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Home My WebLink AboutMIKE FOOTE DEVELOPMENT COMPANY; 1985-10-02;WATER SYSTEM IMPROVEMENTS AGREEMENT REGARD I NG CARLSBAD TRACT NO. 84-35 FALCON HILLS UNIT NO. 1 This Agreement is entered into on O-uf7~ ~ AGREEMENT I , 198 5; between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter "DISTRICT") Mike Foor€ Oe-ve-Lo,o.Me-A.IT Cr:i. .OAN/ and MIKE fOOTE -BEVE LGPE:R ~:,, INGORRQRA'FED 1,-e rein after "DE VE LOPER") with respect to the following: A. DEVELOPER is about to present the map identified as "Carlsbad 84-35 (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 subqivision maps. The property encompassed by the subdivision lies within the hound~ries of the DISTRICT. B. SNIPE-DYE AND ASSOCIATES, LEMON GROVE , 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 of Carlsbad Tract No .. 84-35 FALCON HILLS UNIT NO. 1 consisting '. of 17 sheets, and are incorporated herein by reference ("plan~"). 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 plans. The DISTRICT Board of Directors has approved c. No present commitment is required of the DISTRICT as to water service to the lots in the above-described subdivision, -1- NOW, THEREFORE, 1n 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 sha1·1 be ionstructed 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 iri 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 1n connection with this project. The fees and costs shall be charged 1n accordance with the OISTRICT's standard practice. DEVELOPER shall deposit with the DISTRICT the sum of$ 7800.00 , being the estimated ' . amount of the DISTRICT 1 s expenses, at the time this Agreement is executed. Should the DISTRICT's expenses be 1n .excess of the deposit, I 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 OISTRICT's Manager -and the DISTRICT's Engineer, DEVELOPER shall dedicate, and the DISTRICT shall· accept, the fmprove- 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. (h) DEVELOPER, at his own expense, provides to the DISTRICT all documents and title policies necessary to vest and insure record title 1n the DISTRICT to all easements and/or rights-of-way necessary. to the ownership and ma _intenance of the improvements. DISTRICT shall have the rjght 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 coristructed under this Agreement un~il 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 fr·ee 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 receip~ 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•OEVELOPER, and DEVELOPER shall pay the cost of such repairs uprin 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 ~r 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 $ 260,000.00 -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 shatl-be sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows-: 9. To DEVELOPER: To DISTRICT: MICHAEL J. FOOTE 5205 !Kearney Villa Way Suite 211, San Diego, Ca. 92123 William C. Mead~ws, General Manager Costa Real Muni~ipal 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, a~ong 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 thfs 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 1n full force and effect as though the invalid or unenforceable provision was not a part of the Agreement. 11. Waiver or Amendme~t. No provision of this Agreement, nor any breach hereof, can he waived unless in writing. Waiver of any one breach of any provision hereof shall nnt be construed as a waiver of any other breach of the same or any other ·provision hereof. This Agreement shall be a~ended 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 ·Jnterpretation. 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, statemen~s, discussions, representations and understandin~s pertaining to that water system. ' . 14. Attorney's Fees. The prevailing party in any action at law or i~ equity, ihcluding arbitration, br~ught to enforce or prevent the breach of this Agreement, or any prdvision hereof, including but \ not limited to any action for injunctive or declaratory relief, shall ~ . be entitled to attorney's fees and costs in~urred in such action, including those incurred in any appeal. -6- - 15. Authority to Sign. The 1n~1v1dua1s who s1gn th1s Agreement on behalf of the undersigned corporat)on and municipal water district warrant that they have the authority and :approval to do so on behalf of such corporation and municipal water district. By: ·------------- -7- REAL MUNICIPAL TRICT · Board of Directors fl o Rm /t A.J /11 . ✓-J '--iYJ /f eJ< tl✓-t!C: '?1ees 1~£..v ·r /~t,,· /