2011/05/24 Riverside County Flood Control and Water Conservation District Amended - Menifee Valley Wickerd and Garbani Storm Drains121951
AMENDED AND RESTATED COOPERATIVE AGREEMENT
Menifee Valley -- Evans Road Channel "'
Menifee Valley —Quilt Way Storm D `-Jt Cf Flo. 11 -vy_ 1 ,orsarle Co. Transportation
Menifee Valley — Reed Court Storm Dram
Menifee Valley — Wickerd and Garbani Roads Strom Drain Lateral
(Project Nos.4-0-00395, 4-0-00398, 4-0-00399 and 4-0-00389)
4 (Tract No. 30142-1)
5 The RIVERSIDE COUNTY FLOOD CONTROL AND WATER
G CONSERVATION DISTRICT, hereinafter called "DISTRICT", the CITY OF MENIFEE,
7
hereinafter called "CITY", the COUNTY OF RIVERSIDE TRANSPORTATION
8
DEPARTMENT, hereinafter called "TRANSPORTATION", the COUNTY OF RIVERSIDE
1 �r ECONOMIC DEVELOPMENT AGENCY, hereinafter called "AGENCY", and KB HOME
1 COASTAL, INC., a California corporation, hereinafter called "DEVELOPER", hereby agree as
12 follows:
RECITALS
14 A. DEVELOPER has submitted for approval Tract No. 30142-1 in the City of
15
Menifee and as a condition for approval DEVELOPER must construct certain flood control
16
17 facilities in order to provide flood protection and drainage for DEVELOPER'S planned
18 development; and
19 B. The required facilities, all as shown in District Drawing Nos. 4-942 and 4-
20 1005, include:
2i
(i) approximately 2,100 lineal feet of earthen trapezoidal channel,
hereinafter called "CHANNEL" as shown in concept in purple on Exhibit "A" attached hereto
23
24 and made a part hereof;
25 (ii) four (4) underground storm drains, hereinafter altogether called
26 "STORM DRAINS", as shown in concept in red on Exhibit "A". Included among STORM
27 DRAINS are (a) approximately 205 lineal feet of reinforced concrete box identified as "QUILT
28 WAY STORM DRAIN", (b) approximately 320 lineal feet of underground storm drain
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1 identified as "REED COURT STORM DRAIN", (c) approximately 850 lineal feet of reinforced
2 concrete box and an associated inlet structure, all identified as "WICKERD AND GARBANI
3 ROADS STORM DRAIN LATERAL", and (d) approximately 150 feet of underground storm
4 drain lateral identified as "LINE A"; and
5 (iii) approximately 600 lineal feet of irregular earthen channel, hereinafter
6 called "OUTLET CHANNEL", as shown in concept in green on Exhibit "A". Together,
7 CHANNEL, STORM DRAINS and OUTLET CHANNEL are hereinafter called "DISTRICT
8
DRAINAGE FACILITIES'; and
9
10 C. Associated with the construction of CHANNEL is the construction of three
I I roadway culverts including (i) a six -cell culvert located at Craig Avenue, (ii) a ten -cell culvert
12 located at Quilt Way; and (iii) a six -cell culvert located at Yeoman Place, together hereinafter
13 called "ROAD CULVERTS", as shown in concept in blue on Exhibit "A"; and
14 D. Associated with the construction of CHANNEL, ROAD CULVERTS and
15 STORM DRAINS is the construction of certain catch basins, connector pipes and laterals
16
17 located within CITY held easements or rights of way, hereinafter called "APPURTENANCES".
18 Together, ROAD CULVERTS and APPURTENANCES are hereinafter called "CITY
19 DRAINAGE FACILITIES". Together, CITY DRAINAGE FACILITIES and DISTRICT
20 DRAINAGE FACILITIES, are hereinafter called "PROJECT"; and
21 E. Construction of PROJECT has commenced prior to execution of this
22 Agreement pursuant to the terms of a Right of Entry and Inspection Agreement, hereinafter
23
24 called "INSPECTION AGREEMENT", executed January 22, 2010, between DISTRICT and
25 DEVELOPER; and
26 F. DEVELOPER and CITY desire DISTRICT to accept ownership and
27 responsibility for the operation and maintenance of DISTRICT DRAINAGE FACILITIES.
28 Therefore, DISTRICT must review and approve DEVELOPER'S plans and specifications for
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PROJECT and subsequently inspect the construction of DISTRICT DRAINAGE FACILITIES;
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and
2
3 G. DEVELOPER and DISTRICT desire CITY to accept ownership and
4 responsibility for the operation and maintenance of CITY DRAINAGE FACILITIES and to
5 accept responsibility for performing "routine" day to day maintenance activities within
6 CHANNEL right of way. Therefore, CITY must review and approve DEVELOPER'S plans and
7 specifications for PROJECT and subsequently inspect the construction of CITY DRAINAGE
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FACILITIES; and
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10 H. DEVELOPER wishes to construct CHANNEL as a "green -belt" facility
11 that will utilize a bio-swale to treat runoff water for water quality purposes within DISTRICT'S
12 future CHANNEL right of way. DISTRICT is willing to allow CITY access and use of said
13 right of way for water quality and maintenance purposes provided CITY is willing to (i) accept
14 certain maintenance responsibilities within DISTRICT'S CHANNEL right of way as set forth
15 herein; and (ii) indemnify and hold DISTRICT harmless from any claims arising from CITY'S
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17 use of DISTRICT'S future CHANNEL right of way; and
18 I. DISTRICT is willing to (i) review and approve DEVELOPER'S plans and
19 specifications for PROJECT, (ii) inspect the construction of DISTRICT DRAINAGE
20 FACILITIES, and (iii) accept ownership and responsibility for the operation and maintenance of
21 DISTRICT DRAINAGE FACILITIES, provided DEVELOPER (i) complies with this
22 Agreement, (� �) pays 11 a s DISTRICT the amount specified herein to cover DISTRICT'S plan review
g
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24 and construction inspection costs, (iii) constructs PROJECT in accordance with plans and
25 specifications approved by DISTRICT and CITY, (iv) obtains all necessary permits, regulatory
26 permits, licenses and rights of entry as set forth herein, (v) obtains and conveys to DISTRICT
27 the necessary rights of way for the inspection, operation and maintenance of DISTRICT
28 DRAINAGE FACILITIES as set forth herein, and (vi) accepts ownership and responsibility for
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1 the operation and maintenance of PROJECT following completion of PROJECT construction
2 until such time as DISTRICT accepts ownership and responsibility for the operation and
3 maintenance of DISTRICT DRAINAGE FACILITIES and CITY accepts ownership and
4 responsibility for the operation and maintenance of CITY DRAINAGE FACILITIES; and
5 J. CITY is willing to (i) review and approve DEVELOPER'S plans and
6 specifications for PROJECT, (ii) accept and hold faithful performance and payment bonds
7 submitted by DEVELOPER for DISTRICT DRAINAGE FACILITIES, (iii) consent to the
8
9 recordation and conveyance of the Irrevocable Offer(s) of Dedication furnished by
10 DEVELOPER as provided herein, (iv) grant DISTRICT the right to inspect, operate and
11 maintain DISTRICT DRAINAGE FACILITIES within CITY rights of way, (v) inspect
12 construction of CITY DRAINAGE FACILITIES and CHANNEL, (vi) accept ownership and
13 responsibility for the operation and maintenance of CITY DRAINAGE FACILITIES, (vii)
14 accept responsibility for the performance of routine maintenance of CHANNEL, (viii) accept
15 sole responsibility for the operation and maintenance of CHANNEL'S water quality features
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17 following DEVELOPER'S completion of its responsibilities under the California Regional
18 Water Control Board's 401 Certification letter dated May 5, 2005, and (ix) indemnify and hold
19 DISTRICT harmless from any claims arising from CITY'S use of the proposed CHANNEL
20 right of way as set forth herein provided PROJECT is constructed in accordance with plans and
21 specifications approved by DISTRICT and CITY; and
22 K. On June 19, 2007, DISTRICT, TRANSPORTATION, AGENCY and
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24 DEVELOPER entered into a previous Agreement which was recorded July 25, 2007, as
25 Document No. 2007-048I879 in the Official Records of Riverside County, hereinafter called
26 "PREVIOUS AGREEMENT", pertaining to Tract No. 30142-1 and the construction, inspection
27 and acceptance of DISTRICT DRAINAGE FACILITIES, COUNTY DRAINAGE FACILITIES
28 and proposed public access and recreational amenities associated with PROJECT. However,
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DEVELOPER has not commenced construction of PROJECT under the terms of PREVIOUS
1
2 AGREEMENT. Consequently, DISTRICT has not accepted DISTRICT DRAINAGE
3 FACILITIES for ownership, operation and maintenance, TRANSPORTATION has not
4 accepted COUNTY DRAINAGE FACILITIES for ownership, operation and maintenance, and
5 AGENCY has not accepted responsibility for public access and amenities as set forth in
6 PREVIOUS AGREEMENT; and
7 L. CITY was incorporated on October 1, 2008, and has subsequently assumed
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many of the responsibilities formerly performed by TRANSPORTATION and/or AGENCY;
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and
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11 M. DISTRICT, CITY, TRANSPORTATION, AGENCY and DEVELOPER
12 mutually desire and agree that the provisions of this Agreement shall supersede all provisions of
13 PREVIOUS AGREEMENT.
14 NOW, THEREFORE, the parties hereto mutually agree as follows:
15
16 SECTION I
17 DEVELOPER shall:
18 1. Prepare plans and specifications for PROJECT, as shown on District
19
20 Drawing Nos. 4-942 and 4-1005, hereinafter called "IMPROVEMENT PLANS", in accordance
21 with DISTRICT and CITY standards, and submit them to DISTRICT and CITY for their review
22 and approval.
23 2. Continue to pay DISTRICT, within thirty (30) days after receipt of periodic
24 billings from DISTRICT, any and all such amounts as are deemed reasonably necessary by
25 DISTRICT to cover DISTRICT'S costs associated with the review of IMPROVEMENT
26 PLANS, review and approval of right of way and conveyance documents, and with the
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processing and administration of this Agreement.
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3. Deposit with DISTRICT (Attention: Business Office — Accounts
1
2 Receivable), at the time of providing written notice to DISTRICT of the start of DISTRICT
3 DRAINAGE FACILITIES construction as set forth in Section I.B., the estimated cost of
4 providing construction inspection for DISTRICT DRAINAGE FACILITIES, in an amount as
5 determined and approved by DISTRICT in accordance with Ordinance Nos. 671 and 749,
6 including any amendments thereto, of the County of Riverside, based upon the bonded value of
7 DISTRICT DRAINAGE FACILITIES.
8
4. Develop a design and implementation plan for the proposed bio Swale as
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10 required by the California Regional Water Control Board's 401 Certification letter dated May 5,
11 2005. DEVELOPER shall be responsible for meeting all final and intermediate success criteria
12 for establishment of the bio Swale for a minimum period of five (5) years, or as needed to meet
13 the success criteria, following completion of PROJECT including, but not limited to, planting,
14 maintenance, monitoring and reporting. DEVELOPER shall be responsible for all costs
15 incurred under the 401 Certification during this period.
16
17 5. Secure, at its sole cost and expense, all necessary licenses, agreements,
18 permits and rights of entry as may be needed for the construction, inspection, operation and
19 maintenance of DISTRICT DRAINAGE FACILITIES. DEVELOPER shall furnish
20 DISTRICT, at the time of providing written notice to DISTRICT of the start of construction as
21 set forth in Section I.B. or not less than twenty (20) days prior to recordation of the final map for
22 Tract No. 30142-1 or any phase thereof, whichever occurs first, with sufficient evidence of
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DEVELOPER having secured such necessary licenses, agreements, permits and rights of entry,
24
25 as determined and approved by DISTRICT.
26 6. Furnish DISTRICT with copies of all permits, approvals or agreements
27 required by any Federal or State resource and/or regulatory agency for the construction,
28 operation and maintenance of DISTRICT DRAINAGE FACILITIES. Such documents include
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1 but are not limited to those issued by the U.S. Army Corps of Engineers, California Regional
2 Water Quality Control Board, California State Department of Fish and Game, and State Water
3 Resources Control Board.
4 7. Provide CITY, at the time of providing written notification to DISTRICT
5 of the start of construction as set forth in Section I.B., or not less than twenty (20) days prior to
6 recordation of the final map for Tract No. 30142-1, whichever comes first, with faithful
7 performance and payment bonds, each in the amount of one hundred percent (100%) of the
8
9 estimated cost for construction of DISTRICT DRAINAGE FACILITIES as determined by
10 DISTRICT and CITY. The surety, amount and form of the bonds shall be subject to the
11 approval of DISTRICT and CITY. The bonds shall remain in full force and effect until
12 DISTRICT DRAINAGE FACILITIES are accepted by DISTRICT as complete; at which time
13 the bond amount may be reduced to 10% for a period of one year to guarantee against any
14 defective work, labor or materials.
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8. Notify DISTRICT in writing (Attention: Administrative Services) at least
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17 twenty (20) days prior to the start of construction of DISTRICT DRAINAGE FACILITIES.
18 Construction shall not begin on any element of DISTRICT DRAINAGE FACILITIES, for any
19 reason whatsoever, until DISTRICT has issued to DEVELOPER a written Notice to Proceed
20 authorizing DEVELOPER to commence construction of DISTRICT DRAINAGE FACILITIES.
21 9. Grant DISTRICT and CITY, by execution of this Agreement, the right to
22 enter upon DEVELOPER'S property where necessa
ry and convenient for the purpose of gaining
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access to, and performing inspection service for the construction of PROJECT as set forth
24
herein.
25
26 10. Obtain and provide DISTRICT, at the time of providing written
27 notification to DISTRICT of the start of construction of DISTRICT DRAINAGE FACILITIES
28 as set forth in Section I.B., or not less than twenty (20) days prior to the recordation of the final
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1 map for Tract No. 30142-1 or any phase thereof, whichever occurs first, with duly executed
2 Irrevocable Offer(s) of Dedication to the public for flood control and drainage purposes,
3 including ingress and egress, for the rights of way deemed necessary by DISTRICT for the
4 construction, inspection, operation and maintenance of DISTRICT DRAINAGE FACILITIES,
5 as shown in concept highlighted in purple and cross -hatched in red on Exhibit "B" attached
6 hereto and made a part hereof. The Irrevocable Offer(s) of Dedication shall be in a form
7 approved by DISTRICT and shall be executed by all legal and equitable owners of the property
8
described in the offer(s).
9
10 11. Furnish DISTRICT, when submitting the Irrevocable Offer(s) of
11 Dedication as set forth in Section I.10., with Preliminary Reports on Title dated not more than
12 thirty (30) days prior to date of submission of all the property described in the Irrevocable
13 Offer(s) of Dedication.
14 12. Furnish DISTRICT, at the time of providing written notice to DISTRICT
15
of the start of construction as set forth in Section I.B. with a complete list of all contractors and
16
17 subcontractors to be performing work on DISTRICT DRAINAGE FACILITIES, including the
18 corresponding license number and license classification of each. At such time, DEVELOPER
19 shall further identify in writing its designated superintendent for DISTRICT DRAINAGE
20 FACILITIES construction.
21 13. Furnish DISTRICT, at the time of providing written notice to DISTRICT
22 of the start of construction as set forth in Section I.B., a construction schedule which shall show
23
24 the order and dates in which the DEVELOPER or DEVELOPER'S contractor proposes to carry
25 on the various parts of work, including estimated start and completion dates. As construction of
26 DISTRICT DRAINAGE FACILITIES progresses, DEVELOPER shall update said construction
27 schedule as requested by DISTRICT.
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1 14. Furnish DISTRICT with final mylar IMPROVEMENT PLANS and assign
2 their ownership to DISTRICT at the time DISTRICT approves and signs said final mylar
3 IMPROVEMENT PLANS, and prior to the start of DISTRICT DRAINAGE FACILITIES
4 construction.
5 15. Not permit any change to or modification of IMPROVEMENT PLANS
6 without the prior written permission and consent of DISTRICT.
7 16. Comply with all Cal/OSHA safety regulations including reg
ulations
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concerning confined space and maintain a safe working environment for DEVELOPER and
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10 DISTRICT employees on the site.
11 17. Furnish DISTRICT, at the time of providing written notice to DISTRICT
12 of the start of construction as set forth in Section I.B. a confined space procedure specific to
13 DISTRICT DRAINAGE FACILITIES. The procedure shall comply with requirements
14 contained in California Code of Regulations, Title 8 Section 5158, Other Confined Space
15
Operations, Section 5157, Permit Required Confined Space and DISTRICT Confined Space
16
17 Procedures, SOM-18. The procedure shall be reviewed and approved by DISTRICT prior to the
18 issuance of a Notice to Proceed.
19 18. During the construction period of DISTRICT DRAINAGE FACILITIES,
20 provide Workers' Compensation Insurance in an amount required by law. A certificate of said
21 insurance policy shall be provided to DISTRICT, the County of Riverside and CITY at the time
22 of providing written notice pursuant to Section 1.8.
23
24 19. Commencing on the date notice is given pursuant to Section 1.8. and
25 continuing until DISTRICT accepts DISTRICT DRAINAGE FACILITIES for ownership,
26 operation and maintenance:
27 (a) Provide and maintain or cause its contractor(s) to provide and
28 maintain comprehensive liability insurance coverage which shall
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protect DEVELOPER from claim from damages for personal
1
injury, including accidental and wrongful death, as well as from
2
3
claims for property damage which may arise from DEVELOPER'S
4
construction of PROJECT or the performance of its obligations
5
hereunder, whether such construction or performance be by
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DEVELOPER, by any of its contractors, subcontractors, or by
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anyone employed directly or indirectly by any of them. Such
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insurance shall name DISTRICT, the County of Riverside and
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CITY as additional insureds with respect to this Agreement and the
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obligations of DEVELOPER hereunder. Such insurance shall
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provide for limits of not less than two million dollars ($2,000,000)
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per occurrence.
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(b) Cause its insurance carrier(s) or its contractor's insurance carrier(s),
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who shall be authorized by the California Department of Insurance
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to transact the business of insurance in the State of California, to
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furnish DISTRICT, the County of Riverside and CITY at the time
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of providing written notice to DISTRICT of the start of
2.0
construction as set forth in Section I.8. with certificate(s) of
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insurance and applicable policy endorsements showing that such
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insurance is in full force and effect and that DISTRICT, the County
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of Riverside and CITY are named as additional insureds with
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respect to this Agreement and the obligations of DEVELOPER
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hereunder. Further, said certificate(s) shall state that the issuing
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company shall give DISTRICT, the County of Riverside and CITY
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sixty (60) days written notice in the event of any cancellation,
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1 termination, non -renewal or reduction in coverage of the policies
2 evidenced by the certificate(s). In the event of any such
3 cancellation, termination, non -renewal or reduction in coverage,
4 DEVELOPER shall, forthwith, secure replacement insurance
5 meeting the provisions of this paragraph.
6 Failure to maintain the insurance required by this paragraph shall be
7 deemed a material breach of this Agreement and shall authorize and constitute authority for
8
DISTRICT, at its sole discretion, to proceed to perform the remaining work pursuant to Section
9
VI.3.
10
11 20. Construct or cause to be constructed, PROJECT at DEVELOPER'S sole
12 cost and expense in accordance with DISTRICT and CITY approved IMPROVEMENT
13 PLANS.
14 21. Within two weeks of completing PROJECT construction, provide
15 DISTRICT with written notice (Attention: Contract Administration Section) that PROJECT
16
17 construction is substantially complete and requesting that DISTRICT conduct a final inspection
18 of DISTRICT DRAINAGE FACILITIES.
19 22• Upon completion of PROJECT construction and upon acceptance by CITY
20 of all street rights of way deemed necessary by DISTRICT and CITY for the operation and
21 maintenance of PROJECT, but prior to DISTRICT acceptance of DISTRICT DRAINAGE
22 FACILITIES for ownership, operation and maintenance, convey or cause to be conveyed to
23
DISTRICT fee simple title, in a form approved by DISTRICT, to the rights of way as shown in
24
25 concept shaded in purple and cross -hatched in red in Exhibit "B".
26 23. At the time of recordation of the conveyance document(s) as set forth in
27 Section I.22., furnish DISTRICT with policies of title insurance, each in the amount of not less
28 than one hundred percent (100%) of the estimated fee value, as determined by DISTRICT, for
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1 each fee parcel to be conveyed to DISTRICT, guaranteeing DISTRICT'S interest in said
2 property as being free and clear of all liens, encumbrances, assessments, easements, taxes and
3 leases (recorded or unrecorded), except those which, in the sole discretion of DISTRICT, are
4 deemed acceptable.
5 24. Accept ownership and sole responsibility for the operation and
6 maintenance of PROJECT until such time as DISTRICT accepts ownership and responsibility
7 for operation and maintenance of DISTRICT DRAINAGE FACILITIES and CITY accepts
8
9 ownership and responsibility for operation and maintenance of CITY DRAINAGE
10 FACILITIES. Further, it is mutually understood by the parties hereto that prior to DISTRICT
11 acceptance of ownership and responsibility for the operation and maintenance of DISTRICT
12 DRAINAGE FACILITIES, PROJECT shall be in a satisfactorily maintained condition as solely
13 determined by DISTRICT.
14 25. Pay, if suit is brought upon this Agreement or any bond guaranteeing the
15
completion of DISTRICT DRAINAGE FACILITIES, all costs and reasonable expenses and
16
17 fees, including reasonable attorneys' fees, and acknowledge that, upon entry of judgment, all
18 such costs, expenses and fees shall be computed as costs and included in any judgment
19 rendered.
20 26. Upon completion of construction of PROJECT but prior to DISTRICT
21 acceptance of DISTRICT DRAINAGE FACILITIES for ownership, operation and maintenance,
22 DEVELOPER'S civil engineer of record or construction civil engineer of record, duly registered
23
24 in the State of California, shall provide DISTRICT a redlined "record drawing" copy of
25 IMPROVEMENT PLANS. After DISTRICT approval of the redlined "record drawing",
26 DEVELOPER'S engineer shall schedule with DISTRICT a time to transfer the redlined changes
27 onto DISTRICT'S original mylars at DISTRICT'S office, after which, the engineer shall review,
28 stamp and sign the original IMPROVEMENT PLANS "RECORD DRAWING."
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1 27. 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 and Professions Code, and Water Code. DEVELOPER shall be solely responsible for all costs
5 associated with compliance with applicable laws and regulations.
6 SECTION II
7 DISTRICT shall:
8
9 1. Review and approve IMPROVEMENT PLANS prior to the start of
10 DISTRICT DRAINAGE FACILITIES construction.
11 2. Provide CITY an opportunity to review and approve IMPROVEMENT
12 PLANS prior to DISTRICT'S final approval.
13 3. Upon execution of this Agreement, record or cause to be recorded, a copy
14 of this Agreement in the Official Records of the Riverside County Recorder.
15
4. Record, or cause to be recorded, the Irrevocable Offer(s) of Dedication
16
17 provided by DEVELOPER pursuant to Section I.10.
18 5. Inspect DISTRICT DRAINAGE FACILITIES construction.
19 6. Keep an accurate accounting of all DISTRICT costs associated with the
20 review and approval of IMPROVEMENT PLANS, the review and approval of right of way and
21 conveyance documents and the processing and administration of this Agreement.
22
7. Keep an accurate accounting of all DISTRICT construction inspection
23
24 costs, and within forty-five (45) days after DISTRICT acceptance of DISTRICT DRAINAGE
25 FACILITIES as being complete, submit a final cost statement to DEVELOPER. If the deposit,
26 as set forth in Section I.3. exceeds such costs, DISTRICT shall reimburse DEVELOPER the
27 excess amount within sixty (60) days after DISTRICT acceptance of DISTRICT DRAINAGE
28 FACILITIES as being complete. If at any time the costs exceed the deposit or are anticipated
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1 by DISTRICT to exceed the deposit, DEVELOPER shall pay such additional amount(s), as
2 deemed reasonably necessary by DISTRICT to complete the inspection of DISTRICT
3 DRAINAGE FACILITIES, within thirty (30) days after receipt of billing from DISTRICT.
4 8. Accept ownership and responsibility for the operation and maintenance of
5 DISTRICT DRAINAGE FACILITIES, upon (i) DISTRICT acceptance of PROJECT
6 construction as being complete, (ii) recordation of all conveyance documents described in
7 Section I.22., and (iii) acceptance by CITY of all necessary street rights of way as deemed
8
9 necessary by DISTRICT and CITY for the operation and maintenance of PROJECT.
10 9. By execution of this Agreement, grant CITY the necessary rights to
11 inspect, operate and maintain those portions of ROAD CULVERTS, if any, located within
12 DISTRICT'S CHANNEL right of way.
13 10. By execution of this Agreement, grant CITY and DEVELOPER, their
14 agents and contractors, the necessary rights to enter upon DISTRICT'S CHANNEL right of way
15
for the purpose of performing their maintenance responsibilities as set forth herein.
16
17 11. Accept sole responsibility for maintaining CHANNEL'S line, grade and
18 appurtenant structures such that CHANNEL functions as a flood control facility at its design
19 level.
20 12. Provide CITY with a reproducible duplicate copy of "record drawing"
21 IMPROVEMENT PLANS upon DISTRICT acceptance of DISTRICT DRAINAGE
22 FACILITIES as being complete.
23
SECTION III
24
25 TRANSPORTATION shall:
26 1. Not have any responsibilities under this Agreement and shall be relieved of
27 all responsibilities set forth in PREVIOUS AGREEMENT.
28
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SECTION IV
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AGENCY shall:
1. Not have any responsibilities under this Agreement and shall be relieved of
all responsibilities set forth in PREVIOUS AGREEMENT.
SECTION V
CITY shall:
1. Review and approve IMPROVEMENT PLANS prior to the start of
PROJECT construction.
2. Accept CITY and DISTRICT approved faithful performance and payment
bonds submitted by DEVELOPER as set forth in Section I.7. and hold said bonds as provided
herein.
3. Inspect construction of CITY DRAINAGE FACILITIES and CHANNEL.
4. Consent, by execution of this Agreement, to the recording of any
Irrevocable Offer(s) of Dedication furnished by DEVELOPER pursuant to this Agreement.
5. As requested by DISTRICT, accept the Irrevocable Offer(s) of Dedication
as set forth herein, and any other outstanding offers of dedication necessary for the construction,
inspection, operation and maintenance of DISTRICT DRAINAGE FACILITIES, and convey
sufficient rights of way to DISTRICT to allow DISTRICT to construct, inspect, operate and
maintain DISTRICT DRAINAGE FACILITIES.
6. Grant DISTRICT, by execution of this Agreement the right to construct,
inspect, operate and maintain DISTRICT DRAINAGE FACILITIES within CITY rights of way.
7. Accept ownership and sole responsibility for the operation and
maintenance of CITY DRAINAGE FACILITIES upon DISTRICT acceptance of DISTRICT
DRAINAGE FACILITIES as being complete.
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8. Upon DISTRICT acceptance of CHANNEL for ownership, operation and
1
maintenance, accept sole responsibility for routine day to day maintenance of CHANNEL
2
3 including but not limited to, removal of trash and debris, performing graffiti removal and
4 vegetation control including any necessary mowing, cutting and weed abatement associated
5 therewith.
6 9. Upon DISTRICT acceptance of CHANNEL for ownership, operation and
7 maintenance, accept sole responsibility, with the exception of DEVELOPER'S 401 Certification
8
bio swale responsibilities set forth in Section IA., for maintenance of any water quality features
9
10 located within DISTRICT'S CHANNEL right of way, including but not limited to, repairing
11 and/or replacing pathways, access roads, landscaping and the routine removal of accumulated
12 litter, trash and debris associated with CITY'S use of CHANNEL right of way.
13 10. Not construct any structures or improvements or cause any change to or
14 modification within DISTRICT'S CHANNEL right of way without obtaining the prior written
15 permission and consent of DISTRICT.
16
11. Remove any unauthorized structures or improvements or cease any
17
18 interfering use upon receipt of a written notification from DISTRICT in the event DISTRICT'S
19 General Manager -Chief Engineer determines that such structures or improvements or use of
20 DISTRICT'S CHANNEL right of way in any way interfere with CHANNEL'S primary purpose
21 and function.
22 12. Recognize that CHANNEL is an active watercourse and, hence,
23
DISTRICT'S CHANNEL right of way will be subject to periodic flooding, flood hazards and
24
possible flood damage.
25
26 13. Assume all liability in conjunction with the CITY'S use of DISTRICT'S
27 CHANNEL right of way including claims of third persons for injury or death or damage to
28 property. Said obligation shall not include any inverse condemnation liability of CITY by
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reason of location of CHANNEL or DISTRICT'S improvements thereto unless such Iiability is
1
the result of use of the property pursuant to CITY'S actual or tacit consent.
2
3 14. Upon DISTRICT acceptance of CHANNEL for ownership, operation and
4 maintenance, accept sole responsibility for providing public security and safety in conjunction
5 with the CITY'S use of DISTRICT'S CHANNEL right of way.
6 15. Ensure the safety of all persons who may use CHANNEL right of way by
7 conducting regular safety inspections and promptly repairing any damage to DISTRICT'S
8 CHANNEL right of way that may be necessary
g y y to ensure the safety of the public.
9
10 16. Repair any damage to CHANNEL right of way resulting from CITY'S use
11 thereof,
12 SECTION VI
13 It is further mutually agreed:
14 1. All work involved with DISTRICT DRAINAGE FACILITIES shall be
15 inspected by DISTRICT and shall not be deemed complete until approved and accepted in
16
writing as complete by DISTRICT.
17
18 2. CITY and DEVELOPER personnel may observe and inspect all work
19 being done on DISTRICT DRAINAGE FACILITIES, but shall provide any comments to
20 DISTRICT personnel who shall be solely responsible for all quality control communications
21 with DEVELOPER'S contractor(s) during the construction of DISTRICT DRAINAGE
22 FACILITIES.
23
3. DEVELOPER shall complete construction of DISTRICT DRAINAGE
24
25 FACILITIES within twelve (12) consecutive months after execution of this Agreement and
26 within one hundred twenty ( 120) consecutive calendar days after commencing work on
27 DISTRICT DRAINAGE FACILITIES. It is expressly understood that since time is of the
28 essence in this Agreement, failure of DEVELOPER to perform the work within the agreed upon
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time shall constitute authority for DISTRICT to perform the remaining work and require
1
2 DEVELOPER'S surety to pay to CITY the penal sum of any and all bonds. In which case,
3 CITY shall subsequently reimburse DISTRICT for DISTRICT costs incurred.
4 4. DISTRICT shall endeavor to issue DEVELOPER a Notice to Proceed
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
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10 Proceed, DEVELOPER may elect to furnish an independent qualified construction inspector at
I I DEVELOPER'S sole cost and expense. DEVELOPER shall furnish appropriate documentation
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 DISTRICT DRAINAGE FACILITIES
16
17 construction and quality control matters. if DEVELOPER'S initial construction inspection
18 deposit furnished pursuant to Section I.3. exceeds ten thousand dollars ($10,000), DISTRICT
19 shall refund to DEVELOPER up to eighty percent (80%) of DEVELOPER'S initial inspection
20 deposit within forty-five (45) days of DISTRICT'S approval of DEPUTY INSPECTOR;
71 however, a minimum balance of ten thousand dollars ($10,000) shall be retained on account.
22 5. DISTRICT DRAINAGE FACILITIES construction work shall be on a five
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(5) day, forty (40) hour work week with no work on Saturdays, Sundays or DISTRICT
24
25 designated legal holidays, unless otherwise approved in writing by DISTRICT. If
26 DEVELOPER feels it is necessary to work more than the normal forty (40) hour work week or
27 on holidays, DEVELOPER shall make a written request for permission from DISTRICT to
28 work the additional hours. The request shall be submitted to DISTRICT at least 72 hours prior
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to the requested additional work hours and state the reasons for the overtime and the specific
1
time frames required. The decision of granting permission for overtime work shall be made by
2
3 DISTRICT at its sole discretion and shall be final. If permission is granted by DISTRICT,
4 DEVELOPER will be charged the cost incurred at the overtime rates for additional inspection
5 time required in connection with the overtime work in accordance with Ordinance Nos. 671 and
6 749, including any amendments thereto, of the County of Riverside.
7 6. DEVELOPER shall not request DISTRICT to accept any portion or
8 portions of DISTRICT DRAINAGE FACILITIES or CITY to accept any portion or portions of
9
CITY DRAINAGE FACILITIES prior to completion of PROJECT construction.
10
11 7. DEVELOPER shall indemnify and hold harmless DISTRICT and CITY
12 (including their agencies, districts, special districts and departments, their respective directors,
13 officers, Board of Supervisors, elected and appointed officials, employees, agents and
14 representatives) from any liability, claim, damage, proceeding or action, present or future, based
15 upon, arising out of or in an way relating to DEVELOPER'S (including its officers employees, P g Y Y g (� g�
16
subcontractors and agents) actual or alleged acts or omissions related to this Agreement,
17
18 performance under this Agreement, or failure to comply with the requirements of this
19 Agreement, including but not limited to: (a) property damage; (b) bodily injury or death; (c)
20 liability or damage pursuant to Article I, Section 19 of the California Constitution, the Fifth
21 Amendment of the United States Constitution or any other law, ordinance or regulation caused
22 by the diversion of waters from the natural drainage patterns or the discharge of drainage within
23
or from PROJECT; or (d) any other element of any kind or nature whatsoever.
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25 DEVELOPER shall defend, at its sole expense, including all costs and fees
26 (including but not limited to attorney fees, cost of investigation, defense and settlements or
27 awards), DISTRICT and CITY (including their agencies, districts, special districts and
28 departments, their respective directors, officers, Board of Supervisors, elected and appointed
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officials, employees, agents and representatives) in any claim, proceeding or action for which
1
indemnification is required.
2
3 With respect to any of DEVELOPER'S indemnification requirements,
4 DEVELOPER shall, at its sole cost, have the right to use counsel of its own choice and shall
5 have the right to adjust, settle, or compromise any such claim, proceeding or action without the
6 prior consent of DISTRICT or CITY; provided, however, that any such adjustment, settlement
7 or compromise in no manner whatsoever limits or circumscribes DEVELOPER'S
8
indemnification obligations to DISTRICT or CITY.
9
10 DEVELOPER'S indemnification obligations shall be satisfied when
11 DEVELOPER has provided to DISTRICT and CITY the appropriate form of dismissal (or
12 equivalent document) relieving DISTRICT and/or CITY from any liability for the claim,
13 proceeding or action involved.
14 The specified insurance limits required in this Agreement shall in no way
15 limit or circumscribe DEVELOPER'S obligations to indemnify and hold harmless DISTRICT
16
and CITY from third party claims.
17
18 In the event there is conflict between this section and California Civil Code
19 Section 2782, this section shall be interpreted to comply with Civil Code 2782. Such
20 interpretation shall not relieve the DEVELOPER from indemnifying DISTRICT or CITY to the
21 fullest extent allowed by law.
22 8. Any waiver by DISTRICT or by CITY of any breach of any one or more of
23
the terms of this Agreement shall not be construed to be a waiver of any subsequent or other
24
25 breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY to
26 require exact, full and complete compliance with any terms of this Agreement shall not be
27 construed as in any manner changing the terms hereof, or estopping DISTRICT or CITY from
28 enforcement hereof.
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9. If any provision in this Agreement is held by a court of competent
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I jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless
continue in full force without being impaired or invalidated in any way.
10. DISTRICT and CITY each pledge to cooperate in regard to the operation
and maintenance of their respective facilities as set forth herein, and to discharge their
I respective maintenance responsibilities in an expeditious fashion so as to avoid the creation of
any nuisance condition or undue maintenance impact upon the others' facilities.
f of California.
11. This Agreement is to be construed in accordance with the laws of the State
12. Any and all notices sent or required to be sent to the parties of this
Agreement will be mailed by first class mail, postage prepaid, to the following addresses:
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
1995 Market Street
Riverside, CA 92501
Attn: Contract Administration Section
KB HOME COASTAL, INC.
36310 Inland Valley Drive
Wildomar, CA 92595
Attn: Tim Roberts
COUNTY OF RIVERSIDE
Attn: Transportation Department
Post Office Box 1090
Riverside, CA 92502-1090
CITY OF MENIFEE
Attn: City Manager
29714 Haun Road
Menifee, CA 92586
COUNTY SERVICE AREA 145
Post Office Box 1180
Riverside, CA 92502-1180
Attn: Bill Brown
13. Any action at law or in equity brought by any of the parties hereto for the
purpose of enforcing a right or rights provided for by this Agreement, shall be tried in a court of
competent jurisdiction in the County of Riverside, State of California, and the parties hereto
waive all provisions of law providing for a change of venue in such proceedings to any other
county.
26
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14. This Agreement is the result of negotiations between the parties hereto, and
the advice and assistance of their respective counsel. The fact that this Agreement was prepared
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121951
as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty
or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT
prepared this Agreement in its final form.
15. The rights and obligations of DEVELOPER shall inure to and be binding
upon all heirs, successors and assignees.
16. DEVELOPER shall not assign or otherwise transfer any of its rights, duties
or obligations hereunder to any person or entity without the written consent of the other parties
hereto being first obtained. In the event of any such transfer or assignment, DEVELOPER
expressly understands and agrees that it shall remain liable with respect to any and all of the
obligations and duties contained in this Agreement.
17. The individual(s) executing this Agreement on behalf of DEVELOPER
hereby certify that they have the authority within their respective company(ies) to enter into and
execute this Agreement, and have been authorized to do so by any and all boards of directors,
legal counsel, and or any other board, committee or other entity within their respective
company(ies) which have the authority to authorize or deny entering into this Agreement.
18. This Agreement is intended by the parties hereto as a final expression of
their understanding with respect to the subject matter hereof and as a complete and exclusive
statement of the terms and conditions thereof and supersedes any and all prior and
contemporaneous agreements and understandings, oral or written, in connection therewith. This
Agreement may be changed or modified only upon the written consent of the parties hereto.
H
-22-
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
Meal 29 4 2011
(to be filled in by Clerk of the Board)
RECOMMENDS O PPROVAL• D RSIDE COUNTY FLD CONTROL
WATER ONSERVA ION DISTRICT
By BY
WA N D. WILLIAMS MARION A HLEY, Chairman
General Manager -Chief Engineer Riverside County Flood Control and Water
Conservation District Board of Supervisors
APPROVED AS TO FORM:
PAMELA J. WALLS
County C nseI
By
NEAL R. KIPNIS ()
Deputy County Counsel
RECO ENDED FOR APPROVAL:
By
JU C. PEREZ
Director of Transportation
RECO N D FOR APPROVAL:
By
ROB FIELD
Assistant County Executive Officer/EDA
ATTEST:
KECIA HARPER-IHEM
Clerk AtmhBo.ard
By
Deputy
(SEAL)
COUNTY OF RIVERSIDE
By ;�-22G
BOB BUSTER, Chairman
County of Riverside Board of Supervisors
ATTEST:
KECIA HARPER-IHEM
Clerk of the Board
By
Deputy
WA$&_'�
(SEAL)
Amended and Restated Cooperative Agreement: Tract No. 30142-1
JPS:blj
3/31/10
- 23 -
MAY 2 4 2011 11,E
121951
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RECOMM .NDE FOR APPROVAL:
By 4t 7
STLeVLf HrIN
G
City Mafia
APPROVED AS TO FORM:
By
City Attorney
CITY OF MENiF + I;
By
-(-�2-&O—Ao
WALLACE W. EDGER
Mayor
ATTEST:
KATHY BENNETT
City Clerk
By c.L.
(SEAL)
Amended and Restated Cooperative Agreement: Tract No. 30142-1
JPS:blj
3/31/10
-24-
121951
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KB HOMP COASTAL, INC.
a Calif n' .corporation /3
CHAEL H. FREEMA3d, JR.
ice President, Land and Forward Planning
(ATTACH NOTARY WITH
CAPACITY STATEMENT)
Amended and Restated Cooperative Agreement: Tract No. 30142-1
JPS:blj
3/31/10
-25-
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Riverside
On Jul 2y 1, 2010 before me, Richard R. Keller, Notary Public, personally
appeared Michael H. Freeman, Jr., who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that he/sey
executed the same in his/heytheir authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
r ulcl,;V � R. KF.tl.F.R
Comes.&* nn # 17191 40
�x 1sn4nry Public - California
R{verslde Conly
MvComm. Exp1resJar1?1, 20111.
Richard R. Keller
Exhibit A
NEWPORT
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Cooperative Agreement
Tract No. 30142-1
1/2
Exhibit A
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APPn4,��f�i��:
Cooperative Agreement
Tract No. 30142-1
2/2
Exhibit B
LE
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Cooperative Agreement
Tract No. 30142-1
1/2
Exhibit B
CRAIG AVE.
— — — — — --1
Cooperative Agreement
Tract No. 30142-1
RED
2/2