2017/12/04 Sutter Mitland 01, LLC Salt Creek Storm Drains, TR 31822 ENIFEN
a �
Neil R. Winter
Mayor
January 23, 2018
Lesa A.Sobek
Mayor Pro Tem
Greg August TO: Riverside County Flood Control
Councilmember 1995 Market Street
Riverside, CA 92501
Matthew Liesemeyer Attn: Ann Marie Rolle
Councilmember
John V. Denver
Councilmember
RE: Cooperative Agreement
Enclosed are six (6) original signature pages for each agreement executed
by the City. Please return one (1) fully executed agreement to my attention
upon final processing. If you have any questions please contact the City
Clerk's Office.
Thank you,
Jennifer Allen
Deputy City Clerk
29714 Haun Road
Menifee,CA 92586
Phone 951.672.6777
Fax 951.679.3843
vww.cityofinenifee.us
JASON E. UHLEY 1995 MARKET STREET
General Manager-Chief Engineer RIVERSIDE,CA 92501
951.955.1200
FAX 951.788.9965
www.rcflood.org
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
December 20, 2017
City of Menifee
29714 Haun Road
Menifee, CA 92586
Dear Public Works Manager: Re: Cooperative Agreement for Salt Creek
Audie Murphy Ranch, Stages I and 2
Parcel Map 32269 and Tract 31822
Project Nos. 4-0-00377, 4-0-00378,
4-0-00379 and 4-0-00380
Enclosed herewith for execution are six (6) original signature pages and an informational copy of eacli
the above-referenced Agreements for execution by the City of Menifee. Upon your execution, please
return all six (6) signed original signature pages to this as soon as possible for further processing. Y\
fully executed original copy of the Agreement will be returned for your files as soon as possible.
Thank you for your assistance in the above matter and should you have any questions, please do not
hesitate to call Ann Marie Rolle at 951.955.1243 or me at 951.955.1282.
Very trul yours
CASSANDRA SANCHEZ
Senior Civil Engineer
Enclosures
ec: Deborah de Chambeau
Everett Duckworth
Sharon Johnson
Ann Marie Rolle
BAK:blm
P8/217742
218010
1 COOPERATIVE AGREEMENT
Salt Creek—Westward Circle Storm Drain, Stage 2
2 Salt Creek—Whispering Way Storm Drain, Stage 2
3 Salt Creek—Destry Drive Storm Drain, Stage 2
Salt Creek—Clover Creek Storm Drain, Stage 4
4 Project Nos. 4-0-00377, 4-0-00378, 4-0-00379 and 4-0-00142
Tract No. 31822
5
6 The Riverside County Flood Control and Water Conservation District, a body
7 politic ("DISTRICT"), the City of Menifee, a municipal corporation of the State of California
8 ("CITY"), Sutter Mitland 01 LLC, a Delaware limited liability company ("DEVELOPER"),
9 hereby agree as follows:
10 RECITALS
11
12 A. DEVELOPER is the legal owner of record of certain real property located
13 within the County of Riverside. DEVELOPER has submitted for approval Tract No. 31822
14 located in the City of Menifee. As a condition of approval for Tract No. 31822, DEVELOPER
15 must construct certain flood control facilities in order to provide flood protection and drainage
16 for DEVELOPER's planned development; and
17 B. The required flood control facilities and drainage improvements, as shown
18
19 in concept on Exhibit "A", attached hereto and made a part hereof, and as shown on District
20 Drawing No. 4-1100, includes:
21 i) Approximately 97 lineal feet of underground storm drain system
22 ("LINE C-10"). At its upstream terminus, LINE C-10 will connect to
23 proposed storm drain facility for Parcel Map No. 32269;
24 ii) Approximately 1,230 lineal feet of underground storm drain system
25
("LINE C-9"). At its upstream terminus, LINE C-9 will connect to
26
27 proposed storm drain facility for Parcel Map No.32269;
28
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1 iii) Approximately 2,120 lineal feet of underground storm drain system
2 ("LINE C-7"). At its upstream terminus, LINE C-7 will connect to
3
proposed storm drain facility for Parcel Map No. 32269;
4
5 iv) Approximately 399 lineal feet of underground storm drain system
6 ("LINE-AX"). At its upstream terminus, LINE-AX will connect to
7 DISTRICT existing Salt Creek— Clover Street Storm Drain, Stage 3
8 facility, as shown on DISTRICT's As-Built Drawing No. 4-0806. At
9 its downstream terminus, LINE-AX will connect to DISTRICT
10 existing Salt Creek — Clover Street Storm Drain, Stage 2 facility, as
11
12 shown on DISTRICT's As-Built Drawing No. 4-0762. True and
13
correct copies of the District-approved district drawings are public
14 records that are within District's possession,and can be made available
15 upon request. Together, LINE C-10,LINE C-9, LINE C-7 and LINE-
16 AX are called "DISTRICT FACILITIES"; and
17 C. Associated with the construction of DISTRICT FACILITIES is the
18
19 construction of(i) approximately 88 lineal feet of 42-inch reinforced concrete/corrugated metal
20 pipe; and (ii) certain catch basins, connector pipes, headwalls, inlets, riprap structures, debris
21 basin,maintenance access road and various lateral storm drains that are thirty-six inches (36") or
22 less in diameter that are located within CITY held easements or rights of way
23 ("APPURTENANCES"). Together, DISTRICT FACILITIES and APPURTENANCES are
24 hereinafter called "PROJECT"; and
25 Y
26 D. DEVELOPER and CITY desire DISTRICT to accept ownership and
27 responsibility for the operation and maintenance of DISTRICT FACILITIES. Therefore,
28
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1 DISTRICT must review and approve DEVELOPER's plans and specifications for PROJECT and
2 subsequently inspect the construction of DISTRICT FACILITIES; and
3 E. On or about December 4, 2017, DISTRICT and DEVELOPER entered into
4
5 a Right of Entry and Inspection Agreement that authorizes DEVELOPER to construct
6 DISTRICT FACILITIES. Pursuant to the Right of Entry and Inspection Agreement,
7 DEVELOPER has commenced and completed construction of DISTRICT FACILITIES; and
8 F. DEVELOPER,DISTRICT,and CITY desire CITY to accept ownership and
9 responsibility for the operation and maintenance of APPURTENANCES. Therefore,CITY must
10 review and approve DEVELOPER's plans and specifications for PROJECT, and subsequently
11
inspect and approve the construction of PROJECT; and
12
13 G. DISTRICT is willing to (i) review and approve DEVELOPER's plans and
14 specifications for PROJECT, (ii) inspect the construction of DISTRICT FACILITIES, and (iii)
15 accept ownership and responsibility for the operation and maintenance of DISTRICT
16 FACILITIES, provided DEVELOPER (a) complies with this Agreement, (b) constructs
17 PROJECT in accordance with DISTRICT and CITY approved plans and specifications, (c)
18
obtains and conveys to DISTRICT all rights of way necessary for the inspection, operation and
19
20 maintenance of DISTRICT FACILITIES as set forth herein, and (d) accepts ownership and
21 responsibility for the operation and maintenance of PROJECT following completion of
22 PROJECT construction until such time as DISTRICT accepts ownership and responsibility for
23 the operation and maintenance of DISTRICT FACILITIES; and
24 H. CITY is willing to (i) review and approve DEVELOPER's plans and
25
specifications for PROJECT, (ii) inspect the construction of PROJECT, (iii) accept and hold
26
27 faithful performance and payment bonds submitted by DEVELOPER for DISTRICT
28 FACILITIES, (iv) grant DISTRICT the right to inspect, operate and maintain DISTRICT
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I FACILITIES within CITY rights of way subject to the terms of this Agreement, and (v) accept
2 ownership and responsibility for the operation and maintenance of APPURTENANCES,
3
provided DEVELOPER (a) complies with this Agreement, (b) constructs PROJECT in
4
5 accordance with DISTRICT and CITY approved plans and specifications, (c) obtains and
6 conveys to CITY all rights of way necessary for the inspection, operation and maintenance of
7 APPURTENANCES as set forth herein, and (d) accepts ownership and responsibility for the
8 operation and maintenance of PROJECT following completion of PROJECT construction until
9 such time as DISTRICT accepts ownership and responsibility for the operation and maintenance
10 of DISTRICT FACILITIES and CITY accepts ownership and responsibility for the operation
11
and maintenance of APPURTENANCES.
12
13
NOW, THEREFORE, the parties hereto mutually agree as follows:
14 SECTION 1
15 DEVELOPER shall:
16 1. Prepare PROJECT plans and specifications, hereinafter called
17 "IMPROVEMENT PLANS",in accordance with applicable DISTRICT and CITY standards,and
18
19 submit to DISTRICT and CITY for their review and approval.
20 2. Continue to pay DISTRICT and CITY, within thirty (30) days after receipt
21 of periodic billings from DISTRICT and CITY, any and all such amounts as are deemed
22 reasonably necessary by DISTRICT and CITY to cover DISTRICT's and CITY's costs associated
23 with the review of IMPROVEMENT PLANS, review and approval of rights of way and
24 conveyance documents, and with the processing and administration of this Agreement.
25
26 3. Deposit with DISTRICT (Attention: Business Office - Accounts
27 Receivable), at the time of providing written notice to DISTRICT of the start of PROJECT
28 construction as set forth in Section 1.8., the estimated cost of providing construction inspection
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1 for DISTRICT FACILITIES, in an amount as determined and approved by DISTRICT in
2 accordance with Ordinance Nos. 671 and 749 of the County of Riverside, including any
3 amendments thereto, based upon the bonded value of DISTRICT FACILITIES. If at any time
4
5 the costs exceed the deposit or are anticipated by DISTRICT to exceed the deposit with
6 DISTRICT, DEVELOPER shall pay such additional amount(s), as deemed reasonably necessary
7 by DISTRICT to complete inspection of PROJECT,within thirty(30)days after receipt of billing
g from DISTRICT.
9 4. Deposit with CITY, at the time of providing written notice to DISTRICT
10 and CITY of the start of PROJECT construction as set forth in Section I.B., the estimated cost of
11
12 providing construction inspection for APPURTENANCES, in an amount as determined and
13 approved by CITY in accordance with CITY's municipal code and regulations. If at any time the
14 costs exceed the deposit or are anticipated by CITY to exceed the deposit with CITY,
15 DEVELOPER shall pay such additional amount(s), as deemed reasonably necessary by CITY to
16 complete inspection of PROJECT, within thirty(30) days after receipt of billing from CITY.
17 5. Secure, at its sole cost and expense, all necessary licenses, agreements,
18
19 permits and rights of entry as may be needed for the construction, inspection, operation and
20 maintenance of PROJECT. DEVELOPER shall furnish DISTRICT and CITY, at the time of
21 providing written notice to DISTRICT of the start of construction as set forth in Section I.B.,with
22 1 sufficient evidence of DEVELOPER having secured such necessary licenses, agreements,
23 permits and rights of entry, as determined and approved by DISTRICT and CITY.
24 6. Furnish DISTRICT and CITY with copies of all permits, approvals or
25
agreements required by any federal, state or local resource and/or regulatory agency for the
26
27 construction, operation and maintenance of PROJECT. Such documents include but are not
28 limited to those issued by the U.S. Army Corps of Engineers, California Regional Water Quality
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1 Control Board, California State Department of Fish and Wildlife, State Water Resources Control
2 Board, and Western Riverside County Regional Conservation Authority ("REGULATORY
3 PERMITS").
4
5 7. Provide CITY, at the time of providing written notice to DISTRICT of the
6 start of construction as set forth in Section I.B., with faithful performance and payment bonds,
7 each in the amount of one hundred percent (100%) of the estimated cost for construction of
8 DISTRICT FACILITIES as determined by DISTRICT. The surety, amount and form of the
9 bonds, shall be subject to approval of DISTRICT and CITY. The bonds shall remain in full force
10 and effect until DISTRICT FACILITIES are accepted by DISTRICT as complete;at which time
11
12 the bond amount may be reduced to five percent (5%) for a period of one year to guarantee
13 against any defective work, labor or materials.
14 8. Notify DISTRICT (Attention: Contract Services Section) and CITY in
15 writing at least twenty (20) days prior to the start of construction of PROJECT. Construction
16 shall not begin on any element of PROJECT, for any reason whatsoever, until DISTRICT and
17 CITY have issued to DEVELOPER a written Notice to Proceed authorizing DEVELOPER to
18
commence construction of PROJECT.
19
20
9. Grant DISTRICT and CITY, by execution of this Agreement, the right to
21 enter upon DEVELOPER's property where necessary and convenient for the purpose of gaining
22 access to, and performing inspection service for the construction of PROJECT as set forth herein.
23 10. [INTENTIONALLY OMITTED]
24 11. [INTENTIONALLY OMITTED]
25
26 12. Furnish DISTRICT and CITY, at the time of providing written notice to
27 DISTRICT and CITY of the start of construction as set forth in Section I.8., with a complete list
28 of all contractors and subcontractors to be performing work on PROJECT, including the
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1 corresponding license number and license classification of each. At such time, DEVELOPER
2 shall further identifyin writing its designated
g grated superintendent for PROJECT construction.
3
13. Furnish DISTRICT and CITY, at the time of providing written notice to
4
5 DISTRICT and CITY of the start of construction as set forth in Section I.8., a construction
6 schedule which shall show the order and dates in which DEVELOPER or DEVELOPER's
7 contractor proposes to carry out the various parts of work, including estimated start and
8 completion dates. As construction of PROJECT progresses, DEVELOPER shall update said
9 construction schedule as requested by DISTRICT and/or CITY.
10 14. Furnish DISTRICT with final mylar plans for DISTRICT FACILITIES,and
11
12 assign their ownership to DISTRICT prior to the start on any portion of PROJECT construction.
13 15. Not permit any change to or modification of DISTRICT and CITY approved
14 IMPROVEMENT PLANS without the prior written permission and consent of DISTRICT and
15 CITY.
16 16. Comply with all Cal/OSHA safety regulations including but not limited to,
17 regulations concerning confined space and maintain a safe working environment for
18
DEVELOPER, DISTRICT and CITY employees on the site.
19
20 17. Furnish DISTRICT and CITY, at the time of providing written notice to
21 DISTRICT of the start of construction as set forth in Section I.8., with a confined space entry
22 procedure specific to PROJECT. The procedure shall comply with requirements contained in
23 California Code of Regulations, Title 8 Section 5158, Other Confined Space Operations, Section
24 5157, Permit Required Confined Space and District Confined Space Procedures, SOM-18. The
25
procedure shall be reviewed and approved by DISTRICT and CITY prior to the issuance of a
26
27 Notice to Proceed, which shall be given by DISTRICT to DEVELOPER upon DISTRICT's and
28 CITY's approval.
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1 18. DEVELOPER shall not commence operations until DISTRICT and CITY
2 have been furnished with original certificate(s) of insurance and original certified copies of
3 endorsements and if requested, certified original policies of insurance including all endorsements
4
5 and any and all other attachments as required in this section.
6 Without limiting or diminishing DEVELOPER's obligation to indemnify or
7 hold DISTRICT or CITY harmless, DEVELOPER shall procure and maintain or cause to be
8 maintained, at its sole cost and expense, the following insurance coverages during the term of
9 this Agreement:
10 A. Workers' Compensation:
11
12 If DEVELOPER has employees as defined by the State of California,
13
DEVELOPER shall maintain statutory Workers' Compensation
14 Insurance (Coverage A) as prescribed by the laws of the State of
15 California. Policy shall include Employers' Liability (Coverage B)
16 including Occupational Disease with limits not less than $1,000,000
17 per person per accident. Policy shall be endorsed to waive subrogation
18
in favor of DISTRICT, the County of Riverside ("COUNTY"), and
19
20 CITY.
21 B. Commercial General Liability:
22 Commercial General Liability insurance coverage, including but not
23 limited to, premises liability, unmodified contractual liability,
24 products and completed operations liability, personal and advertising
25
injury, and cross liability coverage, covering claims which may arise
26
27 from or out of DEVELOPER's performance of its obligations
28 hereunder. Additionally, Commercial General Liability insurance no
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1 less broad than ISO form CG 00 01. Policy shall name DISTRICT,
2 COUNTY, and CITY and their agencies, districts, special districts,
3
4 and departments, their respective directors, officers, Board of
5 Supervisors, employees, elected or appointed officials, agents or
6 representatives as additional insureds. Policy's limit of liability shall
7 not be less than $5,000,000 per occurrence combined single limit. If
8 such insurance contains a general aggregate limit, it shall apply
9 separately to this Agreement or be no less than two (2) times the
10 occurrence limit. DISTRICT, COUNTY and CITY must be an
11
12 additional insured for liability arising out of ongoing and completed
13
operations by or on behalf of DEVELOPER. DISTRICT, COUNTY
14 and CITY shall continue to be an additional insured for completed
15 operations for two years after completion of the work. If
16 DEVELOPER maintains higher limits than the specified minimum
17 limits, DISTRICT, COUNTY and CITY requires and shall be entitled
18
19 to coverage for the higher limits maintained by DEVELOPER.
20 C. Vehicle Liability:
21 If DEVELOPER's vehicles or mobile equipment are used in the
22 performance of the obligations under this Agreement, then
23 DEVELOPER shall maintain liability insurance for all owned, non-
24 owned or hired vehicles so used in an amount not less than$1,000,000
25
per occurrence combined single limit. If such insurance contains a
26
27 general aggregate limit, it shall apply separately to this Agreement or
28 be no less than two (2) times the occurrence limit. Policy shall name
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1 DISTRICT, COUNTY and CITY and their agencies, districts, special
2 districts, and departments,their respective directors,officers,Board of
3
4 Supervisors, employees, elected or appointed officials, agents or
5 representatives as additional insureds.
6 D. Professional Liability:
7 DEVELOPER shall cause any architect or engineer retained by
8 DEVELOPER in connection with the performance of DEVELOPER's
9 obligations under this Agreement to maintain Professional Liability
10
Insurance providing coverage for the performance of their work
11
12 included within this Agreement,with a limit of liability of not less than
13 $2,000,000 per occurrence and $4,000,000 annual aggregate.
14 DEVELOPER shall require that, if such Professional Liability
15 Insurance is written on a claims made basis rather than an occurrence
16 basis, such insurance shall continue through the term of this
17 Agreement and that such architect or engineer shall purchase at such
18
architect or engineer's sole expense either 1) an Extended Reporting
19
20
Endorsement (also known as Tail Coverage); or 2) Prior Dates
21 Coverage from a new insurer with a retroactive date back to the date
22 of, or prior to, the inception of this Agreement; or 3) demonstrate
23 through Certificates of Insurance that such architect or engineer has
24 maintained continuous coverage with the same or original insurer.
25
Coverage provided under items: 1),2)or 3) shall continue for the term
26
27 specified in the insurance policy,which shall be reasonably acceptable
28 to DISTRICT and CITY.
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1 E. General Insurance Provisions—All Lines:
2 i. Any insurance carrier providing insurance coverage hereunder
3
shall be admitted to the State of California and have an A.M.
4
5 BEST rating of not less than an A: VIII (A: 8) unless such
6 requirements are waived, in writing, by the County Risk
7 Manager and CITY. If the County Risk Manager and CITY
8 waive a requirement for a particular insurer such waiver is only
9 valid for that specific insurer and only for one policy term.
10 ii. DEVELOPER must declare its insurance self-insured retention
11
12 for each coverage required herein. If any such self-insured
13
retention exceeds $500,000 per occurrence each such retention
14 shall have the prior written consent of the County Risk
15 Manager and CITY, before the commencement of operations
16 under this Agreement. Upon notification of self-insured
17 retention deemed unacceptable to DISTRICT or CITY, and at
18
19 the election of CITY or the County Risk Manager,
20 DEVELOPER's carriers shall either: 1) reduce or eliminate
21 such self-insured retention with respect to this Agreement with
22 DISTRICT; or 2)procure a bond which guarantees payment of
23 losses and related investigations, claims administration, and
24 defense costs and expenses.
25
iii. DEVELOPER shall cause their insurance carrier(s) or its
26
27 contractor's insurance carrier(s), to furnish DISTRICT and
28 CITY with 1) a properly executed original certificate(s) of
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1 insurance and certified original copies of endorsements
2 effecting coverage as required herein; and 2) if requested to do
3
so orally or in writing by CITY or the County Risk Manager,
4
5 provide original certified copies of policies including all
6 endorsements and all attachments thereto, showing such
7 insurance is in full force and effect. Further, said certificate(s)
8 and policies of insurance shall contain the covenant of the
9 insurance carrier(s) that a minimum of sixty (60) days written
10 notice shall be given to DISTRICT and CITY prior to any
11
12 material modification, cancellation, expiration or reduction in
13
coverage of such insurance. If DEVELOPER insurance
14 carrier(s) policies does not meet the minimum notice
15 requirement found herein, DEVELOPER shall cause
16 DEVELOPER's insurance carrier(s)to furnish a 60 day Notice
17 of Cancellation Endorsement. In the event of a material
18
19 modification,cancellation,expiration or reduction in coverage,
20
this Agreement shall terminate forthwith, unless DISTRICT
21 and CITY receive, prior to such effective date, another
22 properly executed original certificate of insurance and original
23 copies of endorsements or certified original policies, including
24 all endorsements and attachments thereto, evidencing
25
coverages set forth herein and the insurance required herein is
26
27 in full force and effect. An individual authorized by the
28
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1 insurance carrier to do so on its behalf shall sign the original
2 endorsements for each policy and the certificate of insurance.
3
iv. It is understood and agreed by the parties hereto that
4
5 DEVELOPER's insurance shall be construed as primary
6 insurance, and DISTRICT and CITY's insurance and/or
7 deductibles and/or self-insured retentions or self-insured
8 programs shall not be construed as contributory.
9 V. If, during the term of this Agreement or any extension thereof,
10 there is a material change in the scope of services or there is a
11
12 material change in the equipment to be used in the performance
13
of the scope of work which will add additional exposures(such
14 as the use of aircraft, watercraft, cranes, etc.); or the term of
15 this Agreement,including any extensions thereof,exceeds five
16 (5) years, DISTRICT and CITY reserve the right to adjust the
17 types of insurance required under this Agreement and the
18
19 monetary limits of liability for the insurance coverages
20
currently required herein, if, in CITY's or the County Risk
21 Manager's reasonable judgment, the amount or type of
22 insurance carried by DEVELOPER has become inadequate.
23 vi. DEVELOPER shall pass down the insurance obligations
24 contained herein to all tiers of subcontractors working under
25
this Agreement.
26
27
28
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1 vii. The insurance requirements contained in this Agreement may
2 be met with a program(s) of self-insurance acceptable to
3
DISTRICT and CITY.
4
5 viii. DEVELOPER agrees to notify DISTRICT and CITY of any
6 claim by a third party or any incident or event that may give
7 rise to a claim arising from the performance of this Agreement.
8 Failure to maintain the insurance required by this paragraph shall be deemed a
9 material breach of this Agreement and shall authorize and constitute authority for DISTRICT
10 and CITY, at their sole discretion, to provide written notice to DEVELOPER that either
11
12 DISTRICT or CITY are able to perform their obligations hereunder, nor to accept responsibility
13 for ownership, operation and maintenance of PROJECT due, either in whole or in part, to said
14 breach of this Agreement.
15 19. Construct or cause to be constructed,PROJECT at DEVELOPER's sole cost
16 and expense in accordance with DISTRICT and CITY approved IMPROVEMENT PLANS.
17 20. Within two (2) weeks of completing PROJECT construction, provide
18
DISTRICT (Attention: Construction Management Section) and CITY with written notice that
19
20 PROJECT construction is substantially complete and requesting that DISTRICT conduct a final
21 inspection of DISTRICT FACILITIES, and CITY conduct a final inspection of PROJECT.
22 21. [INTENTIONALLY OMITTED]
23 22. [INTENTIONALLY OMITTED]
24 23. Accept ownership and sole responsibility for the operation and maintenance
25
of PROJECT until such time as DISTRICT accepts ownership and responsibility for the
26
27 operation and maintenance of DISTRICT FACILITIES and CITY accepts ownership and
28 responsibility for the operation and maintenance of APPURTENANCES. Further,it is mutually
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1 understood by the parties hereto that prior to DISTRICT acceptance of ownership and
2 responsibility for the operation and maintenance of DISTRICT FACILITIES, PROJECT shall
3
be in a satisfactorily maintained condition as solely determined by DISTRICT. If,subsequent to
4
5 the inspection and, in the sole discretion of DISTRICT, DISTRICT FACILITIES are not in an
6 acceptable condition, corrections shall be made at sole expense of DEVELOPER. It is also
7 mutually understood by the parties hereto that prior to CITY acceptance of ownership and
8 responsibility for the operation and maintenance of APPURTENANCES, PROJECT shall be in
9 a satisfactorily maintained condition as solely determined by CITY. If, subsequent to the
10 inspection and in the sole discretion of CITY, APPURTENANCES are not in an acceptable
11
condition, corrections shall be made at sole expense of DEVELOPER.
12
13 24. Pay, if suit is brought upon this Agreement or any bond guaranteeing the
14 completion of PROJECT, all costs and reasonable expenses and fees, including reasonable
15 attorneys' fees, and acknowledge that, upon entry of judgment, all such costs, expenses and fees
16 shall be computed as costs and included in any judgment rendered.
17 25. Upon completion of PROJECT construction but prior to DISTRICT
18
19 acceptance of DISTRICT FACILITIES for ownership, operation and maintenance, and CITY
20 acceptance of APPURTENANCES for ownership, operation and maintenance, provide or cause
21 its civil engineer of record or construction civil engineer of record, duly registered in the State of
22 California,to provide DISTRICT and CITY with a redlined"record drawings"copy of PROJECT
23 plans. After DISTRICT and CITY approval of the redlined "record drawings", DEVELOPER's
24 engineer shall schedule with DISTRICT a time to transfer the redlined changes onto DISTRICT's
25
original mylars at DISTRICT's office, after which the engineer shall review, stamp and sign the
26
27 original PROJECT engineering plans "record drawings".
28
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1 26. Ensure that all work performed pursuant to this Agreement by
2 DEVELOPER, its agents or contractors is done in accordance with all applicable laws and
3
regulations, including but not limited to all applicable provisions of the Labor Code, Business
4
5 and Professions Code, and Water Code. DEVELOPER shall be solely responsible for all costs
6 associated with compliance with applicable laws and regulations.
7 SECTION 11
8 DISTRICT shall:
9 1. Review IMPROVEMENT PLANS and approve when DISTRICT has
10 determined that such plans meet DISTRICT standards and are found acceptable to DISTRICT
11
prior to the start of PROJECT construction.
12
13 2. Provide CITY an opportunity to review and approve IMPROVEMENT
14 PLANS prior to DISTRICT's final approval.
15 3. Upon execution of this Agreement, record or cause to be recorded, a copy
16 of this Agreement in the Official Records of the Riverside County Recorder.
17 4. [INTENTIONALLY OMITTED]
18
5. Inspect construction of DISTRICT FACILITIES.
19
20 6. Keep an accurate accounting of all DISTRICT costs associated with the
21 review and approval of IMPROVEMENT PLANS, the review and approval of right of way and
22 conveyance documents, and the processing and administration of this Agreement.
23 7. Keep an accurate accounting of all DISTRICT construction inspection costs,
24 and within forty-five(45) days after DISTRICT acceptance of DISTRICT FACILITIES as being
25
complete, submit a final cost statement to DEVELOPER. If the deposit, as set forth in Section
26
27 I.3., exceeds such costs, DISTRICT shall reimburse DEVELOPER the excess amount within
28 sixty(60) days after DISTRICT acceptance of DISTRICT FACILITIES as being complete.
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1 8. Accept ownership and sole responsibility for the operation and maintenance
2 of DISTRICT FACILITIES upon (i) DISTRICT inspection of DISTRICT FACILITIES in
3
4 accordance with Section I.20., (ii) DISTRICT acceptance of PROJECT construction as being
5 complete, (iii) DISTRICT receipt of stamped and signed "record drawings" of PROJECT plans,
6 as set forth in Section I.25., (iv) CITY acceptance of all necessary street rights of way as deemed
7 necessary by DISTRICT and CITY for the ownership,operation, and maintenance of DISTRICT
8 FACILITIES and APPURTENANCES, (v) CITY acceptance of APPURTENANCES for
9 ownership, operation,and maintenance,and(vi)DISTRICT's sole determination that DISTRICT
10 FACILITIES are in a satisfactorily maintained condition.
11
12 9. Provide CITY with a reproducible duplicate copy of the "record drawings"
13 of PROJECT plans upon DISTRICT acceptance of DISTRICT FACILITIES as being complete.
14 SECTION III
15 CITY shall:
16 1. Review and approve IMPROVEMENT PLANS prior to the start of
17
PROJECT construction.
18
19 2. Accept CITY and DISTRICT approved faithful performance and payment
20 bonds submitted by DEVELOPER as set forth in Section I.7., and hold said bonds as provided
21 herein.
22 3. Inspect PROJECT construction.
23 4. [INTENTIONALLY OMITTED]
24 5. [INTENTIONALLY OMITTED]
25
26 6. Grant DISTRICT, by execution of this Agreement, the right to construct,
27 inspect, operate and maintain DISTRICT FACILITIES within CITY rights of way.
28
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1 7. Accept ownership and sole responsibility for the operation and maintenance
2 of the APPURTENANCES upon (i) CITY inspection of PROJECT in accordance with Section
3 I.20., (ii) CITY and DISTRICT acceptance of PROJECT construction as being complete, (iii)
4
5 CITY receipt of stamped and signed"record drawings"of PROJECT plans,as set forth in Section
6 I.25., (iv) CITY acceptance of all necessary street rights of way as deemed necessary by
7 DISTRICT and CITY for the ownership,operation,and maintenance of DISTRICT FACILITIES
8 and APPURTENANCES, (v)DISTRICT acceptance of DISTRICT FACILITIES for ownership,
9 operation and maintenance, and (vi) CITY's sole determination that PROJECT is in a
10 satisfactorily maintained condition.
11
12 8. Not grant any occupancy permits for any units within any portion of Tract
13 No. 31822, or any phase thereof, until construction of PROJECT is complete, unless otherwise
14 approved in writing by DISTRICT.
15 9. Notwithstanding any of the foregoing, prior to accepting ownership of
16 APPURTENANCES, PROJECT shall be in a satisfactorily maintained condition as solely
17 determined by CITY. If, subsequent to the inspection and in the sole discretion of CITY,
18
APPURTENANCES are not in an acceptable condition,corrections shall be made at sole expense
19
of DEVELOPER.
20
21 10. Upon DISTRICT and CITY acceptance of PROJECT construction as being
22 complete, accept sole responsibility for the adjustment of all PROJECT manhole rings and covers
23 located within CITY rights of way which must be performed at such time(s) that the finished
24 grade along and above the underground portions of DISTRICT FACILITIES are improved,
25
repaired,replaced or changed. It being further understood and agreed that any such adjustments
26
shall be performed at no cost to DISTRICT.
27
28
- 18 -
218010
1 SECTION IV
2 It is further mutually agreed:
3 1. All work involved with PROJECT shall be inspected by DISTRICT and
4
5 CITY, and shall not be deemed complete until DISTRICT and CITY mutually agree in writing
6 that construction is completed in accordance with DISTRICT and CITY approved
7 IMPROVEMENT PLANS.
8 2. CITY and DEVELOPER personnel may observe and inspect all work being
9 done on PROJECT but shall provide any comments to DISTRICT personnel who shall be solely
10 responsible for all quality control communications with DEVELOPER's contractor(s) during the
11
construction of PROJECT.
12
13 3. DEVELOPER shall complete construction of PROJECT within twelve (12)
14 consecutive months after execution of this Agreement and within one hundred twenty (120)
15 consecutive calendar days after commencing work on PROJECT. It is expressly understood that
16 since time is of the essence in this Agreement, failure of DEVELOPER to perform the work
17 within the agreed upon time shall constitute authority for DISTRICT to perform the remaining
18
work and require DEVELOPER's surety to pay to CITY the penal sum of any and all bonds. In
19
20 which case, CITY shall subsequently reimburse DISTRICT for DISTRICT costs incurred.
21 4. If DEVELOPER fails to commence construction of PROJECT within nine
22 (9) months after execution of this Cooperative Agreement, then DISTRICT reserves the right to
23 withhold issuance of the Notice to Proceed pending a review of the existing site conditions as
24 they exist at the time DEVELOPER provides written notification to DISTRICT of the start of
25
construction as set forth in Section 1.8. In the event of a change in the existing site conditions
26
27 that materially affects PROJECT function or DISTRICT's ability to operate and maintain
28
- 19 -
218010
1 DISTRICT FACILITIES, DISTRICT may require DEVELOPER to modify IMPROVEMENT
2 PLANS as deemed necessary by DISTRICT.
3
5. DISTRICT shall endeavor to issue DEVELOPER a Notice to Proceed
4
5 within twenty (20) days of receipt of DEVELOPER's complete written notice, as set forth in
6 Section I.8.; however, DISTRICT's construction inspection staff is limited and therefore, the
7 issuance of a Notice to Proceed is subject to staff availability.
8 In the event DEVELOPER wishes to expedite issuance of a Notice to
9 Proceed, DEVELOPER may elect to furnish an independent qualified construction inspector at
10 DEVELOPER's sole cost and expense. DEVELOPER shall furnish appropriate documentation
11
12 of the individual's credentials and experience to DISTRICT for review and if appropriate,
13 approval. DISTRICT shall review the individual's qualifications and experience and, upon
14 approval thereof, said individual, hereinafter called "DEPUTY INSPECTOR", shall be
15 authorized to act on DISTRICT's behalf on all PROJECT construction and quality control
16 matters. If DEVELOPER's initial construction inspection deposit furnished pursuant to Section
17 I.3. exceeds ten thousand dollars ($10,000), DISTRICT shall refund to DEVELOPER up to
18
19 eighty percent (80%) of DEVELOPER's initial inspection deposit within forty-five (45) days of
20 DISTRICT's approval of DEPUTY INSPECTOR;however, a minimum balance of ten thousand
21 dollars ($10,000) shall be retained on account.
22 6. PROJECT construction work shall be on a five(5)day,forty(40)hour work
23 week with no work on Saturdays, Sundays or DISTRICT designated legal holidays, unless
24 otherwise approved in writing by DISTRICT. If DEVELOPER feels it is necessary to work more
25
than the normal forty (40) hour work week or on holidays, DEVELOPER shall make a written
26
27 request for permission from DISTRICT and CITY to work the additional hours. The request
28 shall be submitted to DISTRICT and CITY at least seventy-two (72)hours prior to the requested
-20 -
218010
1 additional work hours and state the reasons for the overtime and the specific time frames required.
2 The decision of granting permission for overtime work shall be made by DISTRICT at its sole
3
discretion and shall be final. If permission is granted by DISTRICT, DEVELOPER will be
4
5 charged the cost incurred at the overtime rates for additional inspection time required in
6 connection with the overtime work in accordance with Ordinance Nos. 671 and 749, including
7 any amendments thereto, of the County of Riverside.
8 7. DEVELOPER shall indemnify and hold harmless DISTRICT, County of
9 Riverside, and CITY (including their respective governing bodies, agencies, districts, special
10 districts and departments, their respective directors, officers, Board of Supervisors, elected and
11
12 appointed officials, employees, agents and representatives) from any liability, claim, damage,
13 proceeding or action, present or future, based upon, arising out of or in any way relating to
14 DEVELOPER' s (including its officers, employees, subcontractors and agents) actual or alleged
15 acts or omissions related to this Agreement, performance under this Agreement, or failure to
16 comply with the requirements of this Agreement, including but not limited to: (a) property
17 damage; b bodily m' or death c liability or damage pursuant to Article I Section 19 of the
g � ( ) Y � Jm'Y � ( ) tY b
18
19 California Constitution,the Fifth Amendment of the United States Constitution or any other law,
20 ordinance or regulation caused by the diversion of waters from the natural drainage patterns or
21 the discharge of drainage within or from PROJECT; or (d) any other element of any kind or
22 nature whatsoever.
23 DEVELOPER shall defend, at its sole expense, including all costs and fees
24 (including but not limited to attorney fees, cost of investigation, defense and settlements or
25
awards), DISTRICT and County of Riverside (including their respective agencies, districts,
26
27 special districts and departments, their respective directors, officers, Board of Supervisors,
28 elected and appointed officials, employees, agents and representatives) in any claim proceeding
- 21 -
218010
] or action for which indemnification is required. With respect to any of DEVELOPER's
2 indemnification requirements, DEVELOPER shall, at its sole cost, have the right to use counsel
3
of their own choice and shall have the right to adjust, settle, or compromise any such claim,
4
5 proceeding or action without the prior consent of DISTRICT and County of Riverside; provided,
6 however,that any such adjustment, settlement or compromise in no manner whatsoever limits or
7 circumscribes DEVELOPER's indemnification obligations to DISTRICT or County of Riverside.
8 DEVELOPER's indemnification obligations shall be satisfied when DEVELOPER has provided
9 to DISTRICT and County of Riverside the appropriate form of dismissal (or similar document)
10 relieving DISTRICT and County of Riverside from any liability for the claim, proceeding or
11
action involved.
12
13 DEVELOPER shall also defend, at its sole expense, including all costs and fees
14 (including but not limited to attorney fees, cost of investigation, defense and settlements or
15 awards), CITY (including its agencies, governing bodies, directors, officers, elected and
16 appointed officials, employees, agents and representatives)in any claim proceeding or action for
17 which indemnification is required. Failure by DEVELOPER to pay such attorneys'fees and costs
18
19 may be treated as an abandonment of PROJECT and as a default of DEVELOPER's obligations
20 under this Agreement.
21 DEVELOPER's indemnification obligations shall be satisfied when
22 DEVELOPER has provided to CITY the appropriate form of dismissal (or similar document)
23 relieving CITY from any liability for the claim, proceeding or action involved, and CITY
24 determines that the form of dismissal is adequate in its sole and absolute discretion.
25
Notwithstanding the foregoing, DEVELOPER shall enter into no settlement agreement or final
26
27 resolution of any pending claim covered under this section, without CITY's prior written
28 approval.
- 22 -
218010
1 The specified insurance limits required in this Agreement shall in no way limit or
2 circumscribe DEVELOPER's obligations to indemnify and hold harmless DISTRICT, County of
3 Riverside and CITY from third party claims.
4
5 In the event there is conflict between this section and California Civil Code
6 Section 2782,this section shall be interpreted to comply with California Civil Code Section 2782.
7 Such interpretation shall not relieve DEVELOPER from indemnifying DISTRICT, County of
8 Riverside or CITY to the fullest extent allowed by law.
9 9. DEVELOPER for itself, its successors and assigns hereby releases
10 DISTRICT, County of Riverside and CITY (including their agencies, districts, special districts
11
12 and departments, their respective directors, officer, Board of Supervisors, elected and appointed
13 officials, employees, agents and representatives) from any and all claims, demands, actions, or
14 suits of any kind arising out of any liability, known or unknown, present or future, including but
15 not limited to any claim or liability, based or asserted, pursuant to Article I, Section 19 of the
16 California Constitution,the Fifth Amendment of the United States Constitution, or any other law
17 or ordinance which seeks to impose any other liability or damage,whatsoever,for damage caused
18
19 by the discharge of drainage within or from PROJECT. Nothing contained herein shall constitute
20 a release by DEVELOPER of DISTRICT or the County of Riverside, or their officers, agents
21 and employees from any and all claims, demands, actions or suits of any kind arising out of any
22 liability, known or unknown, present or future, for the negligent maintenance of DISTRICT
23 FACILITIES, after the acceptance of ownership, operation and maintenance of DISTRICT
24 FACILITIES by DISTRICT.
25
10. Any waiver by DISTRICT or by CITY of any breach of any one or more of
26
27 the terms of this Agreement shall not be construed to be a waiver of any subsequent or other
28 breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY to
- 23 -
218010
1 require exact, full and complete compliance with any terms of this Agreement shall not be
2 construed as, in any manner, changing the terms hereof, or estopping DISTRICT or CITY from
3 enforcement hereof.
4
5 11. This Agreement is to be construed in accordance with the laws of the State
6 of California. If any provision in this Agreement is held by a court of competent jurisdiction to
7 be invalid, void, or unenforceable, the remaining provisions shall remain in full force and effect
8 without being impaired or invalidated in any way.
9 12. Any and all notices sent or required to be sent to the parties of this
10 Agreement will be mailed by first class mail, postage prepaid, to the following addresses:
11
RIVERSIDE COUNTY FLOOD CONTROL CITY OF MENIFEE
12 AND WATER CONSERVATION DISTRICT 29714 Haun Road
1995 Market Street Menifee, CA 92586
13 Riverside, CA 92501 Attn: Public Works Manager
14 Attn: Contract Services Section
15 SUTTER MITLAND 01 LLC
3200 Park Center Drive, Suite 1000
16 Costa Mesa, CA 92626
17 Attn: David E. Bartlett
18 13. Any action at law or in equity brought by any of the parties hereto for the
19 purpose of enforcing a right or rights provided for by the Agreement, shall be tried in a court of
20 competent jurisdiction in the County of Riverside, State of California, and the parties hereto
21
waive all provisions of law providing for a change of venue in such proceedings to any other
22
county.
23
24 14. This Agreement is the result of negotiations between the parties hereto, and
25 the advice and assistance of their respective counsel. The fact that this Agreement was prepared
26 as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty
27 or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT
28 prepared this Agreement in its final form.
- 24 -
218010
I 15. The rights and obligations of DEVELOPER shall inure to and be binding
2 upon all heirs, successors and assignees.
3 16. DEVELOPER shall not assign or otherwise transfer any of its rights, duties
4
5 or obligations hereunder to any person or entity without the written consent of the other parties
6 hereto being first obtained. In the event of any such transfer or assignment, DEVELOPER
7 expressly understands and agrees that it shall remain liable with respect to any and all of the
8 obligations and duties contained in this Agreement.
9 17. The individual(s) executing this Agreement on behalf of DEVELOPER
10 certify that they have the authority within their respective company(ies)to enter into and execute
11
12 this Agreement,and have been authorized to do so by all boards of directors,legal counsel,and/or
13 any other board, committee or other entity within their respective company(ies) which have the
14 authority to authorize or deny entering into this Agreement.
15 18. This Agreement is intended by the parties hereto as a final expression of
16 their understanding with respect to the subject matter hereof and as a complete and exclusive
17 statement of the terms and conditions thereof and supersedes any and all prior and
18
contemporaneous agreements and understandings, oral or written, in connection therewith. This
19
20 Agreement may be changed or modified only upon the written consent of the parties hereto.
21 //
22 H
23
24
25
26
27
28
- 25 -
218010
1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
2
3 (to be filled in by Clerk of the Board)
4
5 RIVERSIDE COUNTY FLOOD CONTROL
RECOMMENDED FOR APPROVAL: AND WATER CONSERVATION DISTRICT
6
7
By BY
8 JASON E. UHLEY MARION ASHLEY, Chairman
General Manager-Chief Engineer Riverside County Flood Control and Water
9 Conservation District Board of Supervisors
10
11 APPROVED AS TO FORM: ATTEST:
12 GREGORY P. PRIAMOS KECIA HARPER-IHEM
13 County Counsel Clerk of the Board
14
15 By BY
NAZIK N. HASAN Deputy
16 Deputy County Counsel
(SEAL)
17
18
19
20
21
22
23 Cooperative Agreement for
Salt Creek—Westward Circle Storm Drain, Stage 2
24 Salt Creek—Whispering Way Storm Drain, Stage 2
Salt Creek—Destry Drive Storm Drain, Stage 2
25 Salt Creek—Clover Street Storm Drain, Stage 4
Project Nos. 4-0-00377, 4-0-00378, 4-0-00379 and 4-0-00142
26 Tract No. 31822
12/20/17
27 AMR:bIm
28
- 26 -
218010
1 RECOMMENDED FOR APPROVAL: CITY OF MENIFEE
2
3 -a, -
By By
?4ONATHAN SMITH
4 Public Works Director Armando G. Villa
5 City Manager
6
7 APPROVED AS TO FORM: ATTEST:
8
9
10 By B
J F LCHING S MAIM G
11 ity Attorney ity Clerk
12
13
14 (SEAL)
15
16
17
18
19
20
21
Cooperative Agreement for
22 Salt Creek—Westward Circle Storm Drain, Stage 2
Salt Creek—Whispering Way Storm Drain, Stage 2
23 Salt Creek—Destry Drive Storm Drain, Stage 2
Salt Creek—Clover Street Storm Drain, Stage 4
24 Project Nos. 4-0-00377, 4-0-00378, 4-0-00379 and 4-0-00142
Tract No. 31822
25 12/20/17
AMR:blm
26
27
28
- 27 -
218010
1 SUTTER MITLAND O1 LLC
2 a Delaware limited liability company
3 By: Brookfield Southern California Land LLC
a Delaware limited liability company
4 its Sole Member
5
6 By:
DAVID E. BARTLETT
7 Vice President
8
9 By:
10 RICHARD T. WHITNEY
Chief Financial Officer
11
12
13 (ATTACH NOTARY WITH CAPACITY STATEMENT)
14
15
16
17
18
19
20
21
22
Cooperative Agreement for
23 Salt Creek—Westward Circle Storm Drain, Stage 2
Salt Creek—Whispering Way Storm Drain, Stage 2
24 Salt Creek—Destry Drive Storm Drain, Stage 2
Salt Creek—Clover Street Storm Drain, Stage 4
25 Project Nos. 4-0-00377, 4-0-00378, 4-0-00379 and 4-0-00142
Tract No. 31822
26 12/20/17
AMR:bhn
27
28
- 28 -
Exhibit A
fif
--_ --- . ICJ
I
331JID pit
7.
Cd
--
-
_ a T7 t_
COOPERATIVE AGREEMENT
Salt Creek—Westward Circle Storm Drain,Stage 2
Salt Creek—Whispering Way Storm Drain,Stage 2
Salt Creek—Destry Drive Storm Drain,Stage 2
Salt Creek—Clover Creek Storm Drain,Stage 4
Project Nos.4-0-00377,4-0-00378,4-0-00379 and 4-0-00142
Tract No.31822
Page 1 of 1