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2018/02/27 Riverside County Flood Control and Water Conservation District Salt Creek (2)I 2 3 4 5 6 7 8 9 l0 ll 12 l3 l4 15 t6 17 l8 l9 20 2t 22 23 24 25 26 2'l 28 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. 4-0-0037 7, 4-0-00378, 4-0-00379 and 4-0-00 1 42 Tract No. 3 1822 The Riverside County Flood Control and Water Conservation District, a body politic ("DISTRICT"), the City of Menifee, a municipal corporation of the State of California ('CITY'), Sutter Mitland 01 LLC, a Delaware limited liability company (,DEVELOPER,), hereby agree as follows: RECITALS A. DEVELOPER is the legal owner of record of certain real property located within the County of Riverside. DEVELOPER has submitted for approval Tract No. 31822 located in the City of Menifee. As a condition of approval for Tract No. 31822, DEVELOPER must construct certain flood control facilities in order to provide flood protection and drainage for DEVELOPER's planned development; and B. The required flood control facitities and drainage improvements, as shown in concept on Exhibit 'A", attached hereto and made a part hereof, and as shown on District Drawing No. 4-1100, includes: i) Approximately 97 lineal feet of underground storm drain system ('LINE C-10"). At its upstrearn terminus, LINE C-l0 will connect to proposed storm drain facility for Parcel Map No. 32269; ii) Approximately 1,230 lineal feet of underground storm drain system ('LINE C-9"). At its upstream terminus, LINE C-9 will connect to proposed storm drain facility for Parcel Map No. 32269; l-!€c t%oool FEB 2 7 2018 1l Ll' 2 | 80l0 I C , t r,..-l 2t80t0 iii) Approximately 2,120 lineal feet of underground storm drain system ('LINE C-7'). At its upsteam terminus, LINE C-7 will connect to proposed storm drain facility for Parcel Map No. 32269; irr) Approximately 399 tineal feet of underground storm drain system ("LINE-AX'). At its upstream terminus, LINE-AX will connect to DISTRICT existing Salt Creek - Clover Street Storm Drain, Stage 3 facility, as shown on DISTRICT's As-Built Drawing No. 4-0806. At its downstream terminus, LINE-AX will connect to DISTRICT existing Salt Creek - Clover Street Storm Drain, Stage 2 facility, as shown on DISTRICT's As-Built Drawing No. 4-0762. True and correct copies of the District-approved district drawings are public records that are within District's possession, and can be made available upon request. Together, LINE C-10, LINE C-9, LINE C-7 and LINE- AX are called'DISTRICT FACILITIES"; and C. Associated with the construction of DISTRICT FACILITIES is the construction of (i) approximately 88 lineal feet of 42-inch reinforced concrete/comrgated metal pipe; and (ii) certain catch basins, connector pipes, headwalls, inlets, riprap structures, debris basin, maintenance access road and various lateral storm drains that are thirty-six inches (36") or less in diameter that are located within CITY held easements or rights of way ('APPURTENANCES"). Together, DISTRICT FACILITIES and APPURTENANCES are hereinafter called "PROJECT"; and D. DEVELOPER and CITY desire DISTRICT to accept ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES. Therefore, _) _ I ? 3 4 5 6 1 8 9 t0 ll l2 l3 l4 l5 l6 17 l8 t9 20 21 22 23 25 26 27 )a 2r80t0 DISTRICT must review and approve DEVELOPER's plans and specifications for PROJECT and subsequently inspect the construction of DISTRICT FACILITIES; and E. On or about December 4, 2017, DISTRICT and DEVELOPER entered into a fught of Entry and Inspection Agreement that authorizes DEVELOPER to construct DISTRICT FACILITIES. Pursuant to the Right of Entry and Inspection Agreement, DEVELOPER has comrnenced and completed construction of DISTRICT FACILITIES; and F. DEVELOPER, DISTRICT, and CITY desire CITY to accept ownership and responsibility for the operation and maintenance of APPURTENANCES. Therefore, cITy must review and approve DEVELOPER's plans and specifications for PROJECT, and subsequently inspect and approve the construction of PROJECT; and G. DISTRICT is willing to (i) review and approve DEVELOPER's plans and specifications for PROJECT, (ii) inspect the construction of DISTRICT FACILITIES, and (iii) accept ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES, provided DEVELOPER (a) complies with this Agreemenr, (b) constructs PROJECT in accordance with DISTRICT and CITY approved plans and specifications, (c) obtains and conveys to DISTRICT all rights of way necessary for the inspection, operation and maintenance of DISTRICT FACILITIES as set forth herein, and (d) accepts ownership and responsibility for the operation and maintenance of PROJECT following completion of PROJECT construction until such time as DISTRICT accepts ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES: and H. CITY is willing to (i) review and approve DEVELOPER's plans and specifications for PROJECT, (ii) inspect the construction of PROJECT, (iii) accept and hold faithful performance and payment bonds submitted by DEVELOpER for DISTRICT FACILITIES, (iv) grant DISTRICT the right to inspect, operate and mainrain DISTRICT -3- 2 r80r0 FACILITIES within clrY rights of way subject to the terms of this Agreement, and (v) accept ownership and responsibility for the operation and maintenance of AppURTENANCES, provided DEVELOPER (a) complies with this Agreement, (b) constructs pROJECT in accordance with DISTRICT and clrY approved plans and specifications, (c) obtains and conveys to cITY all rights of way necessary for the inspection, operation and maintenance of APPURTENANCES as set forth herein, and (d) accepts ownership and responsibility for the operation and maintenance of PROJECT fotlowing completion of PROJECT construction until such time as DISTRICT accepts ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES and CITY accepts ownership and responsibility for the operarion and maintenance of APPURTENANCES. NOW, THEREFORE, the parties hereto mutually agree as follows: SECTION I DEVELOPER shall: l. Prepare PROJECT plans and specifica{ions, hereinafter called 'IMPROVEMENT PLANS", in accordance with applicable DISTRICT and CITy standards, and submit to DISTRICT and CITY for their review and approval. 2. Continue to pay DISTRICT and CITY, within thirty (30) days after receipt of periodic billings from DISTRICT and CITY, any and all such amounts as are deemed reasonably necessary by DISTRICT and cITY to cover DISTRICT's and GITY's costs associated with the review of IMPROVEMENT PLANS, review and approval of rights of way and conveyance documents, and with the processing and administration of this Agreement. 3. Deposit with DISTRICT (Anention: Business Office - Accounts Receivable), at the time of providing written notice to DISTRICT of the start of pROJECT construction as set forth in Section L8., the estimated cost ofproviding construction inspection -4- I 2 3 4 5 6 1 8 9 10 ll 12 t3 l4 15 l6 17 18 19 20 21 22 23 25 26 27 28 2 | 8010 for DISTRICT FACILITIES, in an amount as determined and approved by DISTRICT in accordance with Ordinance Nos. 671 and 749 of the County of fuverside, including any amendments thereto, based upon the bonded value of DISTRICT FACILITIES. If at any time the costs exceed the deposit or are anticipated by DISTRICT to exceed the deposit with DISTRICT, DEVELOPER shall pay such additional amount(s), as deemed reasonably necessary by DISTRICT to complete inspection of PROJECT, within thirty (30) days after receipt of billing from DISTRICT. 4. Deposit with CITY, at the time of providing written notice to DISTRICT and CITY of the start of PROJECT construction as set forth in Section I.8., the estimated cost of providing construction inspection for APPURTENANCES, in an amount as determined and approved by CITY in accordance with CITY's municipal code and regulations. If at any time the costs exceed the deposit or are anticipated by CITY to exceed the deposit with CITy, DEVELOPER shall pay such additional amount(s), as deemed reasonably necessary by CITY to complete inspection of PROJECT, within thirry (30) days after receipt of billing from CITY. 5. Secure, at its sole cost and expense, all necessary licenses, agreements, permits and rights of entry as may be needed for the construction, inspection, operation and maintenance of PROJECT. DEVELOPER shall fumish DISTRICT and CITY, at the time of providing written notice to DISTRICT of the start of construction as set forth in Section I.8., with sufficient evidence of DEVELOPER having secured such necessary licenses, agreements, permits and rights of entry, as determined and approved by DISTRICT and CITY. 6. Fumish DISTRICT and CITY with copies of all permits, approvals or agreements required by any federal, state or local resoruce and,/or regulatory agency for the construction, operation and maintenance of PROJECT. Such documents include but are not limited to those issued by the U.S. Army corps of Engineers, califomia Regional water euality -5- 218010 Control Board, Califomia State Department of Fish and Wildlife, State Water Resources Control Board, and western fuverside County Regional Conservation Authority ('REGULATORY PERMITS'). 7. Provide CITY, at the time of providing written notice to DISTNCT of the start of construction as set forth in Section I.8., with faithful performance and payment bonds, each in the amount of one hundred percent (100%) of the estimated cost for construction of DISTRICT FACILITIES as determined by DISTRICT. The surety, amount and form of the bonds, shall be subject to approval of DISTRICT and CITY. The bonds shall remain in full force and effect until DISTRICT FACILITIES are accepted by DISTRICT as complete; at which time the bond amount may be reduced to five percent (5%) for a period of one year to guarantee against any defective work, labor or materials. 8. Notify DISTRICT (Attention: Contract Services Section) and CITY in writing at least twenty (20) days prior to the start of construction of PROJECT. Construction shall not begin on any element of PROJECT, for any reason whatsoever, until DISTRICT and CITY have issued to DEVELOPER a written Notice to Proceed authorizing DEVELOPER to colnmence construction of PROJECT. 9. Grant DISTRICT and CITY, by execution of this Agreement, the right to enter upon DEVELOPER's property where necessary and convenient for the purpose ofgaining access to, and performing inspection service for the construction ofPROJECT as set forth herein. 10. [TNTENTIONALLYOMITTED] 11. UNTENTTONALLYOMTTTEDI 12. Fumish DISTRICT and CITY, at the time of providing wriften notice to DISTRICT and CITY of the start of construction as set forth in Section I.8., with a complete list of all contractors and subcontractors to be performing work on PROJECT, including the -6- I 2 3 4 5 6 7 8 9 10 1l 12 t3 t4 15 l6 1.7 18 19 20 21 22 23 25 t6 27 28 218010 corresponding license number and license classification of each. At such time, DEVELOPER shall further identify in writing its designated superintendent for PROJECT construction. 13. Fumish DISTRICT and CITY, at the time of providing written notice to DISTRICT and CITY of the start of construction as set forth in Section L8., a construction schedule which shall show the order and dates in which DEVELOPER or DEVELOPERs contractor proposes to carry out tle various parts of work, including estimated start and completion dates. As construction of PROJECT progresses, DEVELOPER shall update said construction schedule as requested by DISTRICT and/or CITY. 14. Fumish DISTNCT with frnal mylar plans for DISTRICT FACILITIES, and assigrr their ownership to DISTRICT prior to the start on any portion of PROJECT construction. 15. Not permit any change to or modification of DISTRICT and CITY approved IMPROVEMENT PLANS without the prior written permission and consent of DISTRICT and CITY. 16. Comply with all CaI/OSHA safety regulations including but not limited to, regulations conceming confined space and maintain a safe working environment for DEVELOPER, DISTRICT and CITY employees on the site. 17 . Fumish DISTRICT and CITY, at the time of providing written notice to DISTRICT of the start of construction as set forth in Section I.8., with a confined space entry procedure specific to PROJECT. The procedure shall comply with requirements contained in Califomia Code ofRegulations, Title 8 Section 5158, Other Confined Space Operations, Section 5157, Permit Required Confined Space and District Confined Space Procedures, SOM-18. The procedure shall be reviewed and approved by DISTRICT and CITY prior to the issuance of a Notice to Proceed, which shall be given by DISTRICT ro DEVELOPER upon DISTRICT's and CITY's approval. -7 - 2 r80 t0 18. DEVELOPER shall not corlmence operations until DISTRICT and CITY have been fumished with original certificate(s) of insurance and original certified copies of endorsements and ifrequested, certified original policies ofinsurance including all endorsements and any and all other attachments as required in this section. Without Iimiting or diminishing DEVELOPER's obligation to indemnifu or hold DISTRICT or CITY harmless, DEVELOPER shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverages during the term of this Agreement: A. Workers'Compensation: If DEVELOPER has employees as defined by the State of Califomia, DEVELOPER shall maintain statutory Workers' Compensation Insurance (Coverage A) as prescribed by the laws of the State of Califomia. Policy shall include Employers' Liability (Coverage B) including Occupational Disease with limits not less than $1,000,000 per person per accident. Policy shall be endorsed to waive subrogation in favor of DISTRICT, the County of fuverside ("CO[INTY"), and CITY. Commercial General Liabilitv: Commercial General Liability insurance coverage, including but not limited to, premises liability, unmodified contmctual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage, covering claims which may arise from or out of DEVELOPER's performance of its obligations hereunder. Additionally, Commercial General Liability insurance no -8- B I 2 3 4 5 6 '7 8 9 l0 ll l2 l3 l4 t5 l6 t7 l8 l9 20 2t 22 23 24 25 26 2l 28 C 2180t0 less broad than ISO form CG 00 01. Policy shall name DISTRICT, COLTNTY, and CITY and their agencies, districts, special districts, and departments, their respective directors, officers, Board of Supervisors, employees, elected or appointed officials, agents or representatives as additional insureds. Poticy's limit of liability shall not be less than $5,000,000 per occurence 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. DISTRICT, COUNTY and CITY must be an additional insured for liability arising out of ongoing and completed operations by or on behalf of DEVELOPER. DISTzuCT, COLINTY and CITY shall continue to be an additional insured for completed operations for two years after completion of the work. If DEVELOPER maintains higher limits than the specified minimum limits, DISTRICT, COUNTY and CITY requires and shall be entitled to coverage for the higher limits maintained by DEVELOPER. Ve cle Liabili If DEVELOPER's vehicles or mobile equipment are used in the performance of the obligations under this Agreement, then DEVELOPER shall maintain liability insurance for all owned, non- owned or hired vehicles so used in an arnount 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 -9- D 218010 DISTRICT, COTINTY and CITY and their agencies, districts, special districts, and departments, their respective directors, officers, Board of Supervisors, employees, elected or appointed officials, agents or representatives as additional insureds. Professional LiabiliW : DEVELOPER shall cause any architect or engineer retained by DEVELOPER in connection with the perlormance of DEVELOPER's obligations under this Agreement to maintain Professional Liability Insurance providing coverage for the performance of their work included within this Agreement, with a limit of liability of not less than $2,000,000 per occurrence and $4,000,000 411rrel aggregate. DEVELOPER shall require that, if such Professional Liability lnsurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and that such architect or engineer shall purchase at such architect or engineer's sole expense either 1) an Extended Reporting Endorsement (also known as Tail Coverage); or 2) Prior Dates Coverage from a new ilsurer with a retroactive date back to the date of, or prior to, the inception of this Agreement; or 3) demonstrate through Certificates of Insurance that such architect or engineer has maintained continuous coverage with the same or original insurer. Coverage provided under items: I ), 2) or 3) shall continue for the term specified in the insurance policy, which shall be reasonably acceptable to DISTRICT and CITY. -10- I 2 3 4 5 6 l o 9 10 1l 12 l3 l4 l5 t6 17 l8 l9 20 2l 22 23 25 26 21 28 218010 E. General Insurance Provisions - All Lines: Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of Califomia and have an A.M. BEST rating of not less than an A: VIII (A: 8) unless such requirements are waived, in writing, by the County Risk Manager and CITY. If the County fusk Manager and CITY waive a requirement for a particular insurer such waiver is only valid for that specific insurer and only for one policy term. DEVELOPER must declare its insurance self-insured retention for each coverage required herein. If any such self-insured retention exceeds $500,000 per occurrence each such retention shall have the prior written consent of the County fusk Manager and CITY, before the commencement of operations under this Agreement. Upon notification of self-insured retention deemed unacceptable to DISTRICT or CITY, and at the election of CITY or the County Risk Manager, DEVELOPER's carriers shall either: I ) reduce or eliminate such self-insured retention with respect to this Agreement with DISTRICT; or 2) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. DEVELOPER shall cause their insurance carrier(s) or its contractorrs insurance carrier(s), to fumish DISTRICT and CITY with 1) a properly executed original certificare(s) of - 1l - ll lll. 218010 insurance and certified original copies of endorsements effecting coverage as required herein; and 2) ifrequested to do so orally or in writing by CITY or the County Risk Manager, provide original certified copies of policies including all endorsements and all attachments tlercto, showing such insurance is in firll force and effect. Further, said certificate(s) and policies of insurance shall contain the covenant of the insurance carrier(s) that a minimum of sixty (60) days written notice shall be given to DISTRICT and CITY prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. If DEVELOPER insurance carrier(s) policies does not meet the minimum notice requirement found herein, DEVELOPER shall cause DEVELOPER's insurance carrier(s) to firnish a 60 day Notice of Cancellation Endorsement. In the event of a material modification, cancellation, expiration or reduction in coverage, this Agreement shall terminate forthwith, unless DISTRICT and CITY receive, prior to such effective date, another properly executed original certificate of insurance and original copies ofendorsements or certified original policies, including all endorsements and attachments thereto, evidencing coverages set forth herein and the insurance required herein is in full force and effect. An individual authorized by the -12- I 2 3 4 5 6 7 8 9 t0 ll t2 l3 t4 l5 t6 t7 l8 l9 20 lt 22 23 24 25 26 27 28 vl 218010 insurance carrier to do so on its behalf shall sign the original endorsements for each policy and the certificate of insurance. It is understood and agreed by the parties hereto that DEVELOPER's insurance shall be construed as primary insurance, and DISTRICT and CITY's insurance and./or deductibles and/or self-inswed retentions or self-insured programs shall not be conskued as contributory. 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 ofthe scope of work which will add additional exposures (such as the use of aircraft, watercraft, cranes, etc.); or the term of this Agreement, including any extensions thereof, exceeds five (5) years, DISTRICT and CITY reserve the right to adjust the types of insurance required under this Agreement and the monetary limits of liability for the insurance coverages crrrently required herein, if, in CITY's or the Corurty Risk Manager's reasonable judgment, the amount or type of insurance carried by DEVELOPER has become inadequate. DEVELOPER shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement. -13- I 2 3 4 5 6 7 8 o 10 ll t2 tl t4 r5 l6 t7 l8 l9 20 21 22 23 25 26 27 10 2l80lt) vii. The insurance requirements contained in this Agreement may be met with a program(s) of self-insurance acceptable to DISTRICT and CITY. viii. DEVELOPER agrees to notifu DISTRICT 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. Failure to maintain the insurance required by this paragraph shall be deemed a material breach of this Agreement and shall authorize and constitute authority for DISTRICT and CITY, at their sole discretion, to provide written notice to DEVELOPER that either DISTRICT or CITY are able to perform their obligations hereunder, nor to accept responsibility for ownership, operation and maintenance of PROJECT due, either in whole or in part, to said breach of this Agreement. 19. Construct or cause to be constructed, PROJECT at DEVELOPER's sole cosr and expense in accordance with DISTRICT and CITY approved IMPROVEMENT PLANS. 20. Within two (2) weeks of completing PROJECT construction, provide DISTRICT (Attention: Construction Management Section) and CITY with written notice that PROJECT construction is substantially complete and requesting that DISTRICT conduct a final inspection of DISTRICT FACILITIES, and CITY conduct a final inspection ofPROJECT. 21. [TNTENTIONALLYOMITTED] 22. [INTENTTONALLYOMITTED] 23. Accept ownership and sole responsibility for the operation and maintenance of PROJECT until such time as DISTRICT accepts ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES and CITY accepts ownership and responsibility for the operation and maintenance of APPURTENANCES. Further, it is mutually -14- ) 3 4 5 6 7 8 9 l0 u t2 ll t4 l5 l6 l7 r8 l9 20 2t 22 23 24 25 Z6 27 28 2 t8010 - 15 - understood by the parties hereto that prior to DISTRICT acceptance of ownership and responsibility for the operation and maintenance of DISTRICT FACILITIES, PROJECT shall be in a satisfactorily maintained condition as solely determined by DISTRICT. If, subsequent to the inspection and, in the sole discretion of DISTRICT, DISTRICT FACILITIES are not in an acceptable condition, corrections shall be made at sole expense of DEVELOPER. It is also mutually understood by the parties hereto that prior to CITY acceptance of ownership and responsibility for the operation and maintenance of APPURTENANCES, PROJECT shall be in a satisfactorily maintained condition as solely determined by CITY. If, subsequent to the inspection and in the sole discretion of CITY, APPURTENANCES are not in an acceptable condition, corrections shall be made at sole expense ofDEVELOPER. 24. Pay, if suit is brought upon this Agreement or any bond guaranteeing the completion of PROJECT, all costs and reasonable expenses and fees, including reasonable attomeys'fees, and acknowledge that, upon entry ofjudgment, all such costs, expenses and fees shall be computed as costs and included in any judgment rendered. 25. Upon completion of PROJECT construction but prior to DISTRICT acceptance of DISTRICT FACILITIES for ownership, operation and mainlenance, and CITY acceptance of APPURTENANCES for ownership, operation and maintenance, provide or cause its civil engineer ofrecord or construction civil engineer ofrecord, duly registered in the State of Califomia to provide DISTRICT and CITY with a redlined "record drawings" copy of PROJECT plans. After DISTRICT and CITY approval of the redlined "record drawings", DEVELOPER,s engineer shall schedule with DISTRICT a time to transfer the redlined changes onto DISTRICT's original mylars at DISTRICT's office, after which the engineer shall review, stamp and sign the original PROJECT engineering plans "record drawings". I 2 3 4 5 6 7 8 9 l0 ll t2 l3 l4 l5 l6 t7 l8 t9 20 2l 22 23 24 25 26 27 28 2 t8010 26. Ensure that all work performed pursuant to this Agreement by DEVELOPER. its agents or contractors is done in accordance with all applicable laws and regulations, including but not limited to all applicabte provisions of the Labor Code, Business and Professions Code, and Water Code. DEVELOPER shall be solely responsible for all costs associated with compliance with applicable laws and regulations. SECTI NII DISTRICT shall: l. Review IMPROVEMENT PLANS and approve when DISTRICT has determined that such plans meet DISTzucr standards and are found acceptable to DISTRICT prior to the start ofPROJECT construction. 2. Provide CITY an oppoffunity to review and approve IMPROVEMENT PLANS prior to DISTRICT's final approval. 3. Upon execution of this Agreement, record or cause to be recorded, a copy of this Agreement in the Official Records of the Riverside County Recorder. 4. [TNTENTTONALLYOMITTED] 5. lnspect constnrction of DISTRICT FACILITIES. 6. Keep an accurate accounting of all DISTRICT costs associated with the review and approval of IMPROVEMENT PLANS, the review and approval of right of way and conveyance documents, and the processing and administration of this Agreement. 7. Keep an accurate accounting ofall DISTRICT construction inspection costs, and within forty-frve (45) days after DISTRICT acceptance of DISTRICT FACILITIES as being complete, submit a final cost statement to DEVELOPER. If the deposit, as set forth in Section I.3., exceeds such costs, DISTRICT shall reimburse DEVELOPER the excess amount within sixty (60) days after DISTRICT acceptance of DISTRICT FACILITIES as being complete. -16- I Z 3 4 5 6 7 8 9 l0 u t2 ll l4 15 l6 t7 l8 l9 20 2t 22 23 24 25 26 27 28 218010 8. Accept ownership and sole responsibility for the operation and maintenance of DISTRICT FACILITIES upon (i) DISTRICT inspection of DISTRICT FACILITIES in accordance with section I.20., (ii) DISTRICT acceptance of PROJECT construction as being complete, (iii) DISTRICT receipt of stamped and signed "record drawings" of PROJECT plans, as set forth in Section I.25., (iv) cITY acceptance ofall necessary street rights ofway as deemed necessary by DISTRICT and CITY for the ownership, operation, and maintenance of DISTRICT FACILITIES and APPURTENANCES, (v) CITY acceptance of APPURTENANCES for ownership, operation, and maintenance, and (vi) DISTNCT's sole determination that DISTRICT FACILITIES are in a satisfactorily maintained condition. 9. Provide CITY with a reproducible duplicate copy ofthe "record drawings" of PROJECT plans upon DISTRICT acceptance of DISTRICT FACILITIES as being complete. SECTION III 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 PROJECT construction. 4. [INTENTIONALLYOMITTED] s. [INTENTTONALLYOMTTTED] 6. Grant DISTRICT, by execution of this Agreement, the right to construct, inspect, operate and maintain DISTzuCT FACILITIES within CITY rights of way. -17- 2 r80t0 7. Accept ownership and sole responsibility for the operation and maintenance of the APPURTENANCES upon (i) CITY inspection of PROJECT in accordance with Section I.20., (ii) CITY and DISTRICT acceptance of PROJECT construction as being complete, (iii) CITY receipt of stamped and signed "record drawings" ofPROJECT plans, as set forth in Section I.25., (iv) CITY acceptance of all necessary street rights of way as deemed necessary by DISTRICT aad CITY for the ownership, operation, and maintenance of DISTRICT FACILITIES and APPURTENANCES, (v) DISTRICT acceptance of DISTRICT FACILITIES for ownership, operation and maintenance, and (vi) CITY's sole determination that PROJECT is in a satisfactorily maintained condition. 8. Not grant any occupancy permits for any units within any portion of Tract No. 3 1822, or any phase thereof, until construction of PROJECT is complete, unless otherwise approved in writing by DISTRICT. 9. Notwithstanding any of the foregoing, prior to accepting ownership of APPURTENANCES, PROJECT shall be in a satisfactorily maintained condition as solely determined by CITY. If, subsequent to the inspection and in the sole discretion of CITY, APPURTENANCES are not in an acceptable condition, corrections shall be made at sole expense ofDEVELOPER. 10. Upon DISTRICT and CITY acceptance of PROJECT construction as being complete, accept sole responsibility for the adjustment ofall PROJECT manhole rings and covers located within CITY rights of way which must be performed at such time(s) that the finished grade along and above the underground portions of DISTRICT FACILITIES are improved, repaired, replaced or changed. It being further understood and agreed that any such adjustments shall be performed at no cost to DISTRICT. -18- ;ll 218010 SE(]TION IV It is further mutually agreed: 1. All work involved with PROJECT shall be inspected by DISTRICT and CITY, and shall not be deemed complete until DISTRICT and CITY mutually agree in writing that construction is completed in accordance with DISTRICT and CITY approved IMPROVEMENT PLANS. 2. CITY and DEVELOPER personnel may observe and inspect all work being done on PROJECT but shall provide any comments to DISTRICT personnel who shall be solely responsible for all quality control communications with DEVELOPER's contractor(s) during the construction of PROJECT. 3. DEVELOPER shall complete construction of PROJECT within twelve (12) consecutive months a"fter execution of this Agreement and within one hundred twenty (120) consecutive calendar days after commencing work on PROJECT. It is expressly understood that since time is of the essence in this Agreement, failure of DEVELOPER to perform the work within the agreed upon time shall constitute authority for DISTRICT to perform the remaining work and require DEVELOPER's surety to pay to CITY the penal sum of any and all bonds. In which case, CITY shall subsequently reimburse DISTzuCT for DISTRICT costs incurred. 4. If DEVELOPER fails to commence construction of PROJECT within nine (9) months after execution of this Cooperative Agreement, then DISTRICT reserves the right to withhold issuance of the Notice to Proceed pending a review of the existing site conditions as they exist at the time DEVELOPER provides written notification to DISTRICT of the start of construction as set forth in Section I.8. In the event ofa change in the existing site conditions that materially affects PROJECT function or DISTRICT's ability to operate and maintain -19- 218010 DISTRICT FACILITIES, DISTzuCT may require DEVELOPER to modit/ IMPROVEMENT PLANS as deemed necessary by DISTRICT. 5. DISTRICT shall endeavor to issue DEVELOPER a Notice to Proceed within twenty (20) days of receipt of DEVELOPER's complete written notice, as set forth in Section I.8.; however, DISTRICT's construction inspection staff is limited and therefore, the issuance ofa Notice to Proceed is subject to staff availability. In the event DEVELOPER wishes to expedite issuance of a Notice to Proceed, DEVELOPER may elect to fumish an independent qualified construction inspector at DEVELOPERs sole cost and expense. DEVELOPER shall fumish appropriate documentation of the individual's credentials and experience to DISTRICT for review and if appropriate, approval. DISTRICT shall review the individual's qualifications and experience and, upon approval thereof, said individual, hereinafter called "DEPUTY INSPECTOR", shalt be authorized to act on DISTRICT's behalf on all PRoJECT construction and quality control matters. If DEVELOPER's initial constnrction inspection deposit fumished pusuant to Section I.3. exceeds ten thousand dollars ($10,000), DISTRICT shall refund to DEVELOPER up to eighty percent (80%) of DEVELOPER's initial inspection deposit within forty-five (45) days of DISTRICT's approval of DEPUTY INSPECTOR; however, a minimum balance of ten thousand dollars ($10,000) shall be retained on account. 6. PROJECT construction work shall be on a five (5) day, forty (40) hour work week with no work on Saturdays, Sundays or DISTRICT designated legal holidays, unless otherwise approved in writing by DISTRICT. If DEVELOPER feels it is necessary to work more than the normal forty (40) hour work week or on holidays, DEVELOPER shall make a written request for permission from DISTRICT and CITY to work the additional hours. The request shall be submitted to DISTRICT and CITY at least seventy-two (72) hours prior to t}re requested -20 - r;ll I 2 3 4 5 6 1 o 9 l0 ll 12 l3 l4 l5 t6 17 l8 l9 20 2t 22 23 24 25 26 2't 28 2 t8010 additional work hours and state the reasons for the overtime and the specific time frames required. The decision of granting permission for overtime work shall be made by DISTRICT at its sole discretion and shall be final. If permission is granted by DISTRICT, DEVELOPER will be charged the cost incurred at the overtime rates for additional inspection time required in corurection with the overtime work in accordance with Ordinance Nos. 671 and 749, including any amendments thereto, of the County of fuverside. 7. DEVELOPER shall indemnifi and hold harmless DISTRICT, County of Riverside, and CITY (including their respective goveming bodies, agencies, districts, special districts and departments, their respective directors, officers, Board of Supervisors, elected and appointed officials, employees, agents and representatives) Iiom any liability, claim, damage, proceeding or action, present or future, based upon, arising out of or in any way relating to DEVELOPER' s (including its offrcers, employees, subcontractors and agents) actual or alleged acts or omissions related to this Ageement, performance under this Agreement, or failure to comply with the requirements of this Agreement, including but not limited to: (a) property damage; (b) bodily injury or death; (c) liability or damage pusuant to Article I, Section l9 ofthe Califomia Constitution, the Fifth Amendment of the United States Constitution or any other law, ordinance or regulation caused by the diversion of waters from the natural drainage pattems or the discharge of drainage within or from PROJECT; or (d) any other element of any kind or nature whatsoever. DEVELOPER shall defend, at its sole expense, including all costs and lees (including but not limited to attorney fees, cost of investigation, defense and settlements or awards), DISTRICT and County of Riverside (including their respective agencies, districts, special districts and departments, their respective directors, officers, Board of Supewisors, elected and appointed officials, employees, agents and representatives) in any claim proceeding -21 - I 2 3 4 5 6 7 8 9 l0 lt 12 ll t4 l5 l6 t7 18 l9 20 2t 22 23 24 25 26 21 2 t8010 or action for which indemnification is required. With respect to any of DEVELOPER's indemnification requirements, DEVELOPER shall, at its sole cost, have the right to use counsel of their own choice and shall have the right to adjust, settle, or compromise any such claim, proceeding or action without the prior consent of DISTRICT and County ofRiverside; provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes DEVELOPER's indemnification obligations to DISTRICT or County of Riverside. DEVELOPER's indemnification obligations shall be satisfied when DEVELOPER has provided to DISTRICT and County of Riverside the appropriate form of dismissal (or similar document) relieving DISTRICT and County of Riverside from any liability for the claim, proceeding or action involved- DEVELOPER shall also defend, at its sole expense, including all costs and fees (including but not limited to attomey fees, cost of investigation, defense and settlements or awards), CITY (including its agencies, goveming bodies, directors, oflicers, elected and appointed officials, employees, agents and representatives) in any claim proceeding or action for which indemnihcation is required. Failure by DEVELOPER to pay such attomeys' fees and costs may be treated as an abandonment of PROJECT and as a default of DEVELOPER's obligations under this Agrcement. DEVELOPER's indemnification obligations shall be satisfied when DEVELOPER has provided to CITY the appropriate form of dismissal (or similar document) relieving CITY lrom any liability for the claim, proceeding or action involved, and CITY determines that the form of dismissal is adequate in its sole and absolute discretion. Notwithstanding the foregoing, DEVELOPER shall enter into no settlement agreement or final resolution of any pending claim covered under this section, without CITY's prior written approval. 11 I 2 3 4 5 6 7 8 9 t0 ll 12 l3 t4 l5 l6 17 l8 to 20 2l 22 23 25 26 )7 28 218010 The specified insurance limits required in this Agreement shall in no way limit or circumscribe DEVELOPER's obligations to indemnif and hold harmless DISTRICT, County of fuverside and CITY from third party claims. In the event there is conflict between this section and Califomia Civil Code Section 2782, this section shall be interpreted to comply with California Civil Code S ection2782. Such interpretation shall not relieve DEVELOPER from indemnifuing DISTRICT, County of Riverside or CITY to the fullest extent allowed by law. 9. DEVELOPER for itself, its successors and assigns hereby releases DISTRICT, County of Riverside and CITY (including their agencies, districts, special districts and departrnents, their respective directors, officer, Board of Supervisors, elected and appointed officials, employees, agents and representatives) from any and all claims, demands, actions, or suits of any kind arising out ofany liability, known or unknown, present or future, including but not limited to any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, for damage caused by the discharge of drainage within or from PROJECT. Nothing contained herein shall constitute a release by DEVELOPER of DISTRICT or the County of Riverside, or their officers, agents and employees from any and all claims, demands, actions or suits ofany kind arising out ofany liability, known or unknown, present or futue, for the negligent maintenance of DISTRICT FACILITIES, after the acceptance of ownership, operation and maintenance of DISTRICT FACILITIES by DISTRICT. 10. Any waiver by DISTRICT or by CITY ofany breach ofany one or more of t}te terms of this Agreement shall not be construed to be a waiver of any subsequent or other breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY to -23 - I 2 3 4 5 6 7 8 9 l0 ll 12 l3 l4 l5 l6 t7 l8 t9 20 2t 22 23 24 25 26 2'7 28 218010 require exact, full and complete compliance with any terms of this Agreement shall not be construed as, in any manner, changing the terms hereof, or estopping DISTRICT or CITY from enforcement hereof. I 1 . This Agreement is to be construed in accordance with the laws of the State of Califomia. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or utenforceable, the remaining provisions shall remain in full force and effect without being impaired or invalidated in any way. 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: zuVERSIDE COLJNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT 1995 Market Street Riverside. CA 92501 Attn: Contract Services Section CITY OF MENIFEE 29714 Haun Road Menifee, CA 92586 Attn: Public Works Manager 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 the Agreement, shall be tried in a court of competent jurisdiction in the County of Riverside, State of Califomia, and the parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county. 14. This Agreement is the result ofnegotiations between the parties hereto, and the advice and assistance of their respective counsel. The fact that this Agreement was prepared as a matter ofconvenience 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 Agleement in its final form. -24 - SUTTERMITLANDOl LLC 3200 Park Center Drive, Suite 1000 Costa Mesa, CA 92626 Attn: David E. Bartlett I 2 3 4 5 6 7 8 9 t0 ll t2 l3 t4 l5 l6 17 18 l9 20 2l 23 1/1 25 26 27 28 2180r0 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 othent'ise 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. h 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 certiry 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 all boards ofdirectors, 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 pa(ies 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 contemporareous 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. -25 - 2 J 4 5 6 7 8 9 l0 1l 12 l3 l4 l5 t6 l7 18 19 20 2t 22 2l 24 25 26 27 .)Q I18010 IN WITNESS WHEREOF, the panies hereto have executed this Agreemenl on FEB 2 7 zOIE (to be filled in by Clerk ofthe Board) RECOM MENDED FOR API'ROVAL: RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT Bv JASO MARION SHLEY. Chairman Ce anager-ief Engineer Riverside County Flood Control and Water Conservation District Board of Supervisors APPROVED AS TO FORM:ATTEST: By' GREGORY P. PRIAMOS County Counsel KECIA HARPER.IHEM Clerk of the Board Bv By LA SHRE .DANESH . Deputy (sEAL) puty County Counsel Cooperative Agreement for 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 Street Storm Drain, Stage 4 Project Nos. 4-0-00377, 4-0-00378, 4-0-00319 and 4-0-00142 Tract No.31822 l2/20il7 AMR:blm UHLEY -26 - 2 3 4 5 6 7 8 9 10 ll 12 13 t4 l5 16 t7 18 19 20 21 22 23 24 25 26 21 28 2 r 8010 RECOMMENDED FOR APPROVAL: CITY OF MENIFEE By By ATHAN SMITH lic Works Director Armando G. Villa City Manager ATTEST: By HING S City Attomey ty Clerk (SEAL) Cooperative Agreement for 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 Street Storm Drain, Stage 4 Proj ect Nos. 4 -0 -0037 7, 4-0-003 78, 4 -0 -0037 9 and 4 -0 -00 1 42TractNo.31822 12120117 AMR:blm APPROVED AS TO FORM: G rl,^ I 2 3 4 5 6 7 8 9 l0 ll t2 IJ l4 l5 l6 t7 18 19 20 2t 22 23 24 25 26 27 28 218010 SUTTER MITLAND OI LLC a Delaware limited tiability company By: Brookfield Southem Califomia Land LLC a Delaware limited liability company its Sole Member 2 f,4-"-- Cooperative Agreement for Salt Creek - Westward Circle Storm Drain, Stage 2 Salt Creek - Whispering Way Storm Drain, Stage 2 Salt Creek - Destry Drive Storm Drain, Stage I Salt Creek - Clover Street Storm Drain, Stage 4 Project Nos. 4-0-0037 7, 4-0-003 78, 4-0 -0031 9 and 4-0-00 1 42 Tract No. 31822 12120/17 AMR:blm By, DAVID E. BARTLETT Vice President By: RICHARD T. WHITNEY Chief Financial Officer (ATTACH NOTARY WITH CAPACITY STATEMENT) -28 - A notary public or other officer completing this certificate verified only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA SS COLNTY OF On Ja-purrrv \o .2018, before me,Vrvffi ,N"t",yPrbtl--"".*""llyappeared -, who proved to me on the basis of satisfactory evidence to be the person(s) whose nam is/are subscribed to the within instrument and acknowledged to me that helshe/they/executed the same m his#ra/their authorized capacity(ies) and that by lr.i.sfter/their signature(s) on the instrument the person(s), or the entity upon behalfofwhich the person(s) acted, executed the instrument. I certifu 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 ) ) s) ollt MEAGAN KNECHT cot4ttt. *2LL7799 llot ry Puuic.Ca[o.tllr ORATGE COU}ITY C.omn.JU}€ar0 No I'rL ma Exhibit A COOPERATIVE AGR-EEMENT Salt Creek - Westw8rd Circle Storm Drain, Stage 2 Salt Crcek - Wiispering Way Storm D.ain, Stage 2 Salt Creek - Destry Drive Storm Drain, Stage 2 Salt Creek - Clover Crcek Storm Drain, Stage 4 Project Nos. 4-0-00377, 4{-00378, 4-0-00379 adtd 4-0-00142 T.act No. 31822 Page I of I I T M -.--\ q) lr ---_.--.! TL GI E T ctl t/- ( )rlrr:) P ! It I { I i 4 /'t I v It --- -.-..