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2021/05/19 Sutter Mitland 01, LLC Temporary Maintenance and Encroachment Audie Murphy Road IP16-022L, IP17-039L, IP17-041L"Agreement") is entered into as of this THIS'I'EMPORARY MAINT'ENA NrltqE AND ENCROACHMENT AGREEMEN'| day of (this 2021 (the "Effective Date"), by SUTTER MITLAND 0l LLC, a Delaware mited liability company("Master Developer'), the CITY OF MENIFI,E.a California nT unicipal corporation (:'City") (Master Developer and city are each a'Party" and collectively, the "Parties'\, with reference to the following: RECITAI,S A. Master Developer is the developer of Audie Murphy Ranch, a multi-phased master-planned development (the "Community,,) located in the City of Menifee, Riverside County, Calilomia. B. City has accepted the dedication ol the northem portion of Audie Murphy Road (as shown on Exhibit A) for public street and utility purposes. However, it has not yet accepted maintenance responsibility for landscaping in the public right of way, parkways, and medians, nor has it accepted maintenance responsibilities on private community common Area lots adjacent to the public right-o1'-way, all as shown on Exhibit A) (collectively, the ,,Landscaped Areas'). C. It is a condition of the City's approval of the Community that Master Developer provide temporary maintenance of the Landscaped Areas pending City,s acceptance of maintenance responsibility. Because some of the Landscaped Areas are located in the public right-of-way, the City also desires to grant Master Developer a temporary encroachment right to enter and perfbrm landscape maintenance in the public right-of-way. D. The Master Developer has agreed to maintain the Landsoaped Areas at its sole expense pending City acceptance thereof, and the City has agreed to permit encroachment of the Landscaped Areas in the public right-of-way, and entry thereon by the Master Developer and its contractors to perform the maintenance thereof, all in accordance with the terms of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the fbregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Master Developer and City agree as follows: I. AGREEMENT FOR LONG-TERM ENCROACHMENT IN PUBLIC RIGHT-OF-WAY. Master Developer is hereby granted permission to encroach in the maintained portions ol public righrof way parkways and medians as shown on Exhibit A for installation of the landscaping and related irrigation equipment and lor entry thereon for maintenance purposes during the Term of this Agreement. 5624-84058\AGRMrlr s l 769r.1 4t15Dt TEMPORARY MAINTENANCE AND ENCROACHMENT AGREEMENT(city Parkway, Medians, Future LMD Maintained Areas on private property along Audie Murphy Road - City Case Nos. lPl6-022L,IPl7-039L and IplT-041L) 2. MASTER DEVELOPER OBLIGATION TO MAINTAIN, REPAIR,REsroRE. During the Term of this Agreement, Master Developer shall, at its sole cost and expense, maintain and repair all the Landscaped Areas to the reasonable salisfaction ofthe City. Maintenance shall be consistenl with City maintenance standards, manufacturer's specilications for iffigation equipment and fixtures, and besl managoment practices fbr landscaping. The Masler Developer shall pay the cost of electrical utilities delivered to irrigation controllers and lighting and the cost of irrigation water delivered to the landscaping. Should the City or a utility company damage or remove any of the Landscaped Areas during the maintenance or repair of streets, sidewalks, curb and gutter, sewer, water, drainage or utility improvemenls, the Master Developer shall promptly restore the damaged Landscaped Areas at its sole cost and expense, unless such damage is caused by the negligence, gross negligence or willlul misconduct of thecity or utility company. The Master Developer shall also be responsible fbr the cost of restoration ol Landscaped Areas which are damaged by members of the public. 3. CITY'S RIGHT TO MAINTAIN. If Master Developer fails to maintain the Landscaped Areas as provided in Paragraph 2 above, the city may elect to take any and all steps necessary to assure that they are maintained in a reasonable condition. 3.1. [lMaster Developer's failure to maintain the Landscaped Areas results in a risk to public health and saf'ety, then the City may initiate (with concurent telephonic notice to Masler Developer) the nuisance abatement process under the city's Municipal Code. The city can obtain compensation from Master Developer or notify Master Developer to effect repairs within 24 hours. 3.2. If Master Developer's failure to maintain the Landscaped Areas does not create a public health and safety issue, then the City shall provide Master Developer with at least sixty (60) days' written notice ol its intent to take such steps to maintain the Landscaped Areas using its own lbrces (the "Notice Period"). The City shall serve a notice olits intent to take such steps to Master Developer or mail a copy olsuch notice by cefiified mail to Master Developer,s address as set lbfth in Paragraph 8 below. During the Notice Period, the City agrees that Master Developer shall have the right to cure any f-ailure to maintain. In the event that Master Developer has cured or has commenced the cure within the Notice Period, the City will have no further right to perform such maintenance with respect to the failure which was the subject of the notice. 4. REMEDIES. In addition to the City's step-in rights described in Paragraph 3 above, if Developer fails to maintain the Landscaped Areas as required above, the City may bring legal action to collect the amounts it has actually incurred in exercising its step-in rights to cure maintenance failures under Paragraph 3 above. ln such legal action, the substantially prevailing Party shall be entitled to a reasonable sum lbr attomeys' fees and court costs incurred. 5. INSURANCE. Master Developer. at Master Developer's sole expense, shall obtain and keep in force during the Term the following insurance coverages! with commercially acceptable deductibles: (1) a Commercial General Liabitity policy insuring against all liability of the Master Developer arising out olor in connection with this Agreement, which shall have a per ocourence limit of at least Two Million Dollars (S2,000,000) and an aggregate limit of at least Five Million Dollars ($5,000,000), shall name the City Indemnified Parties listcd in 1/t5/21 5624-84058\ACRMt\ I 5 I 769 t.l 2 Paragraph 6 as additional insureds, and shall be primary and non-contributing with any other insurance available to City; (2) Workers' Compensation insurance, including Employer's Liability coverage, in compliance with statutory requirements, and a Waiver of Subrogation in favor of City; and (3) Automobile Liability insurance covering all owned, hired, and non- owned aulomobiles using the Access Routes pursuant to this Agreement. which shall have a per occurrence limit of at least one Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars ($2,000,000), shatl name the City lndemnified Parties listed in Paragraph 6 below as additional insureds, and shall be primary and non-contributing with any other such insurance available to City. All general liability insurance and property damage insurance shall insure performance by the Master Developer of the indemnity. defense, protection and hold harmless provisions in this Agreement. The policy shall be written on an occurrence basis and shall include, at a minimum, bodily injury, property damage, personal inj ury and contractual liability. The limits of insurance liability shall not limit Master Developer's indemnification, defense, protection and/or hold harmless obligations under this Agreement. Each insurance policy required by this Agreement shall be evidenced by a certificate of insurance and Additional Insured Endorsement. If the Master Developer fails to procure or cause to be procured and maintained the required insurance, City may, but shall not be required to, procure and maintain such insurance, but at the expense of Master Developer. Insurance required by this Agreement shall be placed with and issued by companies rated A-; VII or better in the most current available "Best's Key Rating Guide." Concurrent with or prior to the commencemenl of the Term, Master Developer shall deliver to City certificate(s) of insurance evidencing the existence and amounts of such insurance. No policy shall be cancelled or coverage reduced prior to the end ol the Term. 6. INDEMNIFICATION. To the maximum extent permitted by law, the Master Developer shall indemnifo. defend and hold the City, its elected officials, officers, employees, agents and contractors (collectively, "City Indemnified Parties"), harmless from and against any and all losses, claims, liabilities, damages and/or expenses and costs the City may suffer or incur, due to or arising out of: (a) Master Developer's maintenance and/or operations of, or Master Developer's damage to, the Landscaped Areas; and/or (b) Master Developer's failure to comply with the provisions in this Agreement, except to the extent caused by the negligence or witlful misconduct of the City, its agents, contractors or employees. City acknowledges that the City rights-of-way are real property owned by the City, and except for the foregoing indemnity and the obligations of Master Developer under this Agreement, the rights-of'-way are the responsibility ofthe City for public liability purposes. 8. NOTICES. Any notice or other communications to be given or other documents to be delivered by any Party to the olher or others may be delivered by certiiied mail, retum receipt requested, or by Federal Express or any other nationally reputable courier guaranteeing 1t15t2t 5624-8405E\AGRMT\l 5 r 7691.3 3 7. TERM. The term of this Agreement ("Term") shall commence upon its full execution and delivery to the Parties and shall automatically terminate on the date on which the City accepts maintenance responsibility for the Landscaped Areas. Upon its termination, Master Developer shall have no further obligations under this Agreement except as to the indemnification provisions contained in Paragraph 6. overnight delivery, charges prepaid. All notices, communications and/or payments should be addressed to the Party lor whom intended, at the address specified below (subject to the right of the Parties to change their addresses liom time to time by written notice delivered to the other Parties): Il to Master Developer: 1000 Il to the City:City of Menif'ee Attention: Director of Public Works 29714 Haun Road Menifee, CA 92586 With a copy to:Rutan & Tucker, LLP I 8575 Jamboree Road, 9th Floor Irvine, CA 92612 Attention: Jelfrey T. Melching, Menifee City Attomey 9. MISCELLANEOUS 9.1. Attorneys' Fees. Ifany action shall be instituted in connection with this Agreement, then the Party prevailing in such action shall be entitled to recover from lhe other Party all of its costs ol action including reasonable attomeys' fees and expenses as fixed by the court therein. Any such attomeys' fees and other expenses incurred by either Party in entbrcing ajudgment in its favor under this Agreement shall be recoverable separately from and in addition to any other amount included in such judgment, and such attomeys' fees obligation is intended to be severable from the other provisions of this Agreement and to survive and not be merged into any sucl.r judgment. 9.2. Interpretation; Severability. This Agreement shall be construed in accordance with its tair meaning and as if prepared by both Parties. If any provision of this Agreement, or the application thereofto any Party or to any person or circumstance, shall be held invalid, void or illegal. the remaining provisions hereof and the application of such plovisions shall remain in full lorce and effect and shall not be afl'ected therebv. 9.3. Counterparts. This Agreement may be executed in any number of counterparts, each ol which shall be deemed an original, but all of which, when taken together, shall constitute one and the same document. 9.4. Titles and Captions. The titles and captions used in this Agreement are for convenience only and therefore do not constitute a part of this Agreement and do not amplify or limit the meaning of the provisions of this Agreement. Sutter Mitland 01 LLC c/o Brookfi eld Residential 3200 Park Center Drive, Suite Costa Mesa. C A 92626 Attn: Mr. Shaun Bowen 1/15/21 5624-84058\AGRMnr 5 I 769r.3 4 9.5. Integration. This Agreement sets Ibrth the entire agreement of the Parties with respect to the subject matter addressed and all prior negotiations, representations, warranties and discussions are superseded by the provisions ol this Agreement. 9.6. Number; Gender. Unless the context requires a contrary construction, the singular shall include the plural, and the masculine, l'eminine, and neuter shall alt include the masculine, feminine, and neuter. 9.1. Applicable Law. This Agreement shall be construed in accordance with the laws oI the State ol'Califomia. 9.8. No Partnership. Nothing in this Agreement shall be construed to constitute a partnership orjoint venture between the Parties. 9.9. Further Acts. The Parties hereto covenant and agree to take such further actions as may be necessary, from time to time, to carry ou1 the intent of this Agreement 9.10. Survival of Obligations. The obligations in Paragraph 6 shall survive the expiration or earlier termination of this Agreement. ISignature Page Follows.l 1/t5t2t 5624-84058\AGRMt\ I 5 I 7691.3 5 IN WITNESS WHEREOF, the Parties have executed this Agreement, which is effective as of Eifective Date first set forth above. MASTER DEVEI,0PF],R:SUTTERMITLANDOl LLC, comparDr--- By: print Name: DAVID E. BARTLETT Vice President Tirle: THE CITY OF MENIFEE, a California unlcl pal ratron CITY: ATTES ll ame hR. Title: J . Melchl City Attorney ( B Print Name: ritle: c:h4 Mavraqe/J f By Pri 5624-84058\AGRMT\l 5 I 7691.3 4/t5Dt € ftrnuudo-fLVrlq EXHIBIT A TO TEMPORARY MAINTENANCE AND ENCROACHMENT AGREEMENT APPROXIMA'I'I,] I,OCATIONS OF' LANDSCAPED AREAS 5624-84058\ACRMT\l 5 r769r.3 4/t5Dt {,7,I t/ qHIBIT A TO TET'PORARY MAIMTENANCE AND ENCROACHMENT AGREEMET{T LEOEXD!uueeeo \\\AAEAS ', AUDIE MURPHY ROAD NORTH - IP17-0391& IP17-0411 I i' E - - :+ 7 a CFD LANDSCAPE MAINTENANCE PREP^^ED FOR aROOl('rEL0f €9DEiITIAL