♦ CZh� ������ e I ' '- OFFICE IN 0 votary UTIs ♦ U.r: i:OWITY ♦ ♦ UFfIOAI l.l, C� -i J_n £y6o: IAay 11, 1974 A♦♦♦♦♦♦iO"i.*{J4•iG04?40Jiii001♦