2019 CVWD, SRR Phase I, & LQ Rec Spl DW, Sanitation & Irrigation System Mod. Installation AgrmtNo Recording Fees
Required Per
Government Code
Section 27383
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
COACHELLA VALLEY WATER DISTRICT
Post Office Box 1058
Coachella, California 92236
2019--0359003
09/13/2019 10:32 AM Fee: $ 0.00
Page 1 of 72
Recorded in Official Records
County of Riverside
Peter Rldana
Assessor -County Clerk -Recorder
(Space above this line is for Recorder's Use)
APN: 776-150-028; 777-490-038, 777-490-040, 777-490-037, 777-490-041, 777-490-
036, 777-490-042, 777-490-043; 777-490-044, 777-490-045, 777-490-046, 777-490-
053, 777-490-054, 777-490-055, 777-060-076, 777-060-077, 777-060-078, 777-060-
075
FILE: 0655.
TRA: 020-021 0421.2
0721.2
0322.12
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
THIS SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM, AND
IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT ("Agreement")
is made on this 1,2 to day of SCP � , 2019 ("Effective Date") by and between
COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California
("CVWD"), the City of La Quinta, a California municipal corporation and charter city
("City"), and SILVERROCK PHASE I, LLC, a Delaware limited liability company
("Developer"). CVWD, City and Developer are collectively referred to herein as
"Parties" and singularly as "Party."
RFr.1TA1 S
A. CVWD and the former La Quinta Redevelopment Agency, a public body,
corporate and politic (the "Agency"), previously entered into a Domestic Water and
Sanitation System Installation and Irrigation Service Agreement," dated June 11, 2005,
recorded in the Official Records of the County of Riverside as Document No. 2005-
0852063 ("Previous Agreement").
Document No. 060705-3-009
1 060706-4-xxx
060708-2-xxx
060708--4-xxx
B. The Previous Agreement relates to the obligations of the former Agency
and CVWD with respect to the provision of certain water and sanitation services to that
certain real property located in the City of La Quinta, California described in Exhibit "A"
and attached hereto and by this reference incorporated herein (the "SilverRock Resort
Area"). The SilverRock Resort Area consists of approximately five hundred and twenty-
five (525) acres. The City represents that pursuant to redevelopment dissolution law
(Health & Saf. Code § 34170 of seq.) and relevant approvals by the La Quinta Oversight
Board and California Department of Finance required thereunder, all rights, title, and
interest to the SilverRock Resort Area was transferred to the City. Pursuant to the
PSDA (defined in Recital E), the SilverRock Resort Area has been divided by Parcel
Map No. 37207 recorded in the official Riverside County Records, attached hereto as
Exhibit "B" and by this reference incorporated herein (the "Parcel Map"), and will be
further subdivided as the property is developed pursuant to the PSDA. The City
represents that as of the date of this Agreement, the City is the owner of those parcels
that comprised the SilverRock Resort Area except those parcels from the Parcel Map
that have been conveyed to the Developer by recorded grant deed pursuant to the
PSDA prior to the date of recording of this Agreement (being Parcels 1, 3 through and
including 12 and Parcels D, E, F and G). For purposes of this Agreement, those parcels
from the Parcel Map of the SilverRock Resort Area owned by the City shall be referred
to herein as the "City Property."
C. City has succeeded to the rights and obligations of the Agency under the
Previous Agreement-
D
. This Agreement is intended to supersede the Previous Agreement.
E. Pursuant to that certain Purchase, Sale, and Development Agreement by
and between City and Developer, dated November 19, 2014, and amended on or about
October 29, 2015, by that certain Amendment No. 1 to Purchase, Sale, and
Development Agreement, and on or about April 18, 2017, by that certain Amendment
No. 2 to Purchase, Sale, and Development Agreement, and on November 28, 2018, by
that certain Amendment No. 3 to Purchase, Sale, and Development Agreement (as
amended, the "PSDA"), City intends to self parcels of the City Property, within the
SilverRock Resort Area, to ❑eveioper in phases, and the Parties intend for the terms
and conditions of this Agreement to bind, and run with, the land as to each phase,
commencing when the Developer takes fee title to the subject parcels of the SilverRock
Resort Area. The parcels of the SilverRock Resort Area acquired by Developer from
time to time are, as and when acquired by Developer, referred to herein as the
"Developer Property"
F. City intends to contribute bond proceeds in an amount not to exceed the
amount identified and appropriated in the City's Fiscal Year 2018/19 Capital
Improvement Project budget for the construction of SilverRock Way and domestic water
and sanitation facilities within SilverRock Way, as more specifically described in
Section14 of this Agreement.
G. Developer intends to develop or cause to be developed two hotels, a golf
clubhouse and approximately eight hundred and fifty (850) hotel, residential rental, and
K
residential ownership dwelling units ("Units") on the Developer Property, as more
particularly described in the PSDA ("Project").
H. The Project will require a domestic water distribution system and
sanitation system and domestic water and sanitation service to each of the Units.
L For purposes of this Agreement, such domestic water distribution system
will consist of the improvements described in Exhibit "D" attached hereto and
incorporated herein and any appurtenances reasonably related thereto such as and
may include, without limitation pipelines, valves, service connections, booster station
and wells ("Domestic Water System").
J. For purposes of this Agreement, such sanitation system will consist of the
improvements described in Exhibit "E" attached hereto and incorporated herein and any
appurtenances reasonably related thereto such as and may include, without limitation,
lift stations, gravity sewer pipelines, force main and other improvements ("Sanitation
System").
K. Developer desires for CVWD to provide domestic water service and
sanitation service to the Project and is willing to transfer to CVWD the Domestic Water
System and Sanitation System after the construction thereof and CVWD is willing to
accept such transfer and to provide domestic water service and sanitation service to the
Project on the terms and conditions set forth herein.
L. The Project also has a fire flow requirement of two thousand two hundred
and fifty (2,250) gallons per minute for a two (2) hour duration which exceeds the flow
available from CVWD's existing domestic water system.
M. The irrigation system serving the Project ("Irrigation System") is
comprised of the Coachella Branch of the All -American Canal ("Coachella Canal"),
Flood Protection Dikes & Channels ("Protective Works") and irrigation distribution
piping system ("Irrigation Distribution System") which supply Colorado River water to
irrigation customers. The United States Bureau of Reclamation ("USBR") owns the
Coachella Canal, Protective Works, and Irrigation Distribution System. CVWD operates
and maintains the Coachella Canal, Protective Works, and Irrigation Distribution
System.
N. Portions of the Irrigation System that will be impacted by the Project lie
within the SilverRock Resort Area. Therefore, the Parties desire to set forth a process
and timeframes by which the facilities would be abandoned and/or relocated within
certain existing portions of the Irrigation System in accordance with the terms and
conditions set forth herein. The term "relocate" shall mean the removal of the applicable
portions of the Irrigation System and the construction of new portions of the same within
new easements in fee owned land. The construction and acceptance of the new
portions of the Irrigation System shall take place before the removal and abandonment
of the applicable existing portions of the Irrigation System. Such new portions of the
Irrigation System and abandonment and removal of the applicable existing portions of
9J
the Irrigation System are listed in Exhibit "F" and referred to herein as the "Irrigation
System Modifications)".
O. The Parties desire by this Agreement to establish the terms and conditions
under which Developer shall construct and transfer to CVWD the Domestic Water
System and the Sanitation System.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
AGREEMENT
1. Developer General Responsibilities. In accordance with the schedule and
sequence requirements set forth herein, including, but not limited to, Appendix
'A," attached hereto and incorporated herein ("Schedule"), Developer shall fulfill
all of the following obligations, at its sole expense, to CVWD's sole satisfaction in
order to obtain domestic water service and sanitation service from CVWD.
(a) Developer will comply with CVWD's rules, regulations, ordinances and
procedures regarding the design, installation and construction of the facilities
contemplated herein, including but not limited to, CVWD's Development Design
Manual, "Standard Specifications for the Construction of Domestic Water
Systems", "Standard Specifications for the Constriction of Sanitation Systems"
and "Standard Specifications for the Construction of Irrigation Systems," and
design standards, as may be amended by CVWD and the CVWD board of
directors ("Board") from time to time (collectively, "Rules"). The Rules are
incorporated herein by this reference.
(b) (i) Developer shall, at Developer's sole expense, be responsible for
compliance with the laws of the State of California and the United States,
including, but not limited to, applicable state and federal environmental
laws, such as the California Environmental Quality Act ("CEQA"), the
National Environmental Policy Act ("NEPA"), California Public Resources
Code section 21000 et sec{., and the Federal Endangered Species Act and
the California Endangered Species Act, (collectively "Environmental
Laws") applicable to the design and construction of the Domestic Water
System and Sanitation System. Developer shall be solely responsible for
compliance with any conditions and mitigation measures required as a
part of the compliance with the Environmental Laws. Developer shall
ensure that a public agency of the State of California acceptable to CVWD
acts as lead agency for the purposes of complying with CEQA, or CVWD
may elect, but shall have no obligation, to act as lead agency for the
purposes of this Agreement. As part of its obligation to comply with CEQA
and applicable Environmental Laws, Developer shall prepare or cause to
be prepared, at its sole cost, all instruments, documents, reports and other
like or kind writings required to be prepared and/or filed by CEQA and
applicable Environmental Laws.
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(ii) Developer shall, upon request by and at no cost to CVWD, provide
CVWD with such information as Developer possesses or has available to
it from any consultants, engineers, contractors or other persons engaged
by or under the control of Developer relating to the environmental
assessment for the Domestic Water System, Sanitation System and
Irrigation System Modification. Notwithstanding the preceding or anything
to the contrary herein, nothing set forth herein shall be deemed to require
CVWD to participate in any legal action related to the Domestic Water
System, Sanitation System and Irrigation System Modification.
(c) (1) Storm, surface, ground, nuisance, or other waters may be
encountered at various times during construction of the improvements.
Developer hereby acknowledges that it has investigated the risk arising
from such waters and assumes any and all risks and liabilities arising
therefrom.
(ii) Developer shall keep itself and all subcontractors, staff, and
employees fully informed of and in compliance with all local, state and
federal laws, rules and regulations that may impact, or be implicated by
the construction of the improvements, including, without limitation, CVWD
Ordinance No. 1234.2; Riverside County Ordinance 458; all applicable
provisions of the local ordinances regulating discharges of storm water;
the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the
California Porter-Coiogne Water Quality Control Act (Water Code § 13000
et seq.); and any and all regulations, policies, or permits issued pursuant
to any such authority. These include, but are not limited to California
Regional Water Quality Control Board, Colorado Region, Order No. R7-
2013-0011 (NPDES Permit No. CAS617002) and State Water Resources
Control Board ("State Board") Order No. 2010-0014-DWQ, Order No.
2009-0009-DWQ, and Order No. 2012-0006-DWQ ("Construction
General Permit"), and any amendment or renewal thereof.
(iii) Developer shall comply with the lawful requirements of
CVWD, and any municipality, drainage district, or other local agency with
jurisdiction over the location where the improvements are to be conducted,
regarding discharges of stormwater to separate storm drain systems or
watercourses.
(iv) Developer shall be required to comply with all aspects of the
Construction General Permit, including any amendment or renewal
thereof, for any project that involves construction on or disturbance of one
acre or more of land or which are part of a larger common area of
development or sale that disturbs one acre or more.
(v) Failure to comply with laws, regulations, and ordinances listed in
this Section is a violation of federal and state law. Notwithstanding any
other indemnity contained in this Agreement, Developer agrees to
indemnify and hold harmless CVWD and City, and their respective
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officials, officers, agents, employees and authorized volunteers from and
against any and all claims, demands, losses or liabilities of any kind or
nature which CVWD or City, and their respective officials, officers, agents,
employees and authorized volunteers may sustain or incur for Developer's
noncompliance with the laws, regulations, and ordinances listed above,
arising out of or in connection with Developer's work with respect to the
Domestic Water System, Sanitation System and Irrigation System
Modification (collectively, the "Developer's Work"), except for liability
resulting from the sole negligence or willful misconduct of CVWD or City,
or their respective officials, officers, agents, employees or authorized
volunteers.
(vi) If Developer fails to fulfill its indemnity obligations under clause (v)
above, (i) CVWD and City separately reserve the right to defend any
enforcement action or civil action brought against CVWD and/or City for
Developer's failure to comply with any applicable water quality law,
regulation, or policy with respect to Developer's Work, and (ii) Developer
hereby agrees to be bound by, and to reimburse CVWD and/or City,
respectively, for the costs associated with, any settlement reached
between CVWD and/or City, and any relevant enforcement entity.
(d) Developer shall execute and deliver CVWD's Standard Domestic Water
Installation Agreement or Standard Domestic Water and Sanitation System
Installation Agreement ("Standard Installation Agreement") for each tract of
land within the Project in such form and content as set forth in Exhibit "C"
attached hereto and by this reference incorporated herein, as amended by
CVWD from time to time. In the event of any inconsistency or ambiguity between
the terms of the Standard Installation Agreement and this Agreement, the terms
of this Agreement shall control.
(e) Developer shall employ, at its sole expense, a qualified professional
engineering firm ("Developer's Engineer") to plan, design and prepare detailed
construction plans and specifications ("Plans") for the Domestic Water System,
Sanitation System and Irrigation System Modification in full and complete
accordance with CVWD's Rules, including but not limited to, the design criteria
and standards, such as CVWD's "Development Design Manual." Developer's
Engineer shall complete the design and Plans and the same shall be submitted
to CVWD as set forth below. All such planning and design work and Plans
performed and prepared by Developer's Engineer shall be subject to review and
written approval by CVWD prior to presentation thereof to contractors for bidding
purposes. CVWD shall approve or disapprove the Plans within a reasonable
amount of time after submittal to CVWD. In the event CVWD disapproves the
Plans, Developer shall modify the Plans in accordance with the reasons given for
disapproval and shall resubmit the revised Plans to CVWD for approval or
disapproval. The foregoing procedure shall be continued until the Plans have
been approved by CVWD. Developer hereby acknowledges and understands
that CVWD may approve or disapprove Developer's planning and design work
and Plans, in its sole and absolute discretion. Developer represents that the
0
Plans will conform to all applicable federal, state and local governmental rules,
ordinances and regulations and all applicable Environmental Laws. In submitting
the Plans to CVWD for review, Developer represents that, to Developer's
knowledge, after reasonable inquiry, that the Plans are complete, accurate,
workable and are in compliance with all governmental requirements with respect
thereto.
(f) After CVWD's approval of the Plans, Developer shall complete and submit
an application to the USSR to (A) abandon the applicable portions of the
Irrigation System and (B) construct and install the replacement portions of the
Irrigation System and (C) apply for license with USSR for the Box Culvert
Crossing at the Coachella Canal. The submittal of the application to the USSR by
Developer and the process by which Developer satisfies such requirements of
the USBR will be coordinated through CVWD. Developer hereby agrees to
satisfy the requirements of the USBR, at Developer's sole expense. In the event
a requirement of the USBR conflicts with the terms of this Agreement with
respect to the abandonment or construction at the applicable portion of the
Irrigation System, the requirements of the USBR shall prevail. Notwithstanding
anything contained in this Agreement, Developer shall first complete the
construction of the replacement portion of the Irrigation System prior to removing
or causing the abandonment of the applicable portion of the Irrigation System.
Nothing herein shall relieve Developer for complying with any requirements of the
USBR or CVWD for receipt of encroachment permits to remove or cause the
abandonment of the applicable portion of the Irrigation System.
(g) CVWD shall have the right, but not the obligation, to conduct a water audit
of the Project once every five (5) years beginning with the Effective Date of this
Agreement. CVWD shall give Developer thirty (30) days prior written notice of
each audit and an invitation to participate. All costs incurred by CVWD in
connection with the audit, including labor costs, shall be at Developer's expense.
CVWD shall invoice Developer for the costs incurred herein. Developer shall
make payment to CVWD within thirty (30) days of receipt of CVWD's invoice.
(h) As a condition of continued irrigation water service, the recommendations,
if any, resulting from the water audit must be implemented unless CVWD's
General Manager, in his/her discretion, determines otherwise. Developer hereby
agrees to undertake the recommendations set forth in the water audit within thirty
(30) days of receipt of the audit and shall diligently and continuously complete
the recommendations unless Developer within thirty (30) days of the receipt of
the recommendations, requests, in writing, to be relieved from the obligation to
undertake one or more of the recommendations set forth in the water audit.
Within a reasonable time after receipt of the notice from Developer, the General
Manager of CVWD will notify Developer, in writing, if Developer shall be relieved
from the obligations to undertake the recommendations. In the event CVWD's
General Manager determines that one or more of the recommendations must be
undertaken, Developer shall begin the recommendations within thirty (30) days of
receipt of CVWD's notice and complete the recommendations within the time
frame set in the notice from CVWD's General Manager.
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(i) With respect to the use of irrigation water, Developer shall provide
groundwater protection from pollutants, including but not limited to, nitrates and
pesticides leaching into the groundwater, by employing the use of Best
Management Practices ("BMPs"). The University of California Turf Grass
Research BMPs are provided in Exhibit "G" attached hereto as a reference.
CVWD reserves the right to modify or substitute the BMP standard with sixty (60)
days prior written notice to Developer. All costs of the evaluation shall be at the
expense of Developer and shall be billed and paid pursuant to the procedure set
forth in Section 1(g).
0) Prior to any service hereunder, Developer hereby consents and agrees
to execute CVWD's standard form Water Production Metering Agreement (or
such successor agreement) ("Metering Agreement") for any and all wells on the
Developer Property producing more than twenty-five (25) acre feet of water in
any calendar year. The Metering Agreement shall provide, in part, that (i) such
wells must be equipped with a water measuring device ("Measuring Device")
more particularly described therein; (ii) on a monthly basis the Developer shall
report well production directly or grant CVWD employees, agents and
representatives an irrevocable right to come onto the Developer Property to read
and maintain the Measuring Device, and (iii) Developer shall be required to pay a
monthly replenishment assessment.
(k) The above obligations in Sections 1.(g) through 0) shall be assigned to
and accepted and assumed by the property owners association or successor
owner pursuant to the terms set forth in Section 15(t) below.
(1) Prior to any service hereunder, the Developer shall provide CVWD gate
codes for access to the Developer Property through any electrically or
electronically operated security gate system installed by Developer. If the
Developer cannot provide CVWD with gate codes then CVWD shall have the
right to install radio controls to operate said gate(s) at Developer's expense.
Developer hereby grants to CVWD an irrevocable non-exclusive easement for
CVVVD in and over the Developer Property for the purpose of installation,
reinstallation, repair, replacement, operation and maintenance of such radio
controls. Developer shall pay CVWD the sum of Four Thousand Five Hundred
Dollars ($4,500.00) as the cost of said radio controls prior to acceptance of the
Irrigation System Modification and drainage system by CVWD. CVWD will
operate, maintain, and replace said radio controls at CVWD expense.
2. Developer's Responsibilities for Domestic Water Service
Developer shall do the following for domestic water service at such time or times
described herein or on Appendix "A" attached hereto and by this reference
incorporated herein:
(a) The Previous Agreement required the City to provide seven (7) well sites.
The City provided two (2) off -site well sites and paid an in lieu fee for the
remaining five (5) well sites per the "Domestic Water and Sanitation System
Installation and Irrigation Service Agreement — First Amendment," dated June 20,
P
2011. Therefore, the City has met its obligations for well sites for this Project and
Developer does not have any obligation to provide well sites.
(b) Developer shall, prior to any design and construction, provide at
Developer's sole expense, CVWD with a grant deed conveying fee title to one (1)
Pressure Reducing Valve Station (PRV) Site, minimum of one hundred feet
(100') long by forty feet (40') wide, and one (1) Booster Station/Pressure
Reducing Valve Station (BST/PRV) Site, minimum one hundred feet (100') long
by one hundred feet (100') wide, at a location determined in the sole and
absolute discretion of CVWD, free and clear of any liens and encumbrances, in
compliance with the California Subdivision Map Act. The BST/PRV Site and
PRV Site shall connect CVWD's Lower La Quinta Pressure Zone (235-foot zone)
to CVWD's Lake Cahuilla Pressure Zone (150-foot zone). The BST/PRV Site
and PRV Site shall be referred to as "Sites."
Provide, at Developer's sole expense, separate grading and landscaping plans
("Grading Plan") for the Sites. The provisions of Section 1(e) shall apply to the
review and approval of the Grading Plan. After the Grading Plan has been
approved by CVWD, Developer shall grade the Sites in strict compliance with the
approved plans. The provisions herein relating to construction and installation of
the improvements shall apply to all grading of the Sites. The Grading Plan shall
include, but not be limited for the following site improvements which the
Developer shall provide at Developer's sole expense:
(i) Electrical power of a voltage and wattage as shall be
acceptable to CVVVD, in its sole and absolute discretion, for
operation of the Sites.
(ii) Telecommunication service necessary for operational
monitoring and control of the Sites.
(iii) Design and construct a structure, at Developer's option, to
house the BST/PRV and PRV Facilities. The provisions herein
relating to the design, construction and installation of the
improvements shall apply to the design and construction of the
structure. The structure shall also meet CVWD and local
architectural standards and blend in with surrounding structures.
(c) Developer shall do the following for the design and construction of certain
facilities:
0) Not Used (Wellsites Satisfied)
(ii) Design and construct one (1) Booster Station/Pressure
Reducing Valve Station, including all necessary appurtenances
capable of transferring 2,000 gallons per minute between the Lower
La Quinta and Lake Cahuilla Pressure Zones and one (1) Pressure
Reducing Valve Station thereto, as determined by CVWD, in its sole
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and absolute discretion (collectively, "BST/PRV Facility") on the
BST/PRV Site. The provisions herein relating to the design,
construction and installation of the improvements shall apply to the
design, construction and installation of the BST/PRV Facility.
(iii) Design and construct one (1) Pressure Reducing Valve
Station, including all necessary appurtenances, capable of
transferring a minimum of 1,000 gallons per minute from the Lower
La Quinta Pressure Zone to the Lake Cahuilla Pressure Zone
thereto, as determined by CVWD, in its sole and absolute discretion
("PRV Facility") on the PRV Site. The provisions herein relating to
the design, construction and installation of the improvements shall
apply to the design, construction and installation of the PRV Facility.
(iv) Subject to Section 7(b), design and construct, at Developer's
sole expense, to CVWD specifications, the pipelines or facilities
shown on Exhibit "D" attached hereto and by this reference
incorporated herein before water service is initiated by CVWD to the
Units within the Project in accordance with the Schedule on
Appendix A. The pipelines shall be of the type and material as shall
be acceptable to CVVVD in CVWD's sole and absolute discretion. The
provisions herein relating to the design, construction and installation
of the improvements shall apply to the design, construction and
installation of the pipelines described herein.
(v) Design and construct, at Developer's sole expense, to CVWD
specifications, the internal domestic water pipelines to meet the
Project's fire flow and domestic water requirements in accordance
with a domestic water system model to be approved by CVWD, in
CVWD's sole and absolute discretion. The internal domestic water
pipelines shall be in service before domestic water is provided to the
Project. The provisions herein relating to the design, construction
and installation of the improvements shall apply to the design,
construction and installation of the internal domestic water pipelines.
(vi) Section 2(c)(ii) of this Agreement provides that Developer is
required to install an eighteen -inch (18") pipeline described in the
third bullet point of Exhibit "D" ("Pipeline") and a 2,000 gallon per
minute Booster/Pressure Reducing Valve Station (BST/PRV) as
more particularly described therein. The minimum pipeline size
required by Developer for that segment of the transmission pipeline
system, is an eight -inch (8") pipeline ("Required Pipeline"). The
minimum flow for the BST/PRV required by Developer is 1,000
gallons per minute (the "Required BST/PRV"). CVWD desires that
the Required Pipeline and Required BST/PRV be oversized (18"
pipeline and 21000 gallon per minute vs. 8" pipeline and 1,000
gallons per minute) (collectively, "Oversized Water Facilities") in
order to provide additional water capacity for future use. Developer
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shall construct and install the Oversized Water Facilities and CVWD
shall be responsible for payment of its share of the Oversized Water
Facilities as more particularly described in Section 7(b).
(vii) For purposes of this Agreement, the Sites, BSTIPRV and
PRV Facility shall be referred to herein as "the Required Facilities."
(d) Install, at Developer's sole expense, a pressure regulating valve in each
Unit, if required by CVWD or in accordance with applicable codes.
(e) Complete in the required sequence, in accordance with the schedule in
Appendix A, the pipelines, the Sites, the BST/PRV Facility and PRV Facility
described herein before domestic water service is initiated by CVWD to the Units.
(f) Immediately upon completion of the above described facilities to be
constructed on the Sites, Developer shall field review with a CVWD
representative the remaining visual and aesthetic impacts and agree to mitigate
with, but not limited to, landscaping, wall, paint and/or decorative rock to CVWD's
satisfaction. Designs shall be reviewed and approved by CVWD prior to
construction.
(g) Prior to the first request for meter(s) in a particular planning area (i.e.,
each construction phase with approved domestic water construction plans for
such phase), Developer shall pay to CVWD all Water System Backup Facilities
Charges ("WSBFC"), Supplemental Water Supply Charges and other charges
related to the provision of domestic water service to such phase or planning area.
3. Developer's Responsibilities for Sanitation Service
Developer shall do the following for sanitation service at such time or times
described herein or on Appendix "A" attached hereto and by this reference
incorporated herein:
(a) Not Used (Lift Station Site).
(b) Not Used (Grading Plans for Lift Station Site).
(c) Developer shall do the following for the design and construction of certain
facilities:
(i) Not used (Force Main).
(ii) Subject to Section 7(b), design and construct, at Developer's
sole expense, to CVWD specifications, the gravity sewer pipelines
("Gravity Sewer Pipelines") or facilities shown on Exhibit "E"
attached hereto and by this reference incorporated herein, before
sanitation service is initiated by CVWD to the Units within the Project
in accordance with the Schedule on Appendix A. The provisions
herein relating to the design, construction and installation of the
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improvements shall apply to the design, construction and installation
of the pipelines described herein.
(iii) Design and construct, at Developer's sole expense, to CVWD
specifications, the internal sanitary sewer system to meet the
Project's discharge requirements. The internal sanitary sewer
system shall be in service before sanitation service is provided to
the Project. The provisions herein relating to the design,
construction and installation of the improvements shall apply to the
design, construction and installation of the internal sanitation
system.
(iv) For purposes of this Agreement, Gravity Sewer Pipelines
shall be referred to herein as "the Required Facilities."
(d) Developer shall pay to CVWD all Sanitation Capacity Charges ("SCC")
and other charges related to the provision of sanitation service to the subject
phase or planning area (i.e. each construction phase with approved sanitary
sewer construction plans for such phase) prior to the first request for domestic
water meters in such phase or planning area.
4. Developer's Irrigation Svstem Modification Responsibilities
The construction of the Irrigation System Modification is addressed in Section 13.
As further provided in Section 13, CVWD (at the expense of Developer and the
City as provided in Sections 13 and 14) shall complete in the required sequence,
in accordance with the schedule in Appendix A, the Pipeline installation and
abandonments described herein (i.e., those set forth in first through fourth bullet
of Exhibit F and items 12, 13, 14 and 17 of Appendix A) before irrigation service
is initiated by CVWD to the Units.
In addition, Developer shall d❑ the following for irrigation service:
(a) Not Used (Sites).
(b) Not Used (Grading Plans for Sites).
(c) Relative to CVWD, Developer shall be responsible for the costs and
reimbursements described in Section 13 and, relative to the City, Developer shall
be responsible for the reimbursement described in Section 14(a).
(d) Upon completion and acceptance of the irrigation facilities as hereafter
described, the Developer Property shall be placed on the irrigation system roll.
(e) Developer acknowledges and agrees that the irrigation water service
provided by CVWD is interruptible in nature and the Developer will maintain an
alternate irrigation water supply in "ready" status. If for any reason CVWD does
not or is unable to deliver irrigation water, Developer hereby waives and releases
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CVWD from any claim, loss, damage or action, that it may have against CVWD
for failure to deliver irrigation water, including, but not limited to, damages, loss of
business, loss of profit or inconvenience, and Developer shall hold harmless from
any and all legal liabilities or economic losses which result in the failure to deliver
irrigation water.
(f) In the event of a shortage of available irrigation water, except as otherwise
required by law, regulation, court order or such other uses as determined by
CVVVD (in its sole and absolute discretion), the following irrigation water uses
shall have priority to use irrigation water over the Project:
(i) Agricultural uses in existence as of the date of this
Agreement;
(ii) Agricultural uses converted to non-agricultural uses prior to
the date of this Agreement; and
(iii) Non-agricultural uses in existence prior to the date of this
Agreement.
During such periods of shortage, irrigation water for said Project may be
supplied by Developer from non-CVWD-owned wells.
(g) Developer shall pay to CVVVD all other charges related to the provision of
irrigation service to the Developer Property.
5, Developer Pre -Plan Check Requirements
(a) Prior to submitting the Plans to CVVVD for initial plan check, Developer
shall do the following:
(i) Concurrently with the execution of this Agreement by
Developer, Developer shall deliver to CVWD a current preliminary
title report (TTR") affecting the Developer Property dated within
thirty (30) days of the delivery thereof to CVWD. CVWD shall notify
Developer of any title exceptions within the PTR which must be
subordinated to the lien of this Agreement. Notwithstanding the
foregoing, any monetary liens or liens of any covenants, conditions
and restrictions must be subordinated to the lien of this Agreement.
Developer shall have a period of thirty (30) days after the receipt of
written notice to cause the subordination of the items fisted in
CVWD's notice, as well as any monetary liens or liens of any
covenants, conditions and restrictions.
(ii) Pay CVVVD's plan check deposit, and any other deposits
required as part of the Standard Installation Agreement, and any
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amounts necessary to reimburse CVWD for costs incurred in
connection with review of the Plans.
(iii) Furnish to CVWD the executed applicable CVWD standard
agreements.
(iv) Complete and deliver to CVWD the original Bill of Sale on a
form supplied by CV\ND and any other forms as required by the
Standard installation Agreement.
(b) Prior to submitting Plans to CVWD for the second plan check, Developer
shall do the following:
(i) Developer, at its sole expense, shall furnish to CVWD
recorded grant deeds and/or recorded easement document(s)
and/or recorded easements proposed to be dedicated in tract maps
and/or public rights -of -way, if applicable, satisfactory to CVWD (in its
sole and absolute discretion) as to content, form, location, and width
and which assure CVWD's unequivocal right to own, operate,
maintain, replace, repair, enlarge, reconstruct, remove and improve
the improvements. Developer shall ensure that all deeds of trust,
mortgages and covenants, conditions and restrictions are re -
conveyed as to fee ownership and subordinated to the easement(s)
set forth herein. Developer shall also ensure that the grant deeds
and easements comply with the requirements of CVWD's rules and
regulations.
Developer Plan Approval/Release Requirements
Prior to the approval/release of the Plans by CVWD for the improvements,
Developer shall furnish to CVWD the following:
(a) The approved Plans in electronic CAD format.
(b) This signed, notarized Agreement.
Developer Pre -Construction Requirements
Following receipt of CVWD's approval of the design and Plans for the
improvements and prior to the construction thereof, Developer shall do the
following:
(a) Furnish to CVWD, prior to the pre -construction meeting set forth in
subsection (c) below, a deposit in the amount of Five Thousand Dollars
($5,000.00) or five percent (5%) of the amount of the estimated construction
costs of the improvements and facilities to be constructed hereunder in the
particular phase, whichever is greater, of immediately available funds, as security
for the purpose of guaranteeing the completion of construction of the
improvements and facilities to be constructed hereunder. The term "immediately
M
available funds" shall mean cash, wire transfer or a cashier's check drawn on
good and sufficient funds on a federally insured bank and made payable to the
order of CVWD. CVWD shall not be required to keep the funds separate from its
general funds. In the event CVWD invests the deposit, CVWD shall pay the
minimum interest rate set forth in California Government Code Section 53079(b).
CVWD shall have the absolute right five (5) business days after the mailing of a
written notification to Developer, by certified mail at Developer's address herein,
to draw all or a portion of the funds represented by the deposit as may be
necessary to complete construction in the subject phase, including administrative
and all other project costs or to secure compliance with this Agreement, including
the construction of the improvements and facilities to be constructed hereunder;
immediately available funds shall be delivered on a case -by -case basis, for each
contract based on the construction required as outlined herein.
The deposit plus interest described above applicable to the particular phase, less
draws, if any, will be returned to Developer, on a case -by -case basis, upon
CVWD declaring that the improvements and facilities to be constructed
hereunder are final and complete (including, but not limited to, the paving of the
road/street/right-of-way above such facilities) in CVWD's sole and absolute
discretion pursuant to CVWD's standard acceptance procedures and Section g.
Developer hereby understands, acknowledges and agrees that the determination
that the improvements and facilities to be constructed hereunder are complete
and final may come after CVWD has accepted such facilities.
(b) (i) Employ, with written concurrence of CVWD, a qualified
contractor or contractors (collectively, "Developer's Contractor")
properly licensed by the State of California to construct and complete
the improvements.
(ii) For purposes of this Agreement, the Oversized Water
Facilities shall be referred to collectively as "Oversized Facilities."
(iii) Notwithstanding subsection (b)(i) above, Developer shall
obtain a minimum of three (3) bids from qualified and properly
licensed, insured and bonded contractors reasonably approved by
CVWD for the Oversized Facilities. Developer shall obtain separate
bids for (A) the Required Pipelines and Required BSTIPRV and (B) the
Oversized Facilities. The provisions of this subsection shall apply to all
of the Oversized Facilities or the discrete components thereof_ Subject
to subsection (b)(iv) below, the construction of the Oversized Facilities
("Oversized Facilities Work") shall be awarded to the lowest
responsible bidder for the Oversized Facilities. In addition to the
foregoing, Developer shall be required to post payment and
performance bonds, as required by CVWD, for the Oversized Facilities.
If an event(s) or condition(s) (or both) occurs under either the payment
or performance bonds (or both) that would authorize CVWD to require
performance by the surety under either the payment or performance
bonds (or both), the City shall have the right, but not the obligation, to
demand CVWD to require such performance by the surety by
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half (1/2) of all costs incurred in connection with such arbitration;
however, the arbitrator shall have the power and discretion to order
that the non -prevailing Party reimburse reasonable legal fees and
costs incurred by the prevailing Party.
(D) Subject to the foregoing, CVWD shall have no obligation to
pay any cost increases for changes unless CVWD has approved
the same in writing.
(c) Arrange, or cause the Developer's Contractor to arrange, a pre -
construction meeting with CVWD. At such meeting there shall be at least one (1)
representative of Developer, Developer's Contractor and CVWD. At such
meeting, Developer shall be required to pay to CVWD a deposit for inspection as
shall be required by CVWD's standard schedule for inspection costs. CVWD
shall deduct from said deposit all reasonable inspection expense of CVWD,
including, but not limited to, CVWD's agents, employees or independent
contractors. CVWD shall handle such deposit consistent with CVWD's rules,
regulations and procedures with respect to such deposits.
(d) Obtain and maintain in full force and effect during the term of this
Agreement, the insurance coverages listed on Exhibit "H" attached hereto and by
this reference incorporated herein.
8. Developer Construction Reauirements
Following satisfaction of the requirements set forth in Section 7, Developer shall
construct the improvements in accordance with the following requirements:
(a) Developer shall, at its sole expense, apply for and obtain all necessary
consents, approvals, permits, authority, licenses or entitlements as shall be
required for the construction and installation of each facility or improvement from
all appropriate governmental authorities.
(b) Once construction and/or installation of an improvement has commenced,
subject to Section 15(v), Developer shall diligently prosecute the same to
completion at no cost or expense to CVWD (except as provided in Section 7(b))
in conformance with the laws, rules and regulations of all governmental bodies
and agencies, including those of CVWD.
(c) Developer shall perform, or cause to be performed, all construction and
installation of the improvements in good, workmanlike and commercially
reasonable manner, with the standard of diligence and care normally employed
by duly qualified persons in the performance of comparable work and in
accordance with generally accepted practices appropriate to the activities
undertaken and in compliance with the construction standards set forth herein.
Developer shall employ at all times adequate staff or consultants with the
requisite experience necessary to administer and coordinate all work related to
the design, engineering, construction and installation of the improvements.
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(d) Developer shall name CVWD as an express third party beneficiary in its
construction contract with Developer's Contractor.
(e) Developer shall ensure that CVWD is a named additional insured in the
insurance policies provided by Developer's Contractor pursuant to the
Developer's construction contract.
(f) Developer shall include CVWD, City, and the CVWD Indemnitees and City
Indemnitees as defined Exhibit "I", as indemnitees in the indemnification clause
in the construction contract between Developer and Developer's Contractor.
(g) Developer shall cause the Developer's Contractor to comply with the
applicable Occupational Safety and Health Administration ("OSHA") standards
and requirements, including, but not limited to, submitting construction and
shoring plans.
(h) CVWD shall be under no obligation to protect any improvement to be
constructed by or on behalf of Developer, or any material, tool, equipment and
facilities until written acceptance thereof by CVWD. Prior to the acceptance,
Developer shall bear all risk of loss or damage thereto by whatever cause
inflicted. Developer shall bear the sole cost and responsibility to rebuild, repair,
restore and replace or cause to be rebuilt, repaired, restored or replaced, and
make good all injuries or damages to any portion of the improvements before
completion and acceptance by CVWD and Developer shall bear the expense
thereof.
(i) Developer shall pay when due all valid charges from all contractors,
subcontractors and suppliers supplying goods or services to Developer for the
Domestic Water System and Sanitation System and shall keep the Domestic
Water System and Sanitation System free and clear of any liens related to such
charges. Developer shall indemnify CVWD and City for all claims, losses,
damages, liabilities and expenses resulting from any liens filed against the
Domestic Water System, Sanitation System and Irrigation System in connection
with such charges; provided, however, that Developer shall have the right to
contest any such lien, s❑ long as it provides a statutory bond or other
reasonable assurances of payment that either remove such lien from title to the
Domestic Water System, Sanitation System and Irrigation System or that assure
that any adverse judgment with respect to such lien will be paid without affecting
title to the Domestic Water System, Sanitation System and Irrigation System.
0) Each improvement shall be installed in strict compliance with the Plans.
Any deviations from the approved Plans must have CVWD's prior written
approval.
(k) Developer is required by this Agreement to install and construct certain
improvements which will be dedicated to CVWD upon completion thereof in
accordance with the terms of this Agreement. Notwithstanding the foregoing, if
Developer does not believe that it is required to perform such work in the same
19
manner and subject to the same requirements as would be applicable to CVWD
had it undertaken construction, including, without limitation, the payment of
prevailing wages, and other public works requirements pursuant to the California
Labor Code, the California Government Code and the California Public Contract
Code, then Developer undertakes such construction at Developer's risk. Should
it be determined in the future by either the legislature or a court of competent
jurisdiction that Developer was required to comply with some or all of the
requirements as would be applicable to CVWD had it undertaken such
construction, Developer shall indemnify, defend and hold harmless CVWD
lndemnitees and City Indemnities (as defined in Exhibit "I") from all Costs (as
defined in Exhibit "I") to which they may be subjected or put, by reason of or
resulting from failure to comply with public works requirements, including, but
not limited to, the failure to pay prevailing wages or such other requirements as
would be applicable to CVWD had it undertaken such construction.
(1) Developer hereby irrevocably appoints CVWD to inspect the furnishing
and installation of the improvements. Developer shall provide CVVVD
representatives with reasonable access for inspection purposes. it is Understood
and agreed that CVWD's inspection personnel shall have the authority to
enforce the Plans, which authority shall include requiring that all unacceptable
materials, workmanship and/or installation be replaced, repaired or corrected by
Developer's Contractor. Nothing herein shall be construed to grant CVWD direct
control over Developer's Contractor or anyone but Developer or its designee.
CVWD's inspection does not include inspection for compliance with safety
requirements by Developer's Contractor_ Any inspection completed by CVWD
shall be for the sole use and benefit of CVWD, and neither Developer nor any
third Party shall be entitled to rely thereon for any purpose. CVWD does not
undertake or assume any responsibility for or owe a duty to select, review or
supervise the creation of the improvements.
9. Developer Requirements for Project Completion and Acceptance
(a) (i) Upon completion and testing of the Domestic Water System, and at
the time of Developer's request to Progress for Service (place in service),
request for fire protection or domestic water service (issuance of meters),
Developer's Engineer of Record shall provide signed and approved As -
Built Drawings (electronic or hard copy) and Developer shall provide the
actual construction cost of the improvements to CVWD. Upon completion
and testing of the Sanitation System, and after base paving, the Developer
may request to Progress for Service (place in service) the Sanitation
System. At the time of the Progress for Service request for sanitation
service, the Developer's Engineer of Record shall provide signed and
approved As -Built Drawings (electronic or hard copy) and the actual
construction cost of the improvements to CVWD.
With respect to the Irrigation System Modification, upon and completion
and testing of an Irrigation System improvement and/or abandonment of
the applicable portion of the Irrigation System, the Developer's Engineer of
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Record shall provide signed and approved As -Built Drawings (electronic or
hard copy) and Developer shall provide the actual construction cost of the
improvements to CVWD. Upon completion and testing of an improvement
and/or abandonment of the applicable portion of the Irrigation System, and
after final paving, Developer shall give CVWD notice of the same.
Following receipt of notice from Developer, CVWD shall make a final
inspection and provide written notice to Developer either (A) confirming
that such Domestic Water, Sanitation and Irrigation System Modification
improvement has been completed in accordance with the requirements of
this Agreement or (B) setting forth a punchlist of items that need to be
completed or corrected. If CVWD provides such a punchlist, the above -
referenced notice and inspection procedure shall be repeated upon
completion of the punchlist items. Nothing herein shall be considered a
waiver of any warranty, guarantee or other right in favor of CVWD.
(ii) Upon completion and acceptance of each applicable
improvement, Developer shall prepare and execute a Certificate of
Completion and Final Acceptance as to each applicable improvement and
record said notice with the Office of Recorder of the County of Riverside,
State of California.
(iii) Upon receipt of the Certificate of Completion and Final
Acceptance, the Bill of Sale provided herein shall convey title to the
improvements at no expense to CVWD. The improvements shall be
transferred to CVWD free of all liens and encumbrances.
(iv) Developer warrants and represents to CVWD that the
improvements covered hereby shall be free from construction defects for
eighteen (18) months from the date of CVWD final acceptance. The
Developer shall maintain in force the deposit for the duration of the
eighteen (18) month guarantee.
(v) CVWD shall repair, at Developer's expense, all failures of any
improvement which was furnished, installed and/or constructed due to
faulty materials or installation during the eighteen (18) month warranty
period referred to in subsection (iv) above. Developer shall, within
thirty (30) days after written demand therefor, pay or cause Developer's
Contractor or surety to pay such cost shown on the invoice. Nothing in this
subsection or subsection (iv) above shall limit or abrogate any other
claims, demands or actions CVWD may have against Developer or
Developer's Contractor on account of damages sustained by reason of
such defects, nor shall the provisions of this Section limit, abrogate or
affect any warranties in favor of CVWD which are expressed or implied by
law or set forth in any construction agreement.
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(b) Developer's Engineer shall provide to CVWD all field engineering
surveys associated with the construction of the improvements, at
Developer's sole expense. Developer shall promptly furnish to CVWD all
field notes and grade sheets, together with all location, offset, and
attendant data and reports, resulting from Developer's field engineering
survey and/or proposed facility design changes, all of which have been
prepared in accordance with generally accepted engineering practices,
and allow CVWD sufficient time to approve or make any required design
changes resulting therefrom prior to construction. Any inspection or review
pursuant to this subsection shall be for the sole use and benefit of CVWD,
and neither Developer nor any third party shall be entitled to rely thereon
for any purpose.
10. Project Close Out Requirements
After receipt of the Certificate of Completion and Final Acceptance the following
requirements shall apply:
(a) Upon completion of an improvement, Developer shall notify CVWD
in writing, and cause contractors and all subcontractors and materialmen
to provide unconditional lien and material releases.
(b) Developer shall provide CVWD with a declaration by Developer's
Contractor that the Developer's Contractor and all persons and entities
who furnished material in the construction of the improvements have been
paid in full.
(c) All permits, plans and operating manuals related thereto, shall be
delivered to and become the sole property of CVWD, subject to
Developer's warranty work and other obligations required hereunder. On
the acceptance of an improvement, Developer shall deliver to CVWD, at
no cost to CVWD, all surveys and as -built drawings associated with the
construction of the improvement.
(d) Release of Construction Covenants. Upon request from Developer
at any time after CVWD's final acceptance of the subject improvement
(i.e., Domestic Water System, Sanitation System or Irrigation System
Modification) or, if the approved plans for the particular improvement allow
for phasing of the improvement, final acceptance of such improvements
within a particular construction phase for such improvement (i.e., the
portion of the Domestic Water System, Sanitation System or irrigation
System Modification within a particular approved construction phase),
Developer shall be entitled to a Release of Construction Covenants in the
form of Exhibit "J" attached hereto (a "Release of Construction
Covenants") for the applicable improvement. CVWD shall not
unreasonably withhold any such Release of Construction Covenants, and
if Developer is entitled thereto pursuant to the foregoing sentence, CVWD
051
shall furnish to Developer a recordable Release of Construction
Covenants for the applicable improvements within fifteen (15) days after
Developer's request thereof. Except for the warranty of Developer under
this Agreement that the subject improvements will be free of construction
defects for eighteen (18) months from the date of CVWD's final
acceptance thereof (the "Warranty"), the Release of Construction
Covenants shall be a conclusive determination of satisfactory completion
of the applicable improvements and the Release of Construction
Covenants shall so state. Except for the Warranty, any party then owning
or thereafter purchasing, leasing or otherwise acquiring any interest in the
real property for which a Release of Construction Covenants has been
issued shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement.
If CVWD refuses or fails to furnish a Release of Construction Covenants
after written request from Developer, CVWD shall, within fifteen (15) days
after written request therefor, provide Developer with a written statement
of the reasons CVWD refused or failed to furnish a Release of
Construction Covenants. The statement shall also contain CVWD's
opinion of the actions Developer must take to obtain a Release of
Construction Covenants for the applicable improvement. A Release of
Construction Covenants shall not constitute a waiver or release of the
Warranty and shall not constitute evidence of compliance with or
satisfaction of any obligation of Developer to any holder of any mortgage,
or any insurer of a mortgage securing money loaned to finance the
applicable improvement.
11. CVWD Requirements for Domestic Water Service
CVWD shall d❑ the following for domestic water service to the Project:
(a) Not used.
(b) Subject to federal, state and local laws, rules, regulations,
ordinances and rulings with respect to the provisions of fire flow, including
those of CVWD, provide a fire flow of two thousand two hundred and fifty
(2,250) gallons per minute, respectively, to said Project subject to
completion of all CVVVD's requirements in connection with the same,
including, without limitation, Developer constructing all pipelines,
BSTIPRV and PRV, subject to circumstances within the control of CVWD.
(c) Subject to Developer constructing the Domestic Water System and
complying with the terms of this Agreement, including, but not limited to
the payment of fees, CVWD shall provide domestic water service to the
Project subject to circumstances within the control of CVWD or as
otherwise provided by CVWD's rules, regulations and indices, policies and
procedures, as may be amended from time to time. Further, Developer
acknowledges that domestic water service shall be provided from such
23
services and facilities as shall be available to CVWD. In the event water is
unavailable to service all of CVVVD's customers, service to the Developer
Property may be discontinued or subject to reduction in service, as
determined by CVWD.
(d) Not used.
(e) Not used.
(f) Not used.
12. CVWD Reauirements for Sanitation Service
CVWD shall do the following for sanitation service to the Project:
(a) Subject to Developer constructing the sanitation collection system and
complying with the terms of this Agreement, including, but not limited to the
payment of fees, CVWD shall provide sanitation service to the Project subject to
circumstances within the control of CVWD or as otherwise provided by CVVVD's
rules, regulations and indices, policies and procedures, as may be amended from
time to time, Further, Developer acknowledges that sanitation service shall be
provided from such services and facilities as shall be available to CVWD. In the
event water is unavailable to service all of CVWD's customers, sanitation service
to the Developer Property may be discontinued or subject to reduction in service,
as determined by CVWD.
(b) Not used.
(c) Not used.
(d) Not used.
13. CVWD Irrigation System Modification Requirements
CVWD shall do the following for irrigation service to the Project:
(a) Subject to the completion of the Irrigation System Modifications and
complying with the terms of this Agreement, CVWD shall provide irrigation
service to the Project subject to circumstances within the control of CVWD
or as otherwise provided by CVVVD's rules, regulations and indices,
policies and procedures, as may be amended from time to time.
(b) Developer acknowledges and agrees that the irrigation provided by CVWD
is of an interruptible nature and Developer shall maintain an alternative water
supply in "ready" status. Developer further acknowledges and agrees that CVWD
shall have no obligation to provide an alternative water supply to be used by
Developer. If CVVVD does not or is unable to deliver irrigation, Developer waives
and releases CVIND and City from any claims, loss, damage or action Developer
may have against CVWD for failure to deliver irrigation, including, but not limited
0
to, loss of business, loss of profit or inconvenience (collectively, "Claims") and
Developer shall hold CVWD and City free and harmless from any and all
liabilities or economic losses which result in the failure to deliver irrigation to the
Project. The foregoing indemnity shall not apply to the extent any Claims are
ultimately established by a court of competent jurisdiction to have been caused
by the gross negligence or willful misconduct of CVWD.
(c) In conjunction with the Developer, obtain from USBR all necessary
consents, approvals, permits, authority, licenses or entitlements required in order
to abandon the portion of the Irrigation System within the USBR Easement and
relocate such pipelines to the Replacement Easement.
(d) Install a portion of lateral 120.8 at Developer's sole expense as described
in the first bullet paragraph of Exhibit "F".
(e) Abandon Lateral 120.8-0.3 at City's sole expense as described in the
second bullet paragraph of Exhibit "F".
(f) Abandon Lateral 120.8-0.3-0.5RT at City's sole expense as described in
the third bullet paragraph of Exhibit "F".
(g) Construct Bypass and Box Culvert work as described in fourth bullet
paragraph of Exhibit "F", along with the associated provisions for inspection, soils
and concrete testing, and construction management ("Bypass/Box Culvert
Work"), subject to reimbursement of expenses by City (and, per Section 14(a)
Developer's reimbursement of City) pursuant to the provisions described below:
(i) City shall review and approve, in its reasonable discretion, the
scope and estimated cost of the Bypass/Box Culvert Work prior to any
soliciting of bids. Upon City's approval of the scope of work and estimated
cost, the City shall be deemed to have approved its obligation to pay the
expenses for the Bypass/Box Culvert Work up to and including the amount
of the estimated cost, which shall be memorialized by written notice
delivered to the parties. Based upon the City -approved scope of work and
estimated cost amount, CVWD shall obtain bids from qualified and
properly licensed, insured and bonded contractors reasonably approved
by City and CVWD for the Bypass/Box Culvert Work. Subject to
subsection (g)(iv) below, the construction of the Bypass/Box Culvert Work
shall be awarded to the lowest responsive and responsible bidder. CVWD
shall provide City a minimum of seven (7) business days' notice of the bid
opening, which City may attend. Within seven (7) business days after the
bid opening, CVWD shall deliver to City written notice of the bid amounts
for the Bypass/Box Culvert Work along with estimated inspection costs of
$30,000 and estimated soils and concrete testing costs of $18,000. Within
seven (7) business days of City's receipt of the bid amounts and said
costs, City shall deliver written notice to CVWD with one of the following
directives: (A) Authorize CVWD to proceed with awarding a contract for
the Bypass/Box Culvert Work to the lowest responsive and responsible
25
bidder; (B) Reject all bids associated with the Bypass/Box Culvert Work
only; or (C) Request additional time for the City to review the Bypass/Box
Culvert Work bids based on any failure of CVWD to comply with the
noticing provisions in this paragraph. Notwithstanding any provisions in
this Agreement to the contrary, in no event shall City have any obligation
to pay or reimburse CVWD for any Bypass/Box Culvert Work awarded to
any contractor that would result in either costs that exceed the City -
approved estimated cost amount or would result in the City's payment
obligations under this Agreement to exceed the "Not To Exceed Amount"
as defined in Section 14(a) below.
(ii) Subject to subsection (g)(i) above, after the bids are received,
CVWD shall review and approve the bids and the successful bidder for the
Bypass/Box Culvert Work. The parties agree that CVWD shall be the
awarding body and shall be responsible for compliance and enforcement
of all applicable laws relating thereto. In addition, CVVIVD shall ensure the
following: (A) City is named as an obligee under any labor and material
payment bonds and contract performance bonds for the Bypass/Box
Culvert Work; (B) City is named as an additional insured on any general
liability insurance required by CVWD; (C) City and its officers, officials,
employees, agents, and successors and assigns are named as
indemnified parties under all indemnifications, hold harmless provisions,
waivers and releases in favor of CVWD for any contractor and
subcontractor for the Bypass/Box Culvert Work; (D) City shall be entitled
to all warranties, guarantees and post completion bonds with respect to
the Bypass/Box Culvert Work.
(iii) City shall be required to pay its share for the cost of the
Bypass/Box Culvert Work, based upon the itemized bids, subject to the
provisions in this subsection (g).
(iv) Once construction of the Bypass/Box Culvert Work has
commenced, City shall make monthly progress payments to CVWD for
City's share of the Bypass/Box Culvert Work, subject to the provisions in
this subsection (g).
(v) The construction contract shall be set up so that CVWD's
Contractor submits requests for progress payments by the 25th day of
each calendar month (for Bypass/Box Culvert Work performed to that date
from the 25th day of the prior month). Promptly thereafter representatives
of CVWD and CVWD's Contractor shall meet at the site and inspect the
Bypass/Box Culvert Work for which the progress payment is being
requested. As soon as the request for payment has been approved by
CVWD, CVW❑ shall commence its standard payment process, which
involves issuing payment for the approved Bypass/Box Culvert Work by
the third Monday of the following month. At such time as CVWD is
prepared to pay CVWD's share (less retention), City shall pay to CVW❑
the full amount (less retention amounts) of its share of the requested
progress payment. Payment shall not be made unless and until lien
releases and other appropriate documents have been provided by
CVWD's Contractor to the satisfaction of CVWD. City and CVWD shall
withhold five percent (5%) retention amounts from each progress
payment.
(vi) (A) CVWD shall cause its contractors to complete the
Bypass/Box Culvert Work in strict accordance with the scope of
work approved by the City. Any deviation from the scope of work
must be approved by City in writing. Change orders for the project
may be warranted due to a variety of reasons, including but not
limited to, unforeseen circumstances or need for additional
construction. In the event of a change order, CVWD shall provide
City with a copy of the change order within five (5) business days of
receiving the change order for City's review. City and CVWD shall
determine if a change order is valid. CVWD shall receive City's
written authorization to proceed with the change order and any
additional costs attributable thereto, for which the City agrees to
pay, prior to the work under the change order commencing.
Additionally, if as a result of any proposed change order the
estimated inspection or material testing costs listed in Subsection
13(g)(j) above would be exceeded, CVWD shall notify and receive
prior written approval from City before incurring those additional
costs.
(B) Subject to the foregoing, City shall have no obligation to pay
any cost increases for changes unless City has approved the same
in writing. CVWD shall have no obligation to pay any costs or
change orders associated with the Bypass/Box Culvert Work
including the estimated inspection, soils and concrete testing costs.
14. City's Requirements
(a) Subject to Developer completing the sub -grading of SilverRock Way at
Developer's cost and expense, City shall use bond proceeds in an amount not to
exceed the amount identified and appropriated in the City's Fiscal Year 201$119
Capital Improvement Project budget (referred to as the "Not To Exceed
Amount") for the construction of SilverRock Way and domestic water and
sanitation facilities within SilverRock Way, and for the reimbursement to CVWD
of the Bypass/Box Culvert Work (set forth in Section 13(g) above). The City shall
construct and complete, or cause to be constructed and completed, the domestic
water, sanitation, and infrastructure particularly described as items 3, 7, S, and 9
of Appendix A, attached hereto and collectively referred to herein as the "City
SRW Improvements." Developer shall have the obligation to pay for any costs
and expenses incurred by the City for the City SRW Improvements and the
Bypass/Box Culvert Work that exceeds the Not To Exceed Amount and that are
27
not paid for by CVWD. Developer shall have no other cost responsibility for the
City SRW Improvements and no cost responsibility for the City Irrigation
Improvements (defined in subsection (b) below). The City shall cause the same
to be accepted by CVWD and shall be responsible for the 18-month warranty to
CVWD required hereunder regarding freedom from construction defects, ail in
accordance with the construction terms of this Agreement applicable to the City
SRW Improvements. City and Developer shall meet and confer and closely
coordinate with one another as needed to assure that the City SRW
Improvements and the City Irrigation Improvements (as defined below) and the
balance of the infrastructure improvements to be completed by Developer are
planned, developed and completed in a logical sequence within the context of the
overall Project. Provided that Developer is otherwise in compliance with the
development of the Project pursuant to the PSDA, the City shall commence the
City SRW Improvements and the City Irrigation Improvements on or before
Developer's commencement of either hotel/branded residence Project
Component (as referred to in the PSDA) and shall complete the City SRW
Improvements and City Irrigation Improvements no later than when the first Unit
(as defined in Recital G) requires service from CVWD.
(b) The work to be performed by City as described in Exhibit C to that certain
Agreement Regarding Real Property dated April 19, 2017 by and between
CVWD and City recorded in the Official Records of the County of Riverside
Recorder's Office as instrument no. 2017-0218005 on June 1, 2017 (the
"Agreement Regarding Real Property"), is referred to herein as the "City Irrigation
Improvements". When the City Irrigation Improvements are completed, CVWD
will cooperate with City and Developer to cause the Agreement Regarding Real
Property to be released from title. The parties also agree that (i) the references
in the Agreement Regarding Real Property to "SilverRock Development
Company" shall now be "SilverRock Phase I, LLC", and (ii) the grant by
SilverRock Phase i, LLC of a security interest in the property owned by
SilverRock Phase I, LLC to its construction lender by means of a deed of trust
(and any transfer following or in connection with its construction lender's exercise
of its remedies thereunder) is not a violation of the Agreement Regarding Real
Property.
15. General Provisions
(a) Developer shall defend, indemnify, and hold harmless CVWD and City,
and their respective officers, directors, administrators, representatives,
consultants, engineers, employees and agents and their respective successors
and assigns (collectively, "CVWD Indemnitees" and "City Indemnities"), in
accordance with the provisions of Exhibit "I" attached hereto and by this
reference incorporated herein.
(b) Prior to the acceptance of the improvements by CVWD, Developer shall
furnish to CVWD any and all documents reasonably requested by CVWD.
m
(c) Subject to Section 15(v), in the event that construction of any
improvements to be constructed hereunder has not begun within twelve (12)
months of the date of approval of the Plans, CVWD shall have the right to
terminate this Agreement effective upon written notice to Developer. Following
such termination, the Parties may enter into a new agreement which shall be
subject to the fees, charges and Rules applicable at the time of the making of the
new agreement.
(d) All notices under this Agreement shall be in writing and mailed (registered
or certified, postage prepaid, return receipt requested), or by express carrier
(return receipt requested) or hand delivered to Parties at the addresses set forth
below. All such notices shall, if hand delivered, or delivered by express carrier,
be deemed received upon delivery and, if mailed, be deemed received three (3)
business days after such mailing.
��]
Coachella Valley Water District
Attention: J.M. Barrett, General Manager
Post Office Box 1058
Coachella, California 92236
[a]kl1 A
City of La Quinta
Attention: City Manager
78--495 Calle Tampico
La Quinta, CA 92253
with copy to
William H. ihrke, Esq.
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
DEVELOPER:
SilverRock Phase 1, LLC
c/o The Robert Green Company
3551 Fortuna Ranch Road
Encinitas, CA 92024
Attn: Robert Green
With a copy to:
SilverRock Phase I, LLC
c/o The Robert Green Company
3551 Fortuna Ranch Road
Encinitas, CA 92024Attn: John Gamlin
29
(e) Time is of the essence of this Agreement and each and every term and
provision thereof.
(f) This Agreement shall be construed as if prepared by all of the Parties
hereto. Accordingly, any rule of law (including California Civil Code Section 1654)
or legal decision that would require interpretation of any ambiguities in this
Agreement against the Party that has drafted it is not applicable and is waived.
(g) No delay on the part of any Party hereto in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of any Party hereto of any right, power or privilege hereunder operate as a
waiver of any other right, power or privilege hereunder, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other or
further exercise of any other right, power or privilege hereunder.
(h) If any of the provisions of this Agreement are held to be contrary to law by
a court or governmental administrative agency of competent jurisdiction, such
provisions will not be deemed valid and subsisting, except to the extent permitted
by law, and the parties shall, if possible, enter into negotiations for the sole
purpose of arriving at a mutually satisfactory replacement for such provisions.
The remainder of this Agreement shall not be affected thereby and shall continue
in full force and effect.
(i) This Agreement may only be modified in a writing signed by all of the
Parties.
0) In the event of any litigation or other action between the Pates arising out
of or relating to this Agreement or the breach thereof, the prevailing party shall be
entitled, in addition to such other relief as may be granted, to its reasonable costs
and attorneys' fees.
(k) The invalidity or illegality of any provision of this Agreement shall not affect
the remainder of this Agreement.
(1) Each Party hereto agrees to execute and deliver such documents and
perform such other acts as may be reasonably necessary to effectuate the
purposes of this Agreement.
(m) Each individual executing this Agreement hereby represents and warrants
that he or she has the full power and authority to execute this Agreement on
behalf of the named Parties.
(n) Developer shall maintain and make available for inspection by CVWD
during regular office hours, accurate records pertaining to the design,
construction and installation of the improvements to be constructed by
Developer.
(o) This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute but one instrument.
30
(p) If any payment due CVWD hereunder is not paid within ten (10) business
days after notice from CVWD that such sum is due, Developer shall pay to
CVWD the lesser of $1,000 or an additional five percent (5%) for each payment
due as an administrative processing charge. The Parties agree that this late
charge represents a fair and reasonable estimate of the costs that CVWD will
incur by reason of late payment by Developer. Acceptance of any late charge
shall not constitute a waiver of Developer's default with respect to the overdue
amount or prevent CVWD from exercising any of the other rights and remedies
available to CVWD. Any payment not paid when due shall bear simple interest at
the rate of ten percent (10%) per annum (provided such amount shall not exceed
the maximum rate allowed under California law) from the date due until paid in
full.
(q) The Parties agree that any action or proceeding to enforce or relating to
this Agreement shall be brought exclusively in the Federal or State courts located
in Riverside County, California, and the Parties hereto consent to the exercise of
personal jurisdiction over them by any such courts for purposes of any such
action or proceeding.
(r) This Agreement is entered into within the State of California, and all
questions concerning the validity, interpretation and performance of any of its
terms or provisions or any of the rights or obligations of the Parties hereto shall
be governed by and resolved in accordance with the laws of the State of
California without regard to conflict of law principles.
(s) This Agreement supersedes the Previous Agreement and, upon the
recordation of this Agreement, the Previous Agreement shall be of no further
force or effect.
(t) The terms and provisions set forth in this Agreement shall be deemed
provisions, terms and/or covenants running with the Developer Property in
accordance with applicable law, including, without limitation, Section 1468 of the
California Civil Code and shall pass to and be binding upon the successor
owners of the Developer Property. This Agreement shall burden the Developer
Property and is binding on the successors, assigns and all persons acquiring
ownership of any interest in, or any portion of the Developer Property. This
Agreement shall benefit the Developer Property and inure to the benefit of the
owners of the Developer Property. As such, all successor owners of the
Developer Property will have the rights, responsibilities and liabilities of
Developer relating to its period of ownership, as if such person or entity originally
executed this Agreement in place and stead of Developer. Each and every
contract, deed or other instrument hereafter executed conveying the Developer
Property, or any portion thereof, shall conclusively be held to have been
executed, delivered and accepted subject to such terms and conditions
regardless of whether such terms and conditions are set forth in such contract,
deed or other instrument. No transfer of the Developer Property shall relieve
Developer or any successor owner of any responsibility or liability under this
Agreement that relates to its period of ownership. In the event a property owner's
31
association is formed with respect to any portion of the Developer Property, the
obligations in Sections 1.(g) through 0) applicable to such portion of the
Developer Property shall be assigned to and accepted and assumed by the
property owners association. Notwithstanding the foregoing, it is acknowledged
that as of the Effective Date of this Agreement, the parcels of the City Property,
within the SilverRock Resort Area, not yet sold to Developer are subject to the
PSDA with Developer, and under the PSDA the City intends to self portions of
the City Property, within the SilverRock Resort Area, to Developer in phases_ As
such, excepting only the terms of Section 14(a), which are binding on the City
from the Effective Date, the Parties intend for the terms and conditions of this
Agreement relating to Developer to bind the City only if said PSDA is terminated.
Further, if said PSDA is terminated, with the exception of the terms of Section
14(a), the terms and conditions of this Agreement shall be tolled for a period of
up to twelve (12) months, during which time City shall attempt to select one or
more developers (each, a "Subsequent Developer") to develop all or a portion
of the Developer Property and assume the obligations of the "Developer" under
this Agreement with respect to such portions of the Developer Property, and
enter into with such Subsequent Developer(s) the appropriate agreement(s)
(each a "Subsequent PSDA"). Provided City selects and enters into one or
more Subsequent PSDAs with one or more Subsequent Developers, this
Agreement shall be further tolled with respect to each portion of the Developer
Property covered by a Subsequent PSDA until such time as that portion of the
Developer Property has been transferred in fee to the applicable Subsequent
Developer, but in no event for longer than an additional six (6) months. In no
event shall the City have any obligation to contribute or fund any more than the
amount identified in Section 14(a) unless and until the La Quinta City Council
authorizes and appropriates funding in an amount or amounts that are sufficient
for the City to have the ability to perform any terms and conditions of this
Agreement relating to the Developer that may bind and be transferred to the City
pursuant to this Section 15(t).
(u) Following fulfillment of the terms and conditions herein and acceptance by
CVWD of the improvements to be constructed hereunder, CVWD will provide
domestic water and sanitation service to the Developer Property in accordance
with the Rules.
(v) A Force Majeure Event shall excuse the performance for a period equal to
the period of any said prevention, delay, or stoppage, of the obligation
hereunder, provided however, that no obligation for the payment of money shall
be excused or delayed as a result of a Force Majeure Event. "Force Majeure
Event" shall mean prevention, delay, or stoppage due primarily to any of the
following: war; insurrection; terrorism, civil commotions; strikes; lockouts; labor
disputes; riots; floods; earthquakes; fires; severe weather; concealed site
conditions; acts of God or of a public enemy; terrorist acts; epidemics; quarantine
restrictions; freight embargoes; archeological finds; inability to obtain labor,
materials, or fuels or reasonable substitutes therefor; litigation; governmental
restrictions, regulations, controls, action or inaction, or moratoriums, and, other
causes beyond the reasonable control of the Party obligated to perform.
32
(w) A mortgagee who has delivered to CVWD a written notice stating that
such mortgagee is the holder of a mortgage encumbering all or a portion of the
Property shall receive a copy of any notice CVWD gives to Developer. In
addition, this Agreement shall not be amended without such mortgagee's prior
written consent, which consent shall not be unreasonably withheld. No breach of
the covenants, conditions or restrictions herein contained shall affect, impair,
defeat or render invalid the lien or charge of any mortgage made in good faith
and for value encumbering any interest in the Property. A transferee who
acquires title through a Foreclosure Event, shall not be obligated to cure any than
existing breach. "Foreclosure Event" means a judicial or non -judicial foreclosure
sale or a conveyance in lieu thereof. In the event of a default by Developer, the
mortgagee providing notice of its interest shall have the right to cure such default
concurrent with any right of Developer to so cure the same plus, except where
the particular default creates a nuisance or a risk to public health or safety, such
mortgagee shall have an additional thirty (30) day period to cure the subject
default or, if not capable of cure in such thirty (30) day period, to commence such
cure within such thirty (30) day period and thereafter proceed diligently to
complete such cure.
(x) With respect to their obligations under Sections 1 through 10 and Section
14 of this Agreement, a Party fails to comply with the terms of this Agreement,
then the nondefaulting Party shall notify the defaulting Party of such failure in
writing, which notice must include a reasonably detailed description of the default
(a "Notice of Default"). Subject to any provision providing for longer or shorter
notice and cure rights, on or before the thirtieth (30th) day following a receipt of a
Notice of Default, the defaulting Party shall: (i) cure the default; or (ii) if the
default cannot reasonably be cured within the thirty (30) day period, commence
to cure the default and thereafter diligently pursue the cure to completion with
such additional time necessary to complete such cure. If a material default is not
cured within the time allowed, or a cure does not commence in accordance with
the preceding sentence, the nondefaulting Party shall have the right to pursue
any or all remedies available under this Agreement, at law or in equity, serially or
concurrently.
(y) This Agreement, together with the exhibits attached hereto and other
writings referenced herein, such as, but not limited to the Rules, contains the
entire agreement between the Parties relating to the subject matter hereof and
supersedes any and all prior agreements between the Parties, oral or written,
and any and all amendments thereto. Any oral representations or modifications
concerning this Agreement shall be of no force and effect.
IN WITNESS WHEREOF, the Parties have caused this Special Domestic Water
System and Sanitation System Installation Agreement to be executed as of the day and
year first set forth above.
33
Dated: CITY:
ATTEST:
Nichole Romane, Deputy City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
am H. IM , Ci Attorney
34
CITY OF LA QUINTA,
a public agency of the State of California
.ion
nager
Dated: u5 �a f : ) �I l i
DEVELOPER:
SILVERROCK PHASE I, LLC, a Delaware
limited liability company
By: The Robert Green Compan , a
California C ,
By:
Robert S. Green, Jr resident and Chief
Executive Officer
Dated: 06) • IZ • :W l''/ CVWD:
0
Sylvia Mermudez
Clerk of the Board
COACHELLA VALLEY WATER DISTRICT,
a public agency of the State of California
35
By:
J.M. Ba e
General Vanager
ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
COUNTY OF %�Grbi cLZ ]
On f� 21 ,_9 D19 before me, rat Fj
(insert narAe and title of officer}
personally appeared (_}�1 ��'YI + �,_ , who
proved to me on the basis of satisfactory evidence to be the person(e whose name*Ware
subscribed to the within instrument and acknowledged to me that(lia%helthey executed the
same in(Dherltheir authorized capacity, aey, and that by is her/their signature($-yon the
instrument the person(, or the entity upon behalf of which the person( -acted, executed
the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. ; y ANGEIAFERREIRA
Notary Public . Caiifornla
f Riverside County
` Commission # 2282882
my Comm. Expires Apr 17. 2a23
Signatu (Seal)
Ku
ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF S-Rt[
On UNCI before me, _ Q%k L TV-E fftWk�j�
[insert name and title of officer)
v� uUouL �
personally appeared �U tO, 7; R ' , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. PAULME FARQUHAR
Notary ruWit • CafiFornia
Sari Diego County F
Commission 9 ZZ0411
MY Comm. Expires Nov 2, 2022
37
I:[1]I'll .1611 44Bit] 4l',l=1l11kI
A Notary Public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
641rTr1:9011116Y.11IIMQ IViaT.►
COUNTY OF Rivzzfs idy, }
On U, 42hl :) &L 0 pefore me,
(insert name and title of officer)
personally appeared ,I - /V . f �afrL PL who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the persons), or the entity upon behalf of which the person(s) acted* executed
the instrument.
l certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signatu
M.
(Seal)
EWA L, CASARRLISIAS
Notary public - California :
Riverside County >;
Commission # Z235852
My Comm. Expires Mar 15, 2022
CONSENT TO AGREEMENT
MOSAIC SILVERROCK, LLC, a Delaware limited liability company ("Lien Holder") is
the current holder of the beneficial interest under a Construction Deed of Trust, Security
Agreement, Fixture Filing and Assignment of Leases and Rents dated November 28, 2018 and
recorded November 28, 2018 as Document No. 2018-0464681, Official Records of Riverside
County, California ("Lien"). Lien Holder hereby consents to the Agreement to which this
Consent is attached, between COACHELLA VALLEY WATER DISTRICT, a public agency of
the State of California, its successors and assigns and the Owner of the subject real property.
Lien Holder hereby agrees that in the event: of a foreclosure of the Lien, the Agreement shall
survive such foreclosure and remain binding upon the subject real property and all subsequent
owners thereof.
Executed as of this day of 5Wemlonr, 2019.
LIEN HOLDER
MOSAIC SILYEWCK, LLC,
a Delawar t liability c�
By:
Name:
Title:
1
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF
On u11 before x
Notary Public, personally appeared
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PER.NRY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
MICHELLE LORRAINE GIITIERREI
Notary Public • Calltnrnla
E, Los►n9eles County _
Commission
My A 223R842
Comm. Expray 1,
(Seal)
EXHIBIT LIST
EXHIBIT "A"
DESCPITION ❑F SILVERROCK RESORT AREA
EXHIBIT "B"
❑EPICTION OF SILVERROCK RESORT AREA
EXHIBIT "C"
STANDAR❑ INSTALLATION AGREEMENT
EXHIBIT "D"
❑ESCRIPTIONIDEPICTION ❑F ❑OMESTIC
WATER FACILITIES
EXHIBIT "E"
❑ESCRIPTIONIDEPICTION OF SANITATION
FACILITIES
EXHIBIT "F"
DESCRIPTION/DEPICTION OF IRRIGATION
SYSTEM FACILITIES AND DESCRIPTION OF
ABANDONED IRRIGATION SYSTEM FACILITIES
EXHIBIT "G"
BMPS
EXHIBIT "H"
INSURANCE
EXHIBIT "I"
INDEMNITY OBLIGATIONS
EXHIBIT "J"
RELEASE OF CONSTRUCTION COVENANTS
EXHIBIT "K"
PROJECT PHASING MAP
APPENDIX A
SCHEDULE
39
EXHIBIT "A"
To
Special Domestic Water System, Sanitation System,
and Irrigation System Modification Installation Agreement
Legal Description City and Developer Property
CITY PROPERTY
Parcels 2, 13 through 20, inclusive; A, B, and C of Parcel Map No. 37207, in the City of
La Quinta, County of Riverside, State of California, filed in Book 242, Pages 72 through
87, inclusive, of Parcel Maps, in the office of the County Recorder of said county.
CONTAINS 392.44 acres, more or less, as shown on Sheet 1 of 2 Sheets of Exhibit "B"
attached hereto and by this reference made a part hereof.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
DEVELOPER PROPERTY
Parcels 1, 3, 4, 5 through 12, inclusive; D, E, F and G, all of Parcel Map No. 37207, in
the City of La Quinta, County of Riverside, State of California, filed in Book 242, Pages
72 through 87, inclusive, of Parcel Maps, in the office of the County Recorder of said
county.
Reserving therefrom Parcels 1, 3, 4, 5, and 6 all oil, gas, hydrocarbon substances, and
minerals of every kind and character lying more than five hundred (500) feet below the
surface, together with the right to drill into, through, and to use and occupy all parts of
the phase 1a property lying more than five hundred (500) feet below the surface thereof
for any and all purposes incidental to the exploration for and production of oil, gas,
hydrocarbon substances or minerals from said phase 1 a property or other lands, but
without, however, any right to use either the surface from said phase 1a property or any
portion thereof within five hundred (500) feet of the surface for any purpose or purposes
whatsoever, or to use the phase 1 a property in such a manner as to create a
disturbance to the use ❑r enjoyment of the phase 1 a property, as reserved by the City of
PAGE 1 of 2
� �:11 l k iv_%
Ir
Special Domestic Water System, Sanitation System,
and Irrigation System Modification Installation Agreement
Legal Description City and Developer Property
La Quinta, a California municipal corporation and charter city, in the Grant Deed
recorded November B, 2017, as Instrument No. 2017-0463950 of Official Records.
Contains 128.87 acres, more or less, as shown on Sheet 2 of 2 Sheets of Exhibit "B"
attached hereto and by this reference made a part hereof.
SUBJECT TO all covenants, rights, rights -of -way and easements of record.
This legal description and accompanying plat were prepared by me or under my
direction in conformance with the requirements of the professional land surveyor's act.
\1 E 8 I
Christopher I. Alberts, PLS 8508
* Ls Ho. g
Date
PAGE 2of2
EXHIBIT "B"
CITY PROPERTY
PARf�L 13
14.57 AC.
5 PARCEL 17�
7$
PARCEL 1717
APN 770-260-037
APN 776-150-029
APN 777-490-050 PARCEL 1
45.63 AC.
APN:
.6a
CITY PROPERTY
PARCEL
AREA (AQ
2
0.60
13
67.79
14
37.77
15
30.50
16
77.13
17
65.63
18
51.51
19
51.39
20
3.69
A
0.15
8
4.57
C
1.71
TOTAL
392.44
1000 500 0 1000 2000 300(
SCALE: 1"=1000'
PARCEL 16
APN n6-150-030 `52
ON 777-40-049
t77.13 AC. 5 4
5
PARCEL 6
PARCH PARCEL7 APN 777-490-048
LT0.50 AC.
APN 777-490 mi PARCEL 9
f51.51 AC.
AUAdERICAAI CAAd4(,
PARCEL 4
PARCEL 9 PARCEL 14
APN 777-49o-047
07.77 AC. iF—
W
PARCEL 10 P (£1 C �
APN 777—MM51 N
151.51 AC. f1.71 AC.
PARCEL A
PARCEL 10 ■0.15 AC.
PARCEL 11 O
C17
�L0
w
APN 777-08
APN 777-49
L51.39 AC
� LA*
FI
AM 74
APN m—M-079
PARCEL ±67.79 AC.
i
I
e8RQQ-3D.
APN 777-160-081
�3.69 AC.
8�j
AVENUE 54 17116
SHEET 1 OF 2 SHEETS
LEGEND
CITY PROPERTY
E/ISTING LOT LINE P
Michael Baker
SECTION ,i"E * 'LSNo. 8508INTERNATIONAL
I� g,V-19 75M Gerald Ford Drive, Suite 100
Palm Desert, CA 922t1
LOCATED IN POR . OF SEC. 8, T . 6S . , R . 7E . , S.G.M. phone4 7B0-34E-7481 www mbakerintLcom
EXHIBIT"B"
DEVELOPER PROPERTY
1000 500 0 1000 2000 3000
- SCALE: 1"=1000'
PARCEL B
PARCEL� 9�
APN 777-494-454
4.52 AC.
�2
PARCEL
17
AM 777-4%-042
t3.28 AC.
6
5 PARCEL 17
_ 54
PAR {1 L 16
8 9PARMI
a
APN 777�496-043
0
49.05 AC.
31
2�026
M-49a-036
s13.90 AC.
PAROD,_7
APN M-490-044
t11.41 AC.
PARCEL 15
-j
PARCEL 2
APN 777-490-053 5
II
N
1.55 AC.
16.96 AC.
PARCEL G
APN 777-49U-055
PARCEL 3
t0.35 AC.
ACC AWRICAN CANAL
APN Tn-490-037
PARCEL 18
APN 777-490-040
g�
t1.94 AC.
PARCEL 14
I I, J
U-j
PARCEL C
PARCEL 18
L/7
PARCEL I PARCEL A
N 7T7-060-076 Z�
PARCEL 11 03.46 AC. p
APN 777-06"77 Ln
f15.48 AC. I iU.,
LL.
I PARCEL 19 I !�
PA1O-0 APN 778
*2z.02—
PARCEL 13
PARCEL 0
*2.20 AC. I
I
� I f
8 Q
AVENUE 54 17 16
�Q*p,� f SHEET 2 OF 2 SHEETS
LEGEND �SS��eHCR L, qC Michael�
DEVELOPER PROPERTY o Baker
EXISTING LOT LINE
- - — CL-
SECTION LINE * U LS N0, 8508
— cEr'TERLINE INTERNATIONAL
�!f$'�"�� �Q 75410 Gerald Ford Drive, Suite 100
qlf' OF C A�IF��� Palm Desert, CA 922t1
LOCATED IN POR . OF SEC. $ , T . 65 . , R . 7E . , S.B.M. phonez 760--346-7481 www.mbakerinti.com
DEVELOPER PROPERTY
PARCEL
AREA (AC.)
1
13.90
3
1.94
4
16.42
5
3.28
6
9.05
7
11.41
8
6.96
9
10.33
10
13.46
11
15.48
12
22.02
D
2.20
E
1.55
F
0.52
G
0.35
TOTAL
128.87
EXHIBIT "C"
f
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
l;�lfl2111711:111111ill 601lf.1>A1:119ril0I:[el INxAkfxONiI
EXHIBIT "D"
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
DESCRIPTION/DEPICTION OF DOMESTIC WATER FACILITIES
Install an 18-inch diameter pipeline along SilverRock Way connecting to the existing
18-inch diameter ductile iron pipe approximately 1,000 feet south of Avenue 52 and
the existing 18-inch diameter ductile iron pipe in Hideaway Club Drive at Jefferson
Street (Lower La Quinta Pressure Zone). Install 36-inch diameter steel sleeve for the
18-inch diameter water pipeline under Coachella Canal crossing at SilverRock Way.
2. Install an 8-inch diameter pipeline connecting to the existing 18-inch diameter ductile
iron pipe in Jefferson Street approximately 350 feet south of Rosewood Lane (Lower
La Quinta Pressure Zone)
3. Install an 18-inch diameter pipeline (Lower La Quinta Pressure Zone) connecting to
the proposed 18-inch diameter pipeline in SilverRock Way and the existing 24-inch
diameter ductile iron pipe in Avenue 54 approximately 2,300 feet west of Jefferson
Street (Lake Cahuilla Pressure Zone).
3.1. The pressure zone split will be accomplished through a Booster
Station/Pressure Reducing Valve Station (BSTIPRV) provided by the developer.
3.2. CVW❑ shall be responsible for the upsizing costs from an 8-inch diameter
pipeline to an 18-inch diameter pipeline and the upsizing costs of the
Booster/Pressure Reducing Valve Station capacity from 1,000 gallons per
minute to 2,000 gallons per minute.
4. Install an 8-inch diameter pipeline connecting to the proposed 18-inch diameter
pipeline in SilverRock Way (Lower La Quinta Pressure Zone) to the existing 12-inch
diameter ductile pipe in Jefferson Street, approximately 200 feet north of Avenue 54
(Lake Cahuilla Pressure Zone).
4.1. The pressure zone split will be accomplished through an 8-inch Pressure
Reducing Valve Station, capable of transferring a minimum of 1,000 gallons per
minute, provided by the developer.
EXHIBIT "E"
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
DESCRIPTION/DEPICTION OF SANITATION FACILITIES
Install 2,950 linear feet of 24-inch diameter gravity sewer pipeline connecting to
the existing 27-inch diameter gravity sewer pipeline located at Jefferson Street
and Hideaway Club Drive and will extend northwest crossing under the
Coachella Canal along SilverRock Way. Install 48-inch diameter steel sleeve for
the 24-inch gravity sewer pipeline under Coachella Canal crossing at SilverRock
Way.
Install 2,010 linear feet of 12-inch diameter gravity sewer pipeline connecting to
the proposed 24-inch gravity sewer pipeline in SilverRock Way extending north
along SilverRock Way.
Install approximately 945 linear feet of 24-inch diameter gravity sewer pipeline
connecting to the existing 24-inch diameter gravity sewer pipeline on Ave 52
approximately one -eighth of mile west of Jefferson Street and connect to the
proposed 24-inch diameter gravity sewer pipeiine in SilverRock Way. This
pipeline will convey existing sewer flows from the tributary area of CVWD's Lift
Station 55-10.
Upon completion of the gravity sewer pipelines listed above developer shall
abandon at Developer's sole cost and expense, the remaining surface
appurtenances (after CVWD has removed the reusable items) at the sewer lift
station located on Avenue 52, approximately 1,800 feet west of Jefferson Street
and abandon in place the existing 14-inch diameter sewer force main along
Avenue 52 from the sewer lift station to Jefferson Street.
■ Install approximately 975 linear feet of 8-inch diameter gravity sewer pipeline
connecting to the existing 12-inch diameter gravity sewer pipeline in Ave 54
extending north into project.
EXHIBIT "F"
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
DESCRIPTION/DEPICTION OF IRRIGATION SYSTEM MODIFICATION FACILITIES
AND DESCRIPTION OF ABANDONED IRRIGATION SYSTEM FACILITIES
Developer is required to reimburse CVWD for the construction of an additional
2,750 linear feet of 24-inch diameter pipelines ("Pipeline") beginning at CVWD L-
4 Pump Station extending through interior streets of the development and
connecting to lateral 120.8 at Avenue 52 west of Jefferson Street as shown an
CVWD drawings 42554-42580. The Developer shall grant the USBRICVWD a
thirty (32) foot easement for the two 24-inch diameter pipelines.
■ CVWD to abandon Lateral 120.8-0.3 along Avenue 52 between Adams Street
0.5 (one-half [112] mile east of Adams Street) and Jefferson Street once new
Lateral is constructed_ City to reimburse CVWD for abandonment costs.
• CVWD to abandon Lateral 120.8-0.3-0.5RT along Jefferson Street between
Avenue 52 and Avenue 52.5 (one-fourth [114] mile south of Avenue 52) once new
Lateral is constructed. City to reimburse CVWD for abandonment costs.
• CVWD shall install and construct, at City's expense per Section 13, a dual
reinforced concrete box culvert and a temporary by-pass channel per City's
approved plans as shown on CVWD drawings 43568-43581.
■ In addition to the items outlined above, City to complete any items from Exhibit
"C" of Agreement Regarding Real Property dated April 19, 2017 between CVWD
and City, recorded in the Official Records of the County of Riverside as
Document No. 2017-0218005 that have not already been completed.
EXHIBIT "G"
TO
SPECIAL ❑OMESTIC WATER SYSTEM, SANITATION SYSTEM,
AN❑ IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
BMPs
Best Management Practices
Apply frequent light rates ofN.
2. Use slow -release fertilizers.
Avoid fertilizing during periods when turf grass is naturally slow growing, dormant or
stressed.
4. Avoid fertilizing when rain is forecasted.
5. Conservatively irrigate greenbelt areas to save water and reduce leaching. Limit irrigation
to the arnount necessary to replace moisture used by the plant. Irrigate according to ET an(
soil infiltration rates. Maintain the highest possible irrigation distribution. Try not to have
irrigation application rate exceed soil infiltration rate by using multiple, short run times.
6. Use less energy demanding plants where possible and reduce the scope of the "heavily
managed" areas.
7. Reduce annual N application rates as much as possible.
8. Minimize the reduction of growth of base turf areas during preparations of overseeding.
9. Reduce the amount of area within greenbelt areas that is overseeded.
10. Install under -drain system to collect the leachate from areas of the greenbelt areas that may
be susceptible to leaching. The leachate should be properly disposed of through irrigation
via infiltration through a proper sail profile.
11. Develop collection ponds to collect surface runoff and if necessary, install impervious
liners to prevent groundwater leaching.
12. Collect runoff from sensitive areas and pass it through grassed_ swales or vegetated buffer
strips.
13. As a condition of service, the recommendations of Best Management Practices must be
implemented unless the general manager — chief engineer finds it would be a hardship.
2
EXHIBIT "H"
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
INSURANCE
EXHIBIT "H"
INSURANCE REQUIREMENTS
1. MINIMUM SCOPE AND LIMIT OF COVERAGE. Prior to and at all times after
executing the Agreement, Developer shall procure and maintain, at its sole cost, for the
duration of Developer's construction obligations hereunder, not less than the following
coverage and limits of insurance with insurers and under policy forms satisfactory to
CVWD.
(a) Commercial General Liability Insurance written an an occurrence basis
of at least $2,000,000 per occurrencel$4,000,000 aggregate providing coverage
for ongoing and products and completed operations, property damage, bodily
injury, personal and advertising injury, property damage, and
premises/operations liability.
(i) Coverage for Commercial General Liability insurance shall be at
least as broad as Insurance Services Office Commercial General Liability
coverage form (Occurrence Form CG 00 01) or exact equivalent.
(ii) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims
or suits by one insured against another; (3) productslcompleted operations
liability; or (4) contain any other exclusion contrary to the Agreement.
(iii) The policy shall be endorsed to name Coachella Valley Water
District, its employees, directors, officers, and agents as additional
insureds using ISO endorsement forms CG 20 10 07 04 and 20 37 07 04,
or endorsements providing the exact same coverage.
(b) Commercial Automobile Liability Insurance written on a per occurrence
basis of at least $1,000,000 per occurrence for bodily injury and property
damage.
(i) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering
automobile liability (Coverage Symbol 1, any auto)
(ii) The policy shall be endorsed to name Coachella Valley Water
District, its employees, directors, officers, and agents as additional
insureds.
(c) Workers' Compensation Insurance/Employers Liability as required by
the State of California with statutory limits or be legally self -insured pursuant to
Labor Code section 3700 et- seq. along with Employer's Liability limits of no less
than $1,000,000 per occurrence for bodily injury or disease. The workers
compensation insurer shall agree, using form WC 00 03 13 or the exact
equivalent to waive all rights of subrogation against Coachella Valley Water
District, its employees, directors, officers, and agents.
2
2. OTHER INSURANCE PROVISIONS. All of Developer's policies shall meet the
following requirements and contain all specified provisions/endorsements noted
hereunder.
(a) Insurers shall provide CVWD at least thirty (30) days prior written notice of
cancellation of any policy required by this Agreement, except that insurers shall
provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of premium. In the event any insurer issuing coverage
hereunder does not agree to provide notice of cancellation to CVWD, Developer
shall assume such obligation and provide written notice of cancellation in
accordance with the above. If any of the required coverage is cancelled or
expires during the term of this Agreement, Developer shall deliver renewal
certificates) including endorsements to CVWD at least ten (10) days prior to the
effective date of cancellation or expiration.
(b) The Commercial General Liability Policy and Automobile Policy shall each
contain a provision stating that Developer's policy is primary insurance and that
any insurance, self-insurance or other coverage maintained by CVWD or any
additional insureds shall not be called upon to contribute to any loss.
(c) All required insurance coverages shall contain a provision, or be
endorsed, to waive subrogation in favor of the Coachella Valley Water District, its
employees, directors, officers, and agents or shall specifically allow Developer to
waive its right of recovery prior to a loss. Developer hereby waives its own right
of recovery against Coachella Valley Water District, its employees, directors,
officers, and agents.
(d) If at any time during the life of the Agreement, any policy of insurance
required under this Agreement does not comply with these specifications or is
canceled and not replaced, CVWD has the right but not the duty to obtain the
insurance it deems necessary and any premium paid by CVWD will be promptly
reimbursed by Developer. In the alternative, CVWD may cancel this Agreement.
(e) CVWD may require Developer to provide complete copies of all insurance
policies and endorsements in effect for the duration of the Agreement.
(f) Developer shall not allow any of its contractors, consultants,
subcontractors or subconsultants to commence work under this Agreement until
Developer has verified that contractors, subcontractors, consultants, or
subconsultants have secured all insurance required herein, including waivers of
subrogation and other endorsements. Policies of commercial general liability
insurance provided by such contractors, consultants, subcontractors or
subconsultants shall be endorsed to name Coachella Valley Water District, its
employees, directors, officers, and agents as additional insureds using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If
requested by Developer, CVWD may approve different scopes or minimum limits
of insurance for particular contractors, consultants, subcontractors or
subconsultants.
3
(g) The general liability program and automobile liability program may utilize
either deductibles or provide coverage excess of a self -insured retention, subject
to written approval by CVWD, and provided that such deductibles shall not apply
to CVWD as an additional insured.
(h) Claims made policies are not acceptable.
3. VERIFICATION OF COVERAGE. Prior to execution of the Agreement,
Developer shall file with CVWD evidence of insurance from an insurer or insurers
certifying to the coverage of all insurance required herein. Such evidence shall include
original copies of the Certificate of Insurance (Acord Form 25-S or equivalent), together
with required endorsements. All evidence of insurance shall be signed by a properly
authorized officer, agent, or qualified representative of the insurer and shall certify the
names of the insured, any additional insureds, where appropriate, the type and amount
of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance. All policies required shall be issued by acceptable
insurance companies, as determined by CVWD. Each such policy shall be from a
company or companies with a current A.M. Best's rating of no less than A:VII and
admitted to transact in the business of insurance in the State of California, or otherwise
allowed to place insurance through surplus line brokers under applicable provisions of
the California Insurance Code or any federal law.
4. LIABILITY NOT LIMITED. Defense costs shall be payable in addition to the
limits set forth herein. Requirements of specific coverage or limits contained herein are
not intended as a limitation on coverage, limits, or other requirement, or a waiver of any
coverage normally provided by any insurance. The limits set forth herein shall apply
separately to each insured against whom claims are made or suits are brought, except
with respect to the limits of liability. Further the limits set forth herein shall not be
construed to relieve Developer from liability in excess of such coverage, nor shall it limit
Developer's indemnification obligations to CVVVD or City and shall not preclude CVWD
or City from taking such other actions available to CVWD under other provisions of the
Agreement or law.
5. AVAILABLE LIMITS. Notwithstanding the minimum limits set forth above, any
available insurance proceeds in excess of the specified minimum limits of coverage
shall be available to the parties required to be named as additional insureds.
6. RESERVATION OF RIGHTS. CVWD reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior experience, insurer,
coverage, or other special circumstances.
S
4.14:1 <:11"m
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AN❑ IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
INDEMNITY ❑BLIGATIONS
EXHIBIT "I"
INDEMNITY OBLIGATIONS
Developer shall assume the defense of, indemnify and hold harmless CVWD and its
officers, directors, administrators, representatives, consultants, engineers, employees
and agents, and their respective successors and assigns (collectively, "CVWD
Indemnitees") and each and every one of them, from and against all actions, causes of
action, damages, demands, liabilities, costs (including, but not limited to reasonable
attorneys' fees), claims, losses and expenses of every type and description (collectively,
"Costs") to which they may be subjected or put, by reason of, or resulting from: (A)
Developer's performance under this Agreement: (B) the design, engineering and
construction of the improvements by Developer- (C) the performance of or failure to
perform, the work covered by this Agreement which is caused or occasioned by any act
or neglect on the part of Developer or its Representatives (as defined below); (D) any
death, injury, property damage, accident or casualty caused or claimed to be causes! by
Developer or its Representatives or including Developer or its Representatives or its or
their property; (E) any breach by Developer of its obligations under this Agreement; and
(F) any enforcement against Developer by CVWD of any provision of this Agreement.
The foregoing indemnity shall not apply to the extent any such Costs are ultimately
established by a court of competent jurisdiction to have been caused by the gross
negligence or willful misconduct of CVWD Indemnitees or any of them. CVWD shall
make all decisions with respect to its representation in any legal proceeding concerning
this Section. If Developer fails to do so, CVWD shall have the right, but not the
obligation, to defend the same and charge all of the direct or incidental costs of such
defense, including fees and costs, to Developer and to recover the same from
Developer. The term "Representatives" shall mean employees, representatives,
agents, contractors, subcontractors or any other persons directly or indirectly employed
by any of the foregoing or reasonably under the control of any of the foregoing or for
whose acts any of the foregoing may be liable. No provision of this Agreement shall in
any way limit the extent of the responsibility of Developer for payment of damages
resulting from its operations or the operations of any of its Representatives. Developer
further covenants and agrees to pay, or reimburse CVWD Indemnitees, or any of them
for any and all Costs in connection with the investigating, defending against or otherwise
in connection with Developer's obligations pursuant to this Agreement, except liability
arising through the gross negligence or willful misconduct of CVWD Indemnitees, or any
of them. CVWD shall have the right, at Developer's expense, to commence, to appear
in, or to defend any action or proceeding arising out of or in connection with this
Agreement, and in connection therewith, may pay all necessary expenses if Developer
fails upon reasonable notice to so commence, appear in or defend any action or
proceeding with counsel reasonably acceptable to CVWD, Developer shall be furnished
with copies of bills relating to the forgoing upon request.
(continued on next pagel
2
EXHIBIT "I"
INDEMNITY OBLIGATIONS (continued)
Developer shall assume the defense of, indemnify and hold harmless City and its
officers, directors, administrators, representatives, consultants, engineers, employees
and agents, and their respective successors and assigns (collectively, "City
Indemnitees") and each and every one of them, from and against all actions, causes of
action, damages, demands, liabilities, costs (including, but not limited to reasonable
attorneys' fees), claims, losses and expenses of every type and description (collectively,
"Costs") to which they may be subjected or put, by reason of, or resulting from: (A)
Developer's performance under this Agreement: (B) the design, engineering and
construction of the improvements by Developer- (C) the performance of or failure to
perform, the work covered by this Agreement which is caused or occasioned by any act
or neglect on the part of Developer or its Representatives (as defined below); (D) any
death, injury, property damage, accident or casualty caused or claimed to be caused by
Developer or its Representatives or including Developer or its Representatives or its or
their property; (E) any breach by Developer of its obligations under this Agreement; and
(F) any enforcement against Developer by City of any provision of this Agreement. The
foregoing indemnity shall not apply to the extent any such Costs are ultimately
established by a court of competent jurisdiction to have been caused by the gross
negligence or willful misconduct of City Indemnitees or any of them. City shall make all
decisions with respect to its representation in any legal proceeding concerning this
Section. If Developer fails to do so, City shall have the right, but not the obligation, to
defend the same and charge all of the direct or incidental costs of such defense,
including fees and costs, to Developer and to recover the same from Developer. The
term "Representatives" shall mean employees, representatives, agents, contractors,
subcontractors or any other persons directly or indirectly employed by any of the
foregoing or reasonably under the control of any of the foregoing or for whose acts any
of the foregoing may be liable. No provision of this Agreement shall in any way limit the
extent of the responsibility of Developer for payment of damages resulting from its
operations or the operations of any of its Representatives. Developer further covenants
and agrees to pay, or reimburse City Indemnitees, or any of them for any and all Costs
in connection with the investigating, defending against or otherwise in connection with
Developer's obligations pursuant to this Agreement, except liability arising through the
gross negligence or willful misconduct of City Indemnitees, or any of them. City shall
have the right, at Developer's expense, to commence, to appear in, or to defend any
action or proceeding arising out of or in connection with this Agreement, and in
connection therewith, may pay all necessary expenses if Developer fails upon
reasonable notice to so commence, appear in OF defend any action or proceeding with
counsel reasonably acceptable to City, Developer shall be furnished with copies of bills
relating to the forgoing upon request.
W
ACKNOWLEDGEMENT
A Notary Public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
190111011 WAG79
On
personally appeared
before me,
(insert name and title of officer)
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(Seal)
EXHIBIT "J"
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
c/o The Robert Green Company
3551 Fortuna Ranch Road
Encinitas, CA 92024
LLC
This document is exempt from the
payment of a recording fee pursuant to
Government Code Section 27383
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by
COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California
("CVWD"), in favor of , LLC, a Delaware limited liability
company (the "Developer"), as of
RECITALS
A. CVWD and Developer have entered into that certain Special Domestic Water
System, Sanitation Systems, and Irrigation System Modification Installation Agreement (the
",Agreement") dated concerning certain water system, sanitation system and
irrigation system work and improvements serving certain real property situated in the City of La
Quinta, California, a portion of which is more fully described in Exhibit "A" attached hereto and
made a part hereof (the "Pro a "). Terms not otherwise defined herein have the meaning given
in the Agreement.
B. As referenced in Section 14(d) of the Agreement, CV WD is required to furnish
Developer or its successors with a Release of Construction Covenants upon CVWD's acceptance
of Select as appropriate: [a particular construction phase of] the Domestic Water
System/Sanitation System/Irrigation System Modification], which release is required to be in
such form as to permit it to be recorded in the Recorder's office of Riverside County. With
respect to the improvements described below, except for the Warranty (as defined below) with
respect to such improvements, this Release is conclusive determination of satisfactory
completion of the construction and development of the below described improvements required
by the Agreement.
C. CV WD has conclusively determined that the conditions to a Release with respect
to the below described Improvements has been satisfactorily completed.
4940-9556-9515.1
NOW, THEREFORE, CVWD hereby certifies as follows:
1. The [Domestic Water System/Sanitation System/irrigation System
Modification] [or if phased: the portion of the Domestic Water System/Sanitation
System/Irrigation System Modification described as and located on the portion of the
Property described in Exhibit "B" attached hereto] to be constructed by Developer has been
fully and satisfactorily completed in conformance with the Agreement and accepted by CVWD;
however, the warranty of Developer under the Agreement that such improvements will be free of
construction defects for eighteen (1 S) months from the date of such acceptance (the "Warran ")
remains in effect and is not released or waived by this Release. Said improvements were
accepted by CVWD on . As such, except the Warranty, the terms of the Agreement in
Sections 1 through 10 of the Agreement applicable to Developer's obligations with respect to the
[Domestic Water System/Sanitation System/Irrigation System Modification] (or if phased:
the portion of the Domestic Water System/Sanitation System/Irrigation System
Modification described as and located on the portion of the Property described in
Exhibit "B" attached hereto] shall be of no further force or effect. Upon recordation of a
Release with respect to each of the Domestic Water System, Sanitation System and the Irrigation
System Modification, except the Warranty applicable thereto, Developer's obligations under
Sections 1 through 10 of the Agreement with respect to each of the Domestic Water System,
Sanitation System and the Irrigation System Modification shall be of no further force or effect
and only the terms of Sections 11 through 15 of the Agreement and the Warranty shall remain
effective.
2. This Release does not constitute evidence of compliance with or satisfaction of
any obligation of Developer to any holder of a mortgage or any insurer of a mortgage security
money loaned to finance the work of construction if improvements and development of the
Property, or any part hereof.
3. This Release of Construction Covenants is not a notice of completion as referred
to in Section 3093 of the California Civil Code.
4. Nothing contained in this instrument shall modify in any other way any other
provisions of the Agreement.
IN WITNESS WHEREOF, CVWD has executed this Release as of the date set forth
above.
CVWD:
COACHELLA VALLEY WATER DISTRICT,
a public agency of the State of California
Dated:
J.M. Barrett
General Manager
-2-
4840-9556-9515.I
ATTEST:
Sylvia Bermudez
Clerk of the Board
-3-
4840-9556.9515.1
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On , , before me,
(insert name and title of the officer)
Personally appeared
who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my had and official seal.
Signature
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On
, before me,
(Seal)
(insert name and title of the officer)
Personally appeared
who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my had and official seal.
Signature
(Seal)
-4-
4840-9555-9515A
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On , , before me,
(insert name and title of the officer)
Personally appeared
who proved to me
on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my had and official seal.
Signature
(Seal)
-5-
484fl-955G-9515.1
Exhibit "A"
To Release of Construction Covenants
LEGAL DESCRIPTION OF PROPERTY
[TO BE ATTACHED]
Exhibit "A"
-1-
rI:rIlOSSUszi9Mi
Exhibit "B"
To Release of Construction Covenants
LEGAL DESCRIPTION OF PORTION OF PROPERTY
{Containing Phase T of the [Domestic Water System/Sanitation System/
Irrigation System Modification]
[TO BE ATTACHED]
EXHIBIT 111co
PHASING
I
uj
J
4
U
V7
z)n« i I QF 1
® PHASE 1
PHASE 2 Michael Baker
® PHASE 3
CENTERLINEOTLI;+ I INTERNATIONAL
75410 Gerald Ford Drive, Suite 100
Palm Desert, CA 92211
LOCATED IN POR . OF SEC. S , T . 6S . , ME, 7E . , S.B.M. phone; 760-346-7481 www.mbakerintl.com
APPENDIX A
TO
SPECIAL DOMESTIC WATER SYSTEM, SANITATION SYSTEM,
AND IRRIGATION SYSTEM MODIFICATION INSTALLATION AGREEMENT
SCHEDULE
APPENDIX A
SCHEDULE
Construction and/or
design of the facility
N
described herein must be
No.
Facilities Item
completed before
0
domestic water service is
initiated to the following
`m
portions within the
Of
Pro ect
1
1(one) Pressure Reducing
2(c)(iii)
X
Unit 1 of Phase 11 or III
Valve Station
1 (one) Booster
2(c}(��}
2.
Station/Pressure Reducing
X
Unit 1 of Phase 11 or III
Valve Station
Install an 18-inch diameter
pipeline along SilverRock
Way connecting to the
existing 18-inch diameter
ductile iron pipe
approximately 1,000 feet
south of Avenue 52 and the
3'
existing 18-inch diameter
2(c)[iii)
x
Unit 1 of Phase l
ductile iron pipe in Hideaway
(iv)
Club Drive at Jefferson street
(Lower La Quinta Pressure
Zone) Install 36-inch diameter
steel sleeve for the 18-inch
diameter water pipeline under
Coachella Canal crossing at
SilverRock Way.
Install an 8-inch diameter
pipeline connecting to the
existing 18-inch diameter
4
ductile iron pipe in Jefferson
2(c)(iii)
X
Unit 1 of Phase I
Street approximately 353 feet
(iv)
south of Rosewood Lane
(Lower La Quinta Pressure
Zone
Install an 18-inch diameter
pipeline (Lower La Quinta
2i)(iv}
5'
Pressure Zone} connecting to
(iii}(iv)
]C
Unit 1 of Phase I{ or III
the proposed 18-inch
(v}
diameter pipeline in
SilverRock Way and the
Construction and/or
design of the facility
a)
described herein must be
No.
Facilities Item
m
cn
completed before
0
-�
im
domestic water service is
a
N
en
initiated to the following
a
7
portions within the
Project
existing 24-inch diameter
ductile iron pipe in Avenue 54
approximately 2,300 feet
west of Jefferson Street
(Lake Cahuilla Pressure
Zone).
Install an 8-inch diameter
pipeline connecting to the
proposed 18-inch diameter
pipeline in SilverRock Way
(Lower La Quinta Pressure
2(C)(IEI)
6.
Zone) to the existing 12-inch
(iv)
}C
Unit 1 of Phase 11 or III
diameter ductile pipe in
Jefferson Street,
approximately 200 feet north
of Avenue 54 (Lake Cahuilla
Pressure Zone
Install 2,950 linear feet of 24-
inch diameter gravity sewer
i
pipeline connecting to the
existing 27-inch diameter
gravity sewer pipeline located
at Jefferson Street and
Hideaway Club Drive and will
3(c}(ii}
7.
extend northwest crossing
X
Unit 1 of Phase
under the Coachella Canal
along SilverRock Way. Install
48-inch diameter steel sleeve
for the 24-inch gravity sewer
pipeline under Coachella
Canal crossing at SilverRock
Way.
Install 2,010 linear feet of 10-
inch diameter gravity sewer
pipeline connecting to the
i}
8.
proposed 24-inch gravity
iii}
Unit 1 of Phase I
sewer pipeline in SilverRock
(iii)
Way extending north along
SilverRock Way.
Construction and/or
design of the facility
N
described herein must be
No.
Facilities Item
U)
completed before
Q
domestic water service is
N
initiated to the following
m
portions within the
Project
Install approximately 946
linear feet of 24--inch diameter
gravity sewer pipeline
connecting to the existing 24-
inch diameter gravity sewer
9-
pipeline on Ave 52
3(c)(ii)
X
Unit 1 of Phase
approximately one -eighth of
(iii)
mile west of Jefferson Street
and connect to the proposed
24-inch diameter gravity
sewer pipeline in SilverRock
Way
Upon completion of the
gravity sewer pipelines listed
in Facility Items 7,8, and 9
above shall abandon at
Developer's sole cost and
expense, the remaining
surface appurtenances (after
CVWD has removed the
i}
10.
reusable items} at the sewer
iii}
X
Unit 1 of Phase I
lift station located on Avenue
(iji)
52, approximately 1,800 feet
west of Jefferson Street and
abandon in place the existing
14-inch diameter sewer force
main along Avenue 52 from
the sewer lift station to
Jefferson Street.
Install approximately 975
linear feet of 8-inch diameter
gravity sewer pipeline
i}
11.
connecting to the existing 12-
iii}
X
Unit 1 of Phase I
inch diameter gravity sewer
(iii)
pipeline in Ave 54 extending
north into project.
Developer is required to
12
reimburse CVWD for the
4(c)
X
Unit 1 of Phase 1
additional 2,750 linear feet of
;
24-inch diameter pipelines
Construction and/or
design of the facility
a�
described herein must be
No.
Facilities item
u,
completed before
domestic water service is
a
m
initiated to the following
Cr
W
portions within the
12�
Q�
❑
Project
("Pipeline") as more
particularly described therein.
The Developer shall grant the
USBRICVWD a thirty (32)
foot easement for the two 24-
inch diameter pipelines.
CVWD to Abandon Lateral
120.8-0.3 along Avenue 52
13
between Adams Street 0.5
13(e)
X
Unit 1 of Phase I
' (one-half [112] mile east of
Adams Street) and Jefferson
Street at Cit 's expense.
CVWD to Abandon Lateral
120.8-0.3-0.5RT along
Jefferson Street between
14.
Avenue 52 and Avenue 52.5
13(f)
X
Unit 1 of Phase I
(one-fourth [114] mile south of
i
Avenue 52) at City's
ex ense.
Abandon Lateral 120.5 along
Adams Street 0.75 (three-
quarter [3/4] mile east of
15.
Adams Street) between
4(c)
X
Complete
Avenue 52.25 (one-fourth
[114] mile south of Avenue
52) and Avenue 53.
Abandon Lateral 121.3 along
Avenue 53.5 (one-fourth [114]
mile south of Avenue 53)
16
between Adams Street 0.50
4(c)
X
Complete
(one-half [1/2] mile east of
Adams Street) and Adams
Street 0.75 (three -fourth [3/4]
mile east of Adams Street).
CVWD to install and
construct a dual reinforced
17.
concrete box culvert and a
13(g)
X
Unit 1 of Phase l
temporary by-pass canal per
Cit 's approved plans as
Construction and/or
design of the facility
described herein must be
No.
Facilities Item
rn
completed before
domestic is
-a
0
water service
°'
�N—,
initiated to the following
Cr
(D
portions within the
Of
tf-
0
Project
shown on CVWD drawings
43568-43581 at City's
expense
P