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HomeMy WebLinkAbout9/3/2003 - STAFF REPORTS (13) DATE: September 3, 2003 TO: City Council FROM: Director of Public Works/City Engineer JOINT AGREEMENT WITH RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT AND THE AGUA CALIENTE DEVELOPMENT AUTHORITY, CONCERNING CANYON SOUTH GOLF COURSE AND SOUTH PALM CANYON WASH LEVY RELOCATION. RECOMMENDATION: It is recommended that City Council approve a joint agreement between the City of Palm Springs, Agua Caliente Development Authority and Riverside County Flood Control and Water Conservation District, related to the design, construction and maintenance of the Canyon South Golf Course and South Palm Canyon Wash Levy Relocation. SUMMARY: This agreement provides for the design and construction of the Canyon South Golf Course and South Palm Canyon Wash Levy Relocation through the Agua Caliente Development Authority(ACDA). The future operation and maintenance responsibility of the new levy is by Riverside County Flood Control and Water Conservation District (RCFC) and the inspection of the construction of both the golf course and the new levy is also by RCFC. The City's responsibilities underthis Agreement are limited to the submittal of appropriate documentation perthe Federal Emergency Management Agency(FEMA)to obtain a Letter of Map Revision (LOMR), in accordance with the requirements of the National Flood Insurance Program and adoption of all necessary and appropriate CEQA documents pertaining to the proposed construction. BACKGROUND: On December 18, 2002, City Council approved an application by the ACDA for the reconstruction and expansion of existing Canyon South Golf Course. The Environmental Assessment for the Golf Course, the General Plan Amendment, and Specific Plan Amendment were approved at the same Council meeting. Since that time the ACDA has prepared plans for the golf course and an accompanying levy relocation along the north side of the Palm Canyon Wash. These plans have been processed through and have now received approval of RCFC. As part of the approval process, RCFC requires an Agreement be executed which assigns responsibility for construction and maintenance of these facilities. The golf course will be constructed by ACDA, under terms of a grading plan issued by the City but inspected by RCFC, because it is located within an RCFC Easement for Palm Canyon Wash. In addition, the north levy of the Palm Canyon Wash is supposed to be relocated in order to provide more area for the future hotel site located at the southeast corner of South Palm Canyon Drive and Murray Canyon Drive. As is the case with the current levy, the construction of the levy and its future maintenance are the responsibility of RCFC. As such, calculations were prepared by ACDA and processed through RCFC for approval to ensure that the water carrying capacity of the wash through the golf course is not compromised during storm events. The extensive review process is now complete ��� and RCFC has recommended approval forthe construction of both the golf course and the levy relocation. RCFC/ACDA/CPS Agreement September 3, 2003 Page 2 Staff recommends that Council approve the Agreement and authorize its execution by the City Manager. DAVID J. BARAKIAN Director of Public Works/City �Engineer APPRO Di- — ATTACHMENTS: 1. Minute Order 2. Agreement AGREEMENT (Canyon South Golf Course/South Palm Canyon Wash Levee Relocation) The RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, hereinafter called DISTRICT, the CITY OF PALM SPRINGS, hereinafter called CITY, and the AGUA CALIENTE DEVELOPMENT AUTHORITY, hereinafter called "AUTHORITY", an economic development subsidiary of the AGUA CALIENTE BAND OF CAHUILLA INDIANS, a public agency hereinafter called "TRIBE",hereby agree as follows: RECITALS A. DISTRICT owns, operates and maintains existing flood control facilities along portions of Palm Canyon Wash in the city of Palm Springs. A portion of these flood control facilities, designated by DISTRICT as "Palm Canyon Wash" (Project No. 6-0-0046) are located at the mouth of Andreas Canyon easterly of Palm Canyon Drive. This particular facility, hereinafter called EXISTING LEVEE, has been constructed by DISTRICT for the express propose of providing flood protection to homes and businesses located northerly of EXISTING LEVEE by controlling and conveying flood and storm waters emanating from Andreas Carryon Wash. EXISTING LEVEE is an essential, critical and integral part of DISTRICT'S regional flood control infrastructure and provides significant flood protection to residents and businesses located within the city of Palm Springs; and B. AUTHORITY has submitted to CITY for review and approval a proposal to reconstruct an existing golf course facility and related improvements. Certain portions of the proposed improvements, hereinafter called PROJECT IMPROVEMENTS, are to be constructed within a portion of DISTRICT'S existing Palm Canyon Wash right of way, as granted by the U.S. Department of Interior and hereinafter called "RCFC EASEMENT", as shown in concept cross-hatched in red on Exhibit "A" attached hereto and made a part hereof. Additionally, AUTHORITY is proposing to construct a new segment of levee, hereinafter called "NEW LEVEE", within RCFC EASEMENT on a new alignment as shown in blue on Exhibit "B" hereto and made a part hereof, and C. RCFC EASEMENT is located within the Tribal Lands of TRIBE; and - 1 - /0� 3 D. AUTHORITY is willing to design .and construct NEW LEVEE, design and construct PROJECT IMPROVEMENTS, supervise the public's use of PROJECT IMPROVEMENTS and ensure PROJECT IMPROVEMENTS and the public's use thereof are compatible with and will not adversely affect or diminish the level of flood protection provided by EXISTING LEVEE; and E. RCFC is willing to review and approve AUTHORITY'S plans and specifications for NEW LEVEE, inspect construction of NEW LEVEE and accept NEW LEVEE for ownership, operation and maintenance provided NEW LEVEE is designed and constructed in accordance with the provisions of this Agreement. F. Portions of RCFC EASEMENT are located within a Federal Emergency Management Agency (FEMA) mapped floodplain/floodway and may be located within "waters of the United States" or "waters of the State". Therefore, to the extent NEW LEVEE and PROJECT IMPROVEMENTS or construction activities associated therewith encroach into the mapped floodplain, AUTHORITY must obtain written concurrence from FEMA that the construction of NEW LEVEE and PROJECT IMPROVEMENTS would create a negligible effect on the established Base Flood Elevations (BFE'S) for the current FEMA regulatory floodplaia/floodway. AUTHORITY may also be required by Federal and State law to obtain permits, approvals or agreements from certain resource and/or regulatory agencies for the construction, operation and maintenance of PROJECT IMPROVEMENTS, hereinafter called "REGULATORY PERMITS", including but not limited to those issued by the U.S. Army Corps of Engineers (USACOE), California Regional Water Quality Control Board (CRWQCB), California Department of Fish and Game(CDFG)and the State Water Resources Control Board(SWRCB); and G. Acting as Lead Agency pursuant to the California Environmental Quality Act (CEQA), CITY has adopted certain findings pertaining to AUTHORITY'S proposed project, including construction of NEW LEVEE and PROJECT IMPROVEMENTS. NOW, THEREFORE, the parties hereto mutually agree as follows: - 2 - /bft� SECTION I AUTHORITY shall: 1. Prepare or cause to be prepared grading plans associated with PROJECT IMPROVEMENTS and submit to DISTRICT and CITY for their respective review and approval prior to commencing grading operations. 2. Prepare or cause to be prepared plans and specifications for NEW LEVEE and PROJECT IMPROVEMENTS and submit to DISTRICT for its review and approval prior to advertising for construction contract bids. 3. Reimburse DISTRICT for its costs incurred for the review grading plans; the review of plans and specifications for NEW LEVEE and PROJECT IMPROVEMENTS; the review of REGULATORY PERMITS and special studies; the review and preparation of CEQA documents; and the preparation and administration of this Agreement. 4. Prior to any subsequent modification of PROJECT IMPROVEMENTS or constructing additional improvements within RCFC EASEMENT, furnish plans and specifications to DISTRICT for review and obtain DISTRICT'S approval of any proposed modifications or additional improvements and reimburse DISTRICT for its cost of reviewing such plans and specifications. 5. Reimburse DISTRICT for all inspection activities necessary to ensure that NEW LEVEE and PROJECT IMPROVEMENTS, and the public's use thereof, are constructed and operated in compliance with DISTRICT approved plans and specifications and the terms of this Agreement. 6. Should it be determined that the construction of NEW LEVEE or PROJECT IMPROVEMENTS requires additional approval(s) from FEMA or USACOE, prepare, or cause to be prepared, at AUTHORITY'S sole expense, any required special studies and submit said studies to DISTRICT for review and obtain DISTRICT'S concurrence prior to forwarding said studies to FEMA or USACOE for their respective review and approval and reimburse DISTRICT for its cost of reviewing said special studies. 7. Furnish DISTRICT with copies of all REGULATORY PERMITS and any amendments thereto, pertaining to the construction, operation and maintenance of NEW LEVEE or PROJECT IMPROVEMENTS. Such documents may include, but are not limited to, a Section 404 permit issued by USACOE, a Section 401 Water Quality Certification issued by CRWQCB, a Section 1603 Streambed Alteration Agreement issued by CDFG or National Pollutant Discharge Elimination System (NPDES) Stormwater Permits issued by SWRCB or CRWQCB. Any amendments to said REGULATORY PERMITS shall be submitted to DISTRICT for review and AUTHORITY shall obtain DISTRICT'S concurrence of all such documents prior to final execution by AUTHORITY. AUTHORITY and/or AUTHORITY'S contractor shall comply with the requirements of any required REGULATORY PERMITS including any amendments thereto. 8. Comply with all mitigation measures, hereinafter called "MITIGATION MEASURES, set forth in the Canyon South Specific Plan Environmental Impact Report (EIR) and Addenda (SCH No. 91012026) and any CITY established conditions of approval for AUTHORITY'S project. Certain MITIGATION MEASURES pertaining to the construction, operation and maintenance of NEW LEVEE and PROJECT IMPROVEMENTS are included as Exhibit "C" hereto and made a part hereof. 9. Construct or cause to be constructed, NEW LEVEE and PROJECT IMPROVEMENTS and pay for all costs associated with the design, construction, contract administration and inspection thereof. 10. Require its eontractor(s), during the term of construction of NEW LEVEE and PROJECT IMPROVEMENTS,to: (a) Provide and maintain comprehensive liability insurance coverage which shall protect DISTRICT and AUTHORITY from claim from damages for personal injury, including accidental and wrongful death, as well as from claims for property damage which may arise from AUTHORITY'S construction of PROJECT - 4 - /a/16 IMPROVEMENTS or the performance of its obligations hereunder, whether such construction or performance be by AUTHORITY, by its contractor or subcontractor, or by anyone employed directly or indirectly by any of them. Such insurance shall name CITY, DISTRICT and the County of Riverside as additional insureds with respect to this Agreement and the obligations of AUTHORITY 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) which shall be authorized to transact the business of insurance in the State of California to furnish DISTRICT with certificate(s) of insurance and applicable endorsements showing that such insurance is in full force and effect, and that CITY, DISTRICT and the County of Riverside are named as additional insureds with respect to this Agreement and the obligations of AUTHORITY hereunder. Further, said certificate(s) shall contain the covenant of the insurance carrier(s)that thirty (30) days written notice shall be given to DISTRICT prior to modification, cancellation or reduction in coverage of said insurance coverage, which provides the types and amount of coverage required by this section, as determined and approved by DISTRICT, shall be considered as being in compliance herewith. 11. Prior to commencing construction of NEW LEVEE, provide DISTRICT with the original plan and profile drawings for NEW LEVEE and assign their ownership to DISTRICT. 12. Not permit any change to or modification of NEW LEVEE plans without the prior written permission and consent of DISTRICT. 5 �n� 13. Prior to commencing construction of NEW LEVEE, deposit with DISTRICT the estimated cost of providing construction inspection for NEW LEVEE, in an amount as detennined and approved by DISTRICT in accordance with Ordinance Nos. 671 and 749 of the County of Riverside, including any amendments thereto, based upon the bonded value of NEW LEVEE facilities to be inspected, operated and maintained by DISTRICT. 14. Prior to commencing construction of NEW LEVEE, furnish DISTRICT with faithful performance and payment bonds, each in the amount of 100% of the estimated cost for construction of NEW LEVEE as determined by DISTRICT. The surety, amount and form of the bonds shall be subject to the approval of DISTRICT. The bonds shall be held by DISTRICT and remain in full force and effect until such time as NEW LEVEE is accepted as complete by DISTRICT, at which time the bond amount may be reduced to 10%for a period of one year to guarantee against any defective work, labor or materials. 15. Provide DISTRICT no less than ten(10)days prior to commencing construction of NEW LEVEE,with a written Notice of Intent to commence construction including the following: a. Tentative construction schedule; b. Identification of all contractors who will be performing work on NEW LEVEE, their corresponding license numbers and license classifications, and their respective construction superintendent staff; C. Inspection deposit as set forth herein; d. Performance and Payment Bonds as set forth herein; e. Required insurance certificates and endorsements as set forth herein; and f. Contractor's Confined Space Entry Program as set forth herein. The Notice of Intent shall be submitted to the attention of Mark H. Wills, Senior Engineer, Administrative Services. Construction shall not begin on PROJECT, for any reason whatsoever, until DISTRICT has issued a written Notice to Proceed authorizing AUTHORITY to initiate construction. - 6 - %DAS 16. Remove any improvements and/or equipment or cease any interfering use upon receipt of written notice from DISTRICT in the event DISTRICT'S General Manager-Chief Engineer determines that AUTHORITY has constructed PROJECT IMPROVEMENTS, installed equipment or is allowing use of PROJECT IMPROVEMENTS in a manner that interferes with or diminishes the design level of flood protection provided by NEW LEVEE or EXISTING LEVEE. 17. Recognize that PROJECT IMPROVEMENTS are being constructed within or in proximity to an active watercourse and, hence, said PROJECT IMPROVEMENTS may be subject to periodic flood damages. AUTHORITY hereby assumes all obligations to maintain PROJECT IMPROVEMENTS, including but not limited to, repairing and/or replacing pathways, access roads, landscaping and the routine removal of accumulated litter, trash and debris including but not limited to AUTHORITY'S or public's use of PROJECT IMPROVEMENTS within RCFC EASEMENT and assume all liability in conjunction with the recreational use thereof, including claims of third persons for injury or death or damage to property. Said obligation shall not include any inverse condemnation liability of DISTRICT by reason of the location of EXISTING LEVEE or DISTRICT'S improvements thereto unless such liability is the result of AUTHORITY'S operations or the public's use of the property pursuant to AUTHORITY'S actual or tacit consent. 18. Waive its right to file claims against DISTRICT for any damage to PROJECT IMPROVEMENTS that may result from DISTRICT'S customary and necessary operation, maintenance and use of EXISTING LEVEE or NEW LEVEE within RCFC EASEMENT save and except for claims resulting from DISTRICT'S gross negligence or willful misconduct. 19. Assume sole responsibility for providing public security and safety in conjunction with the public's use of NEW LEVEE or PROJECT IMPROVEMENTS within RCFC EASEMENT. 20. Ensure the safety of all persons who may use PROJECT IMPROVEMENTS by conducting regular safety inspections and promptly repairing any damage to PROJECT IMPROVEMENTS that may be necessary to ensure the safety of the public. - 7 - /a� 9 21. Repair any damage to NEW LEVEE resulting from AUTHORITY'S or public's use of NEW LEVEE or PROJECT IMPROVEMENTS. Additionally AUTHORITY shall be responsible and agrees to repair any damage to PROJECT IMPROVEMENTS caused by DISTRICT'S customary and necessary construction, reconstruction, operation or maintenance of NEW LEVEE save and except for damages resulting from DISTRICT'S gross negligence or willful misconduct. 22. 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 DISTRICT'S costs associated with the review of any plans, specifications and special studies associated with construction of NEW LEVEE and PROJECT IMPROVEMENTS, the processing and administration of this Agreement and DISTRICT'S periodic inspection of PROJECT IMPROVEMENTS. 23. , Except as otherwise expressly agreed to by DISTRICT in writing, not utilize any portion of RCFC EASMENT for purposes of providing any required compensatory mitigation associated with any REGULATORY PERMITS associated with construction of PROJECT IMPROVEMENTS. 24. Comply, or require its contractor(s) to comply, with the applicable provisions of any NPDES Stormwater Permit issued by SWRCB or California Regional Water Quality Control Board— Colorado River Basin Region (CRWQCB-CRB) including but not limited to SWRCB Order No. 99-08- DWQ, et seq., as amended, and CRWQCB-CRB Order No. 01-077, et seq., as amended. 25. Be responsible for all costs and for any liability imposed by law as a result of AUTHORITY'S and/or AUTHORITY'S contractor's failure to comply with the requirements of any REGULATORY PERMITS required for the construction, operation and maintenance of NEW LEVEE and PROJECT IMPROVEMENTS, including but not limited to, compliance with the applicable provisions of any NPDES Stormwater Permits and any Federal, State or local regulations. For the purpose of this paragraph, costs and liabilities include but are not limited to, fines, penalties and damages whether assessed against AUTHORITY, AUTHORITY'S contractor or DISTRICT, including those levied under the Federal Clean Water Act and the State Porter-Cologne Water Quality Act. - 8 - 26. Upon completion of the construction of NEW LEVEE and PROJECT IMPROVEMENTS, submit to FEMA, through DISTRICT and CITY, all necessary documentation, including but not limited to, plans, specifications and calculations, in order to obtain a Letter of Map Revision(LOMR). 27. Upon completion of construction of NEW LEVEE, but prior to DISTRICT acceptance of NEW LEVEE for ownership, operation and maintenance, AUTHORITY'S civil engineer of record or construction civil engineer of record, duly registered in the State of California, shall provide to DISTRICT a redlined "as-built" copy of NEW LEVEE improvement plans. After DISTRICT approval of the redlined drawings, AUTHORITY'S engineer shall schedule with DISTRICT a time to transfer the redlines on to DISTRICT'S original NEW LEVEE plans at DISTRICT'S office, after which the engineer shall review, stamp and sign the NEW LEVEE plans "as-built". 28. Upon completion of all grading activities, AUTHORITY'S civil engineer of record or construction civil engineer of record, duly registered in the State of California, shall provide to DISTRICT a certified "as-built" copy of the approved grading plans. 29. Pay, if suit is brought upon this Agreement or any bond guaranteeing the completion of PROJECT, all costs and reasonable expenses and fees, including reasonable 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. SECTION II DISTRICT shall: 1. Acting as a Responsible Agency pursuant to CEQA, take all necessary and appropriate actions required to comply with CEQA following CITY'S fulfillment of CEQA requirements as further described in Section III.1. 2. By execution of this Agreement, grant AUTHORITY permission to construct NEW LEVEE and a license to operate and maintain PROJECT IMPROVEMENTS within RCFC EASEMENT and allow public use of PROJECT IMPROVEMENTS provided (i) PROJECT - 9 - /g � 1 ' IMPROVEMENTS and said use(s) are compatible with EXISTING LEVEE'S primary flood control purpose and function; and (ii) said use(s) do not interfere with or impair DISTRICT'S ability to operate and maintain NEW LEVEE or any of its appurtenant works. Said license shall remain in effect indefinitely so long as AUTHORITY complies with the provisions of this Agreement. 3. Review and approve AUTHORITY'S grading plans and its plans and specifications for construction of NEW LEVEE and PROJECT IMPROVEMENTS prior to the start of grading or commencing construction of NEW LEVEE or PROJECT IMPROVEMENTS. 4. Hold the faithful performance and payment bonds furnished by AUTHORITY as provided in Section I.14. 5. Conduct periodic inspections of NEW LEVEE and PROJECT IMPROVEMENTS to assure compliance with DISTRICT approved plans. 6. Within RCFC EASEMENT, provide written notice to AUTHORITY of any condition or use being made of PROJECT IMPROVEMENTS known to DISTRICT that is not in conformity with the provisions of this Agreement or which could adversely affect the flood control function of NEW LEVEE and/or DISTRICT'S ability to operate and maintain same, and allow AUTHORITY thirty (30) days from and after such notice to correct any such nonconforming condition or use. 7. Except as otherwise specifically set forth herein, assume no responsibility, obligation, or liability whatsoever, for the operation and maintenance of PROJECT IMPROVEMENTS, the public's use of PROJECT IMPROVEMENTS or for any damage to PROJECT IMPROVEMENTS which may be caused by DISTRICT'S periodic operation and maintenance activities within RCFC EASEMENT save and except damages caused by DISTRICT'S gross negligence or willful misconduct. 8. Keep an accounting of all DISTRICT costs associated with the review and approval of grading plans, review and 'approval of plans and specifications for construction of NEW LEVEE and PROJECT IMPROVEMENTS, any required REGULATORY PERMITS or special studies associated with construction, operation and maintenance of NEW LEVEE or PROJECT - 10 - �Q � IMPROVEMENTS; the review and preparation of CEQA documents; the processing and administration of this Agreement; and DISTRICT'S inspection of PROJECT IMPROVEMENTS and NEW LEVEE construction. If at any time prior to completion of construction of PROJECT IMPROVEMENTS of NEW LEVEE, as solely determined by DISTRICT, DISTRICT'S costs exceed or are anticipated to exceed the sum total of AUTHORITY'S deposit(s) as provided herein, DISTRICT shall prepare an invoice and submit said invoice to AUTHORITY for payment. Upon AUTHORITY 'S completion of construction, as determined by DISTRICT, DISTRICT shall reimburse AUTHORITY for any remaining monies deposited by AUTHORITY pursuant to this Agreement within sixty(60) days. 9. Upon completion of NEW LEVEE construction, as determined by DISTRICT, accept responsibility for operation and maintenance of NEW LEVEE. 10. Assist CITY with compilation of the pertinent engineering documentation necessary to obtain a LOMR pursuant to the provisions of the National Flood Insurance Program(NFIP). SECTION III CITY shall: 1. Pursuant to CEQA, assume Lead Agency role and responsibility for preparation, circulation and adoption of all necessary and appropriate CEQA documents pertaining to construction, operation and maintenance of NEW LEVEE and PROJECT IMPROVEMENTS. 2. Provide DISTRICT copies of all CEQA documents pertaining to the construction, operation and maintenance of NEW LEVEE and PROJECT IMPROVEMENTS. 3. Review and approve AUTHORITY'S grading plans prior to commencement of grading activities. 4. Upon completion of construction of NEW LEVEE and PROJECT IMPROVEMENTS, and upon receipt of documentation from AUTHORITY as specified in Section L26., submit the necessary documentation to FEMA to obtain a LOMR in accordance with the requirements of the NFIP. SECTION IV It is further mutually agreed: 1. All work associated with NEW LEVEE shall be inspected by DISTRICT and shall not be deemed complete until approved and accepted as complete by DISTRICT. 2. AUTHORITY and CITY personnel may observe and inspect all work being done on NEW LEVEE but DISTRICT'S construction inspection staff shall provide all quality control comments concerning NEW LEVEE construction directly to AUTHORITY'S contractor(s) during the construction of NEW LEVEE. 3. DISTRICT and CITY personnel may observe and inspect all work being done on PROJECT IMPROVEMENTS but shall provide all comments to AUTHORITY'S personnel who shall be solely responsible for all communication with AUTHORITY'S contractor(s) during the construction of any PROJECT IMPROVEMENTS. 4. DISTRICT reserves the right to terminate this Agreement if in the sole and exclusive exercise of its discretion, DISTRICT determines that PROJECT IMPROVEMENTS, the use thereof, or condition of RCFC EASEMENT is not compatible with EXISTING LEVEE'S primary purpose and function. 4. Within RCFC EASEMENT, or as otherwise associated with this Agreement, AUTHORITY shall indemnify and hold CITY, DISTRICT and County of Riverside, their officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of CITY, DISTRICT or County of Riverside, its officers, agents, employees, subcontractors, independent contractors, guests and invitees for property damage, bodily injury or death or any other element of damage of any kind or nature, including but not limited to any action concerning the California Environmental Quality Act, this Agreement, or any State or Federal proceedings involving environmental or regulatory issues, related to or in any manner connected with or arising from AUTHORITY'S use of RCFC EASEMENT to construct PROJECT IMPROVEMENTS and the public's use associated therewith, or responsibilities in connection therewith or the condition thereof, - 12 - /Pig / Y and AUTHORITY shall defend, at its own expense, including reasonable attorneys' fees, CITY, DISTRICT and County of Riverside,their officers, agents, employees and independent contractors,in any legal action based upon such alleged acts or omissions. 5. 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 terms of this Agreement shall not be construed as in any manner changing the terms hereof, or estopping DISTRICT or CITY from enforcement hereof. 6. If any provision in this Agreement is held by a covet of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. 7. This Agreement is to be construed in accordance with the laws of the State of California. 8. This Agreement shall not be changed or modified except by the written consent of the parties hereto. 9. 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 PALM SPRINGS AND WATER CONSERVATION DISTRICT 3200 E. Tahquitz Carryon Way 1995 Market Street Palm Springs, CA 92262 Riverside, CA 92501 AGUA CALIENTE DEVELOPMENT AUTHORITY 901 E. Tahquitz Canyon Way, Suite B 200 Patin Springs, CA 92262 10. 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 - 10A1 11. 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 or ambiguity in this Agreement shall not be construed against DISTRICT because DISTRICT prepared this Agreement in its final form. 12. This Agreement may be executed and delivered in any number of counterparts or copies, hereinafter called "COUNTERPART", by the parties hereto. When each party has signed and delivered at least one COUNTERPART to the other parties hereto, each COUNTERPART shall be deemed an original and, taken together, shall constitute one and the same Agreement, which shall be binding and effective as to the parties hereto. 13. The rights and obligations of AUTHORITY shall inure to and be binding upon all heirs, successors and assignees. 14. AUTHORITY 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, AUTHORITY expressly understands and agrees that it shall remain liable with respect to any and all of the obligations and duties contained in this Agreement. 15, By executing this Agreement, AUTHORITY does not waive or limit its sovereign immunity from unconsented suit or other judicial process, except as specifically stated herein. AUTHORITY does hereby waive that immunity, but only for the enforcement of the specific obligations expressly undertaken by it in this Agreement, and only to the extent, and subject to all of the conditions, set forth below: (a) Such enforcement must be brought by either CITY or DISTRICT and by no other party whatsoever. (b) Such enforcement must seek either monetary relief or equitable relief, including specific performance, injunctive relief or other equitable relief. If - 14 - /PAlk-..) monetary relief is sought, such relief is limited to payment of the amounts expressly stated in this Agreement to be payable by AUTHORITY to either CITY or DISTRICT, but not consequential or other damages of any type whatsoever. I£equitable relief is sought, such equitable relief is limited to requiring AUTHORITY to take some action that is has expressly agreed to take by the explicit language of this Agreement, or requiring AUTHORITY to refrain from conduct which it expressly promised not to take in the explicit language of this Agreement. (c) Notwithstanding subsection (b) of this paragraph limiting AUTHORITY'S payment obligations to pay CITY and DISTRICT, TRIBE shall not be excused from any of its indemnity obligations set forth in Section IV of this Agreement. (d) Before any action is filed, the party bringing the claim must first provide a short written statement of the nature and basis for the claim to AUTHORITY, and thereafter, within ten (10) days, an authorized representative of the claimant must be available to meet in person with AUTHORITY in an effort to resolve the dispute or claim informally. (e) The action must be brought in the Superior Court of California for the County of Riverside. 16. 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. // - 15 - /P1 11 IN WITNESS WHEREOF,the parties hereto have executed this Agreement on (to be filled in by the Clerk to the Board) RIVERSIDE COUNTY FLOOD CONTROL RECOMMENDED FOR APPROVAL: AND WATER CONSERVATION DISTRICT By By WARREN D. WILLIAMS JAMES A. VENABLE, Chairman General Manager-Chief Engineer Riverside County Flood Control and Water Conservation District Board of Supervisors APPROVED AS TO FORM: ATTEST: WILLIAM C. KATZENSTEIN NANCY ROMERO County Counsel Clerk to the Board By By FRANK C.ALDRICH III Deputy Deputy County Counsel Dated Palm Canyon Wash Levee Relocation/ Carryon South Golf Course MHW:Iib PC\82375.2 08/19/2003 }� ¢ 08/25/2003 MON 12,25 FAX 002/002 HUIr-60-CUw I'IUJI 1C:lL rrl UIIT UP rHL11 SrKIWI) PHS W. fbU JCC ,ri3'Lb r. UL CdTY OF PALM SPRINGS RY .-. DAVID ff.READY City Manager APPROVFD AS TO FORM: ATIE8'r: liy City nay PATRCCIAA.SANDERS City Clerk (S1`-A],) Palm Canyon Wash L.owc Relocation Canyon Soutb Caolf Course PC1S2375.2 - 17- 08/25/2003 NON 11:56 CTx/RX NO 72501 fia002 /b f /I CITY OF PALM SPRINGS By DAVID H. READY City Manager APPROVED AS TO FORM: ATTEST: By By City Attorney PATRICIA A. SANDERS City Clerk Dated (SEAL) Palm Canyon Wash Levee Relocation/ Carryon South Golf Course PC\82375.2 AGUA CALIENTE DEVELOPMENT AUTHORITY By DANA PRIETO, Chairman Agua Caliente Development Authority APPROVED AS TO FORM: (NOTARY) By Tribal Counsel Palm Canyon Wash Levee Relocation/ Canyon South Golf Course P082375.2 Exhibit A "RCFC EASEMENT" II I SANTIAGO WAY t•; I � 0 I� ❑ q CANYON -- .I c fy(oN PARCEL o 60,01[ a4 _ I° A=rA AQUA CALIEMTE ONDIAN RI, SERVATION XM.i u0 Canyon South Golf Course - Palm Canyon Wash Levee Relocation Project No. 6-0-0040 1/2 Exhibit A "RCFC EASEMENT" 2 0 5 - 0 3 6 m VIA ESTfl ELLA a 9L o e' i` SCALE I"ZOO AQUA rAI,W.11 r INDI -11' R '.r-qr VA 1101\,I �JF ro• O cPN�oN I a9_ I ti MV(+RP ,c CN vy t P.. �1 o. o. Canyon South Golf Course - Palm Canyon Wash Levee Relocation Project No. 6-0-0040 2/2 Exhibit B "NEW LEVEE" /ate, F / y ` + i 1 a" Canyon South Golf Course - Palm Canyon Wash Levee Relocation Project No. 6-0-0040 n 1/1 �D%/ P-q Exhibit "C" Mitigation Measures Air Quality 1. The applicant shall implement Coachella Valley Best Available Control Measures, as enumerated in the 2002 CVSIP, as shown on Attachment "A" (BCM-1 through BCM-4). 2. The applicant shall notify the City of Palm Springs and the SCAQMD in writing 24 hours prior to the initiation of earth moving activities. 3. The applicant shall notify the City and the SCAQMD within 10 days of the completion of earth moving activities. 4. Construction signage in conformance with City standards shall be posted on both South Palm Canyon Drive and Murray Canyon Drive regarding the reporting of blowing dust on the site. 5. A dust control monitor shall be on site during all earth moving activities. The monitor shall be employed by the applicant or his/her designee, shall have dust control as his/her primary responsibility, and shall have the authority to initiate dust control measures. 6. Earth moving operations shall include a water application system while earth moving is active. 7. Construction access roads shall be paved as soon as possible and cleaned after each workday. 8. The applicant shall comply with the City's Fugitive Dust Control Ordinance. 9. Any construction equipment using diesel drive internal combustion engines shall use diesel fuel with a maximum of 0.05% sulfur and a four degree retard, shall be fitted with the most modern emission control devices, and shall be properly tuned and maintained to reduce emissions. 10. Construction equipment shall be properly maintained and serviced to minimize exhaust emissions. 11. Grading operations shall not be conducted when winds exceed 25 mph. 12. Any earth transported off-site shall be covered before the transport trucks leave the project construction area. 13. Short-term stabilization (maintaining soils in a damp condition, surface crust, or chemical stabilizer diluted to not less than 1/20 of the concentration required to maintain a stabilized surface for a period of six months) shall be required for after- hours and weekends. 14. Long-term stabilization techniques shall be required within 10 days for areas where construction activities are not scheduled for 30 days. 1/3 /�� '0�— Exhibit "C" Mitigation Measures (cont'd) Hydrology and Water Quality (Please note that conditions relating to pesticide and fertilizer usage pertain to both construction and post-construction activity.) 1. The applicant shall comply with all requirements for NPDES and Regional Water Quality Control Board permitting, including storm water quality controls. 2. Any pesticide application shall be administered by a trained pest control operator under the direct supervision of a Qualified Pesticide Applicator License (QAL) or Qualified Pesticide Applicator Certificate (QAC). 3. Only slow release or controlled release fertilizers should be used. The nutrient value of reclaimed water shall be part of the decision process. Best management practices, (BMP's), which shall be utilized to help mitigate potential ground water contamination from pesticides and fertilizers include the following: For Pesticide Products On Common And Other General Landscaping And Turf Areas: 1. Applications shall be spot treatments and not broadcast application. 2. Pre-emergent products which are nearly insoluble such as Ronstar and Surflan shall be used for groundcover and shrub beds. 3. Dachtal, a herbicide, shall not be used at the project because of its mobility in sandy soils and potential for leaching to underlying aquifers. 4. Insecticide application to turf areas shall primarily consist of Dursban, which is not readily transportable. At least two days shall be allowed after application of insecticides, before irrigating the affected area. 5. After treatment with 2, 4-1); 2, 4-DP; and dicamba for control of broadleaf weeds, the area shall not be irrigated for a period of 48 hours. 6. Only light, frequent irrigations shall follow Daconil, a fungicide, applicant to greens and tees in order to prevent leaching of this product below the root zone. 6. Applications of pest management products shall be recommended by a licensed Pest Control Advisor(PCA), and applied by or under the direct supervision of a Qualified Applicator (QAL). 1/3 Exhibit "C" Mititration Measures (cont'd) For Fertilizer Products, The BMP's That Shall Be Employed At The Site Are As Follows: 1. The use of slow-release nitrogen sources such as Milorganite and ureaformaldehyde, shall be a priority, while the fast- release sources shall be avoided as much as practical. 2. Rates greater than 0.25 pounds of actual nitrogen per 1,000 square feet (10.9 lbs./A), using fast-release sources of nitrogen shall be avoided. 3. The nutrient value of reclaimed water shall be calculated before fertilizer application rates are computed. 4. Soil tests shall be conducted three times per year on greens and tees and once or twice per year on other turf areas to determine nitrogen requirements. Noise 1. Construction activities adjacent to existing residential areas shall take place only during the hours between 8 a.m. and 5 p.m. (as specified by the Municipal Code, Chapter 11.74) to reduce noise impacts dining more sensitive time periods. 2. All construction equipment, fixed or mobile, shall be equipped with properly operating and maintained mufflers. 3. Stationary equipment shall be placed such that emitted noise is directed away from sensitive noise receivers during construction activities. 4. Ensure that designated truck routes are being utilized. 5. Stockpiling and vehicle staging areas shall be located as far as practical from noise sensitive receptors during construction activities. 2/3 1 v MINUTE ORDER NO. 7364 APPROVING A JOINT AGREEMENT BETWEEN THE CITY OF PALM SPRINGS, AGUA CALIENTE DEVELOP- MENT AUTHORITY AND RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, RELATED TO THE DESIGN, CONSTRUCTION AND MAINTENANCE OF THE CANYON SOUTH GOLF COURSE AND SOUTH PALM CANYON WASH LEVY RELOCATION. A04758 I HEREBY CERTIFY that this Minute Order, approving a joint agreement between the City of Palm Springs, Agua Caliente Development Authority and Riverside County Flood Control and Water Conservation District, related to the design, construction and maintenance of the Canyon South Golf Course and South Palm Canyon Wash Levy Relocation, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 3rtl day of September, 2003. PATRICIA A. SANDERS City Clerk �o