2024/02/06 Clark Construction Group - CA, LP APN 360-850-015 & APN 360-860-012
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TEMPORARY USE AGREEMENT
This TEMPORARY USE AGREEMENT (“Agreement”) is made and entered into this
___ day of ___________, 2024 (the “Effective Date”), by and between the CITY OF MENIFEE,
a California municipal corporation (“City”) and CLARK CONSTRUCTION GROUP – CA, LP,
a limited partnership (“Clark”). City and Clark are hereinafter sometimes referred to collectively
as the “Parties” and individually as a “Party.”
RECITALS
A. City owns that property located in the City of Menifee, County of Riverside, State of
California, APN Number 360-850-015 (the “Property”). The Property is an unfinished lot,
intended for future development of a city hall by City.
B. Clark is a construction company performing construction on that certain real property
neighboring the Property and located in the City of Menifee, County of Riverside, State of
California, APN Number 360-860-012 under contract with the Judicial Council of California.
C. Clark desires to place a temporary construction trailer (the “Trailer”) on the Property to
operate as a temporary construction office serving Clark’s construction work on APN Number
360-860-012.
D. City desires to permit the placement and use of the Trailer on the Property subject to the
terms of this Agreement, in order to facilitate the expeditious completion of Clark’s construction
work and to avoid alternative placement of the Trailer at a location which may impair traffic
flow and safety in the City.
E. The Parties agree that this Agreement does not grant to Clark any property right to the
Property, including but not limited to a lease, license, easement, or other right in real property.
NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein
by this reference, and for good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties hereto agree as follows:
AGREEMENT
1. Term. The term (“Term”) of this Agreement shall begin on the Effective Date and
shall end on April 30, 2024.
2. Termination. Either Party may terminate this Agreement with or without cause
upon thirty (30) days’ notice to the other Party. Upon termination of this Agreement, Clark shall
remove the Trailer and all personal property of Clark or anyone acting on its behalf, and shall
return the Property to substantially the same condition, reasonable wear and tear excepted, as
existed as of the Effective Date (excluding damages caused by casualty).
3. Permitted Uses and Locations. City hereby grants Clark a nonexclusive, limited
right to use the Property for the permitted uses listed in this Section 3, subject to the terms and
conditions of this Agreement (the “Permitted Uses”). Clark may not use the Property for any
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other purpose, including for any illegal purpose or in any manner that constitutes a nuisance to
others.
a) Trailer. Clark may install and operate the Trailer, which size shall not
exceed forty feet (40’) by twelve feet (12’) at the location indicated on Exhibit “A” which is
attached hereto and incorporated herein by this reference. Operation of the Trailer shall be for
regular office use only, and shall not include use of the Trailer for habitation or storage of
construction equipment. At its sole cost and risk, Clark may grade to a flat surface, weed, and
otherwise clean the site identified for the Trailer prior to installation. .;
b) Toilets. Clark may install and use temporary toilets at the enclosed fenced
location identified on Exhibit “A.” At its sole cost and risk, Clark may grade to a flat surface,
weed, and otherwise clean the site identified for the temporary toilets prior to installation,
provided that Clark causes no damage to the fenced enclosure;
c) Parking. Clark may park up to ten (10) vehicles on the Property at the
location shown on Exhibit “A” during working hours for Clark’s employees and others working
on its behalf. Overnight parking is prohibited. At its sole cost and risk, Clark may grade to a flat
surface, weed, and otherwise clean the site identified for parking prior to use;
d) Access. Clark may access the Property through the access point shown on
Exhibit “A”; and
e) Power Meter. Clark may access and use Southern California Edison
power meter No. 222014-401889 (the “Power Meter”) for electrical power to the Trailer, subject
to this Paragraph. Clark acknowledges that City is not using the Power Meter and shall not use
the Power Meter for the entire Term. Accordingly, Clark agrees to pay any and all power fees
and costs incurred as a result of its use of the Power Meter. Concurrent with execution of this
Agreement, Clark shall deposit a sum of One Thousand Dollars ($1,000) to City of Menifee,
Attn: Accounts Payable, 29844 Haun Road, Menifee, CA, 92586, Menifee Justice Center
Account No. 350-2623 to serve as a deposit against which City shall debit the Power Meter fees
and costs indicated above (the “Power Meter Deposit”). In the event the Power Meter Deposit
amount is reduced to Two Hundred Dollars ($200) or less, City may request, and Clark shall
deposit an additional amount, not to exceed One Thousand Dollars ($1,000) to replenish and
become part of the Power Meter Deposit. Upon termination of this Agreement, City shall return
the unused and undedicated amounts of the Power Meter Deposit (including any supplemental
deposit) the Clark. Clark may request from City reasonable documentation of Power Meter
Deposit accounting and evidence of Power Meter fees and costs by providing a written request to
City which shall be processed by City in a reasonable time.
4. Government Permits and Approvals. Clark, at its sole cost and expense shall have
and maintain for the entire the Term all licenses, permits, and approvals necessary to engage in
the Permitted Uses on the Property, including a City building permit where applicable. No
provision of this Agreement entitles Clark to any guarantee of any City license, permit, or
approval, nor waiver of any City fee therefor.
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5. Condition of Property, Maintenance, and Security. Clark acknowledges that the
Property is provided “as-is,” which is an unpaved, unfinished, unsecured lot, and part of a
construction zone. Clark agrees to bear any and all risks, costs and expenses associated with its
use of the Property, including parking thereupon, and Clark is not relying on any information,
communication, representation or warranty of City, its employees or agents, whatsoever in
entering into this Agreement. City shall not be required to make any alterations, improvements,
replacements, or repairs to the Property during the Term. Clark, at its sole cost, shall maintain
the Permitted Uses in a manner complying with all Federal, State, and local law, including laws
related to nuisances. Clark shall be wholly responsible, and under no circumstances shall City be
responsible (financially or otherwise), for the security of the Permitted Uses or any personal
property associated therewith.
6. Removal of Clark Installations Upon Termination, Deposit.
a) Removal of Installations. Clark shall remove all Clark installations on the
Property installed pursuant to Section 3 hereof, including the Trailer, toilets, and any associated
materials such as utility connections thereof prior to the end of the Term.
b) Remedy for Failure to Remove. In the event Clark fails to comply with
the previous paragraph, City may remove or cause the removal of such installations at Clark’s
sole cost and expense.
c) Removal Deposit. As security for the obligations contained in this
Section, Clark shall deposit a sum of Two Thousand Dollars ($2,000) to City of Menifee, Attn:
Accounts Payable, 29844 Haun Road, Menifee, CA, 92586, Menifee Justice Center Account No.
350-2623 (the “Removal Deposit”) which may be used by City to remove Clark’s installations
on the Property if Clark fails to remove them in compliance with this Section. Following City’s
confirmation that all of Clark’s installations on the Property have been removed to City’s
satisfaction, City shall refund all unused and undedicated portions of the Removal Deposit to
Clark.
d) Costs Exceeding Deposit. Notwithstanding Paragraph c), Clark is
responsible for the full cost and expense associated with removal of the installations subject to
this Section. In the event City’s costs of removal pursuant to Paragraph b) exceed the Removal
Deposit amount, the excess shall be invoiced by City to Clark, and shall be paid by Clark to City
within fifteen (15) days of receipt of the invoice.
7. Indemnification. Clark shall indemnify, defend, and hold harmless City and its
officers, officials, employees, agents, or representatives (collectively the “City Indemnitees”)
against any and all claims, demands, causes of action, damages, costs, expenses, losses and
liabilities, including for bodily injury or property damage, at law or in equity arising out of or
relating to any of (i) the installation, use, condition, and removal of the Trailer; (ii) use of the
Property by Clark and its officers, officials, employees, agents, representatives, invitees, patrons,
or sub-licensees, including damages, injuries, and expenses arising from Clark’s acceptance of
the condition of the Property pursuant to Section 5; or (iii) the acts or omissions of Clark or its
officers, officials, employees, agents, or representatives acting in an official capacity.
Notwithstanding the forgoing sentences, Clark shall have no obligation to indemnify, defend,
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and hold harmless the City Indemnitees for any claim, demand, cause of action, damages, costs,
expenses, losses and liabilities arising from or relating to (i) a pre-existing environmental
condition concerning hazardous substances on or under the Property; or (ii) any grossly
negligent, reckless, or willful act or omission of City Indemnitee(s) while on or about the
Property. The policy limits of any insurance of Clark, or other parties are not a limitation upon
the obligation of Clark including without limitation the amount of indemnification to be provided
by Clark.
8. Insurance. Clark shall procure and maintain for the duration of the Term and at no
cost or expense to City the following insurance against claims for injuries to persons or damages
to property which may arise from or in connection with the performance of the work hereunder
by the Contractor, his agents, representatives, employees, or subcontractors. Coverage shall be
at least as broad as:
a) Comprehensive General Liability Insurance. Insurance Services Office
(ISO) Form CG 00 01 covering CGL on an “occurrence” basis, including products and
completed operations, property damage, bodily injury and personal and advertising injury with
limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the
general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or
the general aggregate limit shall be twice the required occurrence limit. City, its officers,
officials, employees, and volunteers are to be covered as additional insureds on the CGL policy
with respect to liability arising out of work or operations performed by or on behalf of Clark
including materials, parts, or equipment furnished in connection with such work or operations
and automobiles owned, leased, hired, or borrowed by or on behalf of Clark. General liability
coverage can be provided in the form of an endorsement to Clark’s insurance at least as broad as
one of the following ISO ongoing operations Forms: CG 20 10 or CG 20 26 or CG 20 33 (not
allowed from subcontractors), or CG 20 38; and one of the following ISO completed operations
Forms: CG 20 37, 2039 (not allowed from subcontractors), or CG 20 40.
b) Automobile Liability Insurance: Insurance Services Office Form CA 0001
covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury
and property damage.
c) Worker’s Compensation Insurance. Worker’s compensation coverage as
required by the laws of the State of California together with employer’s liability coverage; and
d) Personal Property Insurance. With respect to the Trailer, and all items of
furniture, fixtures, and all other personal property of Clark or anyone acting on its behalf located
on or in the Property, insurance against fire, peril, or flood, extended coverage, vandalism and
malicious mischief, and such other additional perils, hazards and risk as now are or may be
included in standard “all risk” forms in general use in Riverside County, California, for an
amount equal to not less than the full current actual replacement cost thereof. City shall be
named as an additional loss payee under such policy or policies and such insurance shall contain
a replacement cost endorsement.
If Clark maintains broader coverage and/or higher limits than the minimums shown above for all
policies, the City requires and shall be entitled to the broader coverage and/or higher limits
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maintained by Clark. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to the City.
Insurance required by this Agreement shall be satisfactory only if issued by companies qualified
to do business in California, rated “A” or better in the most recent edition of Best Rating Guide,
The Key Rating Guide, or in the Federal Register, and only if they are of a financial category
Class VII or better, unless such requirements are waived by the City Manager or designee in
their sole discretion.
For any claims to which this Section 8 applies, Clark’s insurance coverage shall be primary
insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers,
officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its
officers, officials, employees, or volunteers shall be excess of Clark’s insurance and shall not
contribute with it.
Clark shall provide immediate written notice if (1) any of the required insurance policies is
terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-
insured retention is increased. In the event of any cancellation or reduction in coverage or limits
of any insurance, Clark shall forthwith obtain and submit proof of substitute insurance.
Clark hereby agrees to waive rights of subrogation which any insurer of Clark may acquire from
Clark by virtue of the payment of any loss. Clark agrees to obtain any endorsement that may be
necessary to affect this waiver of subrogation, but this provision applies regardless of whether or
not the City has received a waiver of subrogation endorsement from the insurer. However, the
Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the
City for all work performed Clark, its employees, agents and subcontractors.
Clark shall require and verify that all subcontractors operating on the Property maintain
insurance meeting all the requirements stated herein, and Clark shall ensure that City is an
additional insured on insurance required from subcontractors. For CGL coverage subcontractors
shall provide coverage with a form at least as broad as CG 20 38 04 13.
A certificate of insurance evidencing such insurance as well as accompanying endorsements,
shall be delivered to City prior to the date Clark is given the right of the use the Property
hereunder or as City may otherwise require, and upon renewals, prior to the expiration of such
coverage.
9. No Property Right, No Encumbrances. Clark acknowledges that this Agreement
grants no property interest in the Property. Clark shall not create or cause to be imposed,
claimed, or filed upon the Property, or any portion thereof, or upon City’s interest therein, any
lien, charge or encumbrance whatsoever. If, because of any act of omission of Clark, any such
lien, charge or encumbrance shall be imposed, claimed or filed, Clark shall promptly, at its sole
cost and expense, cause the same to be fully paid and satisfied or otherwise discharged of record
(by bonding or otherwise) and, to the extent permitted by law, Section 7 shall apply to such lien,
charge, or encumbrance and costs incidental thereto. The provisions of this Section shall survive
the expiration or termination of this Agreement. In the event that Clark shall fail to comply with
the foregoing provisions of this Section, City shall have the option of paying, satisfying or
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otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance and Clark
agrees to reimburse City, upon demand, for all sums so paid and for all costs and expenses
incurred by City in connection therewith, together with interest thereon not to exceed three
percent (3%) per annum, or the maximum amount permitted by applicable law, whichever is
lower, until paid.
10. Default. In the event of a default by either Party which remains uncured after
thirty (30) days’ notice from the non-defaulting Party, the non-defaulting Party may exercise all
rights under this Agreement, at law, or in equity.
11. General Provisions.
a) Authority. Each Party represents and warrants to the other that said Party
has full right and authority to enter into this Agreement, and that said Party’s entry into this
Agreement does not require permission or consent of any third party, and does not violate any
other agreements to which said Party is bound.
b) Compliance with Law. Clark shall at all times comply with all Federal,
State, and local laws applicable to Clark’s use of the Property hereunder, including City.
c) Attorney’s Fees. In the event either Party brings an action at law or in
equity, including any action for declaratory relief, to enforce the provisions of this Agreement
against the other Party, the prevailing party shall be entitled to recover from the other party
reasonable attorneys’ fees, costs and expenses incurred in connection with the prosecution or
defense of such action which may be set by the court in the same action or in a separate action
brought for that purpose, in addition to any other relief to which the prevailing party may be
entitled under law.
d) Entire Agreement. This Agreement sets forth the entire agreement of the
Parties with respect to Clark’s use of the Property hereunder and supersedes all prior discussions,
negotiations, understandings, or agreements relating thereto.
e) Amendments. This Agreement may only be amended in a writing signed
by both Parties.
f) Severability. If any term, covenant, condition or provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and shall not be affected, impaired
or invalidated thereby.
g) Waiver. No waiver of any breach of any term or condition contained in
this Agreement shall be deemed a waiver of any preceding or succeeding breach of such term or
condition, or of any other term or condition contained in this Agreement. No extension of the
time for performance of any obligation or act, no waiver of any term or condition of this
Agreement, nor any modification of this Agreement shall be enforceable against either of the
Parties hereto, unless made in writing and executed by both Parties.
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h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement.
i) Assignment, Transfer. Clark may not assign or otherwise transfer this
Agreement, in whole or in part. without the written consent of City, which may be granted or
withheld in City’s sole discretion. Any assignment or transfer in violation of this Section shall be
null and void.
j) Binding on Successors. This Agreement shall apply to and be binding
upon the heirs, successors, executors, administrators, and assigns of each of the Parties hereto.
k) Survival. All obligations arising prior to the expiration or termination of
this Agreement and all provisions of this Agreement allocating liability between City and Clark
shall survive the expiration or termination of this Agreement.
l) Administration of Agreement. The City Manager or designee shall have
the authority to execute the documents and approvals necessary to effectuate the purpose of this
Agreement, and may administratively approve and execute amendments which do not result in
material changes to this Agreement, determined in the City Manager’s or designee’s sole
discretion. The City Manager or Designee may refer any matter subject to their approval
pursuant to this Paragraph to the City Council.
m) Litigation Matters. The Superior Court of the State of California for the
County of Riverside shall have the exclusive jurisdiction of any litigation between the Parties
arising out of this Agreement. This Agreement shall be governed by, and construed under, the
internal laws of the State of California without regard to conflicts of law principles. Service of
process on the City shall be made in the manner required by law for service on a public entity.
n) No Partnership or Joint Venture. Nothing in this Agreement shall be
construed to render City in any way or for any purpose a partner, joint venturer, or associate in
any relationship with Clark, nor shall this Agreement authorize either Party to act as an agent for
the other.
o) Non-Liability of Officers, Officials, and Agents. No officer, official,
employee, agent, or representative of City shall be personally liable to the Clark, or any
successor or assign of same, in the event of any default or breach by City, or for any amount
which may become due to Clark, or any successor or assign of same, or for breach of any
obligation of the terms of this Agreement.
p) Covenant Against Discrimination. Clark covenants for itself, successors
and assigns, and all persons claiming under or through it, that there shall be no discrimination
against any person on account of race, color, creed, religion, sex, marital status, national origin,
or ancestry, in the performance of this Agreement.
q) No Third Party Beneficiaries. There are no third party beneficiaries to this
Agreement.
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r) Notices. All notices required to be delivered under this Agreement or
under applicable law shall be personally delivered by United States mail, prepaid, certified,
return receipt requested, or by reputable document delivery service that provides a receipt
showing date and time of delivery. Notices personally delivered or delivered by a document
delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at
5:00 p.m. on the third business day following dispatch. Notices shall be delivered to the
following addresses, which may be changed from time to time upon written notice to the other
Party:
To City: City of Menifee
Attn: Rebekah Kramer
29844 Haun Road
Menifee, CA 92586
rkramer@cityofmenifee.us
With a copy to:
Rutan & Tucker, LLP
Attn: Jeffrey T. Melching
18575 Jamboree Rd 9th Floor
Irvine, CA 92612
jmelching@rutan.com
To Clark:
Clark Construction Group - CA, LP
18201 Von Karman Avenue, Suite 800
Irvine, CA 92612
Attn: Tom Farrar
tom.farrar@clarkconstruction.com
With a copy to:
Clark Construction Group – CA, LP
Attn: Andy Argyris
180 Howard Street, Suite 1200
San Francsico, CA 94105
andy.argyris@clarkconstruction.com
s) Time of Essence. Time is of the essence in the performance of this
Agreement and every provision hereof.
t) No Recording. Neither Party will record this Agreement or any
memorandum thereof.
u) Recitals and Exhibits. The Recitals above and all exhibits attached hereto
are hereby incorporated into the Agreement by this reference.
v) Construction. Headings at the beginning of each section and sub-section of
this Agreement are solely for the convenience of and are not a part of this Agreement. Whenever
required by the context of this Agreement, the singular shall include the plural and the masculine
shall include the feminine and vice versa. This Agreement shall not be construed as if it had been
prepared by one or the other of the Parties, but rather as if both Parties prepared this Agreement.
If the date on which a Party is required to take any action pursuant to the terms of this
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Agreement is not a business day of City, the action shall be taken on the next Agreement
business day of City.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
CITY OF MENIFEE,
a California municipal corporation
____________________________
By: Rebekah Kramer
Title: Acting City Manager
Dated: _______________________
CLARK CONSTRUCTION GROUP – CA,
LP, a limited partnership
____________________________
By: _________________________
Title: General Partner
Dated: _______________________
ATTEST:
____________________________
By: Sarah A. Manwaring
Title: City Clerk
Dated: _______________________
APPROVED AS TO FORM:
____________________________
By: Jeffrey T. Melching
Title: City Attorney
Dated: _______________________
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2/1/2024
2/1/2024
2/1/2024
2/6/2024
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20150407.7 a02/01/24 EXHIBIT “A”
EXHIBIT "A"
DEPICTION OF PERMITTED USE LOCATIONS
[Attached]
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Temporary Trailer
Temporary Toilets
(Within Existing
Fenced Enclosure) Property
Access Point
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