HomeMy WebLinkAboutMIKE FOOTE DEVELOPER INC; 1986-04-17;(
WATER SYSTEM IMPROVEMENTS AGREEMENT
REGARDING
CARLSBAD TRACT NO. 84-35
FALCON HILLS UNIT NO. 3
This Agreement is entered into on April 17 , 198£,
between COSTA REAL MUNICIPAL WATER DISTRICT (hereinafter
"DISTRICT") and MIKE FOOTE DEVELOPER, INC. (hereinafter
"DEVELOPER") with respect to the following:
A. DEVELOPER is about to present the map identified as
"Carlsbad Tract No. 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 subdivision ma~s. The property encompassed by the
subdivision lies within the boundaries of the DISTRICT.
B. Snipe-Dye and Associates, Lemon Grove, Calif. 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
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"Plans for the Improvement of: Carlsbad Tract No. 84-35 -
Falcon Hills, Unit No. 3" 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. DEVELOPER and the DISTRICT have entered into the
following agreements, related to this Agreement, all of which
together provide for the construction of a complete water system
to serve the subdivision:
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 workman 1 ike 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
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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 has 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 of 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 $1,650.00. 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 in 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.
3. Dedication and Acceptance of Improvements. Upon
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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 improvements 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.
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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.
5. Guaranty of Work and Materials. DEVELOPER guarantees,
for a period of one (1) year after the DISTRICT accepts
dedication thereof, that the improvements shal 1 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
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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 by 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 $76,000.00 to insure faithful performance by DEVELOPER of all
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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 acceptalbe to the DISTRICT,
who shall unreasonable 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:
To DEVELOPER:
To DISTRICT
9. Benefit and Burden.
Michael J. Foote
Mike Foote Developer, Inc.
5205 Kearney Villa Way, Suite 211
San Diego, California 92123
William C. Meadows, General Manager
Costa Real Municipal Water District
5950 El Camino Real
Carlsbad, California 92008
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
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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
subject to the judgment, judicial declaration, settlement of
other determination made in the above-described legal proceeding
on June 29, 1983.
10. Severability of Provi~ions. 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 Amendent. 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
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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 __ a_n_d ___ I_n_t_e_r_p_r_e_t_a_t_i_o_n. 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.
15. Authority to sign. The individuals who sign this
Agreement on behalf of the undersigned development company and
municipal water district warrant that they have the authority and
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approval to do so on behalf of such development company and
municipal water district.
MIKE FOOTE DEVELOPER, INC.
ve:-
By ----'-------=-------President
By--------------
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COSTA REAL MUNICIPAL
WATER DISTRICT