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CITY COUNCIL OCTOBER 19, 2005
CONSENT CALENDAR
Subject: APPROVAL OF A COOPERATIVE AGREEMENT WITH RIVERSIDE
COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT
AND CRV MONTE SERENO, LP, RELATED TO CONSTRUCTION OF
RIP-RAP CHANNEL LINING IMPROVEMENTS ALONG PALM CANYON
WASH, IDENTIFIED AS PALM CANYON WASH, STAGE 6, TRACT NO.
30046, PROJECT NO. 6-0-0040-06
From: David H. Ready, City Manager
Initiated by: Public Works and Engineering Department
SUMMARY
Tentative Tract Map 30046, located on Bogert Trail and adjacent to the Palm Canyon
Wash, was approved by City Council on July 20, 2003. The project requires
construction of flood control improvements to protect the property from flooding that
might occur within the Palm Canyon Wash. In accordance with Chapter 93.17 of the
City's Zoning Code, the Flood Damage Prevention Ordinance requires construction of
improvements necessary to remove a proposed subdivision outside of a designated
100-year (Zone "A") floodplain and designated floodways. Accordingly, conditions of
approval were imposed on the developer to submit necessary technical studies and
documents to FEMA, and to coordinate with Riverside County Flood Control and Water
Conservation District (RCFC) for construction of necessary flood control improvements
to remove the property from the designated floodplain. The Cooperative Agreement
between the City, RCFC, and the developer is a standard agreement for construction of
flood control improvements that will ultimately be operated and maintained by RCFC.
RECOMMENDATION:
1) Adopt Minute Order No. , approving a Cooperative Agreement between the
Riverside County Flood Control and Water Conservation District, the City of Palm
Springs, and CRV Monte Sereno, L.P., a California limited partnership,
associated with the construction, operation, and maintenance of flood control
improvements adjacent to the Palm Canyon Wash, identified as "Palm Canyon
Wash, Stage 6", Tract No. 30046, Project No. 6-0-0040-06, subject to final
changes by the City Attorney and County Counsel; and
ITEM NO.l• �
City Council Staff Report
October 19, 2005 - Page 2
Palm Canyon Wash Cooperative Agreement
2) Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Tentative Tract Map 30046 is a subdivision of 89 single family homes located on Bogert
Trail, immediately west and adjacent to the Palm Canyon Wash. The property is
identified within a 100-year floodplain and a portion of the designated floodway for the
Palm Canyon Wash. In accordance with the City's Flood Damage Prevention
Ordinance (Chapter 93.17 of the Zoning Code), the developer was required to
demonstrate how the subdivision would be protected from the 100-year flood and to
submit technical studies and documents, collectively identified as a Conditional Letter of
Nlap Revision (CLOMR) to FEMA, that will ultimately take the property out of the 100-
year flood plain and the Palm Canyon Wash floodway.
The required flood control improvements basically consist of elevating the subdivision
sufficiently to protect it from the 100-year flood, as well as constructing improvements
along the west bank of the Palm Canyon Wash. The proposed improvements along the
west bank of the Palm Canyon Wash is limited to rip-rap lining, which has been
demonstrated to provide erosion control of the new levee and will protect the adjacent
subdivision in the event of a catastrophic flood within the Palm Canyon Wash. The new
rip-rap levee will not be concrete lined, similar to how the other levees are constructed
along the Palm Canyon Wash. The new rip-rap lined levee has also been designed to
match with the west bank of the Palm Canyon Wash created with the reconfiguration
and development of the Canyon South Golf Course by the Agua Caliente Development
Authority last year.
Riverside County Flood Control and Water Conservation District (RCFC) operates and
maintains the major flood control improvements within the City of Palm Springs. This
new rip-rap lined levee, although not shown on the City of Palm Springs Master Plan of
Drainage, was identified as a flood control improvement necessary as part of the overall
master plan of drainage for the South Palm Canyon area in a Hydrology and Hydraulics
Study prepared by Tettemer and Associates in 2001. RCFC has reviewed the plans for
construction of the rip-rap lined levee along the Palm Canyon Wash, and has prepared
a standard Cooperative Agreement between RCFC, the City, and the developer, CRV
Monte Sereno, LP, a California limited partnership.
The Cooperative Agreement outlines the requirements of each entity, which requires the
developer to construct the required improvements, requires RCFC to inspect and
approve the construction of the required improvements, and requires the City to provide
access rights and easements to RCFC for operation and maintenance of the required
improvements. There is no cost to the City associated with this Cooperative
Agreement, nor future costs related to maintaining the rip-rap lined levee. Upon
completion, RCFC will be responsible for all maintenance efforts associated with the
new levee system.
City Council Staff Report
October 19, 2005 - Page 3
Palm Canyon Wash Cooperative Agreement
The Cooperative Agreement requires review and approval by both the Riverside
County, County Counsel, and the City Attorney. It is recommended that the
Cooperative Agreement be approved, subject to any changes required in final form by
the City Attorney and County Counsel.
FISCAL IMPACT: IFinance Director Review: r_
�'`�-ram
None.
David J. Barakian Thomas J. Wilson
Director of Public Works/City Engineer Assistant City%Manager
David H. Ready, City ManXer�
ATTACHMENTS:
1. Cooperative Agreement
2. Minute Order
ATTACHMENT
COOPERATIVE AGREEMENT
102112_10
1 AGREEMENT
2 Palm Canyon Wash, Stage 6
3 (Tract No. 30046)
4 The RIVERSIDE COUNTY FLOOD CONTROL AND WATER
5 CONSERVATION DISTRICT, hereinafter called "DISTRICT", the CITY OF PALM SPRINGS
6 hereinafter called "CITY", and CRV MONTE SERENO, L.P., a California limited partnership,
7 hereinafter called "DEVELOPER", hereby agree as follows:
8
RECITALS
9
10 A. DEVELOPER has submitted for approval Tract No. 30046 in the City of
11 Palm Springs and as a condition for approval DEVELOPER must construct certain flood control
1.2 facilities in order to provide flood protection and drainage for DEVELOPER'S planned
13 development; and
14 B. The required flood control facilities include construction of approximately
15 1,400 lineal feet of riprap channel lining, hereinafter called "PROJECT", as shown in concept in
16 red on Exhibit "A" attached hereto and made a part hereof; and
17
18 C. PROJECT is to be constructed within existing CITY rights of way,
19 specifically Lot "R" of Tract No. 30046. Therefore, CITY must review and approve
20 DEVELOPER'S PROJECT plans and specifications and grant DEVELOPER the necessary
21 rights to construct, operate and maintain PROJECT until such time as DISTRICT accepts
22 responsibility for PROJECT'S ownership, operation and maintenance as set forth herein; and
23 D. Additionally, PROJECT is to be constructed in proximity to an existing
24 grade stabilization structure constructed by DISTRICT, hereinafter called "DROP
25
26 STRUCTURE", also located within Lot "R". DISTRICT desires CITY to convey an easement,
27 as shown in concept cross-hatched in green on Exhibit "B" attached hereto and made a part
28
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1 hereof, to DISTRICT granting DISTRICT the necessary rights to inspect, operate and maintain
2 DROP STRUCTURE. Said easement is hereinafter called "DROP STRUCTURE
3 EASEMENT'; and
4 D. DEVELOPER and CITY desire DISTRICT to accept ownership and
5 responsibility for the operation and maintenance of PROJECT. Therefore DISTR
ICT must
6 review and approve DEVELOPER'S plans and specifications and subsequently inspect the
7 construction of PROJECT; and
8
9 E. DISTRICT is willing to (i) review and approve DEVELOPER'S plans and
10 specifications for PROJECT, (ii) inspect the construction of PROJECT, and (iii) accept
1I ownership and responsibility for the operation and maintenance of PROJECT, provided
12 DEVELOPER (i) complies with this Agreement, (ii) pays DISTRICT the amounts specified
13 herein to cover DISTRICT'S plan review and construction inspection costs for PROJECT, (iii)
14 constructs PROJECT in accordance with plans and specifications approved by DISTRICT and
15 CITY, (iv) obtains all necessary permits, regulatory permits, licenses and rights of entry as set
16
1 i' forth herein, (v) accepts ownership and responsibility for the operation and maintenance of
18 PROJECT following completion of PROJECT construction until such time as DISTRICT
19 accepts ownership and responsibility for the operation and maintenance of PROJECT, and (vi)
20 CITY conveys to DISTRICT the necessary easement rights for the inspection, operation and
21 maintenance of PROJECT as provided herein; and
22 G. CITY is willing to (i) review and approve plans and specifications prepared
23
by DEVELOPER for PROJECT, (ii) accept and hold faithful performance and payment bonds
24
25 submitted by DEVELOPER for PROJECT, (iii) grant DEVELOPER the necessary rights to
26 construct, inspect, operate and maintain PROJECT with CITY rights of way, and (iv) convey to
27
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102112_10
1 DISTRICT the necessary easements to operate and maintain PROJECT and DROP
STRUCTURE as provided herein.
I 2
3 NOW, THEREFORE, the parties hereto mutually agree as follows:
4 SECTION I
5 DEVELOPER shall:
6 1. Prepare plans and specifications for PROJECT, hereinafter called
7 "IMPROVEMENT PLANS", in accordance with DISTRICT and CITY standards, and submit to
g
9 DISTRICT and CITY for their review and approval.
10 2. Continue to pay DISTRICT, within thirty (30) days after receipt of periodic
] I billings from DISTRICT, any and all such amounts as are deemed reasonably necessary by
12 DISTRICT to cover DISTRICT'S costs associated with the review of IMPROVEMENT PLANS,
13 review and approval of right of way and conveyance documents, and with the processing and
14 administration of this Agreement.
15
16 3. Deposit with DISTRICT (Attention: Business Office — Accounts
17 Receivable), at the time of providing written notice to DISTRICT of the start of PROJECT
18 construction as set forth in Section I.8. herein, the estimated cost of providing construction
19 inspection for PROJECT, in an amount as determined and approved by DISTRICT in accordance
20 with Ordinance Nos. 671 and 749 of the County of Riverside, including any amendments thereto,
21 based upon the bonded value of PROJECT facilities to be inspected, operated and maintained by
22 DISTRICT.
23
24 4. [This Section Intentionally Left Blank.]
25 5. Secure, at its sole cost and expense, all necessary licenses, agreements,
26 permits and rights of entry as may be needed for the construction, inspection, operation and
27 maintenance of PROJECT. DEVELOPER shall furnish DISTRICT, at the time of providing
28
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102112_10
I ] written notice to DISTRICT of the start of construction as set forth in Section I.B., with sufficient
2 evidence of DEVELOPER having secured such necessary licenses, agreements, permits and
3 rights of entry, as determined and approved by DISTRICT.
4 6. Furnish DISTRICT with copies of all permits, approvals or agreements
5 required by any Federal or State resource and/or regulatory agency for the construction,
6 operation and maintenance of PROJECT. Such documents include but are not limited to those
7 issued by the U.S. Army Corps of Engineers, California Regional Water Quality Control Board,
8
9 California State Department of Fish and Game and State Water Resources Control Board.
10 7. Provide CITY, prior to the time of providing written notice to DISTRICT of
II the start of construction as set forth in Section I.B., with a faithful performance and payment
12 bond in the amount of 100% of the estimated cost for construction of PROJECT facilities as
13 determined by DISTRICT and a material and labor bond in the amount of 50% of the estimated
114 cost for construction of PROJECT facilities as determined by DISTRICT. The surety, amount
11) and form of the bonds shall be subject to the approval of DISTRICT and CITY. The bonds shall
16
1 i' remain in full force and effect until PROJECT is accepted by DISTRICT as complete; at which
18 time the faithful performance bond amount may be reduced to 10% for a period of one year to
19 guarantee against any defective work, labor or materials.
20 8. Notify DISTRICT in writing (Attention: Administrative Services Section),
21 at least twenty (20) days prior to the start of construction of PROJECT. Construction shall not
22 begin on any element of PROJECT, for any reason whatsoever, until DISTRICT has issued to
23
24 DEVELOPER a written Notice to Proceed authorizing DEVELOPER to initiate PROJECT
construction.
25
26
27
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102112_10
1 9. Grant DISTRICT, by execution of this Agreement, the right to enter upon
2 DEVELOPER'S property where necessary and convenient for the purpose of gaining access to,
3 and performing inspection service for, the construction of PROJECT as set forth herein.
4 10. [This Section Intentionally Left Blank.]
5 11. [This Section Intentionally Left Blank.]
6 12. Furnish DISTRICT, at the time of providing written notice to DISTRICT of
7 the start of construction as set forth in Section I.B., with a complete list of all contractors and
8
9 subcontractors to be performing work on PROJECT, including the corresponding license number
and license classification of each. At such time, DEVELOPER shall further identify in writing
10
I I its designated superintendent for PROJECT construction.
112 13. Furnish DISTRICT, at the time of providing written notice to DISTRICT of
13 the start of construction as set forth in Section I.B., a construction schedule which shall show the
14 order and dates in which the DEVELOPER or DEVELOPER'S contractor proposes to carry on
15 the various parts of work, including estimated start and completion dates. As PROJECT
16
1;7 construction progresses, DEVELOPER shall update said construction schedule as requested by
lE DISTRICT.
19 14. Furnish DISTRICT with final mylar IMPROVEMENT PLANS and assign
20 their ownership to DISTRICT prior to the start of PROJECT constriction.
21 15. Not permit any change to or modification of the IMPROVEMENT PLANS
22 without the prior written permission and consent of DISTRICT.
23
24 16. Comply with all Cal/OSHA safety regulations including regulations
25 concerning confined space and maintain a safe working environment for DEVELOPER and
26 DISTRICT employees on the site.
27 17. [This Section Intentionally Left Blank.]
28
5 -
i
1 18. During the construction period of PROJECT, provide Workers'
2 Compensation Insurance in an amount required by law. A certificate of said insurance policy
3 shall be provided to DISTRICT, the County of Riverside and CITY at the time of providing
4 written notice pursuant to Section I.B.
5 19. Commencing on the date notice is given pursuant to Section I.B. and
6 continuing until DISTRICT accepts PROJECT for operation and maintenance:
7
(a) Provide and maintain or cause its contractor(s) to provide and maintain
8
9 comprehensive liability insurance coverage which shall protect
10
DEVELOPER from claim from damages for personal injury,
III including accidental and wrongful death, as well as from claims for
12 property damage which may arise from DEVELOPER'S construction
13 of PROJECT or the performance of its obligations hereunder, whether
14 such construction or performance be by DEVELOPER, by any of its
15
16 contractors, subcontractors, or by anyone employed directly or
1T indirectly by any of them. Such insurance shall name DISTRICT, the
18 County of Riverside and CITY as additional insureds with respect to
19 this Agreement and the obligations of DEVELOPER hereunder.
20 Such insurance shall provide for limits of not less than two million
21 dollars ($2,000,000)per occurrence.
22
(b) Cause its insurance carriers) or its contractor's insurance carier(s),
23
24 who shall be authorized by the California Department of Insurance to
25 transact the business of insurance in the State of California, to furnish
26 DISTRICT, the County of Riverside and CITY at the time of
27 providing written notice to DISTRICT of the start of construction as
28
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102112_10
1 set forth in Section I.B. with certificate(s) of insurance and applicable
2 policy endorsements showing that such insurance is in full force and
3 effect and that DISTRICT, the County of Riverside and CITY are
4 named as additional insureds with respect to this Agreement and the
5 obligations of DEVELOPER hereunder. Further, said certificate(s)
6 shall state that the issuing company shall give DISTRICT, the County
7
of Riverside and CITY sixty (60) days written notice in the event of
8
9 any cancellation, termination, non-renewal or reduction in coverage
10 of the policies evidenced by the certificate(s). In the event of any
I 1 such cancellation, termination, non-renewal or reduction in coverage,
12 DEVELOPER shall, forthwith, secure replacement insurance meeting
13 the provisions of this paragraph.
14 Failure to maintain the insurance required by this paragraph shall be deemed
1 ' a material breach of this Agreement and shall authorize and constitute authority for DISTRICT,
16
17 at its sole discretion, to proceed to perform the remaining work pursuant to Section IV.3.
18 20. Construct, or cause to be constructed, PROJECT at DEVELOPER'S sole
14 cost and expense in accordance with DISTRICT and CITY approved IMPROVEMENT PLANS.
20 21. 'Within two (2) weeks of completing PROJECT construction, provide CITY
21 and DISTRICT with written notice that PROJECT construction is substantially complete and
22 requesting that DISTRICT conduct a final inspection of PROJECT.
23
24 22. Upon completion of PROJECT construction but prior to DISTRICT
25 acceptance of PROJECT for ownership, operation and maintenance, convey or cause to be
26 conveyed PROJECT EASEMENT, including ingress and egress, in a form approved by
27 DISTRICT, for the rights of way as shown in concept cross-hatched in blue on Exhibit "B".
28
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102112 ID
1 23. Furnish DISTRICT, when submitting the PROJECT EASEMENT as set
2 forth in Section I.22 with Preliminary Reports on Title dated not more than thirty (30) days prior
3 to the date of submission of all the property described in the easement document(s).
4 24. At the time of recordation of the conveyance document(s) as set forth in
5 Section I.22., furnish DISTRICT with policies of title insurance, each in the amount of not less
6 than fifty percent (50%) of the estimated fee value, as determined by DISTRICT, for each
7 easement parcel to be conveyed to DISTRICT, guaranteeing DISTRICT'S interest in said
8
9 property as being free and clear of all liens, encumbrances, assessments, easements, taxes and
10 leases (recorded or unrecorded), except those which, in the sole discretion of DISTRICT, are
I I deemed acceptable.
12 25. Accept ownership and sole responsibility for the operation and maintenance
13 of PROJECT until such time as DISTRICT accepts ownership and responsibility for operation
14 and maintenance of PROJECT as set forth herein. Further, it is mutually understood by the
15 parties hereto that prior to DISTRICT acceptance of ownership and responsibility for the
16
17 operation and maintenance of PROJECT, PROJECT shall be in a satisfactorily maintained
18' condition as solely determined by DISTRICT.
19 26. Pay, if suit is brought upon this Agreement or any bond guaranteeing the
20 completion of PROJECT, all costs and reasonable expenses and fees, including reasonable
21 attorneys' fees, and acknowledge that, upon entry of judgment, all such costs, expenses and fees
22 shall be computed as costs and included in any judgment rendered.
23
24 27. Upon completion of construction of PROJECT, but prior to DISTRICT
25 acceptance of PROJECT for ownership, operation and maintenance, DEVELOPER'S civil
26 engineer of record or construction civil engineer of record, duly registered in the State of
27 California, shall provide DISTRICT a redlined "as-built copy of IMPROVEMENT PLANS.
28
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102112_10
1 After DISTRICT approval of the redlined "as-built" drawings, DEVELOPER'S engineer shall
2 schedule with DISTRICT a time to transfer the redlined changes onto DISTRICT'S original
3 mylars at DISTRICT'S office, after which the engineer shall review, stamp and sign PROJECT
4 plans "AS-BUILT".
5 SECTION II
6 DISTRICT shall:
7
1. Review and approve IMPROVEMENT PLANS prepared by DEVELOPER
8
prior to the start. of PROJECT construction.
9
2. Provide CITY an opportunity to review and approve IMPROVEMENT
10
11 PLANS prior to DISTRICT'S final approval.
12 3. Upon execution of this Agreement, record or cause to be recorded, a copy of
13 this Agreement in the Official Records of the Riverside County Recorder.
14 4. Record, or cause to be recorded, PROJECT EASEMENT and DROP
15
STRUCTURE EASEMENT provided by CITY pursuant to Sections I.22. and III.6.,
16
respectively.
17
18 5. Inspect PROJECT construction.
19 6. Keep an accurate accounting of all DISTRICT costs associated with the
20 review and approval of IMPROVEMENT PLANS, the review and approval of right of way and
21 conveyance documents and the processing and administration of this Agreement.
22
7. Keep an accurate accounting of all DISTRICT construction inspection costs,
23
and within forty-five (45) days after DISTRICT acceptance of PROJECT as being complete,
24
25 submit a final cost statement to DEVELOPER. If the deposit, as set forth in Section I.3. exceeds
26 such costs, DISTRICT shall reimburse DEVELOPER the excess amount within sixty (60) days
27 after DISTRICT acceptance of PROJECT as being complete. If at any time the costs exceed the
28
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102112 10
deposit or are anticipated by DISTRICT to exceed the deposit, DEVELOPER shall pay such
2 additional amount(s), as deemed reasonably necessary by DISTRICT to complete PROJECT,
3 within thirty (30) days after receipt of billing from DISTRICT.
4 8. Accept ownership and sole responsibility for the operation and maintenance
5 of PROJECT upon (i) DISTRICT acceptance of PROJECT construction as being complete, and
6 (ii)recordation of PROJECT EASEMENT.
7 9. Prepare DROP STRUCTURE EASEMENT at its sole cost and expense.
8
9 10. Provide CITY with a reproducible duplicate copy of "as-built"
10 IMPROVEMENT PLANS upon DISTRICT acceptance of PROJECT as being complete.
11 SECTION III
12 CITY shall:
13 1. Review and approve IMPROVEMENT PLANS prior to the start of
14 PROJECT construction.
15
16 2. Accept the CITY and DISTRICT approved faithful performance and
payment bonds submitted by DEVELOPER as set forth in Section I.7. and hold said bonds as
17
18 provided herein.
19 3• By execution of this Agreement, grant DEVELOPER the necessary rights to
20 construct, operate and maintain PROJECT within CITY rights of way until such time as
21 PROJECT is accepted by DISTRICT for ownership operation and maintenance as set forth in
22 Section II.8.
23
4. Consent, by execution of this Agreement, to the recording
24 g g of PROJECT
25 EASEMENT and DROP STRUCTURE EASEMENT.
26 5. By execution of this Agreement, grant DISTRICT the necessary rights to
27 inspect PROJECT construction within CITY rights of way.
28
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102112 10
1
2 6. As requested by DISTRICT, convey DROP STRUCTURE EASEMENT to
3 DISTRICT as necessary to allow DISTRICT to inspect, reconstruct, operate and maintain DROP
4 STRUCTURE.
5 SECTION IV
6 It is further mutually agreed:
7 1. All work involved with PROJECT shall be inspected by DISTRICT and
8
shall not be deemed complete until approved and accepted in writing as complete by DISTRICT.
91
10 2. CITY and DEVELOPER personnel may observe and inspect all work being
I I done on PROJECT, but shall provide any comments to DISTRICT personnel who shall be solely
12 responsible for all quality control communications with the DEVELOPER'S contractor(s) during
13 the construction of PROJECT.
14 3. DEVELOPER shall complete construction of PROJECT within twelve (12)
15 consecutive months after execution of this Agreement and within sixty (60) consecutive calendar
16
17 days after commencing work on PROJECT. It is expressly understood that since time is of the
18 essence in this Agreement, failure of DEVELOPER to perform the work within the agreed upon
19, time shall constitute authority for DISTRICT to perform the remaining work and require
20 DF.VFLOPER'S surety to pay to CITY the penal sum of any and all bonds. In which case, CITY
21 shall subsequently reimburse DISTRICT for DISTRICT costs incurred.
22 4. [This Section Intentionally Left Blank.]
23
5. DISTRICT shall endeavor to issue DEVELOPER a Notice to Proceed
24
25 within twenty (20) days of receipt of DEVELOPER'S complete written notice as set forth in
26 Section I.B.; however, DISTRICT'S construction inspection staff is limited and, therefore, the
27 issuance of a Notice to Proceed is subject to staff availability.
28
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1 In the event DEVELOPER wishes to expedite issuance of a Notice to
2 Proceed, DEVELOPER may elect to furnish an independent qualified construction inspector at
3 DEVELOPER'S sole cost and expense. DEVELOPER shall furnish appropriate documentation
4 of the individual's credentials and experience to DISTRICT for review and, if appropriate,
5 approval. DISTRICT shall review the individual's qualifications and experience and, upon
6 approval thereof, said individual, hereinafter called "DEPUTY INSPECTOR% shall be
7 authorized to act on DISTRICT'S behalf on all PROJECT construction and quality control
8
9 matters. If DEVELOPER'S initial construction inspection deposit furnished pursuant to Section
10 I.3. exceeds five thousand dollars ($5,000.00), DISTRICT shall refund to DEVELOPER up to
If eighty percent (80%) of DEVELOPER'S initial inspection deposit within forty-five (45) days of
12 DISTRICT'S approval of DEPUTY INSPECTOR; however, a minimum balance of five
13 thousand dollars ($5,000.00) shall be retained on account.
114 6. PROJECT construction work shall be on a five (5) day, forty (40) hour work
15 week with no work on Saturdays, Sundays or DISTRICT designated legal holidays, unless
16
otherwise approved in writing by DISTRICT. If DEVELOPER feels it is necessary to work
1T
18 more than the normal forty (40) hour work week or on holidays, DEVELOPER shall make a
19 written request for permission from DISTRICT to work the additional hours. The request shall
20 be submitted to DISTRICT at least seventy-two (72) hours prior to the requested additional work
21 hours and state the reasons for the overtime and the specific time frames required. The decision
22 of granting permission for overtime work shall be made by DISTRICT at its sole discretion and
23
24 shall be final. If permission is granted by DISTRICT, DEVELOPER will be charged the cost
25 incurred at the overtime rates for additional inspection time required in connection with the
26 overtime work in accordance with Ordinance Nos. 671 and 749, including any amendments
27 thereto, of the County of Riverside.
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1
7. In the event that any claim or legal action is brought against DISTRICT or 2 -
CITY in connection with this Agreement because of the actual or alleged acts or omissions by
3 DEVELOPER, including but not limited to design, construction or failure of PROJECT,
4 DEVELOPER shall defend, indemnify and hold DISTRICT and CITY harmless therefrom,
5 without cost to DISTRICT or CITY. Upon DEVELOPER'S failure to do so, DISTRICT and
6 CITY shall be entitled to recover from DEVELOPER all of their costs and expenses, including,
7 but not limited to, reasonable attorneys' fees.
8
9 8. DEVELOPER shall defend, indemnify and hold DISTRICT and CITY, their
10 respective officers, agents, employees and independent contractors free and harmless from any
II claim or legal action whatsoever, based or asserted, pursuant to Article I, Section 19 of the
12 California Constitution, the Fifth Amendment of the United States Constitution, or any other law
13 or ordinance which seeks to impose any other liability or damage caused by the diversion of the
14 waters from the natural drainage patterns, save and except claims and litigation arising through
15 the negligence or willful misconduct of DISTRICT or CITY, which claims shall be shared by the
16
1'7 parties on a pro rata basis based on their respective responsibilities. DEVELOPER shall defend
18 DISTRICT and CITY without cost to DISTRICT or CITY, and upon DEVELOPER'S failure to
is, do so, DISTRICT and CITY shall be entitled to recover from DEVELOPER all of their costs and
20 expenditures, including, but not limited to, reasonable attorneys' fees.
21 9. DEVELOPER for itself, its successors and assigns hereby releases
22 DISTRIC
T and CITY, their respective officers, agents, and employees from any and all claims,
23
demands, actions, or suits of any kind arising out of any liability, known or unknown, present or
24
25 future, including, but not limited to any claim or liability, based or asserted, pursuant to Article I,
26 Section 19 of the California Constitution, the Fifth Amendment of the United States
27 Constitution, or any other law or ordinance which seeks to impose airy other liability or damage,
28
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whatsoever, for damage caused by the discharge of drainage within or from PROJECT. Nothing
2 contained herein shall constitute a release by DEVELOPER of DISTRICT or CITY, their
3 officers, agents and employees from any and all claims, demands, actions or suits of any kind
4 arising out of any liability, known or unknown, present or future, for the negligent maintenance
5 of PROJECT after the acceptance of PROJECT by DISTRICT and CITY, respectively.
6 10. Any waiver by DISTRICT or by CITY of any breach of any one or more of
7 the terms of this Agreement shall not be construed to be a waiver of any subsequent or other
8
q breach of the same or of any other term hereof. Failure on the part of DISTRICT or CITY to
10 require exact, full and complete compliance with any terms of this Agreement shall not be
1 construed as in any manner changing the terms hereof, or estopping DISTRICT or CITY from
12 enforcement hereof.
13 11. [This Section Intentionally Left Blank.]
14 12. This Agreement is to be construed in accordance with the laws of the State
15
of California.
16
17 13. Any and all notices sent or required to be sent to the parties of this
18 Agreement will be mailed by first class mail, postage prepaid, to the following addresses:
19 RIVERSIDE COUNTY FLOOD CONTROL CITY OF PALM SPRINGS
AND WATER CONSERVATION DISTRICT Post Office Box 2743
20 1995 Market Street Palm Springs, CA 92263-2743
Riverside, CA 92501 Attn: Marcus Fuller
21 CRV MONTE SERENO, L.P.
c/o Ashbrook Communities
22 1545 Faraday Avenue
Carlsbad, CA 92008
23 Attn: Bob Perryman
24 14. Any action at law or in equity brought by any of the parties hereto for the
25
26 purpose of enforcing a right or rights provided for by the Agreement, shall be tried in a court of
'
27 competent jurisdiction in the County of Riverside, State of California, and the parties hereto
28
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waive all provisions of law providing for a change of venue in such proceedings to any other
1
county.
2
3 15. This Agreement is the result of negotiations between the parties hereto, and
4 the advice and assistance of their respective counsel. The fact that this Agreement was prepared
5 as a matter of convenience by DISTRICT shall have no import or significance. Any uncertainty
6 or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT
7 prepared this Agreement in its final form.
8
9 16. The rights and obligations of DEVELOPER shall inure to and be binding
]IO upon all heirs, successors and assignees.
11 17. DEVELOPER shall not assign or otherwise transfer any of its rights, duties
12 or obligations hereunder to any person or entity without the written consent of the other parties
13 hereto being first obtained. In the event of any such transfer or assignment, DEVELOPER
14 expressly understands and agrees that it shall remain liable with respect to any and all of the
1 ' obligations and duties contained in this Agreement.
16
18. The individual(s) executing this Agreement on behalf of DEVELOPER
17
18 hereby certify that they have the authority within their respective company(ies) to enter into and
19 execute this Agreement, and have been authorized to do so by any and all boards of directors,
20 legal counsel, and or any other board, committee or other entity within their respective
21 company(ies) which have the authority to authorize or deny entering this Agreement.
22 19. This Agreement is intended by the parties hereto as a final expression of
23
24 their understanding with respect to the subject matter hereof and as a complete and exclusive
25 statement of the terms and conditions thereof and supersedes any and all prior and
26 contemporaneous agreements and understandings, oral or written, in connection therewith. This
27 Agreement may be changed or modified only upon the written consent of the parties hereto.
28
15 -
102112_10
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
2 (to be filled in by Clerk of the Board)
3 RIVERSIDE COUNTY FLOOD CONTROL
4 RECOMMENDED FOR APPROVAL: AND WATER CONSERVATION DISTRICT
B
5 y BY WARREN D. WILLIAMS MARION ASHLEY, Chairman
General Manager-Chief Engineer Riverside County Flood Control and Water
6 Conservation District Board of Supervisors
7 APPROVED AS TO FORM: ATTEST:
8 JOE S. RANK NANCY ROMERO
9 County Counsel Clerk of the Board
By By
10 LEE A. VINOCOUR Deputy
Deputy County Counsel
1 I (SEAL)
12
13
14
15
16
17 Cooperative Agreement: TR 30046
JPS:blj
18 9/29/05
19
20
21
22
23
24
25
26
27
28
- 16 -
10211210
1 RECOMMEND FOR APPROVAL: CITY OF PALM SPRINGS
2 BY
DAVID J. BARAKIAN DAVID H. READY
3 Director of Public Works/City Engineer City Manager
4 APPROVED AS TO FORM:
ATTEST:
5
By By
6 DOUGLAS C. HOLLAND JAMES THOMPSON
7 City Attorney City Clerk
8 (SEAL)
9
10
1 1 Cooperative Agreement: TR 30046
JPS:blj
112 9/29/05
13
14
1.5
16
17
18'
19
20
21
22
23
24
25
26
27
28
- 17 -
10211210
1
2 CRV MONTE SERE,NO, L.P.,
a California limited partnership
3
By: CAPSTONE RESIDENTIAL VENTURE XXXI
4 (G/P MONTE SERENO) LLC,
a Delaware limited liability company,
5 Its General Partner
6 By: CAPSTONE RESIDENTIAL VENTURE
XXXI COMPANY,
7 a Delaware general partnership,
Its Sole Member
8
By: CAPSTONE REALTY ADVISORS, LLC.
9 a Delaware limited liability company,
Its Operating Partner
10
11 By
ALEX ZIKAKIS
12 Its Sole Member
13 (NOTARY)
14
15
16
17'
18 Cooperative Agreement: TR 30046
19 JPS:blj
9/29/05
20
21
22
23
24
25
26
27
28
- 18 -
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ATTACHMENT
MINUTE ORDER
MINUTE ORDER NO,
APPROVING A COOPERATIVE AGREEMENT
BETWEEN THE RIVERSIDE COUNTY FLOOD
CONTROL AND WATER CONSERVATION
DISTRICT, THE CITY OF PALM SPRINGS, AND
CRV MONTE SERENO, L.P., A CALIFORNIA
LIMITED PARTNERSHIP, ASSOCIATED WITH THE
CONSTRUCTION, OPERATION, AND
MAINTENANCE OF FLOOD CONTROL
IMPROVEMENTS ADJACENT TO THE PALM
CANYON WASH, IDENTIFIED AS "PALM CANYON
WASH, STAGE 6", TRACT NO. 30046, PROJECT
NO. 6-0-0040-06, SUBJECT TO FINAL CHANGES
BY THE CITY ATTORNEY AND COUNTY COUNSEL
I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that
this Minute Order approving a Cooperative Agreement between the Riverside
County Flood Control and Water Conservation District, the City of Palm Springs,
and CRV Monte Sereno, L.P., a California limited partnership, associated with
the construction, operation, and maintenance of flood control improvements
adjacent to the Palm Canyon Wash, identified as "Palm Canyon Wash, Stage 6",
Tract No. 30046, Project No. 6-0-0040-06, subject to final changes by the City
Attorney and County Counsel, was adopted by the City Council of the City of
Palm Springs, California, in a meeting thereof held on the 19th day of October,
2005.
James Thompson, City Clerk
P Y