2021/07/30 Riverside, County Cooperative Agreement for Roadway and Signal Improvements at the Improvements at the Intersection of Leon Road and Scott Road (pending all signatures, not completed)COOPERATIVE AGREEMENT
between
COUNTY OF RIVERSIDE,
RIVERSIDE MITLAND 03 LLC (BROOKFIELD RESIDENTAL)
BEAZER HOMES — SOUTHERN CALIFORNIA,
INSTITUTIONAL HOUSING PARTNERS (IHP) DBA
GLOBAL INVESTMENT POOL, LLC,
CITY OF MENIFEE,
and
PERRIS UNION HIGH SCHOOL DISTRICT
for Roadway and Signal Improvements at the Intersection of
Leon Road and Scott Road
This Cooperative Agreement ("Agreement") entered into this _ day of
2021 by and between the County of Riverside, by and through its Department
of Transportation ("County"), Riverside Mitland 03 LLC (Brookfield) ("Brookfield"),
Beazer Homes — Southern California ("Beazer"), Global Investment Pool, LLC ("IHP"),
City of Menifee ("City") and the Perris Union High School District ("District"), for the
provision of certain roadway and signal improvements at the intersection of Leon Road
and Scott Road. The County, Brookfield, Beazer, IHP, the City and the District are
sometimes hereinafter referred to individually as "Party" and collectively as the "Parties."
RECITALS
WHEREAS, due to the District's planned construction of a new local high school, and the
residential developments planned for construction by Brookfield, Beazer and IHP in the
vicinity of the intersection all contributing to the traffic and increased use of surrounding
roadways, the Parties have determined that there is great need for roadway and signal
improvements ("Project Components") at the intersection of Leon Road and Scott Road, as
further described in Exhibit A ("Scope of Work");
WHEREAS, the District has already conducted a public bidding process and contracted for
the work required for the construction of the roadway and signal improvements at the
intersection ("Project") in connection with the planning and construction of the new high
school;
WHEREAS, the Parties desire to designate the County as the lead agency for the Project,
for purposes of compliance with the California Environmental Quality Act ("CEQA");
WHEREAS, the Parties desire to share in the funding for the Project as defined herein; and
WHEREAS, the Parties desire to define herein the terms and conditions under which the
Project is to be administered, coordinated, constructed, managed, maintained and funded.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and subject to the
conditions contained herein, the Parties hereby agree as follows:
SECTION 1 : DISTRICT AGREES:
To fund up to $692,650.00 toward the cost of the Project, as described in Exhibit A attached
hereto and incorporated by this reference. The estimated cost for the Project and each
Parry's share of costs are provided in Exhibit B attached hereto and incorporated herein.
2. That it has advertised, awarded and is administering a public works contract for the
construction of the Project in accordance with applicable local agency public works bidding
requirements, the Public Contract Code and California Labor Code.
To act as the lead agency for purposes of administering, coordinating, and managing
construction of the Project in accordance with the bid documents and the construction
contract previously signed between the District and its contractor, Roadway Engineering
("Construction Contract"), executed on March 20, 2019.
4. To provide utility coordination for the Project construction. If any existing public and/or
private utility facilities conflict with the Project construction, District shall make all
necessary arrangements with the owners of such facilities for their protection, relocation,
or removal. In the case that any utility companies are determined to have prior rights, the
cost of relocating utilities shall be borne by the Project and such costs will be divided
between the Parties as specified in Section 7.4, below.
To take all required actions, including but not limited to, checking shop drawings, preparing
estimates and reports, preparing as -built drawings, and other inspection and staff services
necessary to assure that the construction is performed in accordance with the Construction
Contract.
6. To construct the Project in accordance with the approved plans and specifications and
Construction Contract.
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7. In addition to the $692,650.00 share of the Project cost the District agrees to assume on its
own behalf, the District also agrees to assume responsibility for the payment of IHP's share
of the Project costs, as described in Section 5.1, below.
To furnish all Parties with a final reconciliation of the Project expenses within one hundred
twenty (120) days following the filing of the notices of completion for the Project.
SECTION 2 : COUNTY AGREES:
To fund up to $300,000.00 toward the cost of the Project, which amount includes the costs
attributable to CEQA review and approval described in Section 2.5, below.
2. To collect the amounts owed by each Party and retain such amounts in an interest bearing
escrow account ("County Account"), until reimbursed to the District as described in Section
2.3, below. The County shall collect a total of $1,101,350.00, and maintain such funds in
the County Account until they are reimbursed in full to the District pursuant to Section 2.3.
3. To reimburse the District in the amount of $1,101,350.00 from the County Account within
sixty (60) business days of receipt of full payment from the final Party to provide payment
under this Agreement in accordance with Sections 7.3 and 7.4, below, and receipt of wire
instructions from the District, whichever occurs later.
4. Notify Beazer within ten (10) business days of the County's receipt of this fully executed
Agreement, in a letter stating that any and all conditions of approval for the traffic signal
and widening improvements that are the subject of this agreement have been satisfied.
5. To serve as the lead agency for, and conduct all acts required for compliance with CEQA.
6. To provide plan check services for the plans, specifications and estimates for the portion of
the Project that includes the traffic signal within the County right-of-way, prepared by the
District.
7. To maintain the finished Project components that are within the County's right-of-way.
SECTION 3 : BROOKFIELD AGREES:
To fund up to $406,350.00 toward the cost of the Project, to be deposited into the County
Account pursuant to Sections 7.3 and 7.4 of this Agreement. Further, Brookfield agrees that
any such amounts deposited in the County Account pursuant to this Agreement shall be
reimbursed to the District by the County pursuant to the terms of this Agreement.
SECTION 4 : BEAZER AGREES:
To fund up to $165,000.00 toward the cost of the Project, to be deposited into the County
Account pursuant to Sections 7.3 and 7.4 of this Agreement. Further, Beazer agrees that
any such amounts it deposits in the County Account pursuant to this Agreement shall be
reimbursed to the District by the County pursuant to the terms of this Agreement.
SECTION 5 : IHP AGREES:
That while it is responsible for 33% of the cost of the Project under this Agreement through
its existing Condition of Approval for Tract Map 36785, pursuant to that certain Amended
and Restated School Facilities Funding and Mitigation Agreement ("A&R Mitigation
Agreement") executed between the District and Global Investment Pool, LLC on June 12,
2019, the District agreed to assume responsibility for IHP's share of costs under this
Agreement as specified in Section 6.6 of the A&R Mitigation Agreement. The District's
total costs for the Project, including its own share of cost for the Project as specified in
Section 1.1 and Exhibit B to this Agreement, shall not exceed $692,650.00. Should the
total sum of the District's and IHP's shares of the Project costs, as shown in Exhibit B,
exceed $692,650.00 IHP shall be responsible for depositing such additional amount into the
County Account as specified in Sections 7.3 and 7.4 below.
SECTION 6 : CITY AGREES:
To fund up to $230,000.00 toward the cost of the Project, to be deposited into the County
Account pursuant to Sections 7.3 and 7.4 of this Agreement. Further, the City agrees that
any such amounts it deposits in the County Account pursuant to this Agreement shall be
reimbursed to the District by the County pursuant to the terms of this Agreement.
2. To maintain the finished Project Components that are within the City's right-of-way.
SECTION 7: IT IS MUTUALLY AGREED AS FOLLOWS:
The total cost of the Project is estimated to be $1,794,000.00, including built-in
contingencies, as detailed in Exhibit B.
2. Upon full execution of this Agreement by all Parties, the District will send the County a
fully executed version of this Agreement by email and certified mail. Within twenty (20)
business days of the County's receipt of the fully executed Agreement, it shall send wiring
instructions and a fully executed copy of the Agreement to each Party.
Each Party agrees to deposit into the County Account its share of the Project costs, as
specified in Exhibit B, within twenty (20) business days of receipt of wiring instructions
from the County.
4. Each Party that fails to deposit its specified share of the Project costs in the County Account
within the time specified in Section 7.3 above, shall be responsible for a late fee of $500.00,
per day, for each day, from the twentieth (20t') business day after the date the County sent
the fully executed Agreement and wiring instructions, until the full amount of that Party's
share of the Project costs is deposited into the County Account. The District shall not be
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required to begin construction on the Project until the County has confirmed in writing the
receipt of all amounts owed under this Agreement.
Cost Underruns and Cost Overruns
A. Cost Underruns
The Parties agree that should circumstances arise which result in a decrease in costs
resulting in a surplus as compared to those costs shown in Exhibit B ("Cost Underruns"),
such Cost Underruns shall be distributed among the Parties in proportion to their
contributions to the Project, as set forth in Exhibit B, unless all Parties mutually agree
to another distribution methodology. Cost Underruns, if any, shall be distributed from
the County Account within one hundred twenty (120) days after certificates of
completion are filed for the Project.
B. Cost Overruns
The District, County, Brookfield, Beazer and IHP agree that should circumstances arise
which result in an excess of costs as compared to those costs shown in Exhibit B ("Cost
Overruns"), such parties agree to meet in good faith to determine how such Cost
Overruns will be distributed among them. The District, County, Brookfield, Beazer and
IHP agree to meet within ninety (90) days of the District's remittance of its final
reconciliation of the Project costs, which final reconciliation shall be provided by
District to each Party within one hundred twenty (120) days after certificates of
completion are filed for the Project. If there are Cost Overruns, supplemental payments
from the District, County, Brookfield, Beazer, and/or IHP shall be made once a
proportional distribution is agreed to by such parties. Such supplemental payments to
cover Cost Overruns shall be paid within thirty (30) days of reaching agreement as to
proportionate distribution. The City is under no obligation to participate in the meeting
regarding Cost Overruns described above and will not be required to contriubute to Cost
Overruns.
6. Indemnification
A. Basic Indemnity
1. The District agrees to defend, indemnify, and hold harmless (i) the County, its
Agencies, Districts, Departments and Special Districts, Board of Supervisors, elected
and appointed officials, and each of their respective directors, members officers,
employees, agents, volunteers and representatives ("County Indemnitees"), and (ii) the
City, its Boards, Commissions, Committees, City Council, elected and appointed
officials, and each of the City's employees, agents, volunteers and representatives ("City
Indemnitees"; collectively the "City Indemnitees" and the "County Indemnitees" are
referred to as the "Indemnitees") and each of them from any and all Losses (as defined
below) that arise out of or relate to any act or omission constituting ordinary negligence,
recklessness, or willful misconduct on the part of District or its contractors,
subcontractors or their respective employees, agents, representatives, or independent
contractors.
2. "Loss" and/or "Losses" shall mean any and all economic and non -economic losses,
costs, liabilities, claims, damages, actions, judgements, settlements and expenses,
including, without limitation, full and actual attorney's fees and expert witness fees.
3. District further agrees to and shall indemnify and hold harmless the Indemnitees
from all liability arising from suits, claims, demands, actions, or proceedings made by
agents, employees or subcontractors of District for salary, wages, compensation, health
benefits, insurance, retirement or any other benefit not explicitly set forth in this contract
and arising out of work performed pursuant to this contract.
B. Indemnity for Design Professional Services
1. To the fullest extent permitted by Applicable Law, District agrees to defend the
County (if the Loss is alleged against or sustained by the County) and/or the City (if the
Loss is alleged against or sustained by the City), indemnify and hold harmless the
Indemnitees, and each of them, against any and all Losses that arise out of, pertain to, or
relate to, any negligence, recklessness or willful misconduct constituting professional
negligence on the part of the District's contractors or subcontractors, or their respective
employees, agents, representatives, or independent contractors.
2. Without affecting the rights of Indemnitees under any other provision of this
Agreement, District shall not be required to indemnify or hold harmless or provide
defense or defense costs to an Indemnitee to the extent a Loss is determined to be due to
that Indemnitee's negligence, recklessness or willful misconduct.
3. District's indemnification obligations under this Agreement shall not be limited by
the amount or type of damages, compensation or benefits payable under any policy of
insurance, workers' compensation acts, disability benefit acts or other employee benefit
acts.
C. CEQA Indemnity
1. The District and the County agree to defend, indemnify, and hold harmless the City
and City Indemnitees from any and all Losses that arise out of or relate to any act or
omission constituting negligence, recklessness, or willful misconduct on the part of
County or its subcontractors or their respective employees, agents, representatives, or
independent contractors, for any work arising out of or relating to the performance of
any work, obligations or responsibilities under the California Environmental Quality Act
(Pub. Res. Code § 21000 et seq.).
7. Insurance
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A. Without limiting or diminishing the indemnification obligations in Section 7, above,
District agrees to procure and maintain or cause the Project contractor to maintain, at its
sole cost and expense, the following insurance coverage's during the term of this
Agreement. As respects to the insurance section only, (i) the County herein refers to the
County of Riverside, its Agencies, Districts, Special Districts, and Departments, their
respective directors, officers, Board of Supervisors, employees, elected or appointed
officials, agents or representatives as Additional Insureds, and (ii) the City herein refers
to the City of Menifee its Boards, Commissions, Committees, City Council, elected and
appointed officials, and each of the City's employees, agents, volunteers and
representatives as Additional Insureds.
1. Workers' Compensation: If the District has employees as defined by the State of
California, the District shall maintain statutory Workers' Compensation Insurance
(Coverage A) as prescribed by the laws of the State of California. Policy shall include
Employers' Liability (Coverage B) including Occupational Disease with limits not less
than $1,000,000 per person per accident. The policy shall be endorsed to waive
subrogation in favor of the County of Riverside and the City of Menifee.
2. Commercial General Liability: Commercial General Liability insurance coverage,
including but not limited to, premises liability, unmodified contractual liability, products
and completed operations liability, personal and advertising injury, and cross liability
overage, covering claims which may arise from or out of District's performance of its
obligations hereunder. Policy shall name the County and City as Additional Insureds.
Policy's limit of liability shall not be less than $1,000,000 per occurrence combined
single limit. If such insurance contains a general aggregate limit, it shall apply separately
to this agreement or be no less than two (2) times the occurrence limit.
3. Vehicle Liability: If vehicles or mobile equipment are used in the performance of
the obligations under this Agreement, then District shall maintain liability insurance for
all owned, non -owned or hired vehicles so used in an amount not less than $1,000,000
per occurrence combined single limit. If such insurance contains a general aggregate
limit, it shall apply separately to this agreement or be no less than two (2) times the
occurrence limit. Policy shall name the County and City as Additional Insureds.
4. General Insurance Provisions:
a. Any insurance carrier providing insurance coverage hereunder shall be
admitted to the State of California and have an A M BEST rating of not less than
A: VIII (A:8) unless such requirements are waived, in writing, by the County
Risk Manager and the City Risk Manager. If the County's Risk Manager and the
City's Risk Manager each waive a requirement for a particular insurer such
waiver is only valid for that specific insurer and only for one policy term.
b. The District must declare its insurance self -insured retention for each
coverage required herein. If any such self -insured retention exceed $500,000 per
occurrence each such retention shall have the prior written consent of the County
Risk Manager and the City Risk Manager before the commencement of
operations under this Agreement. Upon notification of self -insured retention
unacceptable to the County or the City, and at the election of the Country's Risk
Manager and the City Risk Manager, District's carriers shall either; (i) reduce or
eliminate such self -insured retention as respects this Agreement with the County
and the City, or (ii) procure a bond which guarantees payment of losses and
related investigations, claims administration, and defense costs and expenses.
C. District shall cause the applicable insurance carrier(s) to furnish the
County and the City with either 1) a properly executed original Certificate(s) of
Insurance and certified original copies of Endorsements effecting coverage as
required herein, and 2) if requested to do so orally or in writing by the County
Risk Manager or the City's Risk Manager, provide original Certified copies of
policies including all Endorsements and all attachments thereto, showing such
insurance is in full force and effect. Further, said Certificate(s) and policies of
insurance shall contain the covenant of the insurance carrier(s) that thirty (30)
days' written notice shall be given to the County and the City prior to any material
modification, cancellation, expiration or reduction in coverage of such insurance.
In the event of a material modification, cancellation, expiration, or reduction in
coverage, this Agreement shall terminate forthwith, unless the County and the
City each receive, prior to such effective date, another properly executed original
Certificate of Insurance and original copies of endorsements or certified original
policies, including all endorsements and attachments thereto evidencing
coverage's set forth herein and the insurance required herein is in full force and
effect. District shall not commence operations until the County and City have
each been furnished original Certificate(s) of Insurance and certified original
copies of endorsements and if requested, certified original policies of insurance
including all endorsements and any and all other attachments as required in this
Section. An individual authorized by the insurance carrier to do so on its behalf
shall sign the original endorsements for each policy and the Certificate of
Insurance.
d. It is understood and agreed to by the Parties hereto that the District's
insurance shall be construed as primary insurance, and neither County's nor
City's insurance and/or deductibles and/or self -insured retention's or self -insured
programs shall not be construed as contributory.
e. If, during the term of this Agreement or any extension thereof, there is a
material change in the scope of services; or, there is a material change in the
equipment to be used in the performance of the scope of work; or, the term of
this Agreement, including any extensions thereof, exceeds five (5) years; County
and City each reserve the right to adjust the types of insurance and the monetary
limits of liability required under this Agreement, if in the County Risk Manager's
or the City Risk Manager's reasonable judgment, the amount or type of insurance
carried by the District has become inadequate.
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f. District shall pass down the insurance obligations contained herein to all
tiers of contractors and subcontractors performing work on or related to the
Project.
g. The insurance requirements contained in this Agreement may be met with
a program(s) of self-insurance acceptable to the County and the City.
h. District agrees to notify County and City of any claim by a third Party or
any incident or event that may give rise to a claim arising from the performance
of this Agreement.
8. Ownership and title to all materials, equipment, and appurtenances installed as part of this
Agreement will automatically be vested with the jurisdiction for which the improvements
reside. No further Agreement will be necessary to transfer ownership.
9. No alteration or variation of the terms of this Agreement shall be valid unless made in
writing and signed by all Parties and no oral understanding or Agreement not incorporated
herein shall be binding on either Party hereto.
10. All Parties shall retain, or cause to be retained, all records and accounts relating to the
Project, for a period of three (3) years from the date of execution of this Agreement, for
audit purposes.
11. This Agreement and the exhibits herein contain the entire Agreement between the Parties,
and are intended by the Parties to completely state the Agreement in full. Upon completion
of this Agreement, the Parties have no further obligations to each other; provided, however,
that the indemnification and insurance requirements in Sections 7.6 and 7.7 shall remain
in effect for a period of one (1) year following completion of the agreement, and the records
retention requirements in Section 11 shall remain in effect for a period of 3 years from the
date of execution of the Agreement (regardless of the timing for completion of the
Agreement). Any Agreement or representation respecting the matters dealt with herein or
the duties of any Party in relation thereto, not expressly set forth in this Agreement, is null
and void.
12. Nothing in the provisions of this Agreement is intended to create duties or obligations to
or rights in third Parties not Party to this Agreement or affect the legal liability of the Parties
to this Agreement by imposing any standard of care with respect to the maintenance of
roads different from the standard of care imposed by law.
13. This Agreement may be executed in any number of counterparts, each of which will be an
original, but all of which together will constitute one instrument. Each Party of this
Agreement agrees to the use of electronic signatures, such as digital signatures that meet
the requirements of the California Uniform Electronic Transactions Act ("CUETA") (Cal.
Civ. Code §§ 1633.1 to 1633.17), for executing this Agreement. The Parties further agree
that the electronic signatures of the Parties included in this Agreement are intended to
authenticate this writing and to have the same force and effect as manual
signatures. Electronic signature means an electronic sound, symbol, or process attached to
or logically associated with an electronic record and executed or adopted by a person with
the intent to sign the electronic record pursuant to the CUETA as amended from time to
time. The CUETA authorizes use of an electronic signature for transactions and contracts
among Parties in California, including a government agency. Digital signature means an
electronic identifier, created by computer, intended by the Party using it to have the same
force and effect as the use of a manual signature, and shall be reasonably relied upon by
the Parties. For purposes of this section, a digital signature is a type of "electronic
signature" as defined in subdivision (i) of Section 1633.2 of the Civil Code.
14. All notices, demands, invoices, and other communications required or permitted hereunder
shall be in writing and delivered to the following addresses or such other address as the
Parties may designate.
To County: Riverside County Transportation Department
Attention: Mark Lancaster, Director of Transportation
Address: 4080 Lemon Street, 8th Floor
Riverside, CA 92501
Phone: (951) 955-6740
To Brookfield: Brookfield Residental
Attention: Shaun Bowen
Address: 3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Phone: (714) 200-1609
E-mail Address: shaun.bo_wen@brookfieldpropertiesdevelopment.com
To Beazer: Beazer Homes
Attention: Christopher Courtney
Address:310 Commerce, #150
Irvine, CA 92602
Phone: (714) 264-1524
E-mail Address: chris.courtney@beazer.com
To IHP: IHP DBA Global Investment Pool, LLC
Attention: Joseph Rivani
Global Investment Pool, LLC
Address: 3470 Wilshire Blvd, Suite 1020
Los Angeles, CA 90010
Phone: (213) 365-0405
Attention: Jeff Enes
IHP Capital Partners
10
100 Bayview Circle, Suite 1020
Newport Beach, CA 92660
Phone: (949) 851-2121
E-mail Address: ienes@ihpinc.com
To City: City of Menifee
Attention: Armando Villa, City Manager
29844 Haun Rd.
Menifee, CA 92586
Phone: (951) 672-6777
E-mail Address: avilla(a_)cityof nenifee.us
To District: Perris Union High School District
Attention: Candace Reines, Assistant Superintendent of Business Services
155 East 4th Street
Perris, CA 92570
Phone: (951)943-6369
E-mail Address: candace.reines@puhsd.org
[Signatures of Parties on Following Page]
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APPROVALS
COUNTY OF RIVERSIDE: PERRIS UNION HIGH SCHOOL
DISTRICT:
Date:
Name:
Title: Director of Transportation
APPROVED BY THE BOARD OF
SUPERVISORS:
Date:
Name: _
Title: Chairman, County Board of
Supervisors
BROOKFIELD:
Date:
Name: Candace Reines
Title: Assistant Superintendent
Business Services
APPROVED BY THE BOARD OF
TRUSTEES:
Date:
Name: Dr. Jose Luis Araux
Title: President, Board of Trustees
IHP:
Date:
Date:
Name:
Name:
Title:
Title:
BEAZER:
CITY OMF
Date:
Date: 7 -3 0 -2 /
Name:
Name: ARMaNv 0 e-- • ✓1 L-t
Title:
Title: G rTy NJ-4"4 aGR-.
APPROVED BY THE CITY
COUNCIL:
Date:
Name
Title:
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EXHIBIT A — SCOPE OF WORK
The County of Riverside Transportation Department ("County"), in partnering with the Perris
Union High School District ("District"), Brookfield Homes ('Brookfield"), Beazer Homes
('Beazer"), Global Investment Pool LLC ("IHP"), and City of Menifee ("City"), has taken the
role to act as the Lead Agency under the California Environmental Quality Act ("CEQA") for a
proposed traffic signal and roadway improvements Project within Menifee, California. All
Parties involved will contribute to an agreed upon monetary sum for the development of the
Project, with the District being the Party responsible for carrying out the construction of the
Project. The proposed Project was determined necessary due to planned construction of a new
local high school and residential developments in the vicinity of the intersection that will
contribute to the traffic and increased use of surrounding roadways. The proposed Project is as
defined by the scope of work within the Construction Contract (further described in Section
1.3, above).
No additional right-of-way will be required to construct the proposed improvements. No
temporary construction easements ("TCEs") will be required. The Project improvements will
be within the existing footprint of the roadway.
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EXHIBIT B — PROJECT COST ESTIMATE
District
Share of Project I I $692,650.00
Costs
Amount to be
Deposited in County
Account
County
City
Brookfield
Beazer
IHP
Totals:
$300,000.00
$230,000.00
$406,350.00
$165,000.00
*
$1,794,000.00
$300,000.00
$230,000.00
$406,350.00
$165,000.00
$1,101,350.00
* Pursuant to that certain Amended and Restated School Facilities Funding and
Mitigation Agreement executed June 12, 2019, between the District and Global
Investment Pool, LLC the District has agreed to assume responsibility of payment of
IHP's share of the costs for the Project.
628-117/6116082.1
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