HomeMy WebLinkAbout2011-05-24 City Council Item No. 15CITY OF
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LAKE LSII` ORI
DREAM EXTREME-
REPORT TO CITY COUNCIL
TO: HONORABLE MAYOR
AND MEMBERS OF THE CITY COUNCIL
FROM: ROBERT A. BRADY
CITY MANAGER
DATE: MAY 24, 2011
SUBJECT: COOPERATIVE AGREEMENT WITH RIVERSIDE COUNTY FLOOD
CONTROL AND WATER CONSERVATION DISTRICT, CITY OF
LAKE ELSINORE AND CASTLE AND COOKE ALBERHILL
RANCH, LLC.
Background
The City of Lake Elsinore, the Riverside County Flood Control and Water Conservation
District (RCFCWCD) and Castle and Cooke Alberhill Ranch, LLC desire to enter into a
cooperative agreement for the construction and maintenance of the storm drain
improvements and flood control facilities of the Alberhill Ranch /Ridge development. This
project is generally located between Lake Street and 1 -15 along Nichols Road.
niccuccinn
The developer {Castle and Cooke Alberhill Ranch, LLC.) has designed plans and
specifications for the subject project in accordance with the standards for RCFCWCD and
City of Lake Elsinore. The developer will finance all costs related to design, construction
and inspection for this project. Once the mainline is fully constructed, RCFCWCD will
assume responsibility for the operation and maintenance of the storm drain system.
However, because this construction is a segment of the complete system, the City will be
maintaining the mainline. The City of Lake Elsinore will continue to maintain the
appurtenances, consisting of catch basins, connector pipes and storm drain laterals within
the public right -of -way after the mainline is transferred to RCFCWCD .
The City Attorney's office has reviewed the agreement and found it to be acceptable.
AGENDA ITEM NO. 15
Page 1
Fiscal Impact
Because the mainline is sized to convey the build out volume of water to be conveyed,
there will be nominal maintenance costs for this interim condition. Once the mainline is
conveyed to RCFCWCD, the City will continue to incur costs to maintain the catch basins
and storm drain laterals.
Recommendations
Staff Recommends that the City Council authorize the Mayor to execute the Cooperative
Agreement for the construction and maintenance of the Temescal Creek - Nichols Road
Drainage Facilities with Riverside County Flood Control and Water Conservation District
and Castle & Cooke Alberhill Ranch, LLC.
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Prepared by: Dina Purvis
Engineering Technician
Approved by: Ken Seumalo 0
Director of Public Works
Approved by: Robert A. Brady
City Manager O�
Attachments: Cooperative Agreement for
Temescal Creek - Nichols Road Storm Drain
Vicinity Map
Page 2
VICINITY MAP
TEMESCAL CREEK- NICHOLS ROAD
STORM DRAIN FACILITIES
COOPERATIVE AGREEMENT
PROJECT SITE
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CITY COUNCIL
MAY 24, 2011
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COOPERATIVE AGREEMENT
Temescal Creek - Nichols Road Storm Drain, Line B -Stage I
(Project No. 3 -0- 00042)
The RIVERSIDE COUNTY FLOOD CONTROL AND WATER
CONSERVATION DISTRICT, hereinafter called 'DISTRICT ", the CITY OF LAKE
ELSINORE, hereinafter called "CITY ", and CASTLE & COOKE ALBERHILL RANCH LLC,
a California limited liability company, hereinafter called "DEVELOPER ", hereby agree as
follows:
RECITALS
A. DEVELOPER has submitted for approval Tract No. 28214 in the city of
Lake Elsinore and, as a condition for approval, 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 facilities, as shown on District Drawing No. 3-
198, include construction of approximately 1026 lineal feet of underground storm drain system,
hereinafter called "DISTRICT DRAINAGE FACILITIES ", as shown in concept in red on
Exhibit "A" attached hereto and made a part hereof. At its upstream terminus, DISTRICT
DRAINAGE FACILITIES will connect to a future storm drain facility within the proposed
Pioneer Lane. At its downstream terminus, DISTRICT DRAINAGE FACILITIES are proposed
to connect to a future storm drain facility within Nichols Road. The future connections,
hereinafter called "FUTURE DRAINS ", are to be constructed pursuant to one or more separate
Cooperative Agreements, hereinafter called "FUTURE AGREEMENTS ", between DISTRICT,
CITY and possible additional parties yet to be identified; and
C. Associated with the construction of DISTRICT DRAINAGE FACILITIES
is the construction of a certain outlet structure, certain catch basins, connector pipes and laterals,
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hereinafter called "APPURTENANCES ". Together DISTRICT DRAINAGE FACILITIES and
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2 APPURTENANCES are hereinafter called "PROJECT "; and
3 D. DEVELOPER and CITY desire DISTRICT to ultimately accept ownership
4 and responsibility for the operation and maintenance of DISTRICT DRAINAGE FACILITIES.
5 Therefore, DISTRICT must review and approve DEVELOPER'S plans and specifications for
6 PROJECT and subsequently inspect the construction of DISTRICT DRAINAGE FACILITIES;
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and
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9 E. DISTRICT and DEVELOPER desire CITY to accept ownership and sole
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responsibility for APPURTENANCES. Additionally, it is mutually understood and agreed that
I I CITY shall assume ownership and sole responsibility for the operation and maintenance of
12 PROJECT until such time as DISTRICT DRAINAGE FACILITIES are accepted by DISTRICT
13 as set forth herein; and
14 F. DISTRICT, is willing to (i) review and approve DEVELOPER'S plans and
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specifications for DISTRICT DRAINAGE FACILITIES, (ii) inspect the construction of
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17 DISTRICT DRAINAGE FACILITIES, and (iii) accept ownership and responsibility for the
18 operation and maintenance of DISTRICT DRAINAGE FACILITIES upon completion and
19 DISTRICT acceptance of FUTURE DRAINS pursuant to the terms of any FUTURE
20 AGREEMENTS, provided DEVELOPER (1) complies with this Agreement, (ii) pays
21 DISTRICT the amounts specified herein to cover DISTRICT'S plan review and construction
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inspection costs, (iii) constructs DISTRICT DRAINAGE FACILITIES in accordance with plans
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and specifications approved by DISTRICT, (iv) obtains all necessary permits, regulatory
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25 permits, licenses and rights of entry as set forth herein, and (v) accepts ownership and
26 responsibility for the operation and maintenance of DISTRICT DRAINAGE FACILITIES
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following completion of construction until such time as CITY accepts interim ownership and
responsibility for the operation and maintenance of DISTRICT DRAINAGE FACILITIES; and
G. CITY is willing to (i) accept and hold faithful performance and payment
bonds submitted by DEVELOPER for DISTRICT DRAINAGE FACILITIES, (ii) grant
DISTRICT the right to inspect, operate and maintain DISTRICT DRAINAGE FACILITIES
within CITY rights of way, and (iii) accept interim ownership and responsibility for the
operation and maintenance of DISTRICT DRAINAGE FACILITIES pending completion of
construction and DISTRICT acceptance of FUTURE DRAINS pursuant to the terms of any
FUTURE AGREEMENTS
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION I
DEVELOPER shall:
1. Prepare plans and specifications for PROJECT, as shown on District
Drawing No. 3 -198, hereinafter called "IMPROVEMENT PLANS ", in accordance with
DISTRICT standards, and submit to DISTRICT for review and approval.
2. Continue to pay DISTRICT, within thirty (30) days after receipt of periodic
billings from DISTRICT, any and all such amounts as are deemed reasonably necessary by
DISTRICT to cover DIS'TRICT'S costs associated with the review of IMPROVEMENT PLANS
and with the processing and administration of this Agreement.
3. Deposit with DISTRICT (Attention: Business Office — Accounts
Receivable), at the time of providing written notice to DISTRICT of the start of DISTRICT
DRAINAGE FACILITIES construction as set forth in Section 1.8. herein, the estimated cost of
providing construction inspection for DISTRICT DRAINAGE FACILITIES, in an amount as
determined and approved by DISTRICT in accordance with Ordinance Nos. 671 and 749 of the
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County of Riverside, including any amendments thereto, based upon the bonded value of
DISTRICT DRAINAGE FACILITIES.
4. [This Section Intentionally Left Blank.]
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 DISTRICT DRAINAGE FACILITIES. DEVELOPER shall furnish
DISTRICT, at the time of providing written notice to DISTRICT of the start of construction as
set forth in Section 1.8., with sufficient evidence of DEVELOPER having secured such
necessary licenses, agreements, permits and rights of entry, as determined and approved by
DISTRICT.
6. Furnish DISTRICT with copies of all permits, approvals or agreements as
may be required by any Federal or State resource and /or regulatory agency for the construction,
operation and maintenance of DISTRICT DRAINAGE FACILITIES. Such documents include
but are not limited to those issued by the U.S. Army Corps of Engineers, California Regional
Water Quality Control Board, California State Department of Fish and Game, and State Water
Resources Control Board,
7. Provide CITY, at the time of providing written notice to DISTRICT of the
start of construction as set forth in Section I.B., with faithful performance and payment bonds,
each in the amount of (100 %) of the estimated cost for construction of DISTRICT DRAINAGE
FACILITIES as determined by DISTRICT. The surety, amount and form of the bonds shall be
subject to the approval of DISTRICT and CITY. The bonds shall remain in full force and effect
until DISTRICT DRAINAGE FACILITIES are approved by DISTRICT as complete and
accepted by CITY for interim ownership and maintenance responsibilities; at which time the
bond amount may be reduced to ten percent (10 %) to guarantee against any defective work,
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labor or materials. The remaining bonds shall remain in full force and effect for a period of one
(1) year following acceptance of DISTRICT DRAINAGE FACILITIES by CITY for interim
ownership and maintenance as set forth herein.
8. Notify DISTRICT in writing (Attention. Administrative Services Section),
at least twenty (20) days prior to the start of construction of DISTRICT DRAINAGE
FACILITIES. Construction shall not begin on any element of DISTRICT DRAINAGE
FACILITIES, for any reason whatsoever, until DISTRICT has issued to DEVELOPER a written
Notice to Proceed authorizing DEVELOPER to commence construction of DISTRICT
DRAINAGE FACILITIES.
9. Grant DISTRICT, by execution of this Agreement, the right to enter upon
DEVELOPER'S property where necessary and convenient for the purpose of gaining access to,
and performing inspection. service for, the construction of DISTRICT DRAINAGE
FACILITIES as set forth herein.
10. [This Section Intentionally Left Blank.]
11. [This Section Intentionally Left Blank.]
12. Furnish DISTRICT, at the time of providing written notice to DISTRICT of
the start of construction as set forth in Section 1.8., with a complete list of all contractors and
subcontractors to be performing work on DISTRICT DRAINAGE FACILITIES, including the
corresponding license number and license classification of each. At such time, DEVELOPER
shall further identify in writing its designated superintendent for DISTRICT DRAINAGE
FACILITIES construction.
13. Furnish DISTRICT, at the time of providing written notice to DISTRICT of
the start of construction as set forth in Section I.8., a construction schedule which shall show the
order and dates in which DEVELOPER or DEVELOPER'S contractor proposes to carry on the
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various parts of work, including estimated start and completion dates. As construction of
DISTRICT DRAINAGE FACILITIES progresses, DEVELOPER shall update said construction
schedule as requested by DISTRICT.
14. Furnish DISTRICT with final mylar IMPROVEMENI" PLANS and assign
their ownership to DISTRICT at the time DISTRICT approves and signs said final mylar
IMPROVEMENT PLANS, and prior to the start of DISTRICT DRAINAGE FACILITIES
construction.
15. Not permit any change to or modification of IMPROVEMENT PLANS
� without the prior written permission and consent of DISTRICT.
16. Comply with all Cal /OSHA safety regulations including regulations
concerning confined space and maintain a safe working environment for DEVELOPER and
DISTRICT employees on the site.
17. Furnish DISTRICT, at the time of providing written notice to DISTRICT of
the start of construction as set forth in Section 1.8., a confined space entry procedure specific to
DISTRICT DRAINAGE FACILITIES. The procedure shall comply with requirements
contained in California Code of Regulations, 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 prior to the
issuance of a Notice to Proceed.
18. During the construction period of DISTRICT DRAINAGE FACILITIES,
provide Workers' Compensation Insurance in an amount required by law. A certificate of said
insurance policy shall be provided to DISTRICT, the County of Riverside and CITY at the time
of providing written notice pursuant to Section 1.8.
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19.
Commencing on
the date notice is given
pursuant to Section I.B. and
continuing until
DISTRICTI' accepts
DISTRICT DRAINAGE
FACILITIES for ownership,
operation and maintenance:
(a) Provide and maintain or cause its contractor(s) to provide and
maintain comprehensive liability insurance coverage which shall
protect DEVELOPER from claim from damages for personal injury,
including accidental and wrongful death, as well as from claims for
property damage which may arise from DEVELOPER'S construction
of DISTRICT DRAINAGE FACILITIES or the performance of its
obligations hereunder, whether such construction or performance be
by DEVELOPER, by any of its contractors, subcontractors, or by
anyone employed directly or indirectly by any of them. Such
insurance shall name DISTRICT, the County of Riverside and CITY
as additional insureds with respect to this Agreement and the
obligations of DEVELOPER hereunder. Such insurance shall
provide for limits of not less than two million dollars ($2,000,000)
per occurrence.
(b) Cause its insurance carrier(s) or its contractor's insurance carrier(s),
who shall be authorized by the California Department of Insurance to
transact the business of insurance in the State of California, to
furnish DISTRICT, the County of Riverside and CITY at the time of
providing written notice to DISTRICT of the start of construction as
set forth in Section I.B., with certificate(s) of insurance and
applicable policy endorsements showing that such insurance is in full
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force and effect and that DISTRICT, the County of Riverside and
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2 CITY are named as additional insureds with respect to this
3 Agreement and the obligations of DEVELOPER hereunder. Further,
4 said certificate(s) shall state that the issuing company shall give
5 DISTRICT, the County of Riverside and CITY thirty (30) days
6 written notice in the event of any cancellation, termination, non-
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renewal or reduction in coverage of the policies evidenced by the
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certificate(s). In the event of any such cancellation, termination,
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10 non - renewal or reduction in coverage, DEVELOPER shall,
I I forthwith, secure replacement insurance meeting the provisions of
1.2 this paragraph.
13 Failure to maintain the insurance required by this paragraph shall be
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deemed a material breach of this Agreement and shall authorize and constitute authority for
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DISTRICT, at its sole discretion, to proceed to perform the remaining work pursuant to Section
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IV.3.
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18 20. Construct or cause to be constructed, DISTRICT DRAINAGE
19 FACILITIES at DEVELOPER'S sole cost and expense in accordance with DISTRICT approved
20 IMPROVEMENT PLANS.
21 21. Within two (2) weeks of completing DISTRICT DRAINAGE FACILITIES
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construction, provide DISTRICT with written notice (Attention: Contract Administration
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Section) that DISTRICT DRAINAGE FACILITIES construction is substantially complete and
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25 requesting that DISTRICT conduct a final inspection of DISTRICT DRAINAGE FACILITIES.
26 22. [This Section Intentionally Left Blank.]
27 23. [This Section Intentionally Left Blank.]
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24. [This Section Intentionally Left Blank.]
25. Accept ownership and sole responsibility for the operation and maintenance
of DISTRICT DRAINAGE FACILITIES until such time as CII'Y accepts interim ownership
and responsibility for operation and maintenance of DISTRICT DRAINAGE FACILITIES.
Further, it is mutually understood by the parties hereto that prior to CITY acceptance of interim
ownership and responsibility for the operation and maintenance of DISTRICT DRAINAGE
FACILITIES, DISTRICT DRAINAGE FACILITIES shall be in a satisfactorily maintained
condition as solely determined by DISTRICT.
26. Pay, if suit is brought upon this Agreement or any bond guaranteeing the
completion of DISTRICT DRAINAGE FACILITIES, all costs and reasonable expenses and
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fees, including reasonable attorneys' fees, and acknowledge that, upon entry of judgment, all
such costs, expenses and fees shall be computed as costs and included in any judgment
rendered.
27. Upon completion of construction of DISTRICT DRAINAGE FACILITIES,
but prior to CITY acceptance of DISTRICT DRAINAGE FACILITIES for interim ownership,
operation and maintenance, DEVELOPER'S civil engineer of record or construction civil
engineer of record, duly registered in the State of California, shall provide DISTRICT with a
redlined "RECORD DRAWING" copy of plans for DISTRICT DRAINAGE FACILITIES.
After DISTRICT approval of the redlined "RECORD DRAWING" plans, 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 "RECORD DRAWING ".
28. Ensure that all work performed pursuant to this Agreement by
DEVELOPER, its agents or contractors is done in accordance with all applicable laws and
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regulations, including but not limited to all applicable provisions of the Labor Code, Business
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2 and Professions Code, and Water Code. DEVELOPER shall be solely responsible for all costs
3 associated with compliance with applicable laws and regulations.
4 SECTION II
5 DISTRICT shall:
6 1. Review and approve IMPROVEMENT PLANS prior to the start of
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DISTRICT DRAINAGE FACILITIES construction.
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2. Upon execution of this Agreement, record or cause to be recorded, a copy
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10 of this Agreement in the Official Records of the Riverside County Recorder.
11 3. [This Section Intentionally Left Blank.]
12 4. Inspect DISTRICT DRAINAGE FACILITIES construction.
13 5. Keep an. accurate accounting of all DISTRICT costs associated with the
14 review and approval of IMPROVEMENT PLANS, the review and approval of right of way and
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conveyance documents and the processing and administration of this Agreement.
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17 6. Keep an accurate accounting of all DISTRICT construction inspection
18 costs, and within forty -five (45) days after DISTRICT acceptance of DISTRICT DRAINAGE
19 FACILITIES construction as being complete, submit a final cost statement to DEVELOPER. If
20 the deposit, as set forth in Section I.3. exceeds such costs, DISTRICT shall reimburse
21 DEVELOPER the excess amount within sixty (60) days after DISTRICT acceptance of
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DISTRICT DRAINAGE FACILITIES construction as being complete. If at any time the costs
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exceed the deposit or are anticipated by DISTRICT to exceed the deposit, DEVELOPER shall
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25 pay such additional amount(s), as deemed reasonably necessary by DISTRICT to complete
26 inspection of DISTRICT DRAINAGE FACILITIES, within thirty (30) days after receipt of
27 billing from DISTRICT.
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7. Accept ownership and sole responsibility for the operation and maintenance
of DISTRICT DRAINAGE FACILITIES upon (i) DISTRICT acceptance of DISTRICT
DRAINAGE FACILITIES construction as being complete, (ii) acceptance by CITY of all
necessary street rights of way as deemed necessary by DISTRICT and CITY for the operation
and maintenance of PROJECT, (iii) DISTRICT determination that DISTRICT DRAINAGE
FACILITIES shall be in a satisfactorily maintained condition as solely determined by
DISTRICT, (iv) DISTRICT determination that others have made any necessary grading and
manhole adjustments within DISTRICT easements to meet DISTRICT standards, and (v)
DISTRICT acceptance of FUTURE DRAINS pursuant to the terms of any FUTURE
AGREEMENTS.
8. Provide CITY with a reproducible duplicate copy of "RECORD
DRAWING" plans upon DISTRICT acceptance of DISTRICT DRAINAGE FACILITIES
construction as being complete.
SECTION III
CITY shall:
1. Accept CITY and DISTRICT approved faithful performance and payment
bonds submitted by DEVELOPER as set forth in Section 1.7., and hold said bonds as provided
herein.
2. Consent, by execution of this Agreement, to the recording of any
Irrevocable Offer(s) of Dedication furnished by DEVELOPER pursuant to this Agreement.
3. [This Section Intentionally Left Blank.]
4. Grant DISTRICT, by execution of this Agreement, the right to construct,
inspect, operate and maintain DISTRICT DRAINAGE FACILITIES within CITY rights of way.
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5. Accept interim ownership and sole responsibility for the operation and
maintenance of DISTRICT DRAINAGE FACILITIES upon DISTRICT acceptance of
DISTRICT DRAINAGE FACILITIES construction as being complete.
6. Convey ownership and sole responsibility for the operation aa�d
maintenance of DISTRICT DRAINAGE FACILITIES to DISTRICT upon (i) DISTRICT
deten-nination that others have made any necessary grading and manhole adjustments within
DISTRICT easements to meet DISTRICT standards and (ii) DISTRICT acceptance of FUTURE
DRAINS pursuant to the terms of any FUTURE AGREEMENTS..
8. Not grant any occupancy permits for any units within any portion of Tract
No. 28214, or any phase thereof, until (i) this Agreement has been executed by all parties and
recorded by DISTRIC`I ", and (ii) construction of DISTRICT DRAINAGE FACILITIES is
complete, unless otherwise approved in writing by DISTRICT.
SECTION IV
It is further mutually agreed:
1. All work involved with DISTRICT DRAINAGE FACILITIES shall be
inspected by DISTRICT and shall not be deemed complete until approved and accepted in
writing as complete by DISTRICT.
2. CITY and DEVELOPER personnel may observe and inspect all work being
done on DISTRICT DRAINAGE FACILITIES, but shall provide any comments to DISTRICT
personnel who shall be solely responsible for all quality control communications with the
DEVELOPER'S contractor(s) during the construction of DISTRICT DRAINAGE FACILITIES.
3. DEVELOPER shall complete construction of DISTRICT DRAINAGE
FACILITIES within twelve (12) consecutive months after execution of this Agreement and
within one hundred sixty (160) consecutive calendar days after commencing work on
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DISTRICT DRAINAGE FACILITIES. 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 DISTRICT for DISTRICT costs incurred.
4. DEVELOPER shall not request DISTRICT or CITY to accept any portion
or portions of DISTRICT DRAINAGE FACILITIES prior to the completion of DISTRICT
DRAINAGE FACILITIES construction.
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 1.8.; however, DISTRICT'S construction inspection staff is limited and, therefore, the
issuance of a 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 furnish an independent qualified construction inspector at
DEVELOPER'S sole cost and expense. DEVELOPER shall furnish appropriate documentation
of the individual's credentials and experience to DIST'RIC'T' 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 ", shall be
authorized to act on DISTRICT'S behalf on all DISTRICT DRAINAGE FACILITIES
construction and quality control matters. If DEVELOPER'S initial construction inspection
deposit furnished pursuant to Section 1.3. 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.
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6. DISTRICT DRAINAGE FACILITIES 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 to
work the additional hours. The request shall be submitted to DISTRICT at least seventy -two
(72) hours prior to the requested 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 connection with the overtime work in accordance with Ordinance
Nos. 671 and 749, including any amendments thereto, of the County of Riverside.
7. DEVELOPER shall indemnify and hold harmless DISTRICT and CITY
(including their agencies, districts, special districts and departments, their respective directors,
officers, Board of Supervisors, elected and appointed officials, employees, agents and
representatives) from 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 officers, employees,
subcontractors and agents) actual or alleged acts or omissions related to this Agreement,
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 pursuant to Article 1, Section 19 of the California 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 patterns or the discharge of drainage within
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or from DISTRICT DRAINAGE FACILITIES; or (d) any other element of any kind or nature
whatsoever.
DEVELOPER shall defend, at its sole expense, including all costs and fees
(including but not limited to attorney fees, cost of investigation, defense and settlements or
awards), DISTRICT and CITY (including their agencies, districts, special districts and
departments, their respective directors, officers, Board of Supervisors, elected and appointed
officials, employees, agents and representatives) in any claim, proceeding 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 CITY; provided, however, that any such adjustment, settlement
or compromise in no manner whatsoever limits or circumscribes DEVELOPER'S
indemnification obligations to DISTRICT or CITY.
DEVELOPER'S indemnification obligations shall be satisfied when
DEVELOPER has provided to DISTRICT and CITY the appropriate form of dismissal relieving
DISTRICT or CITY from any liability for the claim, proceeding or action involved.
The specified insurance limits required in this Agreement shall in no way
limit or circumscribe DEVELOPER'S obligations to indemnify and hold harmless DISTRICT
and CITY from third party claims.
In the event there is conflict between this section and California Civil Code
Section 2782, this section shall be interpreted to comply with Civil Code Section 2782. Such
interpretation shall not relieve the DEVELOPER from indemnifying DISTRICT or CITY to the
fullest extent allowed by law.
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8. Any waiver by DISTRICT or by CITY of any breach of any one or more of
the 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
require exact, full and complete compliance with any terns of this Agreement shall not be
construed as in any manner changing the terms hereof, or estopping DISTRICT or CITY from
enforcement hereof.
9. [This Section Intentionally Left Blank.]
10. This Agreement is to be construed in accordance with the laws of the State
I of California.
11. Any and all notices sent or required to be sent to the parties of this
Agreement will be mailed by first class mail, postage prepaid, to the following addresses:
RIVERSIDE COUNTY FLOOD CONTROL CITY OF LAKE ELSINORE
AND WATER CONSERVATION DISTRICT 130 South Main Street
1995 Market Street Lake Elsinore, CA 92530
Riverside, CA 92501 Attn: Ken Seumalo
Director of Public Works
CASTLE & COOKE ALBERHILL RANCH, LLC
4113 Pearl Street
Lake Elsinore, CA 92530
Attn: Tom Tomlinson
12. 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 California, and the parties hereto
waive all provisions of law providing for a change of venue in such proceedings to any other
county.
13. This Agreement is the result of negotiations between the parties hereto, and
the advice and assistance of their respective counsel. The fact that this Agreement was prepared
as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty
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135334
or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT
prepared this Agreement in its final form.
14. The rights and obligations of DEVELOPER shall inure to and be binding
upon all heirs, successors and assignees.
15. DEVELOPER shall not assign or otherwise transfer any of its rights, duties
or obligations hereunder to any person or entity without the written consent of the other parties
hereto being first obtained. In the event of any such transfer or assignment, DEVELOPER
expressly understands and agrees that it shall remain liable with respect to any and all of the
obligations and duties contained in this Agreement.
16. The individual(s) executing this Agreement on behalf of DEVELOPER
hereby certify that they have the authority within their respective company(ies) to enter into and
execute this Agreement, and have been authorized to do so by any and all boards of directors,
legal counsel, and or any other board, committee or other entity within their respective
company(ies) which have the authority to authorize or deny entering this Agreement.
17. This Agreement is intended by the parties hereto as a final expression of
their understanding with respect to the subject matter hereof and as a complete and exclusive
statement of the terms and conditions thereof and supersedes any and all prior and
contemporaneous agreements and understandings, oral or written, in connection therewith. This
Agreement may be changed or modified only upon the written consent of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
(to be filled in by Clerk of the Board)
RIVERSIDE COUNTY FLOOD CONTROL
RECOMMENDED FOR APPROVAL: AND WATER CONSERVATION DISTRICT
By BY
WARREN D. WILLIAMS MARION ASHLEY, Chairman
General. Manager -Chief Engineer Riverside County Flood Control and Water
Conservation District Board of Supervisors
APPROVED AS TO FORM: ATTEST:
PAMELA J. WALLS KECIA HARPER -THEM
Count Counsel Clerk of the Board
By
EAL KIPNI
Deputy County Counsel
Cooperative Agreement: TR 28214
KEC:blj
2/1/11
By _
Deputy
(SEAL)
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APPROVED AS TO FORM:
CITY OF LAKE ELSINORE
By By
BARBARA LEIBOLD AMY BHUTTA
City Attorney Mayor
I RECOMMENDED FOR APPROVAL: ATTEST:
By By
KEN SEUMALO VIRGINIA J BLOOM
Director of Public Works City Cierk
(SEAL)
Cooperative Agreement: TR 28214
KEC:blj
2/1/11
SEE
135334
�I Page 22
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CASTLE & COOKE ALBERHILL RANCH, LLC
a California limited liability company
Cooperative Agreement: TR 28214
KEC:blj
2 /l /11
By
M. J. TOMLINSON
President
(35334
pending receipt of silIgnatUre authority requested
(ATTACH NOTARY WITH
CAPACITY STATEMENT)
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PROJECT
LOCA77ON
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Cooperative Agreement
`feznescal Creek - Nichols Road Stonn Drain, Line B -Stage l
(Project No. 3- 0- 00042)
Page 1 of 4
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2
OMMUSFA
Cooperative Agreement
Ternescal Creek-Nichols Road Stoma Drain, Line B-Stage I
(Project No. 3-0-00042)
Page 2 of 4
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Cooperative agreement
`fie escal Creek - Nichols Road Store Drain, Line B -Stage I
(Project No. 3- 0- 00042)
Page 3 of 4
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Exhibit
flooperatkve Agreement
Temeseal Creed: - Nichols Road Storm Drain, Line B =Stage 1
(Project N`o. 3- 0- 00042)
Page 4 of 4
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