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Reso 0720-04/1985 RESOLUTION NO. 720 RESOLUTION OF THE BOARD OF DIRECTORS OF THE SAN MARCOS COUNTY WATER DISTRICT PROVIDING STANDARD PROVISIONS FOR AGREEMENTS FOR CONSTRUCTION OF UTILITY SYSTEMS TO BE DEDICATED TO THE DISTRICT WHEREAS, the Board of Directors of the SAN MARCOS COUNTY WATER DISTRICT have found and determined that it is to the best interest of the District that standard provisions be included in agreements for the construction of water and sewer systems which are to be dedicated to the District for ownership and maintenance after completion of the system and acceptance by the District. NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE SAN MARCOS COUNTY WATER DISTRICT DOES RESOLVE AS FOLLOWS: Section 1: All agreements for the construction of water or sewer systems for acceptance by the District shall include the provisions of agreement set forth below and shall include the insertions necessary to complete the agreement by details of the particular circumstances and details of the transaction. Section 2: The Agreement shall include the following provisions: IT IS AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: 1. In consideration of the approval by DISTRICT of tbe plans and specifications for the construction of the work herein referred to and the conmitment to be made by DISTRICT for utility service to said developnent, DEVELOPER agrees to do and perform, or cause et DEVELOPER's own expense and without any cost or 1 S ~ of the public works and improvements required to be done in a good and workmanlike manner satisfactory to DISTRICT, all in strict conformity and in accordance with the plans and specifications covering said work, the standard specifications and drawings for construction approved by DISTRICT and this Agreement. DEVELOPER will furnisb all transportation, equipment, labor, services, permits, utilities, and all other items necessary to complete said work, will pay and discharge all bills and claiming arising out of the performance of said work, and will furnish accurate "as constructed" plans. DEVELOPER agrees to rou h grade and install all portions of the sewer and water system to be locat~ in future streets to to street conform final grade. 2. DISTRICT, without liability to DISTRICT, DISTRICT's Engineer and their consultants, and each of their directors, officers, employees and agents, may require such changes, alterations, or additions to the plans and specifications which do not exceed ten percent (10%) of the original DISTRICT estimated cost of the work as may be determined necessary or desirable by DISTRICT in its sole discretion, includi those necessary due to errors or omissions in the approved plans or specifications. Changes, alterations additions without said 10% limitation may be made for unforeseen conditions Resolution No. 720 Page 2 such as rock excavation, unstable soil conditions or high water tables requiring dewatering. 3. DEVELOPER shall, at DEVELOPER' s sole cos t and expense, be solely and completely responsible for all matters affecting the prosecution, progress and completion of the work, (both on and off the jobsite) and for observing all laws and providing for public convenience and safety, safety of workers (including his workers and those of his contractors, subcontractors and suppliers and others contributing to the work) and others, protection of property and rights of others, including the location, maintenance and replacement of utilities whether shown on the plans or not, prior notification to utility owners, drainage from storm runoff, and all easements, rights of way and encroachment permits. Nothing in the Agreement, the specifications, or other contract documents or DISTRICT' s approval of the plans and specifications or inspection of the work is intended to include a review, inspection, acknowledgement of or responsibility for any such matters and DISTRICT, DISTRICT' s Engineer, and their consultants, and each of their directors, officers, enmployees and agents, shall have absolutely no responsibility or liability therefor. 4. DEVELOPER shall comply with the requirements of the Labor Code of the State of California contained in Division 2, Part 7, Chapter 1, PUBLIC WORKS, in the prosecution, progress and completion of the work to be performed. 5. To the fullest extent permitted by law, DEVELOPER shall indemnify and hold harmless DISTRICT, DISTRICT ' s Engineer, and their consultants, and each of their directors, officers, agents and employees from and against all liability, claYm.q, damages, losses, expenses, and other costs, including costs of defense and attorneys' fees, arising out of or resulting from or in connection with the performance of the work, both on and off the jobsite, provided that any of the foregoing: (1) is attributable to bodily injury, sickness, disease or death, or to injury or to destruction of tangible property (other than the work itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part by any act or emission of the DEVELOPER, any contractor, any subcontractor, any supplier, anyone directly or indirectly employed by any of them or anyone for whose acts or omissions any of them may be liable, regardless of whether or not it is caused in part by any act or omission (active, passive, or comparative negligence included) of a party indemnified hereunder. Such obligation shall not apply to any loss, damage or injury as may be caused solely and exclusively by the fault or negligence of a party indemnified. 6. Simultaneously with the execution of this Agreement, DEVELOPER shall furnish and deliver to DISTRICT, at no expense to DISTRICT, a payment bond and a faithful performance bond each in the amount of the cost as estimated by the District. Bonds shall be furnished by surety companies satisfactory to the DISTRICT. Surety companies, to be acceptable to the DISTRICT, must be authorized to do business and have an agent for service of process in California, and be on the accredited list of the United States Treasury Department, and their bonds will be limited to such amounts as would be accpetable to the Treasury Department. Resolution No. 720 Page 3 7. None of the following shall in anyway affect the obligation of any surety and each suret waives notice thereof: (a) any change, extension of time, alteration or additions to the terms of the Agreement, or the work to be performed, or the lans and specifications therefor; or (b) any matters unknown to surety whic~ might affect surety's risk except that DISTRICT will advise surety upon request of the following: (1) any written claims it receives from unpaid subcontractors or suppliers, and (2) any written orders received from other ublic authorities charging violations of laws, ordinances or regulations, and ~) failure of DEVELOPER to comply with any written notice to correct defective work. The obligation of UEVELOPER shall not in anywise be limited by the amount of such bonds. 8. If permitted by the Agreement, in lieu of the bonds provided for in the preceding paragraph, DEVELOPER may furnish DISTRICT either an Instrument of Credit or an Agreement of Deposit as security for the faithful performance of this Agreement (in amount not less than 1007o of the cost as estimated by DISTRICT) and for payment of those furnishing materials, labor or equipment (in amount not less than 10070 of the cost as estimated by DISTRICT). Said Security Agreements shall he on forms furnished by DISTRICT. No alterations or substitution of said forms will be allowed. The obligations of DEVELOPER shall not in anywise be limited by the amount of the security required. 9. Until such time as all improvement proposed to he constructed in said development, including streets, curbs, drains, sewers, gas and utility lines, grading, etc., have been ccepleted and accepted by DISTRICT and all other public authorities having jurisdiction, DEVELOPER shall be responsible for the care, maintenance of, and any danage to the utility system within the proposed development which is covered by this Agreement. 10. When the work or any portion of it is sufficiently complete to be utilized or placed into service, the DISTRICT shall have the right upon k written notification to the DEVELOPER to utilize such portions of the wor and to place the operable portions into service and to operate ssme. 11. Upon said notice and commencement of utilization or operation bt~ the DISTRICT, the DEVELOPER shall be relieved of the duty of maintaining e portions so utilized or placed into operation; provided, however, such use and operation shall not relieve the DEVELOPER of the full responsibility for completing the work in its entirety, for making good defective work and materials, for protecting the work from damage, and for being responsible for danage and for the work as set forth herein nor shall such action by the OISTRICT be deemed completion and acceptance, and such action shall not relieve the DEVELOPER, or DEVELOPER's sureties and insurers of the provisions hereof relating to indenmity and guarantees. 12. Acceptance of the work shall only he by action of the Board of failure to inspect shall constitute a waiver by DISTRICT of any Inns or the work. From and after acceptance, the work shall be owned and operated by DISTRICT. DISTRICT shall be obligated to furnish water only upon acceptance of the work by the DISTRICT. Resolution No. 720 Page 4 13. The DEVELOPER guarantees all work for a period of one (1) year after the date of acceptance of the work by the DISTRICT and shall repair and replace any and all such work, together with any other work which may be displaced in so doing, that may prove defective in workmanship or materials or beth within the one-year period from date of acceptance, without expense whatsoever to the DISTRICT, ordinary wear and tear and unusual abuse or neglect excepted. In the event or failure to comply with the above-mentioned conditions within one (1) week after being notified in writing, the DISTRICT is hereby authorized to proceed to have the defects repaired and made good at the expense of the DEVELOPER who hereby agrees to pay the cost and charges therefor inmediately on demand. Prior to acceptance of the utility system by DISTRICT, DEVELOPER shall file with DISTRICT surety bond in a penal sum equal to twenty-five (25%) percent of the estimated cost of the work guaranteeing the work from defects for a period of one (1) year from the date of acceptance of the utility system. 14. If, in the opinion of the DISTRICT, non-conforming work creates a dangerous condition or requires immediate correction or attention to prevent further loss to the DISTRICT or to prevent interruption of operations of the DISTRICT, the DISTRICT will attempt to give the notice required by this paragraph. If the DEVE~DPER cannot be contacted or does not comply with the DISTRICT's request for correction within a reasonable time as determined by the DISTRICT, the DISTRICT may, notwithstanding the provisions of this paragraph, proceed to make such correction or provide such attention; and the costs of such correction or attention shall be charged against the DEVELOPER. Corrective action by the DISTRICT will not relieve the DEVELOPER of the guarantees and indenmities provided in this paragraph or elsewhere in this Agreement. 15. This paragraph does not in any way limit the guarantee on any items for which a longer guarantee is specified or on any items for which a manufacturer or supplier gives a longer guarantee period. DEVELOPER agrees to act as a co-guarantor with such manufacturer or supplier and shall furnish DISTRICT all appropriate guarantee or warranty certificates upon completion of the project. No guarantee period whether provided for in this section or elsewhere shall in any way limit the liability of DEVELOPER or DEVELOPER's sureties and insurers under the indemnity or insurance provisions of this Agreement. 16. DEVELOPER shall, at DEVELOPER's sole cost and expense, furnish DISTRICT with appropriate easements, for the entire utility system, including offsite lines, guaranteeing DISTRICT marketable title, free and clear of all liens, encumbrances, restrictions and covenants other than current real property taxes then a lien but not yet payable. As a condition to recordation of said easements, DEVELOPER, at DEVELOPER's sole cost and expense, shall furnish DISTRICT with an acceptable title insurance policy insuring DISTRICT has title as above required; bowever, said policy shall not be of an amount less than the estimated cost of the work and shall include an endorsement insuring DISTRICT against the amount of mechanic's lien claims and stop notices arising out of the performance of the work. Said easement shall be in standard easement form acceptable to DISTRICT, shall not be less than the width DISTRICT determines necessary to maintain said system, and shall be Resolution No. 720 Page 5 recorded prior to DISTRICT accepting the work or furnishing utility service to any portions of the lands within the development (other than construction water as may be delivered under a temporary service agreement with DEVELOPER). 17. If the DEVELOPER refuses or fails to prosecute the work or any separable part thereof with such diligence as will ensure its completion within the time specified herein, or any extension thereof, or fails to or if he should make a general assigmnent for the benefit o~ , his creditors, or if a receiver should be appointed on account of his insolvency, or if he, his contractor, or any of their subcontractors should violate any of the provisions of this Agreement, or if he should persistently or repeatedly f should fail, except in cases for which extension of time is re use or provided, to supply enough properly skilled workmen or proper materials to complete the work in the time specified, or if he should fail to make prompt payment to subcontractors or for mater ials or labor or if he should persistently disregard laws, ordinances, or instructions of the DISTRICT, the DISTRICT may serve written notice upon the DEVELOPER and his surety of its intention to declare this Agreement in default, said notice to contain the reasons for such intention to declare a default, and unless within ten (10) days after the service of such notice such violations shall cease and satisfactory arrangements for the corrections thereof be made, this Agreement shall upon the expiration of said ten days be in default. 18. Upon such default, the DISTRICT shall serve written notice thereof upon the surety and the DEVELOPER, and the surety shall have the right to take over and perform this Agreement; provided, however, that if the surety within 15 days after the serving upon it of a notice of default does not give the DISTRICT written notice of its intention to take over and perform this Agreement or does not cornhence performance thereof within 30 days from the date of serving said notice, the DISTRICT may take over the work and prosecute the same to the extent of completion it deems necessary by contract or by any other method it may deem advisable for the account and at the expense of the DEVELOPER, and his surety shall be liable to the DISTRICT for any cost or other damage occasioned the DISTRICT thereby, and in such event the DISTRICT may, without liability for so doing, take possession of and utilize in completing such work, such materials, appliances, plants, and other property belonging to the DEVELOPER that may be on the site of the work and be necessary therefor. For any portion of such work that the DISTRICT elects to complete by furnishing its own employees,materials, tools, and equipment, the DISTRICt shall receive reasonable compensation therefor. DISTRICT may, at its option, elect not to complete any or all of the work and may elect not to accept any of the work already completed. If DISTRICT elects not to accept any of the work, then all DISTRICT's obligations to DEVELOPER and the lands to be served shall terminate. DISTRICT' s obligations to DEVELOPER and the lands to be served shall continue to the extent of any acceptance, subject to DISTRICT's right to offset any sums due it. 19. The foregoing provisions are in addition to and not in limitation of any rights or remedies available to the DISTRICT. Resolution No. 720 Page 6 20. If the work is suspended or otherwise not continuously prosecuted for any cause whatsoever, within or without the time for completion, DEVELOPER shall, at his sole cost and expense, remove and replace all or any portion of the work already completed and inspected which the DISTRICT, in its sole discretion, determines could have been danaged. ' 21. Nothing in this Agreement shall relieve DEVELOPER, or DEVELOPER's successors or assigns of any obligation to pay any connection, installation, expansion or other fees and charges required under any present or future established ordinances, rules, regulations and policies of DISTRICT. 22. Application for water meters shall only be accepted or connection to the DISTRICT sewer main allowed and the installation of water meters shall only be made after the water line has been accepted by the DISTRICT and after as-built mylars have been provided to the DISTRICT. DEVELOPER agrees that DISTRICT may inform his Engineer as to when the "as-built" mylars are to be corrected and turned over to DISTRICT as permanent records at DEVELOP~'s sole cost and expense. 23. Prior to placing the new water system in service, construction water must be obtained from a construction meter(s) served by the existing water distribution system. DEVELOPER must use construction meters for landscaping, road grading or construction purposes. When the new water distribution system is placed into service, all service outlets shall be locked. The DEVELOPER may then make application for subdivision construction water via "j,~mpers" for on-site usage in accordance with DISTRICT Rules and Regulations. 24. Shut down of any existing DISTRICT water main for the purpose of connecting a new pipeline to an existing DISTRICT pipeline will be at the sole convenience and discretion of the DISTRICT. During periods of high water demands, the shut downs on pipelines which are critical for water supply may not be allowed until water demands are substantially reduced. 25. Miscellaneous Provisions. 25.1 Venue. In the event of any legal or equitable proceeding to enforce or interpret the terms or conditions of this Agreement, the parties agree that venue shall lie only in the Federal or State courts in or nearest to the North County Judicial District, County of San Diego, State of California. 25.2 At torney ' s Fees. In the event of any legal or equitable proceedings or arbitration to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to all reasonable attorneys' fees and costs in addition to any other relief granted by law. This provision shall apply to the entire Agreement. 25.3 Entire Agreement. This Agreement, together with all the exhibits attached to this Agreement, contains all the representations and the entire understanding between the parties with respect to the subject matter of this Agreement. Any prior correspondence, memoranda or agreements, whether or not such Correspondence, memoranda or agreements are in conflict Resolution No. 720 Page 7 with the Agreement, are intended to be replaced in total by this Agreement and its exhibits. 25.4 Assignment. The DEVELOPER shall not be entitled to assign all or any portion of their rights or obligations contained in this Agreement without obtaining the prior written consent of DISTRICT, which consent shall not be unreasonably withheld. Any purported assignment without DISTRICT's written consent shall be void. benefit of and be binding upon the parties etTee tre ve~ c successors, heirs and assigns. 25.6 Applicable Law. This Agreement and any disputes relating to this Agreement shall be construed under the laws of the State of California. PASSED AND ADOPTED at a regular meeting of the Board of Directors of the SAN MARCOS COUNTY WATER DISTRICT this 1st day of April, 1985, by the following roll call vote: Ayes: Directors: Newport, Rutherford, Mason, Mahr, Ferguson NOB: Directors: None ABSTAIN: Directors: None ABSENT: Directors: None San Marcos County Water District ATTEST: William W. Rucker, Secretary Board of Directors San Marcos County Water District