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7 ( li) lt nray pay only amounts due as of lhe termir)alion date. in whtch case the Enrolled Afliliate v/ill have f)erpehtal l-iceoses for:
1) all copies of Pioducts (including lhe latest version ol producls ordered under SA coverage in llle cutrent te[n) for which paynent l']as been made in full, and 2) the number ol copies of Prodtrcts il has ordered (including lhe latesl version oF Products ordered Under Sott,,/yare Assurance coverage in currenl lerm) lhal is proportional to lhe totalbl installment paytrents Faid versus tolat amounts due (paid and payable) if lhe early lermination had nol occurred. (iii) In lhe case ot early lermination r/n(ler sUlrscriplion Ertrollments. Enroll€l:1 Affiliale wlll have the lollowing oDtaons: r
1) For eligible Pro(lucts, Eirolted AfFiliate may oblairr perpetual Licenses as describe(l in the seclion of lhe Enrollment lilled "Buy"out option,- provided that Mrcrosoft receives lhe l)uy-out order for lhbse Licenscs wilhin 6b days alter Enro ed Affrliate provides rlotice of lernr'ralion
2) ln lhe evenl ot a brearh hy Mic.osoft. il Custorner chooses not to exercise a buy,otlt crption. liicrosolt will issire Enrolled Alfilaile a crerlit for any amount f]aid in actvance for Subscription Licenses that lhe Enterp se wi not be able to use to do the ternlrnalion o' lhe Enrollirenl
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Nlothing in llris section shall allecl perpetual Lirense rights acquired eilher irr.1 separate agreernenl or in a prlor lerdl of the lefiritlated Entollmerlt.
Eftect of tcrminallon or explrailon. U,/hen ar) Enrollmenl expires or is terminaled, (i) Enrolle(l Alfilale mUSt orderrLicenses for all copies of Prorlrrcls il ha5 rUn fo ahich rl has nol previously sUlrritted an brder. Any and all unpaid payments lor any orrler o( any kirrcl renain due and payable, Excepl as provided ill the sUbsecli()o ti ed "Early termination," all unpaid payments lor Licenses immedialely become due and payable, (ii) Enrolled Affrl,ate's righl to Softvare Assurance benefits Under this Agreement ends if it does rol rellew Software Assurance
g. ModlFicatlon or terminallon of an Onllne Service for rogulntory reasons. Microsoft nray rnodily or tefitinate ao Online.Service L.rhere llrere is any correot or luture 0overnn]enl requirenrent or obligation thal: l{l) subjects Llicro$ott to any regulation or requirenrent rrot generally applicable lo businesses operaling in the j(lrisdictioni (2) presents a hardslrip for lvlicrosofl to continL€ operating the Online Service without ntodification; and/or (3) causes Microsofi to believe lhese lerors or the Ontine Servic€ may conftict with any suclr re(luirenlent or obligation.
lr. Prograrr) updates, lvlicrosolt nray ntake changes lo this Frogram that will make il necessary for Curlorner and its Enrolle(l Alliliales (o erlte[ into new ag(eemenls and Enrollments al the trme ol an Erlrollntent renewal
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Use, ownership, rights, aid restrictions.
a. Prodt,cts. Unless olllerwrse spectlied in a sullptentental agreemenl. use of any product is governed by the Use Righls sfjecific to each Product alld version and by the lelns ol the applicable supplenrental agreenienl.
b. Fixes, Eaclr Ftx is licensed under the san]e terms as lhe product to wltich it apDlies lf a Fix is oot nrovided for a specific Proddct. s^y use rigt)ts Microsolt provides with lhe Fix wil apply. c. Non-lvlicrosofl soltware sod technology. E nrolled Alfiliale is sol(:lt, responsible f or aoy norrl\,,licrosofl soflware or technology that it irrslalls or.lses r,rith the prod,,lcts or Fixes [A2u I 6Aq ILISl SLGtE,\tG)lNov2016] Fnte 6 ot il
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il. Restrictions. Entolled Affillate mtrst rrot (and is nol licensed to) (l) Ieverse engineer. deco[lpile, or dasassemble any' Producl or Fix: (2) install or use non-MicrosoFl soflv/are or technology in any way thal would subiect Microsott's intelleclual property or technology to any . other license te.msi or (3) work arotln(l alry tecllflrcal tlrnilations in a Product or Fix or reslriclions in Producl docunrentalion. Cuslorner musl not (and is nol licensed loi () geparate and r(rn paris ol a Paoducl or Fix on rnore than orle device, upgrade or dorvngrad€ parts ol a Produst or Fix at di(Ferent limes, or lrans[er Darls of a Produ(l or Fix separately: or (ii) dislribule. sublicense, rent, lease, lencl ani Products or Fixes. an whole or rri l)art, or use llrern lD oller hosting seruces to a tlrird parly.;
e. Reservation of rights. Producis and Frxes are protecled by copyright and oilrer intelleclttal property rights laws and interrialional treaties. lrlicrosofi reserves all riohts not expressly granted in this agreemenl. flo rights will be granled or itnplied by v./aiver or estoppel. Righls lo access or use Software on a bevice do not give Customer any righl to implemenl t/,icrosofi Dilerrls Dr other l,,Iicr()sofl inlelleclual prope(y in the device ilself or in an,/ ollrer sollware or devices
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8. Confidentiality-
"Cor)fder)1ial lnforolalion'is non-public informalion that is designated "confidenlial" cr thal a reasonable person shoUld understan(i is confi(lenlial, including Custorr]er Dala. Conlidential Ir'tfonnation does nol inc[r(le inloBnation that (a) beconles publicly a'/ailable rvilhoul a breach of thN agreerrrenl, (b) lhe receivrng parly received lay/lully frorn anolher source witlloul a confldenliality obllgation. ac) is independently develope(1. or (di is a comnlenl or suggestion volrrnteered abotll the other party s business nro,Jucts or servrces.
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Each psrly viill lake r'easonable sleps to t)rotecl lhe other's Conlid€ntial lnfornation and v.,illuse the olher Darty's Coniidential lnformation only for t)urposes ol the padies' business relationship. Neither party will disclose that Contidenlial lnlonnation to lhird Darties, excepl 1(, ils employees. Affiliates. col)lraclors, advisors and corrsultants ('R epresenlatives") and then only on a need-to-know basis under nondisclosrrr<:
oblgationi at leasl as prolective as this agreen)erll. Each parly rernains responsibE for the use ol lhe Conlidenlial lnloflnalion by its Represenlalives and, in the e'renl o[ cliscovery o[ any rrnauthorized use or disclosure. rnust promplly nolily lhe otl)er party.
A party nray disclose the other's Coolidenlial lrrforrnatio lf required by law, bulonlyalterit notilies lhe olhsr parly (if legally pernrissible) lo enable the other party lo seek a proteclive orde.
Neilher porly rs req\rired lo reslrict worl( assionmenls of its Reprcsenlatives vJho have had access to Coolidenlial lnfor^rirtion Each party agrees lhal the use of lnformalion retairled in Represenlalives' Lrnaided menrories in lhe development or deployrnenl of the padies'respeclive producls ol services does nol creale liabilily under lhis Agreen'rer)l or lr€de secret lar\/, and each party agrees to linrit whal rt (i:scloses lo l,re ot,rer accordi olv.
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These obligations apply (i) for Cuslomer O;la untrl rl rs (leleted lrorn lhe Online Se,vices, and (ii) tor all otller ConFidenliat llrlormalion. lor a period ol five years after a party recBivos the Conlidential lntomalion.
9. Privacy and compliance iitn u*r.
a. Enrolled Afliliate consents lo lhe processirg ol personal intonnation by Microsofl and ils agenls to facilitale lhe s(hjecl nlatler bf this Agreement. Enrolled Atlaliate r'/ill oblain all required consents rrom thlrd parties under applicable privacy and dala proteciron lavJ before providing personal informaliorl to iricrosotl
b, Personal informalion collected (ncler this agreernent (i) rnay be trarrsferred, slored and processed in llre United States or any olher country in which Microsolt or its service providers mainlain lacjlities and (ii) rr/ill be subjecl lo lhe privacy terms sFecitiecl in tlre Use Righls. lvlicrosofl will abide l)y the requirements of European Economrc Area and Swiss dala proleclion FA20lnAltrO,SlSl (i(liflt;lltllvz(l liii . FitceTolll
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law !'egardrng the colleclion, use, lransler, retenhon, ancj othet plocessir)g oF personal dala frffn the European Ecurornrc Aiea and Switzerlaod.
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U.S. export, Product s and Fixes are sutlject to U. S. exporl ju risdiction- Enrolled Af{illate musl comply with all apPlicallle rnternational and nationat lavJs. includiltg the u.S Eypon n dnrinistratio'r Regulalions and'lnternational Traflic in Arms ReUUlations, and end-user, end use and deslinetion rest(iclions issue(t by U S. and oltrcr governrnents retaled to ft4icrosofl producls, services and lechnologies.
10. Warranties.
a Lirrrite(l warranties and rernedies.
(i) Soltware- Microsoll warraAls that eaclr versiorr of lhe Sotl\,,rare v,/ill pertoftn sultslantially as described rlr the applicable Producl documenlation for one year [ron] the date the Enterprise is frrsl license(lrlor lhat veBio|l ll il does noi and lhe Enterpnse notifies [4icrosoll \r/ithir ihe v\,arranty lerm, l,.ten Microsofl wi[. al its oplion {1) relurn )e price l:ntolled nfliliate Dard For the Softlvare license. or (Z) reDair or replace lhe Software. (ii) Online Setvices. ly'licrosoli warrarrts tl)at eaclr Orrlrrre Se.vice witl perlolrn in accordance wlth lhe appltcabte SLA dluing lhe Enletprise's use. The Entetprise,s ternedies lor breach of thrs , ,ar.aoly .1re in the SLA.
The rellledies above arc tlre Enterprise's sole reinedies lor breach of lhe vJa(anlies in ltris seclion. Cuslomer waives any bteach ol tvarranty claints nol rnade d uflng lhe warar)ty period b. ExclUsions. The !,,/ar{anties in this agraemenl do nol apply lo proble|Ds caused by accident abuse, ot use irl a nranner inconsistent wilh lhis AgreerneIt. rnclu(liog laiture to rneel n.]ioimum syslem requirerrerls. These'wananties (io not appty to kee, trial, pre-relea:e, or beti, Droducls. oI lo conlponenls oF Products lhal Enrolled AFliliate is permilted to redistribute. c. Disclaimer, Except for lhe'litnrte(l warranlies above, Microsofl provides no other watratrties or corrdltlons a,id disclairns ally other express, implie(i, or statuto]y v,/arrrnties, includiog tvarmntles ot quality, ti e. non-intringement, merchantabllily, alld litrress lor a padicular prtrpose.
11 . Defense of third party claims.
The parties will defend each other againsl lhe thild-party clainrs clescribed in this section and will pay the amounl ol any restrlling adverse frnal iuclgnient or approved settlemefll, but only if the ctefending oarty is l)romptly noli,ied in ,,'/riting ol the claim and has llrc right to control the defBnse and any settlemenl of it. The pa(y being detended nlust provide lhe defending parly lvith all r€quested assistance. inloflnalion, and Erulho.ity. The defendinO party v,/ill .erinbrrrse the othe( party for reasonable oul-ol-pocket expenses it incurs in providing assistance. This section describes the pa(ies'sole remedies and entir€ liability for such claims a. By Microsoft. Microsoll will delnd Enrolled Afliliale againsl any rhrrd-party ctainl [o lh e exte nt it alleges thal a Prodtrct or Fix made availahle by Microsotl for a lee and used within the scope of the license granled Glnmoditied From the fornr provided by Microsofl and noi conrbined with anylhillg else) rnisappropriales a lrade secret or direc y inlringes a palent, copyright, lrademark or olltor proprietary rlght o, a third party. lF l\4icrosoft is unable lo resolve a claim of irrfringenrelll under con]merchlly reasonable lerms, it may, at ils option, pither ( I ) rnodiry o, replace ltre Froducl o[ Fix wilh a furnclional equivalent; or (2) tern)inate Enro ed Altiliate's license and refund any prepaid license lees (tess depreciation on a five-year, straighlJine basis) lor perpehtal liceoses and any amouot paid lor Online Services for any L,sage periorl aller tlre lennirrallon dale. lilicrosofl !vrll not be liable for any clalnls or damages dUe lo Eoro ed Afftliate's contintled use of a Ploducl or Frx aller being notified to stof, due lo a lhird-party clain't. b, By Enrolle(l Afliliate. 'l'o lhe dxtent permilled by applicable law, Enrolled Alfiliate r.rill delend Microsolt against any thrrd-pa[y claim lo the extent it afleges that: (]] any Custonter Data or I
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non-Microsolt soltware hosled in an Online Service by Microsolt on Enrolled A{,iliale's behalf misappropriates a lrade secret oI direclly inaringes a palent, copyright, tradernalk, or olhel proprietary riglrt of a third pany, or (2) Enrolled Affilial.e s irse ol any Ptoducl or Fix, alone or irr combinalion lvith anylhing else. i/iolates lhe lar.,/ or darnages a lhird parly
12. Limitation of liability.
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For each Product. each party s l.l]aximunr, agllregate liabil(y to lhe othEr uId€r tlris Agreerltertl is lirniled to (tir€at danlages linally awarded in an arnount not to exceed the amounts Eflrolled Al[iliate was required tD pay fol lhe appli.:able Producls dLrring thelteflIl ()f lhis Agreemenl, strbiecl lc lhe following. a. oDtine Scrvaces. Por Online Srlrvices, Microsott's maximun liabilily to Enlolled Affiliate for any incideot givino rise to a clai*r will nol exceed lhe amount Enrolled Alfiliate paid lor the Onlille Servlce durino the 12 mor)lhs before the inci(lent b. Free Products alld Dlstributadle Cocle. For Producls provi(led Free of charge and codc lhat Enrolled Affiliate is autl)orized lo redislribule to lhird parlies wilhoul separale payrnent to [4icrosolt, Microsoft's lial]ility is limited to direct darnages finally awarde(l up lo US55,000. c. Exclrsions. ln noeveolwill either parly tie lrable lor indirect, incidenlal special. punilive, or consequential damages, or for loss of rlse, loss ot t)usiness inlolrnation, loss o[ tevenue, or ioter(rption ol business, howevdr caused or on any theory of liabilitY. rl. Exceptions. No fimitation or exblusions !',/ill apply to liability arising out of eithel party's (1) confidentiality obligations {except for all liability lelaled Io Cuslor]ler Data, whiclr wtll ren]ain subjecl to the lirnitalions and exclusions above); (2) defense obligationsl or (3) violatiort ot the ollrer party's intelleclual property riglrts.
13. Veritying comptiance.
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a. Right to verify compllanco. Enrolled Alllliale rnust l(eep records relating lo all Use and distributiorr of Products hy Enrdlled Atfiliale aod its Afliliales. Ir4icrosoft has lhe right, al lls expense, lo the exlent peflrilted by applical)le Lrv/, lo verify conrpliance v,/ith the Froduct's license ternrs. Enrolled nlfiliale rnust pronrplly provide lhe incjependent auditor wilh any infornlatlon I'te audilor reasonably requesls in furlherance ol the veriticalion. including sccess to syslems .uinino lhe Prod!rcts and evidence ot Licenses for Producls En.olled Affiliate hosls. subiicenses, or rlGtributes to third parties. Enrolled Affiliate ag.ees to conrplete l\,4icrosoft's self-ardit process, which ldicrosolt nlay re(lurre as an alterrlallve to a lhird party audll tl. Retnedles for non-corrrpliance. lf verificalron or self-arrdil reveals any unlicensed use o, distribution. tltert withirr 30 days'. I1) Enrolled AFlilrale nrusl order suflicienl Licertses to cover lhal USe or clistribution. and (2) if rrnlicensed use or (listlbulion is 5o/i or rnore. Erlrolled Affiliate rnosl reinrburse lvlicrosolt for tlie cost Microsofl has iocurred jn verilication and acquire the necessaly ad(litional licenses Ji l25,tn ot lhe price based on the then'crrrrenl price list and Enrolled Alfiliate firice lcvel. Tha unlcensed use peacerrlage is based on lhe lotal number of licenses purchased conrpared td aclual install base. It there is no unlicensed use. Mictosolt v.,ill not subject Enrolled Affiliale loianother veriFication lor at leasl one year. By ex€rcising the tiohts afld proce(lures described above. Microsofl does not waive ils righls to enlorce this ngreernenl or lo prolecl ils intellectual properly by any other nleans permilted by law. c, Verification process. lvlrcrosoll will nolily Enrolled AfFlllate al least 30days rn advance of its intent to verify Enrolled Alfiliate'3 compliance !,rith the licerrse lerrtls lor lhe Products Enrolled Alfitiate and its Alliliales use or distrillute. Microsoft willengage an independent ardilor. which vill bc srrbiect to a confide0lialily obligation. Any intormalioo collecled in lhe self-audit wrll be used sotety tol purposes ot determining conrpliancc. Tlris verilicatioo will take plsce during notrnal l)Usiness hours and in a manner lllal does not. inlerlcrc (nreasonably with Ertrolled Atf iliale's operaliorrs.
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14. Miscellaneous.
a. Use ol contraclors. Microsolt may use contractors lo perform sen ices, DUlwill be responsibte tor their perfornrancs sulti€ct lo lhe le(ns of lhE Agreenter)l l) Microsoll as independenl co,ltracfor. The p.lrlies are rndependenl coniractors Enrotlecl nffiliale and Microsolt each rndv develop Droducls independenuy wjthout ustng tho otheas Conlidenlial lnlonl]alion
c. Nolices. Nolices to tJlicrosoft nrLrst be senl to ltle address on the sEnat\rre forn r. Nolices rnust be in writing and will be treated as deliverecJ on lhe clate shov,/n on the relurn teceipl or on the courie[ or lax conliflnation ol ddlivery tulicros(rll rnay provide informalion to Enrsller.i Afliliate aboul ltpcoming otdering deadlinss, services, and subscription informatjon in electrortE torrr. incltrding by email to conlacls provided tJy Enrollecl Affiliale. Entails willl)e lrealed as delivrired on lhe transmission date.
(1. Agrccmont not exclusive. Cuslonter is free to enter into agreenlents to license, use or promole non-Microsofl producls.
e. Amerrdtnonts. Arry arnendmerit to lhis Agreement must be executed by bollr parlies. except thal Microsoft m€y chenoe lhd Pro(luct Terms ancl the Use Rtghts frorn l ne to time hl accordance vJilh llte tenrs ol tllrs Agreernenl Any conftictrng lerms and cond ilions conlaiIe(t ir\ an Errrolled Affilia(e's purchasb order wi not apply. Microsoft may require c(slorner to sign a nev/ agreemenl or an arr]en(lnlent belote au Ertrolle(l Af fultale enlers into an Enrolltrenl unrlea this agreenlenl
f. Asslgrrmert. Eilher parly rnay assign this Agreernenl to an Affiliale, but must nDtify the olher fla(y in writing-of the assignnreht. Any other proposed assignrnenl rnusl be approved tly Ute non'assigning Farly in writing. Assignrnent vill nol relieve the assigring party of its obligalions under tlre assigned agreemenl Any altempled assignm?nt ,.vi rcLll required approvat wi be void
g. Appllcable law: disptlte resoll(iorr. The lernrs o[ this Agree[lenl v/rll be gove red hy ltre lav,,ts o[ Cuslorner's stale, without giving etfecl to its conflict of laws. Disputes relatino lo this Ag.eemont will be sUbiect 1o applicabls dispute r€solulion laws of Custor.t)er's state. lr. Severability. ll any provisron in l hrs ag reenrer)l is held lo be [nenforceat le. tl]e halaoce of the igreernenl wrllremarn ,n full forie.rnct effecl.
i. Waiv€r. Failr.tre lo enfotce any'provision of this agreet)]ent will not conslilule a waiver. Any waiver mUst be in writing and signed Dy the waNing party. i. No thlrd.pady tre[eflclarles. ,This ngreement (toes not creale any lhird-party benefrciary righls.
k. S(lrvival. All provisions survive lennirtaliorr or expiralio ot lhis Agrcer))ertt exceDl those re(lui(,)g perforn\ance onty during re teln of the Agreemeqt, L Managomcnt and Reporting. Cuslorner and/or Enrolled Afliliate may nranage acco(nt detaits (€.g., contacts orders, Licerlshs, soflware do,.v^loads) on Microsolt's Volume Lrcensi g Service Cenler ('VLSC') web site (or stlccessor sile) sl httt)s rwv^v rr Icrosolt coor/licer]s
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sile and rray aulhorize addrlional users and cqnlacts.
Order of precedence. ln the case of a conllicl belrreen any docuntents in lhrs Agree rTlenl lhat ls nol expressly resolved in lhose docuntenls. lheir terms wilt conlrol lr ltte tollowang or(ler ftorr highest lo lowesl priorily; ('l) this Enterpris€ Agreemenl, (2) any Enroltment, (3) the prodrrct Terms. (4) lhe Ol]litle Services Terms, (5) oKters subn]ilted rntder lhis Agre€rnent, and (6) ar,y ollrer docuorents in lhis Agreeh]ent Telms i,r an amer)alrne,rt cootrol over llie amend.d docurnenl and any prior an'telldrnents concernin0 the same subjecl malter.
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tl Fr€e Prod cts. lt is Microson'd intent thal the ternrs ollhis Agreemenl and the Use Righls be rn co|rpliance wilh all applicable lederal Iaw and regulations. Any ,ree Product provided lo Er)rolled Alliliate is tor lhe sole irse and henefl of the Enrolled Al iliate. and is not provided lor use by or personal benefit ol an'y specific Aovernmenl enlployee.
Voluntary Product Accessibility TeDlplates. lvlacrosolt supports the governrnents obligaliDn to J)rovide accessiblE technologies to ils citizen$ witlr disabillties as requirecl by Secljon 508 ol the Rehabilitalion Act of 1973, and its stale lav,l counterparls. The Voluntary Producl Accessil)ility Tel]rulates ('VPATS") tor the Microsoft lechnologies used irl providirB llre Onlrne Seryrces can be found at tvlicrosoft's VPAT page. Furthel informalion regardilg lvlorosofl's con)r'ritment to accessibility can be tound at llltp /,'w',w/.microsoll,corn.tenable Natrrral disaster. ln lhe event of a 'lralural disasler, Iricrosofl rnay proude addilional assistance or riohts bv r)oslino tirem on htto:/l,rr.,l,'rr-n'ricfoso(l.cool at such lime. .-....:- Copydghl vlolatlon. Exce0t 3s sel Forlh in tlle section above entilled "Transferring and reassrgning Licenses', the Enrolled Afliliate agrees to Day fo., and comply with tl)e terlns of thrs Agreenrenl and lhe Use Rights, for the Ploducts it (lsas. Exceptlollre extenl Enrolled Affiliale rs licer)sed Lrlder llris Agreentnl. il \vill tre responsiNe for ils breaclt of lhis cotliract and violation of Microsofl's copyrighl in lhe Products, including payrnent of License fees specjlied rn ttrs A0reernelt lor unlrcer'tsed use
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Contact information.
Each parly vr'ill nolify lhe other in wrilinq i, any c.f the inloflnalior, in lhe following cootact inforralon page(s) changes. The asterisks (') indicare require(l fields: il the en ty choose! to designate other conlact tyt)es, tlre satne reqLiired ftelds rrrusl be coritplete(l tor each seclior). By provi<ling conlacl infornlalion. entily consenls to its use for purposes of adnrinistering the Enrollment by Microsoft in<l olher paiies lhat help Microsofl adnlit]isler ris Enrollmet)t. The personal inlo.mation provideci in connection fl 'Mirrnsoft Volu rrir: l-rc.errs i n gl
supplemental Contact lnformalion Form
This follr applies to E MBSA
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LJ Enrollrnenl/Atftliate Regi$ratlon Fofl n
lrse( primary eotily nanle if rnorc lhan or)e E nrollrr] en l/Regiskalion Fo.nr is submitted
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be lrsed aId prolecle(l accor(li,rg 1o lhe privacy slalen]enl available at cont. liltDs r',rli...nsi
1. Additional notices contact,
'fhis contacl teceives all notices ltat are sent flom lricrosofl. No online access individual.
Narno of entity' Counly o, Rrverside i
Colrtact [anre'r Flrst Regina Lasi Funderl)urk
Contact eotall address' [email protected]
Slreet addross'3450 14lh Slreet, 4th Floor,
City' Riverside Stalo/Province' California 'postat co(te. $2501 -386 I Country'USA
Phone' 951 -955-2265 Fax I
D This contacl is a lhrrd party (not Ure eotity) Wanring inlormalion of lhe entily.
2. Software Assurance manAgerThis contact will receive online Permissiohs to rnanage tlre Soflware Ass{rrzrnce benelits uoder the Enrollrr'rent or Regish ation.
Name of entlty' County of Riversde
Contact name': Flrst Regina t-.tst Funderburk
Contact srnail add ress' [email protected]
Street address'3450 t4th SlJeet.4th Floor
City' R'verside State,Prov ince. Caftforl a Postal code' 92501-386 | S\IFCDr{icllrloForm(l.l/\.lr.lD)(EllC)l()lil20 r l)
is granled to lhrs
'lhis 6q111nq1 receives personally rdenlifiablePrgc 1 ol 3 rhis lorm ca, be use(r n combharioh w h MBSA, Agreement, and Enroflmenr/Registralion However. a Sepalale form must l)e subm ted for each enrollment/registralion. tvhen more ttin orre is subnritled on a signatrrre ,orm. For the purposes of is form, 'entity" can mean rhe signing enlity, custonrer, Enrolled Ar{iliale, Govero^)elrl Pa(ner, lnstil(llron, a.,r o re/ party enlering inio a'volurnl licensing prooram agreement. pnnrary arirl Notices contacts in this form wili not apply to enrollmenls or regislrations.
I
I
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counlry'USA
Phqne' 951 -955-2265 Fax
E ThE contact is a third party (not the enlity). Warning: This contact receives personally identifiable inlor malion ol the enlily.
3. Subscrptionsmanager.
This contacl will assign fuISDI'J. Expression, and TechNel Plus subscription licenses lo the individual subscrillprs under lhis Enrollrnent or Regislration. Assignnrent ol lhe subscription licenses is necessary for access ta any of lhe online hene,its, such a6 subscriplion downloads. Thas conlact will also nranage aly complimenlary or ad(lilional media purchases relaled to lhese subscflPtions.
Name of e[tity' County of Riverside
Cdnlact name': First Regirta Last Funrlelburk
conloct emall address' RFunderburk@r ivco.org
Street a(ldJess'3450 14th Slreel.4th Floor
city' Riverside StaterlProvioce' Califarnia Postal code' 92501-3861 Corntry'USA
Phorre' 951-955-2265 Fax
D This conlact is a thircl party (not the entily). Warninsr: fhis contact receives personally identifiable inFormation oF lhe eltily.
4. online services manager.
Tl$s conlact will be t)rovided onlirre perrnissiorrs lo nranage the orrline services ordered under tlre Enrollment or Registralion.
Nan|e ol entity' County of Riverside
Contacl narne^: First Luis Last Floles
Conlact enrail address' [email protected]
Street addr€ss' 3450'l4lh S{reet, 4lh Floor
city' Riverside statelProvince' Califonria Postal code' 92501-3861 Co$rlry'USA
Phone' 951.955-81 14 Fax
E Tltis contact is a thrd parly (ool tlre entily). Warning: This conlact receives personally ldenliliable intormation of the entity.
5. Custorner Support Manager (CSM).
This person is designated as llre CrEtomer Supporl Manager {CSM) for suppod-relaled activities Narne ot elltlty' Counly ol Riverside
Contact name': First L(is Last Flores
Corrtact enrail address' LFFlores@rivco o19
Strccl address' 3450 14lh SlIeet, 4lh Floor
City'Riv€rside State/Provirrc€' California Postal co(le' 92501-3861 Counrry'USA
Phone' 951-955-81 14 Far
6. Primary contact informatiotl.
An irrclividLral fronr inside the organizatiorr nrust serve as the prinlary conlacl. This contact receives online adminislrator pernlissions an(l nray granl online access to olhers. Tltis coniacl also receives all notices unless lvlicrosoFl is provided wrillen nolice of a clrange.
Name of ontity' Countv of River6ide
3upCor acltrrlDlurnltlA.ll JU)ll-:Nf)lOcliliJI3) frrpc 2 ol :l
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Col|tact narne': First J[n Last Smtlh
Co'rtact emiil address' [email protected]
Straet address' 3450'141h Street. 4th Floor
City' Raverside State/Provlnce. CA postat code' 92501.3861 Country^ US
l)hor€' 951 -231-5909 Fax
7. Notices contact and online administrator information.
This ildividual receives ontino adririnasl.otor permis$ions and m;ry graint onltre access lo olhers. This conlacl alsD receives all notices.
El sarrc a.s /ri,)rary corlact
Nanre of cntily'
Contacl rratne'i First Last
Contacl elltall addtess'
Strcel a(l(lress' Clty" Stale,,Province. posial code,
Country'
Phone" Fax
l] This contacl is a lllird pany (not ihe entity). Warnir)g: This conlacl receives persona y i(lentifiabte inlornration ol lhe entily,
Sut lDIrrcrlnk,F(rnr(r'tA,n[),r!rJG](lcr!!1.r1 tlile :l ol 3
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Program Signature Form
Volume Licensing
MBAJMBSA numbor Proposal lO
Agrcemonl numbor
NotE: Ent6r the applicable ac{ivs numbers associatod r,yith the documenb below. Microsoi Equires the associated aclive number b€ indic€tcd helr, or lbtcd below as ngw
For th€ purpGes of this brm, 'Customef can mean the stlning entrty, Enrolled Affiliate. Government Partner, lnstitrrtion, or otlEr party entering into a volum€ licansing progrem agreement. " indicates rcquired field
F
Select Plus Agreement x?0-04871
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
<Choose Agreement> Document Number or Code
Select Plus Atfiliate Registration Form x20-04921
<Choose EnrollmenURegistration> Document Number or Code <Choose EnrollmenURegistration> Oocument Number or Code <Choose EnrollmenURegistration > DocumBnt Number or Code <choose EnrollmenURegistration> Document Number or code Document Description Document Number or Code
Document Description Document Number or code
Document Oescriptlon Document Number or Code
Document Description Document Number or Code
Document Description Document Number or Code
Number or Code
Printed Titlo' Procurement Contract Specialist
Signatur€ Oele' 07 I 17 12013
I antity name)' County of Rive6ide
CO
(
BY
Printed First and Last lnes Mark FOR
Name of En
Signature'
Tax lD 95€000930
!r Microsoft
This signature form and all mntract documents identified in the table b€low are enlered into between the Customer and the Microsoff Affiliate signing, as of the etfective date identitied below.
Contract Document
By signing below, Customer and the Microsofl Affiliate agree that both parties (1) have received, read and understand the above contract documents, including any websites or documents incorporated by reference and any amendments and (2) agree to be bound by the terms of all such documents.
Customer
t\
ProgramS(JnForm(MSSign)(NA.LatAm)ExBRA.ML(ENGXOd201 2) Page 1 of3
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Optional 2nd Customer signature or Outsourcer signature (if applicable) * indicates required field
* indicates required field
lf Customer requires physical media, additional contacts, or is reporting multiple previous Enrollments, include the appropriate form(s) with this signature form.
Atter this signature form is signed by the Customer, send it and the Contract Documents to Customer,s channel partner or Microsoft account manager, who must submit them to the following address when the signature form is fully executed by Microsoft, Customer will receive a confirmation copy.
Microsoft Licensing, GP
Dept. 55'1, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 8951 1-1 1 37
USA
Microsoft Licensing, GP
P.inted First and Last Name
Printed Title
Signature Date
(dale Microsoft Affiliate countersigns)
Signature
Eff8ctive Date
(may be different lhan Microsofts signature date)
Microsoft Affiliate
Name of Entity (must be legal entity name).
Signature'
Printed First and Last Name'
Printed Title'
Signature Date.
Name of Entity (must be legal entity name)'
Signature'
Printed Fi6t and Last Name'
Printed Tifler
Signature Datet
Outsourcer
ProgramSignForm(MSSrgn)(l.lA, LatAm)ExBRA,[4Ll(ENG)(Oct201 2) Page 2 of 3 Customer
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Prepared By: Name of Preparer
Email of Preparer
ProgramSignForrn(MSSignXNA,LatAm)ExBRA,MLI(ENGXOct20l 2) Pag€ 3 of 3 I
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Volume Licensing
Select Plus License Program Agreement State and Local
Contents
1. 2.
3. 4.
5. 6.
7. 8.
9. 10.
11. 12.
13. 14.
15. 16.
17. 18.
Definitions
How the Select Plus License program works,..............
How to estabtish pice le
License grant
-
what Registered Aflitiates are ticensed to run' ...'.'.'.............' How to know what Product Use Rights app|y.............
How to order Product Licenses.
Making copies of Ptoducts and re-imaging rights.
Transferring and reassigning Licenses....................
Term and term in alion.......................
How to renew an O
Restrictions on use...,.,,................
ConfidentialiU,
1 3
3 3
4 5
6 6
7 I
I
9 Warranties,
Defense of infringement, misappropriation, and third pady ctaims. 10 11
Verifying compliance ..13
Non-Microsofl Software or Technology-.----..-.-........... 14 This f\.,1icrosoft Select PIus Agreement is entered into between the entities identified on the signature form.
Effective date. The effective date of this agreement is lhe effective date of the first Affiliate Registration Form or the date Nilicrosoft accepts this agreement, whichever is earlier.
This aqreement consists of (1 ) the terms and conditions of this agreement and all attachments identified therein, (2) the Product List, (3) the Product Use Rights applicable to Products licensed under lhis aqreement, (4) any Affiliate registration entered into under this agreement, and (5) any Order submitted under this agreement.
The parties agree to be bound by the terms of this agreement.
1. Definitions.
ln this agreement the following definitions apply:
"Affiliate" means
a. with regard to Customer
(i) any government agency, department, office, instrumentality, division, unit or other entity of the state or local government that is supervised by or is part of Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer;
(ii) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer's state and located within Customer's state jurisdiction and geographic boundaries; and
SelectP[]s201 2AgrGov(US)SLG(ENGXOct2012) Page 'l of 16 Document )O0-04874
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Terms and Conditions
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(iii) any other entity in Customer's state expressly authorized by the laws of Customer's state to purchase under state contracls; provided that a state and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government and its Affiliates; and
b' with regard to Microsoft, any legal entity that Microsoft owns, that owns Microsoft, or that is under common ownership with Microsoft
"available" means, with respect to a Product, that Microsoft has made Licenses for that product available for ordering under a particular licensing program:
"Commercial Producl' means any Product Microsoft makes available for license for a fee; "Contractor" means any third party supplier or other provider of computer technology or related services. "Customer'means the entity that has entered into this agreement and its Affiliates; "customer oata" means all data, including all text, sound, software,or image files that are provided to Microsoft by, or on behalf of, Customer through Customer,s use of the Online Services. 'Fixes'means Product fixes, modifications or enhancements or their derivatives that Microsoft releases generally (such as Commercial Product service packs);
"License" means Registered Affiliate's right to use lhe quantity of a product ordered. For certain Producls, a License may be available on a subscription basis ("subscription License"). Licenses for Online Services will be considered Subscription Licenses under this agreemsnt; "L&SA" means a License and Software Assurance for any product ordered; "Microsoft" means the Microsoft entity that has entered into this agreemdnt by accepting customer's registration;
'Order" means the document Customer or Customer's Affiliate submits under lhis agreement to acquire Licenses or Services;
'Online Services" means the Microsoft-hosted services identified in the Online Services section of the Product List.
"Product" means all software, online services and other web-based services, including pre-release or beta versions, identified on the Product List.
'Product List" means, with respect to any licensing program, the statement published by Microsoft from time to time on the World Wide Web at htto://www.microsoft.com/licensino/contracts, oi at a successor site that Microsoft identifies, which identifies the Products that are or may be made available under the program (which availability may vary by region) and any Product-specific conditions or limitations on the acquisition of licenses for those Products;
"Product use Rights" means, with respect to any licensing program, the use rights for each product and version published for that licensing program at htto://www.m icrosoft.com/licensin q/contracts orata successor site
"Qualifying contract," means (1) an Enterprise Enrollment under a Microsoft Enterprise Agreement; (2) any Enterprise Subscription Enrollment entered into under a Microsoft Enterprise Subscription Agreement, or a Select Agreement.
'Registered Affiliate" means an entity, either Customer or any one of Customer's Affiliates, identified on an affiliate registration form that has been accepted by Microsoft and has submitted an Order under this agreement;
"Reselled means a large account reseller authorized by Microsoft to resell Licenses in a Registered Affiliate's region under this program;
'Service Level Agreement" means the document specifying the standards Microsoft agrees to adhere to and by which it measures the level of service for an Online Service.
SelectPius20l2AgrGov(US)SLG(ENGXOcl201 2) Page 2 of 16
Document )(20-04874
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2. How the Select PIus Lfcense program works.
The Select Plus License program allows Registered Afliliates to acquire Licenses at discount pricing.
Customer and Customer's Affiliates can participate in this program if Customer or Customer's Afiiliate (1) submits an Order meeting the initial minimum order quantity, (2) maintains at least one active Qualifying Contract, or (3) has purchased the minimum order quantity during the 12 months preceding the effective date of this agreement. Notwithstanding any other provision of this agreement, only Registered Affiliates identified in a Registration Form wilt be responsible for complying with the terms of that registration, including the terms of this agreement incorporated by reference in that registration. a. How Registered Affiliates acquire Licenses. A Registered Affiliate will acquire its Licenses through its chosen Reseller. Orders will be made out to and submitted to the Registered Affiliate's Reseller. Microsoft will invoice that Reseller according to the terms in the applicable registration. The Reseller and the Registered Affiliate will delermine the Registered Affiliate's actual price and payment terms.
b. Choosing and maintaining a Reseller. Each Registered Affiliate must choose and maintain a Reseller authorized in the Registered Affiliate's region. c. Online Services. Online Services are provided as subscription services and are subject to the unique terms set forth in the Product Use Rights and the Product List.
3. How to esfabrish price level.
Establishing price levels. Each Product offering is assigned a point value on the Product List and is assigned to a Product pool. The Cuslomer's price level for a pool applies to purchases made by all Registered Afllliates under this agreemenl. Throughout the term of this agreement, the Customer's price level for each Product and its associated Pool (Applications, Systems and Servers) will be level "D." Customer does not need to acquire Products in all pools. The price Microsoft will invoice Reseller will be based on Customer's price level forthe pool ofthe Product ordercd. Throughout this agreement the term "pice" refers to reference pice.
4. License grant
-
what Registered Affiliates are licensed to run.
Registered Affiliates have the rights below once their registration is accepted by Microsoft. These rights apply to the Licenses obtained under this agreement and are not related to any order of, or fulfillment of, software media.
The ability to run current or later versions of a Product licensed under this agreement could be affected by minimum system requirements or other factors (e.9., hardware or other software). a. General. At any time after their registration has been accepted by Microsoft, a Registered Afflliate may run for its own benefit as many copies as it chooses, of any available Products it chooses, provided that it submits Orders for all copies in the month in which those copies are first run.
b. Use by Affiliates. A Registered Affiliate may sublicense the right to use the Products ordered under this agreement to any of its Affiliates, but Affiliates may not sublicense these rights and their use must be consistent with the License terms contained in this agreement.
SelectPlus20l 2A9rGov(US)SLG(ENG)(Oct201 2)
"Software Assurance' means an annuity offering that provides new version rights and other benefits for Products as described in the Product List;
"Trade Secret' means informalion that is not generally known or readily ascertainable to the public, has economic value as a result, and has been subject to reasonable steps under the circumstances to mainlain its secrecy.
'use" or "run" means to copy, install, use, access, display, run or otherwise interact.
Document )O0-04874
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c When Licenses become perpetual.
(i) License only. Registered Affiliate's right to run copies of any product for which it orders only a License is temporary until the Registered Affiliate has paid for that License in full and Microsoft has collected such payment. Thereafter, Registered Affiliate will have a perpetual License to run the number of copies ordered in the version ordered. (ii) L&SA or Software Assurance. Registered Affiliate,s right to run copies of any product for which it orders L&SA or Software Assurance is temporary until:
1) the Registered Affiliate has paid all installments of the price for such coverage and the Order or renewal term during which such product Licenses were ordered has expired or been renewed or
2) the Registered Affiliate is otherwise eligible for perpetual Licenses as provided in this agreement.
Thereafler, the Registered Affiliate will have perpetual Licenses to run the products ordered in the latest versions available as of the date of expiration, renewal, or termination (or any prior version) for the number of copies ordered or renewed. (iii)Subscription Licenses. Subscription Licenses
circumstances.
are not perpelual under any
http://www.microsoft .com/licensinq/contracts
(i) Product Use Rights for current and futuro versions of Products. The product Use Rights in effect on the effective date of the agreement will apply to all Registered Affiliates'use of then-cunent versions of each Product, regardless of the date of the Order. For future versions, the Product Use Rights in effect when those future versions are firsl released will apply. ln both cases, subsequent changes made by Microsoft to the Product Use Rights for a particular version will not appty to Registered Affiliates, use of that version.
(ii) Product Use Rights for earlier versions (downgrade). lf a Registered Affiliate runs an earlier version of a Product than the version that was current on the agreement effective SelectPlus20l2AgrGov(US)SLG(ENGXOcl201 2) Page 4 of 16
Document X20-04874
d. Perpetual Licenses through Software Assurance" Any perpetual Licenses received through software Assurance supersede and replace the underlying perpetual Licenses for which that software Assurance coverage was ordered. All perpelual Licenses acquired under this agreement remain sub.iect to the terms of this agreement and the applicable product use Rights.
e. Non-Perpetual Licenses. Some Products may be licensed on a fixed term or subscription basis. The right to use Products licensed on a subscription basis terminates upon expiration of the subscription agreement if it is not renewed.
f. License confirmation. This agreement, the applicable Ord6r, the Registered Aifiliate's Order confirmation, and any documentalion evidencing transfers of Licenses, together with proof of payment, will be the Registered Affiliate's evidence of all Licenses obtained under its Order as described in this agreement.
g' Prior version rights. A Registered Affiliate may run prior versions of any product it Licenses under this agreement. A Registered Affiliate may run different language versions of any Product it Licenses under this agreement, provided that the License, L&SA, or Software Assurance for lhal different language version is available at the same, or lower price, than the price paid for the language version ordered of the same Product and License type.
How to know what Product Use Rights apply.
a. Product Use Rights. Microsoft publishes Product Use Rights for each version of each Product. The latest version of the Product Use Rights is available at
5.
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date, the Product Use Rights for the version licensed, not the version being run, will apply. However, if the eadier version includes components that are not part of the licensed version, any Product Use Rights specific to those components will apply to the Registered Affiliate's use of those components.
b, Resewation of rights. All rights not expressly granted are reserved by Microsoft. ln lieu of Customer's obligation to indemnify Microsoft under various provisions of the Product Use Rights, Customer will be responsible for any cost or damages arising from any claim to which Customer's indemnity obligation would otherwise apply.
How to order Producf Licenses.
a. Placing Orders. Registered Affiliate may purchase Licenses and Online Services Microsoft makes available under this program by placing Orders with Registered Affiliate's authorized Reseller. The price and payment terms for all Orders will be determined by agreement between Registered Affiliate and its Reseller. When placing orders, a Registered Afflliate must specify the country or countries where the Registered Affiliate will use the Licenses. l/icrosoft may refuse to accept an Order if Microsoft has a business reason to do so. l\ilicrosoft may change the Products and subscription services available under this program. b. When is the Registered Affiliate eligible to order lust Software Assurance? A Registered Affiliate may order Software Assurance for copies of a Product, without the need to simultaneously order a new License for those copies, in each of the following circumslances:
(i) Registered Affiliate may order Software Assurance for copies of Products for which the Registered Affiliate has previously obtained perpetual Licenses through Upgrade Advantage, Software Assurance, or any similar upgrade protection, so long as the Order for Sofhl/are Assurance under this Agreement becomes effective no laler than one day following the expiration of that upgrade protection, and (2) Registered Afflliate submits an order for another term of Software Assurance for those Licenses prior to or at the expiration of the previous term.
(ii) During the term of the Agreement (including any renewal term), a Registered Afflliate may be eligible to order Software Assurance for copies of certain Producls licensed through retail sources or from an original equipment manufacturer ("OEM"), provided that the Registered Affiliate places its Order within the required time frame. The Product List at http://www.microsoft.com/licensino/contracts identifies those Products that may be enrolled in Software Assurance and the applicable time frame for placing an Order. (iii) A Registered Affiliate may also order Software Assurance in any other circumstances expressly permitted in the Product List.
(iv) A Registered Affiliate may renew Software Assurance ordered under this Agreement at the time it renews its Order as described in the section titled 'How to renew an Order." How to confirm Orders. lnformation about Orders, including an electronic conllrmation of each Order, will be provided in a password-protected site on the World Wide Web at httos://www.microsoft.com/lic ensino/servicecenter/ or a successor site that will be identified Upon Microsoft's acceplance of this agreement, Registered Affiliate's contact identified for this purpose will be provided access to this site.
d. lnvoices and payments. For any Orders for Software Assurance or L&SA, if the Registered Affiliate elects to spread its payments over three years rather lhan payment in a lump sum, it may make this election with its Reseller. ln such cases, l\4icrosoft will invoice the Registered Affiliate's Reseller in installments, the first installment upon receipt of the Order and subsequent installments on each anniversary of the Order or the Affiliate anniversary month.
Any amounts for Licenses only (i.e. without accompanying Software Assurance) will be invoiced to the Registered Affiliate's Reseller in full upon receipt of the Order.
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Making copres of Products and re-imaging rights.
a. General. The Registered Affiliate may make as many copies of the products as it needs to distribute them within its organization. copies must be true and complete (including copyright and trademark notices), from master copies obtained from a Microsoft approved futfitlm6nt source. The Registered Affiliate may use a third party to make these copies, but the Registered Affiliate agrees that it will be responsible for that third party's actions. The Registered Affiliate agrees lo use reasonable efforts to make its employees, agents and any other individuals that it allows to use the Products aware that the Products are-licensed from Microsoft and can only be transferred subject to the terms of this agreement. b. Copies for training, evaluation, and back-up. The Registered Affiliate may (1) use up to 20 complimentary copies of any Product in a dedicated training facility on iti premises, (2) use up to 10 complimentary copies of any product for a 6o-day evaluation period, and (3) use one complimentary copy of any licensed Product for back-up or archival purposes for each of its distinct geographic locations.
c. Right to "re-image." ln certain cases, re-imaging is permitted using the volume licensing program Product media. lf the Microsofl Product(s) is licensed (.1) from an original equipmenl manufacturer (OEM), (2) as fult packaged product through a retail source, or (3) under another Microsofl program, then media provided under this agreement may be generally used to create images for use in place of copies provided through that separate source. Thii right is conditional upon the following:
(i) Separate Licenses must be owned from the source for each product that is re-imaged. (ii) The Product, language, version and components of the copies made must be identical to the Product, language, version and all components of the copies they replace and the number of copies or instances of the re-imaged product permitted remains the same. (iii) Except for copies of an operating system and copies of products licensed under another Microsoft program, the Product type (e.9., upgrade or full License) must be identical to the Product type trom the separate source.
(iv) Any Product-specific requirements for re-imaging identified in the product List. (v) Re-images made under this subsection remain subject to the terms and use rights provided with the License from the separate source. This subsection does not create or extend aoy warranty or support obligation.
Transferring and reassigning Licenses.
a. License transfers. License lransfers are not permitted, except that Customer may transfer fully-paid perpetual licenses to:
Transferring Licenses to third parties. You may transfer fully-paid perpetual Licenses:
changing a Reseller. lf Microsoft or the Reseller chooses to discontinue doing business with one another, Registered Affiliate must choose a replacement Reseller. lf Registered Affiliate or Reseller intends to terminate their relationship, the iniliating party mus-t notify Microsoft and the other using a form provided by Microsoft at least 90 dayi prior to the dat; on which the change is to lake effect.
(i) if you are an agency of a state or local governmenl to: (a) any other government agency, department, instrumentality, division, unit or other office of your state or local government that is supervised by or is part of you, or which supervises you or of which you are a part, or which is under common supervision with you; (ii) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of your state and located within
Document )(20-04874
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your state's jurisdiction and geographic boundaries; and (iii) any other entity expressly authorized by the laws of your state lo purchase under state contracts, or (b) an unafflliated third party in connection with a privatization of an affiliate of agency as set forth in (a) above or of an operating division of the Enrolled Affiliate or one if its affiliates as set forth in (a) above, a reorganization, or a consolidation.
Customer must notify i4icrosoft of a transfer of license by completing a transfer notice form, which can be obtained from httD://www. m icrosoft .com/licensinq/contracts and send the completed form to l\ilicrosoft before the license transfer. No License transfer will be valid unless Customer provides to the transferee, and the transferee accepts in writing, the applicable Producl Use Rights, use restrictions, limitations of liability (including exclusions and warranty provisions), and the transfer restrictions described in this section Any license transfer not made in compliance with this section will be void. b. lnternal Reassignment of Licenses and Software Assurance. (i) For Products other than the desktop operating system uPgrade For Products other than the desktop operating system upgrade, Registered Affiliate may internally reassign Licenses to an Affiliate. However, Registered Affiliate may not reassign Licenses on a short-term basis (90 days or less), or reassign Software Assurance or olher upgrade coverage separately from the underlying License, except as provided otherwise in this agreement.
(ii) For desktop operaling systems. The Registered Affiliate may not reassign desktop operating system upgrade Licenses from one computel to another. The Registered Affiliate may internally reassign Software Assurance coverage on desktop operating systems upgrades from the original computer to a replacement computer internally, as long as (1) the replacement computer is licensed to run the latest version of that operating system, and (2) the Registered Afflliate removes any desktop operating system upgrades from the original computer.
Term and termination.
a. Term. This agreement will remain in effect unless it is terminated by either party as described below.
b. Termination without cause. Either party may terminate this agreement without cause upon 60 days written notice. Such termination will merely teminate either party's and its Registered Affiliates' ability to place Orders under lhis agreement. Such termination will not affect any Orders not otherwise terminated, and any terms of this agreement applicable to any Orders not otherwise terminated will continue in effect with respect to that Order. c. Mid-term termination for non-appropriation of Funds. Enrolled Affiliate may terminate this agreement or an Enrollment without liability, penalty or further obligation to make payments if funds to make payments under the agreement or Enrollment are not appropriated or allocated by the Enrolled Affiliate for such purpose. d. Termination for breach. Either party to an Order may terminate it if the other party materially breaches its obligations under this agreement, including any obligation to pay amounts owed. Except where the breach is by its nature not curable within 30 days, the terminating parly must give the other party 30 days' notice and opportunity to cure. lf l/icrosoft gives such notice to a Registered Affiliate, Microsofl will give Customer a copy of that notice as well and Customer agrees to assisl in attempting to resolve the problem. lf the problem also affects other Affiliate registrations and cannot be resolved between Customer and Microsoft within a reasonable period of time, Microsoft may also terminate this agreement and all other Affiliate registrations under it, unless the basis for termination of the registration is non-appropriation of funds to the registered affiliate, in which event Microsoft may only terminate the affected registration(s). lf a Registered Affiliate ceases to be an SelectPlus20l 2AgrGov(US)SLG(ENG)(Oct2012) Page 7 of 16 Document )(2G04874
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Affiliate of customer, customer must prompfly notify Microsoft of this facl, and Microsoft may terminate the divested Registered Atfiliate's registration.
Affiliate termination. lf (1)a Registered Affiliate terminates its registration as a result of a breach by Microsoft, or (2) if Microsoft terminates Registered Affiliate's registration because it has ceased to be an Affiliate of customer, or (3) Registered Affiliate terminates a registration for non-appropriation of runds, or (4) Microsofl terminates a registration for non-payrient due to non-appropriation of funds,, then the Registered Affiliate will have the following options with regard to any Orders it has under the agreement:
(i) For Licenses available on a perpetual basis, it may immediately pay the total remaining amount due, includlng all installments, in which case the Registered Affiliate wilt have perpetual Licenses for all copies of the Products it has ordered.-or (ii) lt may pay only amounts due as of the termination date, in which case the Registered Affiliate will have perpetual Licenses for:'
1) all copies of all Products for which payment has been made jn full (including the latest version of Products under Software Assurance coverage), and 2) the number of copies of Products it has ordered (including the latest version of Products under Software Assurance) for which payment has been made in installments that is proportional to the total of payments made versus total amounts due if the early termination had not occurred.
Nothing in this section shall affect perpelual License rights acquired either in a separate agreement or in a prio. term of the terminated registration.
Effect of termination. When this agreement, a registration or an Order is terminated, (i) Each affected Registered Affiliate must order Licenses for all copies of products it has run for which it has not previously submitted an Order. Except for the options provided above in the event of termination of a Registered Affiliate,s registration, any and all unpaid payments or any order of any kind, including subscription services, jmmediately become due and payable.
(ii) Registered Affiliate's right to Software Assurance benefits under this agreement ends for all Software Assurance for which payment has not been made in full. t
10. How to renew an Order.
Microsofl will provide prior notice of expiration of any Software Assurance ordered under the agreement advising Customer of its Software Assurance renewal options. Microsoft may make a change to this program that will make it necessary for Cuslomer to enter into a new agreement to renew Software Assurance.
To maintain Software Assurance coverage for any copies previously ordered under this agreement, Registered Affiliate must submit an Order for another term of Software Assurance for those Licenses prior to or on the expiration of the previous term.
Consequences of non-renewal. lf Registered Affiliate elects not to place another Order for Software Assurance and it othenr'vise allows Software Assurance for any copies of any Products licensed to lapse, then the Registered Affiliate will not be permitted to order Soflware Assurance for those copies later without first acquiring L&SA.
Renewing Software Assurance. lf Registered Affiliate is placing an Order for Software Assurance from multiple Select programs or is consolidating multiple previous Enrollments or agreements into this agreement, please complete the multiple previous Enrollment form.
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11 . Restrictions on use.
Registered Affiliate must not:
a. separate and use the components of a Product on two or more computers, upgrade or downgrade components at different times, or lransfer components separately, except as provided in the Product Use Rights;
b. reverse engineer, decompile or disassemble any Producl or Fix, except where applicable law permits it despite this limitation; or
c" distribute, sublicense, rent, lease, lend, or host any Product or Fix except as permitted by this Agreement, the Product Use Rights, or in a separate written agreement
12. Confidentiality.
To the extent permitted by applicable law, the terms and conditions of this Agreement is confidential.
Neither party will disclose such terms and conditions, or the substance of any discussions that led to them, to any third party other than Affiliates or agents, or to designated or prospective resellers who: (1) have a need to know such information in order to assist in carrying out this agreement; and (2) have been instructed that all such information is to be handled in strict confidence.
For the avoidance doubt, the parties acknowledge that this Confidentiality provision recognizes that when there is a business need to do so, Microsoft and Customer may need to share/exchange their respective Confidential lnformation with each other to develop a more meaningful business relationship. This section provides i,,1icrosoft and Customer with a well-balanced, commercially reasonable and comprehensive sel of confldentiality terms that enable both parties to share/exchange a wide range of Confidential lnformation with each other knowing with confidence that significant confidentiality protections are in place. The confidentiality terms denoted below do not govern Microsoft's handling of Customer Data. ln all instances under this Agreement, Microsoft's handling of Customer Data shall be governed as described under various olher provisions of this Agreement and by Microsoft's data security policy. a. what is included. "Confidential lnformation' is non-public information, know-how and Trade Secrets in any form that are designated as "confidential" or a reasonable person knows or reasonably should understand to be confidential. lt includes non-public information regarding either party's products or customers, marketing and promotions, or the negotiated terms of Microsoft agreements.
b. What is not included. The following types of information, however marked, are not Confldential lnformation. lnformation that:
(i) is, or becomes, publicly available without a breach of this agreement; (ii) was lalvfully known to the receiver of the information wilhout an obligation to keep it confidential;
(iii) is received from another source who can disclose it lawfully and without an obligation to keep it confidential;
(iv) is independently developed; or
(v) is a comment or suggestion one party volunteers about the other's business, products or services.
c. Treatment of Confidential lnformation.
(i) ln general. Subject to the other terms of this agreement, each party agrees:
1) it will not disclose the other's Confidential lnformation to third parties; and 2) it will use and disclose the other's Confidential lnformation only for purposes of the parties' business relationship with each other.
Selec1Plus201 2AgrGov(US)SLG(ENGXOct201 2) Page I of 16 Document X20-04874
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(ii) Security precautions. Subiect to the other terms of this agreement, each party agrees:
1) to take reasonable steps to protect the other's Confidential lnformation - these steps must be at least as protective as lhose the party takes to protect its own Confldential lnformation:
2) to notify the other promptly upon discovery of any unaulhorized use or disclosure of Confldential lnformation; and
3) to cooperate with the other to help regain control of the Confidential lnformation and prevent further unauthorized use or disclosure of it.
(iii) Sharing Confidential lnformation with Affiliates and reprosentatives. 1l A "Representative' is an employee, contractor, advisor, or consultant of one of the parties or of one of the parties' Affiliates.
2) Each party may disclose the other's confidential information to its Representatives (who may then disclose that Confidential lnformation to other of that party,s Representatives) only if those Representatives have a need to know about it for purposes of the parlies' business relationship with each other. Before doing so, each party must:
A- ensure that Affiliates and Representatives are required to protect the Confidentiat lnformation on terms consistent with this agreement; and B. accept responsibility for each Representative's use of Confidential lnformation. 3) Neither party is required to restrict work assignments of Representatives who have had access to Confidenlial lnformation. Neither party can control the incoming information the other will disclose to it in the course of working together, or what that party's Representatives will remember, even without notes or other aids. Each party agrees that use of information in Representatives' unaided memories in the development or deployment of the parties' respective products or services does not create liability under this agreement or trade secret law, and each party agrees to limit what it discloses to the other accordingly.
(iv) Disclosing Confidential lnformation if required to by law. Each party may disclose the other's Confidential lnformation if required to comply with a court order or other government demand that has the force of law. Before doing so, each party must seek the highest level of protection available and, when possible, give the other enough prior notice to provide a reasonable chance to seek a proteciive order. d. Length of Confidsntial lnformation obligations. Except as permitted above, neither party will use or disclose the other's Confidential lnformation for five years after it is received. The five-year time period does not apply if applicable law requires a longer period or the product Use Rights provide a more specific requirement.
13. Warranties.
a. Limited warranty. Microsoft warrants that:
(i) Online Services will perform in accordance with the applicable Service Level Agreement; (ii) Products other than Online Services will perform substantially as described in the applicable Microsoft user documentation; and
b. Limited warranty tsrm. The limited warranty for:
(i) Online Services is tor the duration of Cuslomer's use of the Online Service, subject to the notice requirements in the applicable Service Level Agreement; SelectPlus20l 2AgrGov(US)SLG(ENGXOcU0I 2) Page 10 of 16 Document )(20-04874
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(ii) Products other than Online Services is one year from the date Customer first uses the Product; and
c. Limited warranty exclusions. This limited warranty is subject to the following limitations:
(i) any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law last for one year from the start of the limited warranty; (ii) the limited warranty does not cover problems caused by accident, abuse or use in a manner inconsistent with this agreement or the Product Use Rights, or resulting from events beyond Microsoft's reasonable control;
(iii) the limited warranty does not apply to components of Products that Customer is permitted to redistribute;
(iv) the limited warranty does not apply to free, trial, pre-release, or beta products; and (v) the limited warranty does not apply to problems caused by the failure to meet minimum system requirements.
d. Remedies for breach of limited waranty. lf Microsoft fails to meet any of the above limited warranties and Customer notifies lvlicrosoft within the warranty term, then Microsoft will:
(i) for Online Services, provide the remedies identified in the Service Level Agreement for the affected Online Service;
(ii) for Products other than Online Services, at its option either (1) return the price paid or (2) repair or replace the Product; and
These are Customer's only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law. e. DISCLAIMER OF OTHER WARRANTIES. OTHER THAN THIS LIMITED WARRANW,
MICROSOFT PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDTTIONS. MICROSOFT DISCLAIMS ANY IMPLIED REPRESENTATIONS,
WARRANTIES, OR GONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, OR NONINFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS APPLICABLE LAW DOES NOT PERMIT THEM.
Defense of infringement, misappropriation, and third parly claims. a. Microsoft's agreement to protect. Microsoft will defend Enrolled Affiliate against any claims made by an unaffiliated third party that any Product or Fix that is made available by Microsoft for a fee infringes that party's patent, copyright, or trademark or makes unlawful use of its Trade Secret. Microsoft will also pay lhe amount of any resulting adverse final judgment (or settlement to which Microsoft consents). This section provides Enrolled Affiliate's exclusive remedy for these claims.
b. Limitations on defense obligation. Microsoft's obligations will not apply to the extent that the claim or award is based on:
(i) Customer Data, non-i/icrosoft software, modifications Enrolled Affiliate makes to, or any specifications or materials Enrolled Afliliate provides or makes available for, a Product or Fix.:
(ii) Enrolled Affiliate's combination of the Product or Fix with a non-[ricrosoft product, data or business process; or damages based on the use of a non-Microsoft product, data or business process; ;
(iii) Enrolled Affiliate's use of either Microsoft Trademarks or the use or redistribution of a Product or Fix in violation of this agreement or any agreement incorporating its terms or; SelectPlus20l2AgrGov(US)SLG(ENGXOct2012) Page 11 of 16
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(iv) Enrolled Atfiliate's use of a Product or Fix after Microsoft identifies Enrolled Affiliate to discontinue that use due to a third party claim.
To the extent permitted by applicable law, Enrolled Affiliate will be responsible Microsoft for any costs or damages that result from any of the above actions.
Enrolled Affiliate's agreement to protect. To the exlent permitted by applicable law, Enrolled Affiliate will defend Microsoft and its Affiliates againsl any claims made by an unaffiliated third party that:
(i) any Customer Dala or non-Microsoft software Microsoft hosts on Customer's behalf infringes the third party's patent, copyright, or trademark or makes unlawful use of its Trade Secret;or
(ii) Arises from violation of the Acceptable use policy, which is described in the product use Rights.
Customer will be responsible for the amount of any resulting adverse final judgment (or settlement to which it consents). This section provides Microsoft's exclusivl remeoy ior these claims.
Rights and remediss in case of possible infringoment or misappropriation. (i) Microsoft's offerings. lf Microsoft reasonably believes that a product or Fix may infringe or misappropriate a third-party's intellectual property rights, Microsoft will seek to: (.1) procure for Enrolled Affiliate the right to continue to use the product or Fix; or (2) modify or replace it with a functional equivalent to make it non-infringing and notify Enrolled Afiiliate to discontinue use of the prior version, which Enrolled Affiliate must do immediately. lf the toregoing options are not commercially reasonable for Microsoft, or if required by a valid judicial or government order, Microsoft may terminate Enrolled Affiliate's license or access rights in the Product or Fix. ln such a case, Microsoft will provide Enrolled Afiiliate with notice and refund any amounts Enrolled Affiliate has paid for those rights to the Product or Fix (or for online services, any amount Enrolled Affiliate has paid in advance for unused Online Services).
(ii) Customer Data or use of non-Microsoft software with Online Services. lf an unaffiliated third party asserts that Customer Data or non-Microsoft software or technology used by Enrolled Affiliate the online services violates their intellectual property rights, Microsoft may ask Customer to remove the allegedty infringing item. lf Enrolled Affiliate fails to do so within a reasonable period of time, Microsoft may suspend or terminate the Online Service to which the Customer Data or non-Microsoft software relates.
Obligations of protected party. Enrolled Affiliate must notify Microsoft prompfly in writing of a claim subject to the Subsection titled 'Microsoft's agreement to protecl" and Microsoft must notify Enrolled Affiliate promptly in writing of a claim subject to the subsection tifled 'Customer's agreement to protect." The party invoking its right to protection must (1 ) give the other party sole control over the defense or setflement; and (2) provide reaionable assistance in defending the claim. The party providing the protection will reimburse the other party for reasonable out of pocket expenses that it incurs in providing assistance. d
e
15. Limitation of liability.
a. Limitation on liability. To the extent permitted by applicable law, the tiability of each party, its Affiliates, and its Contractors arising under this agreement is limited to direct damages up to (1)for Products other than Online Services, the amount Customer paid for the Product giving rise to that liability and (2) for Online Services, the amount Customer was required to pay for the Online Service giving rise to that liability during the prior 12 months. ln the case of Products provided free of charge, or code that Customer is authorized to redistribute to third parties without separate payment to Microsoft, Microsoft's liability is limited to U.S.
SelectPlus20l2AgrGov(US)SLG(ENG)(Oct2012) Page 12 of 16 Document X20-04874
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$5,ooo. These limitations apply regardtess of whether the liability is based on breach of contract, tort (inctuding negligence), strict liability, breach of warranties, or any other legal theory. However, these monetary limitations will not apply to:
(i) Microsoft's and Customer's obligations under the section titled 'Defense of infringement, misappropriation, and third party claims";
(ii) liability for damages caused by either party's gross negligence or willful misconduct' or that of its employees or its agents, and awarded by a court of final adiudication (provided that, in jurisdictions that do not recognize a legal distinction between "gross negligence' and "negligence," "gross negligence" as used in this subsection shall mean "recklessness");
(iii) liabilities arising out of any breach by either party of its obligations under the seclion entitled "Confidentiality", except that Microsoft's liability arising out of or in relation to customer Data shall in all cases be limited to the amount Customer paid for the Online Service giving rise to that liability during the prior 12 months, (iv) liability for personal in.iury or death caused by either party's negligence, or that of its employees or agents, or for fraudulent misrepresentation; and (v) violation by either party of the other party's intellectual property rights. b. EXCLUSION OF CERTAIN DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS AFFILIATES, OR CONTRACTORS, wlLL BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST
PROFITS, REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS
INFORMATION ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO
EITHER PARTY'S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALIry OBLIGATIONS (EXCEPT TO THE EXTENT THAT SUCH VIOLATION RELATES TO CUSTOMER DATA}, THE OTHER PARry'S INTELLECTUAL PROPERTY
RIGHTS, OR THE PARTIES' RESPECTIVE OBLIGATIONS IN THE SECTION TITLED "DEFENSE OF INFRINGEMENT, MISAPPROPRIATION, AND THIRD PARTY CLAIMS." c. Affiliates and Contractors. Neither Microsoft nor Customer shall bring any action against the other's Afflliates or Contractors in respect of any matter disclaimed on their behalf in this agreement. Each party will indemnify the other in the event of any breach of this provision.
16. Verifying compliance.
a. Right to verify compliance. Customer must keep records relating to the Products it and its Afflliates use or distribute. Microsoft has the right, to the extent permitted by applicable law, to verify compliance with the license terms for the Products, at Microsoft's expense. b. Verification process and limitations. Microsoft will provide customer at least 30 days' notice of its intent to verify compliance. Microsoft will engage an independent auditor, which will be subject to a confidentiality obligation. Verification will take place during normal business hours and in a manner that does not interfere unreasonably with Customer's operations. Customer must promptly provide the independent auditor with any information it reasonably requests in furtherance of the verification, including access to systems running the Products and evidence of licenses for Products Customer hosts, sublicenses, or distributes to third parties. As an altemative, Microsoft may require Customer to complete Microsoft's self-audit process relating to the Products Customer and any of its Atfiliates use or distribute. Such information will be used solely for purposes of delermining compliance. c. Remedies for non-compliance. lf verification or self-audit reveals any unlicensed use, Customer must within 30 days order sufficient licenses lo cover its use. lf there is no SelectPlus20l 2AgrGov(US)SLG(ENGXOct201 2) Page 13 of 16 Document X2G04874
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unlicensed use, Microsoft will not undertake another verification of the same customer for at least one year. By exercising the rlghts and procedures described above. Microsoft does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.
17. Non-Microsoft Software or Technology.
a. Registered Affiliate is solely responsible for any non-Microsoft software or technology that it installs or uses with the Products or Fixes. Microsoft is not a party to and is not bound by any terms governing Enrolls use of non-Microsoft software or technology. Without limiting the foregoing, non-Microsoft software or scripts linked to or referenced from any Product we6site, are licensed to Registered Afflliate under the open source licenses used by the third parties that own such code, not by Microsoft.
b. lf Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fixes, it directs and controls the installation in and use of such ioftware or technology in the Products or Fixes, through its actions (e.g., through Registered Affiliate's use of application programming interfaces and other technical means that are part of the Online Services). Microsoft will not run or make any copies of such non-Microsoft software or technology outside of its relationship with Registered Affiliate. c. lf Registered Affiliate installs or uses any non-Microsoft software or technology with the Products or Fix, it may not do so in any way that would subject Microsoft's-intellectual property or technology to obligations beyond those included in the agreement.
18. Miscellaneous.
a. Notices to Microsoft. Notices, authorizations, and requests in connection with this agreement must be sent by regular or overnight mail, express courier, or fax to the addresses and numbers listed in this agreement. Notices will be treated as delivered on the date shown on the return recei or on the courier or fax confirmation of delivery b. Assignment. Either party may assign this agreement to an Affiliate only. Assignment will not relieve the assigning party of its obligations under the assigned agreement. lf either party assigns this agreement, il must notify the other party of the assignment in writing. c. Subcontractors. Microsoft may use contractors to perform Services and support Online Services. Microsoft will be responsible for their performance subject to the terms of this agreement.
d. Severability. lf a court holds any provision of this agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this agreement will be amended to give effect to the eliminated provision to the maximum extent possible. e. Waiver. A waiver of any breach of this agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
SelectPlus20l2AgrGov(US)SLG(ENG)(Oct201 2) Page 14 of 16 Document X20-04874
Copies should be sent to:
Microsoft Corporation
Legal and Corporate Affairs
Volume Licensing Group
One Microsoft Way
Redmond, WA 98052
USA
Via Facsimile:(425) 936-7329
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f. Applicable law; dispute resolution. The terms of this agreement will be govemed by the laws of Registered Affiliate's state, without giving effect to its conflict of laws. Disputes relating to lhis agreement will be subject to applicable dispute resolution laws of Registered Affiliate s state.
g. This agreement is not exclusive. Customer is free to enter into agreements to license, use or promole non-Microsoft software.
h. Entire agreement. This agreement, the Product List, all registrations under this agreement, and the Product Use Rights constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications. ln the case of a conflict between any of these documents that is not resolved expressly in the documents, their terms will control in the following order: (1) these terms and conditions and the accompanying signature form; (2) the Product List; (3) the Product Use Rights; (4) all registrations under this agreement; and (5) all Orders submitted under this agreement. The terms of any purchase order or any general terms and conditions Customer maintains do not apply. i. Survival. Provisions regarding ownership and License rights, fees, Product use rights, restrictions on use, evidence of perpetual Licenses, transfer of Licenses, warranties, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, open source license reslrictions, obligations on termination or expiration and the other provisions in this section entitled "Miscellaneous' will survive termination or expiration of this agreement and of any agreement in which lhey are incorporated. j. No transfer of ownership. lvlicrosoft does not transfer any ownership rights in any licensed Product. Microsoft reserves all rights not specifically granted. The Products are protected by copyright and other intellectual property rights laws and intemational treaties. k. Free Products, lt is Microsoft's intent that the terms of this agreement and the Product Use Rights be in compliance with all applicable federal law and regulations. Any free Product provided to Registered Affiliate is for the sole use and benefit of the Registered Affiliate, and is not provided for use by or personal benefit of any specific Aovernment employee. l. Amending the agreement. This agreement (except the Product List and the Product Use Rights) can be changed only by an amendment signed by both parties. m. Resellers and other third parties cannot bind Microsoft. Resellers and other third parties do not have authority to bind or impose any obligation or liability on Microsoft. n. Privacy and Security. l\ricrosoft and Enrolled Affiliate will each comply with all applicable privacy and data protection laws and regulations (including applicable security breach notification law). However, Microsoft is not responsible for compliance with any laws applicable to Enrolled Affiliate or Enrolled Affiliate's industry that are not also generally applicable to information technology services providers. Enrolled Afflliate consents to the processing of personal information by Microsoft and its agents to facilitate the subject matter of this agreement. Enrolled Afliliate may choose to provide personal information to Microsoft on behalf of third parties (including Enrolled Affiliate's contacts, resellers, distributors, administrators, and employees) as part of this agreement. Enrolled Affiliate will obtain all required consents from third parties under applicable privacy and data protection law before providing personal information to Microsoft.
The personal information Enrolled Afflliate provides in connection with this agreement will be processed according to the privacy statement available at httos:i/www.microsoft.com/licensino/servicecenter (see footer), except that Productspecific privacy statements are in the Product use rights. Personal data collected through Products or Services may be transferred, stored and processed in the United States or any other country in which lvlicrosoft or its service providers maintain facilities. By using the Products or Services, Customer consents to the foregoing. Microsofl abides by the EU Safe Harbor and the Swiss Safe Harbor frameworks as set forth by the U.S. Department of Commerce SelectPlus20l 2AgrGov(US)SLG(ENG)(Oct201 2) Page '15 of 16 Document )€0-04874
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regarding the collection, use, and relention of data from the European union, the European Economic Area, and Switzerland.
For online services, additional privacy and security details are in the product use rights.
Natural disasters. ln the event of a "nalural disaster', Microsoft may provide additional assistance or rights by posting on htto://www.m jcrosoft.com at such time. copyright violation' Except as set forth in section above entifled "Transferring and reassigning Licenses', the Registered Affiliate agrees to pay for, and comply with the teims of this agreement and the Product use Rights, for the products it uses. Extept to the extent Registered Affiliate is licensed under this agreement, it will be responsible for its breach of this contract and violation of Microsoft's copyright in the producis, incruding payment of License fees specified in this agreement for unlicensed use. u.s. export jurisdiction. Products and Fixes are subject to u.s. export jurisdiction. customer will comply with all u.s. Export Administration Regulations and lnternational rraffic in Arms Regulation requiremenls as well as all end-user, end-use, and destination restrictions issued by the U.s. and other governments applicable to this agreement. For additional information, see htto://www.microsoft .com/exoortino
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MSE#:
Micrdsoft Licensing, GP Document Summary Form
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Master Agreement Numben 7756479
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For the purposes of this form, "custome/ can mean the signing entity, Enrolled Affiliate, Govemment Partner, lnstifution, or other party entering into a volume licinsi-ng program agreement.
This signature form and all contract documents identified in the table below are entered into between the customer and the Microsoft Affiriate signing, a6 or the effective date identified berow.
By aigning below, cusbmer and the Microsoft Affitiate agree that both parues (1) have receiv€d, read and understand'the above confact docu.ments, .
including any websitei or aiiuments in"orplrii"a ov reference and any amendments and (2) agree to b6 bound by ttre terms ol all such documentsl * indicates required field BY
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lf Customer requires physical media, additional contacts, or is reporting muftiple previous Enrollments' include the appropriate form(s) wilh this slgnalure brm.
After this signature form is signed by the customer, send R and.the contract Documents to customefs chJnnet painer or Microsoft iccouni manager, who must submit lhem to the following address. When tn" "ig;jtri" torrn is futty executed by Microaoft, Customer will receive a confirmation copy.
Mlcrosolt Llcen si ng, G P
Dept. 551, Volume Licensing
6100 Neil Road, Suite 210
Reno, Nevada 89511- 1137
USA
ProsramslEnForm(MSsignXNA,LatAm)ExBRA,MLI(ENGXOd20l 2) Page 2 d 3 Signaturo* .
Prlnted First and Last Namo'
Printed Tltle' ....-.
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Name of Entlty (must b6 legal entlty namel'
Customer
Name oI Entlty (mu6t bo legal entity name)'
Signature'
PdnGd ElFt and Last Name'
Printed Tftle'
Signature Date'
Outsourcer
I'Vl icrosoft Aff i I iate
Optlonal 2nd Gustomer algnaturc or outsourcer algnature (lf applicable)
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Prepared By: Name of Preparer
Email of Preparer
ProgramSignForm(MSSign)(ilA,tatAm)ESRA.MLI(ENGX@01 2) Page 3 of 3
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Nov 12 2024
Department: Public Works
Submitted by: Mark Prestwich, City Manager
Noah Rau, Public Works Director/City Engineer;
☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, accepting Public Improvements associated with Tract 33824-2 and Authorizing the City Engineer to Reduce the Faithful Performance and Material and Labor Bonds to 25% for these Public Improvements and Subsequently Release the Bonds in Accordance with the Provisions of the Subdivision Improvement Agreement (Generally Located East of State St, South of McSweeny Pkwy)
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, accepting Public Improvements associated with Tract 33824-2 and Authorizing the City Engineer to Reduce the Faithful Performance and Material and Labor Bonds to 25% for these Public Improvements and Subsequently Release the Bonds in Accordance with the Provisions of the Subdivision Improvement Agreement (Generally Located East of State St, South of McSweeny Pkwy).
BACKGROUND:
At a regularly scheduled City Council meeting held on January 24, 2023, the City Council approved a Subdivision Improvement Agreement (SIA) between KB Home Coastal Inc. (Developer) and the City of Hemet for Tract 33824-2 and accepted Bonds, which were provided by the developer for security.
The current SIA was established between the Developer and the City of Hemet upon the replacement of a previous subdivision improvement agreement established between McSweeny Recovery Acquisition, LLC., and the City of Hemet. The current agreement between the Developer and the City of Hemet was recorded on January 27th, 2023. The SIA obligates the Developer to complete the required public improvements which are detailed in said agreement.
Bond number 30152645 in the amount of $1,847,500 was provided for faithful performance and labor and materials for Tract 33824-2 per the new subdivision improvement agreement between the Developer and the City of Hemet.
ANALYSIS:
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The Developer is required to construct, or cause to be constructed, improvements that were identified in the subdivision improvement agreement. These included street improvements, storm drain improvements, street light improvements, and sewer and water improvements.
The Engineering Division has determined that the work has been completed to the extent that the improvements can be accepted, and the bond amount can be reduced to 25% of the initial amount.
Therefore, the new bond amount will be $461,875. Certified record drawings have been provided for the public improvements as required by Section 11.3 of the Subdivision Improvement Agreement.
DISCUSSION:
The Public Works Engineering Division performed inspections and prepared a punch list. The Engineering Division has also reviewed certified record drawings for the public improvements associated with the tract. The developer has completed the punch list work allowing the City Engineer to recommend that the public improvements be accepted, the bonds be reduced to 25% of their initial amounts, and the one-year warranty period be commenced in accordance with Section 12 of the SIA.
The developer has also provided all monumentation documents that have been verified, plan checked, and approved by the Public Works Engineering Division.
PREVIOUS COUNCIL ACTION:
The City Council approved a subdivision improvement agreement with McSweeny Recovery Acquisition, LLC on September 28, 2016.
The City Council approved the subdivision improvement agreement with KB Homes Coastal Inc. on January 24, 2023.
STRATEGIC PLAN INTEGRATION:
GOAL ONE: QUALITY OF LIFE:
To ensure that Hemet is safe, clean, attractive and comfortable for all who live, work, and visit.
Objective 1: Enhance the visual appearance of the community to make it attractive and reduce blight.
Objective 2: Explore and implement homelessness solutions for the City of Hemet.
Objective 3: Increase Public Safety visibility and response.
FISCAL IMPACT:
There are no impacts to the General Fund with this City Council action.
ALTERNATIVE(S):
1. Do not accept improvements and approve the reduction of the labor and materials bond to 25% of the initial amount.
2. Provide alternative direction to the City Manager
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ATTACHMENT(S):
Attachment 1 - Resolution Accepting Improvements and Authorizing Bond Reductions and Subsequent Release
Attachment 2 - SIA Tract 33824-2_KB Home Coastal, INC._1_30_2023 Attachment 3 - Final COAs_ SDR 20-009_KB Homes at McSweeny Farms
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
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CITY OF HEMET
HEMET, CALIFORNIA
RESOLUTION NO. 2024-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HEMET, CALIFORNIA, ACCEPTING PUBLIC
IMPROVEMENTS ASSOCIATED WITH TRACT 33824-2
AND AUTHORIZING THE CITY ENGINEER TO REDUCE
THE FAITHFUL PERFORMANCE AND MATERIAL AND
LABOR BONDS TO 25% FOR THESE PUBLIC
IMPROVEMENTS AND SUBSEQUENTLY RELEASE THE
BONDS IN ACCORDANCE WITH THE PROVISIONS OF
THE SUBDIVISION IMPROVEMENT AGREEMENT
(GENERALLY LOCATED EAST OF STATE ST, SOUTH
OF MCSWEENY PKWY)
The City Council of the City of Hemet, California (hereafter referred to as the “City Council”) does resolve as follows:
WHEREAS, the City of Hemet has previously approved Tract Map No. 33824- 2 on September 28, 2016, along with proper and sufficient security provided by McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company; and WHEREAS, these subdivision improvement agreements (SIA) obligated the developer to complete public improvements and bonds be provided by the developer for security; and
WHEREAS, Tract 33824- 2 was later acquired by KB Homes Coastal Inc. and the SIA with McSweeny Recovery Acquisition, LLC was replaced with a SIA between KB Homes Coastal Inc. and the City as approved by the City Council on January 24, 2023; and
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CITY OF HEMET RESOLUTION NO. 2024-XXX 2
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WHEREAS, as part of said new SIA, KB Home Coastal Inc. was required to construct the incomplete public improvements from the original developer and provided the City with Bond No. 30152645 for faithful performance and labor and materials security in the amount of $1,847,500; and
WHEREAS, KB Homes Coastal Inc. has completed the punch list work provided by the Public Works Inspector allowing the City Engineer to recommend that the public improvements be accepted, the bond be reduced to 25% of their initial amounts, and the one-year warranty period be commenced in accordance with Section 12 of the SIA.; and
WHEREAS, the City Engineer recommends that the City Council accept the public improvement associated with Tract 33824-2; and
WHEREAS, The Developer will be required to filed a Notice of Completion with the Riverside County Recorder's office upon City Council acceptance of the public improvements to signify the completion of public improvements and to transfer ownership of the improvements to the City; and
WHEREAS, The SIA allows the City Engineer to release of the Labor & Material Bonds after six months from the date that the City accepts the public improvements provided no stop notice claims have been received; and
WHEREAS, the Performance Bond may be fully released after the one-year warranty period has expired in accordance with Section 13 of the SIA; and
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HEMET FINDS, DETERMINES, ORDERS AND RESOLVES AS FOLLOWS:
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CITY OF HEMET RESOLUTION NO. 2024-XXX 3
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SECTION 1. FINDINGS - The recitals set forth above are hereby adopted as findings in support of this Resolution.
SECTION 2. ACCEPTANCE - The public improvements associated with Tract 33824-2 are accepted by the City and the one-year warranty period herby commences.
SECTION 3. AUTHORIZATION - The City Engineer is authorized to immediately reduce the Bond associated with public improvements for Tract 33824-2 to 25% of the original amount.
SECTION 4. RELEASE - The City Engineer is authorized to subsequently release the Bonds in accordance with the terms of the SIAs after expiration of the warranty period.
SECTION 5. EFFECTIVE DATE - This Resolution shall become effective upon adoption.
PASSED, APPROVED AND ADOPTED this 12th day of November, 2024. ____________________________
Joe Males, Mayor
ATTEST:
_____________________________
John Paul Maier, City Clerk
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CITY OF HEMET RESOLUTION NO. 2024-XXX 4
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State of California )
County of Riverside )
City of Hemet )
I, John Paul Maier, City Clerk of the City of Hemet, do hereby certify that the foregoing resolution was adopted by the Hemet City Council on the 12th day of November, 2024, and was passed by the following vote:
AYES: Council Members:
NOES: Council Members:
ABSTAIN: Council Members:
ABSENT: Council Members:
_____________________________
John Paul Maier, City Clerk
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RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Document exempt from recording fees
pursuant to Cal. Gov. Code § 27383)
CITY OF HEMET
Attn: City Manager
445 East Florida Avenue
Hemet, California 92543
RIV # 4830- 8901- 9593 v1
2023- 0025577
01/ 27/ 2023 03: 19 PM Fee: $ 0. 00
Recorded in official Records
County of Riverside
Peter Aldana
Assessor - County Clerk -Recorder i
IIIk1nI I
iI
THIS SPACE FOR RECORDER' S USE ONLY
SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33824- 2
By and Between
THE CITY OF HEMET,
a municipal corporation
and
KB HOME COASTAL INC.,
a California corporation
DATED January 24, 2023
P
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SUBDIVISION IMPROVEMENT AGREEMENT
FINAL TRACT MAP 33824- 2
This Subdivision Improvement Agreement (" Agreement") is entered into as of this 24th day of January, 2023 (" Effective Date") by and between the City of Hemet, a municipal corporation (" City") and KB HOME Coastal Inc., a California corporation (" Builder"). City and Builder are sometimes hereinafter individually referred to as " Party" and hereinafter collectively referred to as the " Parties."
RECITALS
A. City of Hemet has previously approved Tract Map No. 33824- 2 on September 28, 2016, along with proper and sufficient security.
B. McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company, Developer") has not completed all of the work or made all ofthe Public Improvements required by the Subdivision Map Act ( Government Code sections 66410 et seq.), (" Map Act") the City Ordinances, the conditions of approval for Tract No. 33824-2, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
C. Builder has acquired the land known as Tract Map 33824- 2 from Developer.
D. The City desires to enter into this Agreement amending and superseding the Subdivision Improvement Agreement by and between the City of Hemet, a municipal corporation and Developer, also known as Riverside County Recorder Office Document No. 2016- 0436391 Original Subdivision Improvement Agreement").
E. Builder has not completed all ofthe work or made all of the Public Improvements required by the Subdivision Map Act ( Government Code sections 66410 et seq.), (" Map Act") the City Ordinances, the conditions of approval for Tract No. 33824- 2, or other ordinances, resolutions, or policies of City requiring construction of improvements in conjunction with the subdivision of land.
F. Pursuant to City Ordinances and the applicable provisions of the Map Act, Builder and City enter into this Agreement for the timely construction and completion of the Public Improvements and the furnishing of the security therefor, acceptable to the City Engineer and City Attorney, for Tract Map No. 33824- 2.
G. City has authority to enter into this Subdivision Improvement Agreement pursuant to Government Code Sections 66499 — 66499. 10.
H. Pursuant to Government Code Section 66499, Builder' s execution of this Agreement and the provision of the security are made in consideration of City' s approval of the final map for Tract Map No. 33824- 2.
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DEFINED TERMS
Builder" shall mean KB HOME Coastal Inc., a California corporation. The term " Builder" shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Builder under this Agreement, and any successor -in -interest to Builder having a legal and/ or equitable interest in the Property.
Developer" shall mean McSweeny Recovery Acquisition, LLC, a Delaware Limited Liability Company. The term " Developer" shall also include all assignees, to the extent permitted under this Agreement, of the rights and obligations of Developer under this Agreement, and any successor -in -interest to Developer having a legal and/ or equitable interest in the Property.
Estimated Costs" shall mean the City Engineer' s approximation of the actual cost to construct the Public Improvements, including the replacement cost for all landscaping.
Litigation Expenses" shall mean all costs and expenses, to the extent reasonable in amount, actually and necessarily incurred by a party in good faith in the prosecution of an action or proceeding, including, but not limited to, court costs, filing, recording, and service fees, copying costs, exhibit production costs, special media rental costs, attorneys' fees, fees for investigators, witness fees ( both lay and expert), travel expenses, deposition and transcript costs and any other cost or expense, the award of which a court of competent jurisdiction may determine to be just and reasonable.
Map Act" shall mean the Subdivision Map Act, Government Code Sections 66410 et seq.
Property" shall mean all of the real property contained within the boundaries of Tract Map No. 33824- 2 located in the City of Hemet, California, as is more particularly described in the legal description and parcel diagram attached hereto and incorporated hereby by reference at Attachment " A".
Public Improvements" shall include, but not be limited to, recertification of rough graded pads, finish grade, repair existing streets, curbs and gutters, sidewalks, water systems, sanitary sewers, utilities, and drainage facilities ( if any), landscaping, street lights and all other facilities required to be constructed and dedicated to the City or other public entity as conditions of approval of Tentative Tract Map No. 33824- 2 and as shown in detail on the plans, and specifications which have been approved by the City and incorporated into Tract Map No. 33824- 2. The Parties agree that the Public Improvements to be completed by Builder are more specifically described in the diagram or plan attached hereto and incorporated herein by reference as Attachment " B.
Notwithstanding, Attachment " B", Builder shall remain obligated to construct and complete all of the Public Improvements required as conditions of approval for Tract Map No. 33824- 2, a full copy of which is on file with and may be obtained from the Engineering Department of the City of Hemet.
Required Insurance" shall mean the insurance required to be maintained by Builder under Section 18.
Security" shall mean surety bonds in the amounts and under the terms of Section 13 or other security approved by City Engineer or City Attorney.
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Tract No 33824- 2." shall mean the final map prepared and approved by the City for tentative tract map no. 33824- 2.
Warranty" shall mean the one year period following completion of the Public Improvements by Builder and the acceptance of the Public Improvements by the City in which Builder warrants and guarantees all Public Improvements.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. SUPERSESSION. This Agreement supersedes and replaces the Original Subdivision Improvement Agreement in its entirety. Upon execution of this Agreement by the Builder, the Original Subdivision Improvement Agreement shall be of no further force and effect unless reinstated.
2. EFFECTIVENESS. This Agreement shall not be effective unless and until all four (4) of the following conditions are satisfied in the order provided:
2. 1 Securi . Builder provides City with the Security of the type and in the amounts required by this Agreement;
2. 2 Final Map and Agreement Approval. The City Council of the City of Hemet (" City Council") previously approved the final map for Tract Map No. 33824- 2 and now approves this Agreement;
2. 3 Record Agreement. Builder and City execute the Agreement and City records this Agreement in the Recorder' s Office of the County of Riverside; and If the above described conditions are not satisfied in the order, manner and within the time provided under this Agreement, this Agreement shall automatically terminate without need of further action by either City or Builder.
3. PUBLIC IMPROVEMENTS. Builder shall construct or have constructed at its own cost, expense, and liability the Public Improvements, as defined herein, within the time and in the manner required under this Agreement. Construction of the Public Improvements shall include any transitions and/ or other incidental work deemed necessary for drainage or public safety. The Builder shall be responsible for the replacement, relocation, or removal of any component of any irrigation water or sewer system in conflict with the construction or installation of the Public Improvements. Such replacement, relocation, or removal shall be performed to the complete satisfaction of the City Engineer and the owner of such water or sewer system. Builder further promises and agrees to provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary or required by City to fully and adequately complete the Public Improvements.
3. 1 Prior Partial Construction of Public Improvements. Where construction of any Public Improvements has been partially completed prior to this Agreement, Builder agrees RIV #4830- 8901- 9593 v1 - 3 -
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to complete such Public Improvements or assure their completion in accordance with this Agreement.
3. 2 Permits; Notices; Utility Statements. Prior to commencing any work, Builder shall, at its sole cost, expense, and liability, obtain all necessary permits and approvals and give all necessary and incidental notices required for the lawful construction of the Public Improvements and performance of Builder' s obligations under this Agreement. Builder shall conduct the work in full compliance with the regulations, rules, and other requirements contained in any permit or approval issued to Builder. Prior to commencing any work, Builder shall file a written statement with the City Clerk and the City Engineer, signed by Builder and each utility which will provide utility service to the Property, attesting that Builder has made all deposits legally required by the utility for the extension and provision of utility service to the Property.
3. 3 Pre -approval of Plans and Specifications. Builder is prohibited from commencing work on any Public Improvement until all plans and specifications for such Public Improvement have been submitted to and approved by the City Engineer, or his or her designee.
Approval by the City Engineer shall not relieve Builder from ensuring that all Public Improvements conform with all other requirements and standards set forth in this Agreement.
3. 4 Ouality of Work; Compliance With Laws and Codes. The construction plans and specifications for the Public Improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations, codes, standards, and other requirements. The Public Improvements shall be completed in accordance with all approved maps, plans, specifications, standard drawings, and special amendments thereto on file with City, as well as all applicable federal, state, and local laws, ordinances, regulations, codes, standards, and other requirements applicable at the time work is actually commenced.
3. 5 Standard of Performance. Builder and its contractors, if any, shall perform all work required to construct the Public Improvements under this Agreement in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Builder represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Builder warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
3. 6 Alterations to Improvements. All work shall be done and improvements made and completed as shown on approved plans and specifications, and any subsequent alterations thereto. Ifduring the course of construction and installation ofthe Public Improvements it is determined that the public interest requires alterations in the Public Improvements, Builder shall undertake such design and construction changes as may be reasonably required by City. Any and all alterations in the plans and specifications and the Public Improvements to be completed may be accomplished without giving prior notice thereof to Builder' s surety for this Agreement.
4. MAINTENANCE OF PUBLIC IMPROVEMENTS AND LANDSCAPING.
City shall not be responsible or liable for the maintenance or care of the Public Improvements until RIV # 4830- 8901- 9593 v1 - 4 -
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City formally approves and accepts them in accordance with its policies and procedures. City shall exercise no control over the Public Improvements until approved and accepted. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of the Builder at all times prior to City' s acceptance of the Public Improvements. Builder shall maintain all the Public Improvements in a state of good repair until they are completed by Builder and approved and accepted by City, and until the security for the performance of this Agreement is released. Maintenance shall include, but shall not be limited to, repair of pavement, curbs, gutters, sidewalks, signals, parkways, water mains, and sewers; maintaining all landscaping in a vigorous and thriving condition reasonably acceptable to City; removal of debris from sewers and storm drains; and sweeping, repairing, and maintaining in good and safe condition all streets and street improvements. It shall be Builder' s responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. IfBuilder fails to properly prosecute its maintenance obligation under this section, City may do all work necessary for such maintenance and the cost thereof shall be the responsibility of Builder and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance. Notwithstanding the above, Builder' s obligations to maintain pursuant to this Section 4 may be assigned to a homeowner' s association created by Builder until such time as the Public Improvements are approved and accepted by City.
5. CONSTRUCTION SCHEDULE. Unless extended pursuant to this Section 5. 1 of this Agreement, Builder shall fully and adequately complete or have completed the Public Improvements within one ( 1) year ( 12 months) following the Effective Date of this Agreement.
5. 1 Extensions. City may, in its sole and absolute discretion, provide Builder with additional time within which to complete the Public Improvements. It is understood that by providing the Security required under Section 13 et seq. of this Agreement, Builder and its surety consent in advance to any extension of time as may be given by City to Builder, and waives any and all right to notice of such extension( s). Builder' s acceptance of an extension of time granted by City shall constitute a waiver by Builder and its surety of all defense oflaches, estoppel, statutes of limitations, and other limitations of action in any action or proceeding filed by City following the date on which the Public Improvements were to have been completed hereunder. In addition, as consideration for granting such extension to Builder, City reserves the right to review the provisions of this Agreement, including, but not limited to, the construction standards, the cost estimates established by City, and the sufficiency of the improvement security provided by Builder, and to require adjustments thereto when warranted according to City' s reasonable discretion.
5. 2 Accrual of Limitations Period. Any limitations period provided by law related to breach of this Agreement or the terms thereof shall not accrue until Builder has provided the City Engineer with written notice of Builder' s intent to abandon or otherwise not complete required or agreed upon Public Improvements.
5. 3 Builder Obligations Do Not Terminate. Notwithstanding the construction schedule and option for extensions provided in Sections 5. 1 and 5. 2, Builder' s failure to complete the Public Improvements or to otherwise satisfy all conditions of approval, or City' s non -extension of the time referenced in those sections shall not terminate or otherwise relieve the Builder of the obligation to complete the Public Improvements and conditions of approval and R1V # 4830- 8901- 9593 v1 - 5 -
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such obligations shall survive the term of this Agreement and shall survive until satisfied in full unless waived or modified by formal action of the City Council.
6. GRADING. Builder agrees that any and all grading done or to be done in conjunction with construction of the Public Improvements or development of Tract Map No. 33824- 2 shall conform to all federal, state, and local laws, ordinances, regulations, and other requirements, including City' s grading regulations. All grading, landscaping, and construction activities shall be performed in a manner to control erosion and prevent flooding problems. The City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscaping, and construction activities to prevent nuisances to surrounding properties. Plans shall include without limitation temporary drainage and erosion control requirements, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters.
In order to prevent damage to the Public Improvements by improper drainage or other hazards, the grading shall be completed in accordance with the time schedule for completion of the Public Improvements established by this Agreement, and prior to City' s approval and acceptance of the Public Improvements and release of the Security as set forth in Section 13 et seq. of this Agreement.
7. UTILITIES. Builder shall provide utility services, including water, sewer, power, gas, and telephone service to serve each parcel, lot, or unit of land within Tract Map No. 33824- 2 in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the regulations, schedules and fees of the utilities or agencies providing such services. Except for commercial or industrial properties, Builder shall also provide installation of cable television connections to serve each parcel, lot, or unit of land in accordance with all applicable federal, state, and local laws, rules, and regulations, including, but not limited to, the requirements of the cable company possessing a valid franchise with City to provide such service within City' s jurisdictional limits; provided however, Builder shall not be responsible for any enduser payments for cable television services. All utilities shall be installed underground.
8. FEES AND CHARGES. Builder shall, at its sole cost, expense, and liability, pay all fees, charges, and taxes arising out of construction of the Public Improvements, including, but not limited to, all plan check, design review, engineering, inspection, and other service fees, and any impact or connection fees established by City ordinance, resolution, regulation, or policy, or as established by City relative to Tract Map No. 33824- 2, or as required by other governmental agencies having jurisdiction over Tract Map No. 33824- 2.
9. CITY INSPECTION OF PUBLIC IMPROVEMENTS. Builder shall, at its sole cost, expense, and liability, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction ofthe Public Improvements is occurring or will occur.
If the City inspector requests it, the Builder at any time before acceptance of the Public Improvements shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected. After examination, the Builder shall restore said portions of the work to the standards required hereunder. Inspection or supervision by the City shall not be considered as direct control of the individual workmen on the job site. City' s inspector shall have the authority to stop any and all work not in accordance with the requirements contained R[ V #4830- 8901- 9593 v1 - 6 -
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or referenced in this Agreement. The inspection of the work by City shall not relieve Builder or the contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials or work may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted.
10. ADMINISTRATIVE COSTS. If Builder fails to construct and install all or any part of the Public Improvements within the time required by this Agreement, or if Builder fails to comply with any other obligation contained herein, Builder and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorney' s fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
11. ACCEPTANCE OF IMPROVEMENTS; AS -BUILT OR RECORD
DRAWINGS. The City Council may, in its sole and absolute discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Builder' s obligation to complete the remainder of the Public Improvements within the time required by this Agreement.
11. 1 Builder' s Notice of Completion. Upon the total or partial acceptance of the Public Improvements by City, Builder shall file with the Recorder' s Office of the County of Riverside a notice of completion for the accepted Public Improvements in accordance with California Civil Code section 3093, at which time the accepted Public Improvements shall become the sole and exclusive property of City without payment therefor.
11. 2 City Acceptance of Public Improvements. IfTract Map No. 33824- 2 was approved and recorded as a single phase map, City shall not accept any one or more of the improvements until all of the Public Improvements are completed by Builder and approved by City. Issuance by City of occupancy permits for any buildings or structures located on the Property shall not be construed in any manner to constitute City' s acceptance or approval of any Public Improvements.
11. 3 Builder' s Obligation to Provide As -Built or Record Drawings.
Notwithstanding the foregoing, City may not accept any Public Improvements unless and until Builder provides one ( 1) set of "as -built" or record drawings or plans to the City Engineer for all such Public Improvements. The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
12. WARRANTY AND GUARANTEE. Builder hereby warrants and guarantees all Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of all landscaping within the Property in a vigorous and thriving condition reasonably acceptable to City, for a period of one ( 1) year following completion ofthe work and acceptance by City. During the Warranty, Builder shall repair, replace, or reconstruct any defective or otherwise unsatisfactory portion of the Public Improvements, in accordance with the current ordinances, resolutions, regulations, codes, standards, or other requirements of City, and to the approval of the City Engineer. All repairs, replacements, or reconstruction during the Warranty shall be at the sole cost, expense, and liability of Builder and its surety. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Builder and its surety hereby agree to extend the Warranty for RIV # 4830- 8901- 9593 v1 - 7 -
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an additional one ( 1) year period following City' s acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Builder from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Builder' s warranty obligation under this section shall survive the expiration or termination of this Agreement.
13. SECURITY; SURETY BONDS. Prior to City' s approval and execution of this Agreement, Builder shall provide City with surety bonds in the amounts and under the terms set forth below. The amount of the Security shall be based on the City Engineer' s Estimated Costs.
If City determines at any time prior to Builder' s completion of the Public Improvements under Section 5 [ Construction Schedule], in its sole and absolute discretion, that the Estimated Costs have changed, Builder shall adjust the Security in the amount requested by City. Builder' s compliance with this provision ( Section 13 et seq) shall in no way limit or modify Builder' s indemnification obligation provided in Section 17 ofthis Agreement.
13. 1 Performance Bond. To guarantee the faithful performance of the Public Improvements and all the provisions of this Agreement, to protect City if Builder is in default as set forth in Section 19 et se . of this Agreement, and to secure Builder' s one- year guarantee and warranty ofthe Public Improvements, including the maintenance of all landscaping in a vigorous and thriving condition, Builder shall provide City a faithful performance bond in the amount of One Million Eight Hundred and Forty -Seven Thousand and Five Hundred Dollars, ($ 1, 847,500), which sum shall be not less than one hundred percent ( 100%) of the Estimated Costs.
13. 2 Partial Release. The City Council may, in its sole and absolute discretion and upon recommendation of the City Engineer, partially release a portion or portions of the Security provided under this section as the Public Improvements are accepted by City, provided that Builder is not in default on any provision of this Agreement or condition of approval for Tract Map No. 33824- 2, and the total remaining Security is not less than twenty-five percent ( 25%) of the Estimated Costs. All Security provided under this section shall be released at the end of the Warranty period, or any extension thereof as provided in Section 12 of this Agreement, provided that Builder is not in default on any provision of this Agreement or condition of approval for Tract Map No. 33824- 2.
13. 3 Labor & Material Bond. To secure payment to the contractors, subcontractors, laborers, material men, and other persons furnishing labor, materials, or equipment for performance of the Public Improvements and this Agreement, Builder shall provide City a labor and materials bond in the amount One Million Eight Hundred and Forty -Seven Thousand and Five Hundred Dollars, ($ 1, 847,500) which sum shall not be less than one hundred percent 100%) of the Estimated Costs. The Security provided under this section may be released by written authorization of the City Engineer after six ( 6) months from the date City accepts the final Public Improvements. The amount of such Security shall be reduced by the total of all stop notice or mechanic' s lien claims of which City is aware, plus an amount equal to twenty percent ( 20%) of such claims for reimbursement of City' s anticipated administrative and legal expenses arising out of such claims.
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13. 4 Additional Requirements. The surety for any surety bonds provided as Security shall have a current A.M. Best' s rating of no less than A:VIII, be a bank or insurance company licensed to transact surety business in California, and shall be satisfactory to City. As part of the obligation secured by the Security and in addition to the face amount of the Security, the Builder or its surety shall secure the costs and reasonable expenses and fees, including reasonable attorney' s fees and costs, incurred by City in enforcing the obligations of this Agreement. The Builder and its surety stipulate and agree that no change, extension of time, alteration, or addition to the terms of this Agreement, the Public Improvements, or the plans and specifications for the Public Improvements shall in any way affect its obligation on the Security.
13. 5 Form of Security. The evidence of the Security shall be provided on the forms set forth in Attachment " C", unless other forms are deemed acceptable by the City Engineer and the City Attorney, and when such forms are completed to the satisfaction of City, the forms and evidence of the Security shall be attached hereto as Attachment " C" and incorporated herein by this reference.
13. 6 Builder' s Liability. While no action of Builder shall be required in order for City to realize on its security under any Security instrument, Builder agrees to cooperate with City to facilitate City' s realization under any Security instrument, and to take no action to prevent City from such realization under any Security instrument. Notwithstanding the giving of any Security instrument or the subsequent expiration of any Security instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Builder shall be personally liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or installed hereby and shall, within ten ( 10) days after written demand therefor, deliver to City such substitute Security as City shall require satisfying the requirements in this Section 13.
14. MONUMENT SECURITY. Prior to City' s execution of this Agreement, to guarantee payment to the engineer or surveyor for the setting of all subdivision boundaries, lot corners, and street centerline monuments for Tract No. 33824- 2 in compliance with the applicable provisions of City' s Municipal and/or Development Code (" Subdivision Monuments"), Builder shall deposit cash with City in the amount of Twenty Five Thousand Five Hundred Dollars 25, 500), which sum shall not be less than one hundred percent ( 100%) of the costs of setting the Subdivision Monuments as determined by the City Engineer. Said cash deposit may be released by written authorization of the City Engineer after all required Subdivision Monuments are accepted by the City Engineer, City has received written acknowledgment of payment in full from the engineer or surveyor who set the Subdivision Monuments, and provided Builder is not in default of any provision ofthis Agreement or condition of approval for Tract Map No. 33824- 2.
15. LIEN. To secure the timely performance of Builder' s obligations under this Agreement, including those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, Builder hereby creates in favor of City a lien against all portions of the Property not dedicated to City or some other governmental agency for a public purpose. As to Builder' s default on those obligations for which security has been provided pursuant to Sections 13 et seq. and 14 of this Agreement, City shall first attempt to collect against such security prior to exercising its rights as a contract lienholder under this section.
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16. SIGNS AND ADVERTISING. Builder understands and agrees to City' s ordinances, regulations, and requirements governing signs and advertising structures. Builder hereby agrees with and consents to the summary removal by City, without notice to Builder, of all signs or other advertising structures erected, placed, or situated in violation of any City ordinance, regulation, or other requirement. Removal shall be at the expense of Builder and its surety. Builder and its surety shall indemnify and hold City free and harmless from any claim or demand arising out of or incident to signs, advertising structures, or their removal.
17. INDEMNIFICATION. During the term of this Agreement and the one ( 1) year warranty period established in Section 12 of this Agreement, Builder shall defend, indemnify, and hold harmless City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of Builder, its personnel, employees, agents, or contractors in connection with or arising out of construction or maintenance of the Public Improvements, or performance of this Agreement. This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, officers, employees, and/ or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused solely and exclusively by the gross negligence or willful misconduct of City as determined by a court or administrative body of competent jurisdiction. Builder' s obligation to indemnify City shall survive the expiration or termination of this Agreement for the one ( 1) year warranty period established in Section 12 of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, officers, employees, or agents.
18. INSURANCE.
18. 1 Types; Amounts. Builder shall procure and maintain, and shall require its contractors to procure and maintain, during construction of any Public Improvement pursuant to this Agreement, insurance of the types and in the amounts described below. If any of the Required Insurance contains a general aggregate limit, such insurance shall apply separately to this Agreement or be no less than two times the specified occurrence limit.
18. 1. 1 General Liability. Builder and its contractors shall procure and maintain occurrence version general liability insurance, or equivalent form, with a combined single limit of not less than $ 3, 000, 000 per occurrence for bodily injury, personal injury, and property damage, which can be comprised of primary, excess and/or self-insurance.
18. 1. 2 Business Automobile Liability. Builder and its contractors shall procure and maintain business automobile liability insurance, or equivalent form, with a combined single limit of not less than $ 1, 000, 000 per occurrence. Such insurance shall include coverage for the ownership ( if owned), operation, maintenance, use, loading, or unloading of any vehicle owned, leased, hired, or borrowed by the insured or for which the insured is responsible.
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18. 1. 3 Workers' Compensation. Builder and its contractors shall procure and maintain workers' compensation insurance with limits as required by the Labor Code of the State of California and employers' liability insurance with limits of not less than $ 1, 000, 000 per occurrence, at all times during which insured retains employees.
18. 1. 4 Professional Liability. For any consultant or other professional who will engineer or design the Public Improvements, liability insurance for errors and omissions with limits not less than $ 1, 000, 000 per claim, shall be procured and maintained for a period of five (5) years following completion ofthe Public Improvements. Such insurance shall be endorsed to include contractual liability.
18. 2 Deductibles. Any deductibles or self-insured retentions must be declared as evidenced by the Builder' s l0k filed with the Securities and Exchange Commission) to and approved by City. At the option of City, either: ( a) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its elected officials, officers, employees, agents, and volunteers; or ( b) Builder and its contractors shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.
18. 3 Additional Insured; Separation of Insureds. The Required Insurance shall name City, its elected officials, officers, employees, agents, and volunteers as additional insureds with respect to work performed by or on behalf of Builder or its contractors, including materials, parts, or equipment furnished in connection therewith. The Required Insurance shall contain standard separation of insured provisions, and shall contain no special limitations on the scope of its protection to City, its elected officials, officers, employees, agents, and volunteers.
18. 4 Primary Insurance; Waiver of Subrogation. The Required Insurance shall be primary with respect to any insurance or self-insurance programs covering City, its elected officials, officers, employees, agents, and volunteers. All policies for the Required Insurance shall provide that the insurance company waives all right of recovery by way of subrogation against City in connection with any damage or harm covered by such policy.
18. 5 Certificates; Verification. Builder and its contractors shall furnish City with original certificates of insurance and endorsements effecting coverage for the Required Insurance. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work pursuant to this Agreement can begin. City reserves the right to require complete, certified copies of all required insurance policies, at any time.
18. 6 Term; Cancellation Notice. Builder and its contractors shall maintain the Required Insurance for the term of this Agreement and shall replace any certificate, policy, or endorsement which will expire prior to that date. All policies shall be endorsed to provide that the Required Insurance shall not be suspended, voided, reduced, canceled, or allowed to expire except on 30 days' prior written notice to Builder.
18. 7 Insurer Rating. Unless approved in writing by City, all Required Insurance shall placed with insurers licensed to do business in the State of California and with a current A.M. Best rating of at least A:VIII.
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19. DEFAULT; NOTICE; REMEDIES.
19. 1 Notice. If Builder neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation, code, standard, or other requirement, City may at any time thereafter declare Builder to be in default or violation of this Agreement and make written demand upon Builder or its surety, or both, to immediately remedy the default or violation.
Builder shall commence the work required to remedy the default or violation within thirty ( 30) days of the written demand from the City. Ifthe default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the demand verbally, and Builder shall commence the required work within twenty-four ( 24) hours thereof. Immediately upon City' s issuance of the demand to remedy the default, Builder and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs expenses as provided for in Section 10 of this Agreement.
19. 2 Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not diligently prosecuted to a substantial completion acceptable to City within a reasonable time designated by the City, City may complete all remaining work, arrange for the completion of all remaining work, and/ or conduct such remedial activity as in its sole and absolute discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost, expense, and liability of Builder and its surety, without the necessity of giving any further notice to Builder or surety. City' s right to take such actions shall in no way be limited by the fact that Builder or its surety may have constructed any, or none of the required or agreed upon Public Improvements at the time of City' s demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Builder or its surety to cease in order to allow adequate coordination by City. Notwithstanding the foregoing, if conditions precedent for reversion to acreage can be met and if the interests of City will not be prejudiced thereby, City may also process a reversion to acreage and thereafter recover from Builder or its surety the full cost and expense incurred.
19. 3 Other Remedies. No action by City pursuant to Section 19 et M. of this Agreement shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise it rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
20. GENERAL PROVISIONS.
20. 1 Authority to Enter Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority make this Agreement and bind each respective Party.
20.2 Cooperation; Further Acts. The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate, or convenient to attain the purposes ofthis Agreement.
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20. 3 Construction; References; Captions. It being agreed the Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. All references to Builder include all personnel, employees, agents, and subcontractors of Builder, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
20. 4 Notices. All notices, demands, invoices, and written communications shall be in writing and delivered to the following addresses or such other addresses as the Parties may designate by written notice:
CITY:
City of Hemet
Attn: City Manager
445 E. Florida Avenue
Hemet, CA 92543
BUILDER:
KB HOME Coastal Inc., a California Corporation
Attn: Scott Hansen
36310 Inland Valley Drive, Suite 300
Wildomar, CA 92595
Depending upon the method of transmittal, notice shall be deemed received as follows: by facsimile, as of the date and time sent provided the original is contemporaneously deposited with United States Postal Service and delivered by regular mail; by messenger, as ofthe date delivered; and by U.S. Mail first class postage prepaid, as of 72 hours after deposit in the U. S. Mail.
20. 5 Amendment; Modification. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
20. 6 Waiver. City' s failure to insist upon strict compliance with any provision of this Agreement or to exercise any right or privilege provided herein, or City' s waiver of any breach of this Agreement, shall not relieve Builder of any of its obligations under this Agreement, whether of the same or similar type. The foregoing shall be true whether City' s actions are intentional or unintentional. Builder agrees to waive, as a defense, counterclaim or set off, any and all defects, irregularities or deficiencies in the authorization, execution or performance of the Public Improvements or this Agreement, as well as the laws, rules, regulations, ordinances or resolutions of City with regards to the authorization, execution or performance of the Public Improvements or this Agreement.
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20. 7 Assignment or Transfer of Agreement. Builder shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of City. Any attempt to do so shall be null and void, and any assignee, hypothecatee, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in City' s written consent, any assignment, hypothecation, or transfer shall not release or discharge Builder from any duty or responsibility under this Agreement.
20. 8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. This section shall not be construed as an authorization for any Party to assign any right or obligation.
20.9 No Third Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties.
20. 10 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
20. 11 Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of Riverside, California. Each Party waives the benefit of any provision of state or federal law providing for a change of venue to any other court or jurisdiction including, without limitation, a change of venue based on the fact that a governmental entity is a party to the action or proceeding, or that a federal right or question is involved or alleged to be involved in the action or proceeding. Without limiting the generality of the foregoing waiver, Builder expressly waives any right to have venue transferred pursuant to California Code of Civil Procedure Section 394.
20. 12 Attorneys' Fees and Costs. If any arbitration, lawsuit, or other legal action or proceeding is brought by one Party against the other Party in connection with this Agreement or the Property, the prevailing party, whether by final judgment or arbitration award, shall be entitled to and recover from the other party all Litigation Expenses. Any judgment, order, or award entered in such legal action or proceeding shall contain a specific provision providing for the recovery of Litigation Expenses.
20. 13 Relationship Between The Parties. The Parties hereby mutually agree that neither this Agreement, any map related to Tract Map No. 33824- 2, nor any other related entitlement, permit, or approval issued by City for the Property shall operate to create the relationship of partnership, joint venture, or agency between City and Builder. Builder' s contractors and subcontractors are exclusively and solely under the control and dominion of Builder. Nothing herein shall be deemed to make Builder or its contractors an agent or contractor of City.
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20. 14 Counterparts. This Agreement may be executed in counterpart originals, which taken together, shall constitute one and the same instrument.
20. 15 Effective Date of Agreement. This Agreement shall not become effective until the date it has been formally approved by the City and executed by the appropriate authorities of City and Builder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first -above written.
CITY OF HEMET
City Manager
ATTEST:
Cit lerk
APPROVED AS TO FORM
By: V
Cit torney
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KB HOME COASTAL INC.,
a California corporation
r"
AV
Its: `> a o l - Its:
NOTE: BUILDER' S SIGNATURES SHALL BE DULY NOTARIZED,,, AND
APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE
REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR
OTHER RULES OR REGULATIONS APPLICABLE TO BUILDER' S
BUSINESS ENTITY.
k,k,
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 Riverside
On _ November 07, 2022 before me, Judith Mireles, Notary Public, personally appeared Vernell Williams, who proved to me on the basis of satisfactory evidence to be the person( s) whose name( s) is/ aye subscribed to the within instrument and acknowledged to me that he/ s-heAhey executed the same in his/ her/
them
authorized capacity(+es), and that by
his/ her-/-
thei
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.
i0ith Mireles, Notary Public
my
JUDITH MIRELES
Notary Public • California
Riverside County
Commission p 2417491
Comm. Expires Sep 12, 1026
SEAL)
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EXHIBIT " A"
LEGAL DESCRIPTION OF PROPERTY
TRACT NO. 33824- 2
BEING A SUBDIVISION OF LOT 2 OF TRACT NO. 33961, IN THE CITY OF HEMET, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 425, PAGES 39 THROUGH 42, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. LYING WITHIN SECTION 34 AND 35, TOWNSHIP 5 SOUTH, RANGE 1 WEST, S. B. M.
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EXHIBIT " B"
LIST OF PUBLIC IMPROVEMENTS
TRACT NO. 33824- 2
Street Improvements (EA0601- 001)
Street Improvements ( Revised), Storm Drain Improvements, Street Lights Improvements EA1412- 008)
Sewer and Water Improvements ( EA1703- 001)
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EXHIBIT " C"
SURETY BONDS AND OTHER SECURITY
TRACT NO. 33824- 2
As evidence of understanding the provisions contained in this Agreement, and of the Builder' s intent to comply with same, the Builder has submitted the below described security in the amounts required by this Agreement, and has affixed the appropriate signatures thereto:
PERFORMANCE BOND PRINCIPAL AMOUNT: $ 1, 847, 500
Surety:
Attorney-in-fact:
Address:
MATERIAL AND LABOR BOND PRINCIPAL AMOUNT: $ 1, 847, 500 Surety:
Attorney-in-fact:
Address:
CASH MONUMENT SECURITY: $ 25, 500
Amount deposited per Cash Receipt No. Date:
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BOND NO. 30152645
INITIAL PREMIUM: $ 11, 085. 00
SUBJECT TO RENEWAL
CITY OF HEMET
TRACT MAP NO. 33824- 2 IMPROVEMENTS
FORM OF PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet, California (" City") and KB HOME Coastal Inc., a California Corporation, a California corporation (" Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, water system, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 33824- 2 (" Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated September 13, 2022 Improvement Agreement");
WHEREAS, the Improvement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required by the Improvement Agreement to provide a good and sufficient bond for performance of the Improvement Agreement, and to guarantee and warranty the Public Improvements constructed thereunder.
NOW, THEREFORE, Principal and The Continental Insurance Company (" Surety"), a corporation organized and existing under the laws of the State of Pennsylvania, and duly authorized to transact surety business under the laws of the State of California, are held and firmly bound unto City in the sure of One Million Eight Hundred and Forty -Seven Thousand and Five Hundred Dollars, ($ 1, 847, 500) said sum being not less than one hundred percent 100%) ofthe total cost ofthe Public Improvements as set forth in the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, agreements, guarantees, and warranties in the Improvement Agreement and any alteration thereof made as therein provided, to be kept and performed at the time and in the manner therein specified and in all respects according to their intent and meaning, and to indemnify and save harmless City, its officers, employees, and agents, as stipulated in the Improvement Agreement, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
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As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney' s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
This bond is executed and filed to comply with Section 66499 et sem. of the Government Code of California as security for performance of the Improvement Agreement and security for the one- year guarantee and warranty of the Public Improvements.
IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at Los Angeles , this 22nd day of September , 2022 KB Home Coastal, Inc.
Principal
By:
1_
Tis: VP, Forward Planning
Scott Hansen
print name)
The Continental Insurance Company
Surety
By: L _a
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS OF EXECUTION',, ,,, ; BY PRINCIPAL AND SURETY, AND A COPY OF THE POWOi"© f' `
ATTORNEY TO LOCAL REPRESENTATIVES OF THE BONDING
COMPANY MUST BE ATTACHED TO THIS BOND.
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CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT
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 Riverside
On SEES 2P 6 202 before me, Shannon Luebs, Notary Public, personally appeared Scott Hansen, who proved to me on the basis of satisfactory evidence to be the person( s) whose name(s) is/ a-re subscribed to the within instrument and acknowledged to me that he/ he" executed the same in his/ hel4thel-r authorized capacity( ies), and that by his/ her4their 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.
Shannon Luebs
SHANNON LUEBS
f
Notary Public - California
Riverside County
r- Commission„ 2365760
F my Comm. Expires Aug 10, 2025
SEAL)
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CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 Los Angeles
On SEP 2 2 2022 before me, M. Gonzales , Notary Public, personally appeared Brenda Wong who proved to me on the basis of satisfactory evidence to be the person(-,) whose name(-,) is/ are- subscribed to the within instrument and acknowledged to me that 4e/ she/ t4y executed the same in 4s/ her/ t## authorized capacity4 s}, and that by 4+s/ her/ theiF signature(-,) on the instrument the person( s), or the entity upon behalf of which the persons) 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.
seal) Signature
M. Gon ales, No ry Public
M. GONZALH
F
Notary Pub is Ca, iiornia F l,' i
Los Angeles County >
Commission = 2375493
My Comm. Expires Gct 5, 2025
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POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY- IN- FACT Know All Men By These Presents, That The Continental Insurance Company, a Pennsylvania insurance company, is a duly organized and existing insurance company having its principal office in the City of Chicago, and State of Illinois, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Brenda Wong Individually
of
Los Angeles California , its true and lawful Attorney( s)- in- Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature Surety Bond Number:
Principal:
Obligee:
iniFgFaA
KB Home Coastal, Inc.
Citv of Hemet
In Unlimited Amounts —
and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the insurance company and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly adopted, as indicated, by the Board of Directors of the insurance company.
In Witness Whereof, The Continental Insurance Company has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 2nd day of February, 2021.
The Continental Insurance Company
Paul T. Bruflat ice President
State of South Dakota, County of Minnehaha, ss:
On this 2nd day of February, 2021, before me personally came Paul T. Bruflat to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is a Vice President of The Continental Insurance Company, a Pennsylvania insurance company, described in and which executed the above instrument; that lie knows the seal of said insurance company; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said insurance company and that lie signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said insurance company. 4 aroroaroroaro ow a wroyroroa rororo +
M. RENT
NOTARY PUBLIC
seAL SOUTH DAKOTA SEAL s
roaawrororoaNrorowrororororororororororo +
My Commission Expires March 2, 2026 M. Bent Notary Public
CERTIFICATE
I, D. Johnson, Assistant Secretary of The Continental Insurance Company, a Pennsylvania insurance company, do hereby certify that the Power of Attorney herein above set forth is still in force; and further certify that the By -Law and Resolution of the Board of Directors of the insurance company printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said insurance company this 22 day of ,, 86pteT 2022
1,'+d` HvJ,; ' The Continental Insurance Company
Form F6850- 2- 2021
f
D. Johnson Assistant Secretary
15.E
BOND NO. 30152645
INITIAL PREMIUM: Included in Performance Bond
SUBJECT TO RENEWAL
CITY OF HEMET
TRACT MAP 33824- 2 IMPROVEMENTS
FORM OF LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS the City of Hemet California (" City") and KB HOME Coastal Inc., a California Corporation, a California corporation (" Principal"), have executed an agreement for work consisting of, but not limited to, the furnishing all labor, materials, tools, equipment, services, and incidentals for all grading, roads, paving, curbs and gutters, pathways, storm drains, sanitary sewers, utilities, drainage facilities, traffic controls, landscaping, street lights, and all other required facilities for Tract Map No. 33824- 2 (" Public Improvements"); WHEREAS, the Public Improvements to be performed by Principal are more particularly set forth in that certain Subdivision Improvement Agreement dated September 13, 2022 Improvement Agreement");
WHEREAS, the hnprovement Agreement is hereby referred to and incorporated herein by reference; and
WHEREAS, Principal is required to furnish a bond in connection with the Improvement Agreement providing that if Principal or any of its subcontractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for, or about the performance of the Public Improvements, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 15 ( commencing with section 3082) of Part 4 of Division 3 of the California Civil Code, with respect to such work or labor, that the Surety on this bond will pay the same together with a reasonable attorney' s fee in case suit is brought on the bond.
NOW, THEREFORE, Principal and The Continental Insurance Company (" Surety"), a corporation organized and existing under the laws of the State of Pennsylvania , and duly authorized to transact business under the laws of the State of California, are held and firmly bound unto City and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the Public Improvements, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to the Public Improvements to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid excepting the Principal, the sum of One Million Eight Hundred and Forty -Seven Thousand and Five Hundred Dollars, ($1, 847,500) said sum being not less than 100% of the total cost of the Public Improvements under the terms of the Improvement Agreement, we bind ourselves, our heirs, executors and administrators, successors and assigns jointly and severally, firmly by these presents.
RIV # 4830- 8901- 9593 v 1
SUBDIVISION IMPROVEMENT AGREEMENT
DRAFT
15.E
THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal, his or its subcontractors, heirs, executors, administrators, successors, or assigns, shall fail to pay for any materials, provisions, or other supplies or machinery used in, upon, for or about the performance of the Public Improvements, or for work or labor thereon of any kind, or fail to pay any of the persons named in California Civil Code Section 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed by any such claimant, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, and all other applicable laws of the State of California and rules and regulations of its agencies, then said Surety will pay the same in or to an amount not exceeding the sum specified herein.
As part of the obligation secured hereby, and in addition to the face amount specified therefor, there shall be included costs and reasonable expenses and fees, including reasonable attorney' s fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
This bond is executed and filed to comply with Section 66499 et seMc . of the California Government Code as security for payment to contractors, subcontractors, and persons furnishing labor, materials, or equipment for construction of the Public Improvements or performance of the Improvement Agreement. It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Title 15 ( commencing with Section 3082) of Part 4 of Division 3 of the California Civil Code, so as to give a right of action to them or their assigns in any suit brought upon this bond.
Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the Improvement Agreement, or to any plans, profiles, and specifications related thereto, or to the Public Improvements to be constructed thereunder, shall in any way affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time, alteration, or addition.
IN WITNESS WHEREOF, the seal and signature of the Principal is hereto affixed, and the corporate seal and the name of the Surety is hereto affixed and attested by its duly authorized Attorney -in -Fact at Los Angeles , this 22nd day of September , 2022 KB Home Coastal, Inc.
Princi al
By:
ts: VP, Forward Planning
Scott Hansen
print name)
RIV # 4830- 8901- 9593 v 2
DRAFT
Brenda Wong
print name)
lJ
i i•
x
SUBDIVISION IMPROVEMENT AGREEMENT
15.E
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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 Riverside
On SEP ;! 6 2022 before me, Shannon Luebs, Notary Public, personally appeared Scott Hansen, who proved to me on the basis of satisfactory evidence to be the person( s.) whose name( s) is/a-r-e subscribed to the within instrument and acknowledged to me that he/sheAbey executed the same in his/he4thei-I^ authorized capacity(ies), and that by his/ hedth& signature(&) 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.
Shannon Luebs
SHANNON WEBS
Notary Public - Califb nia
Riverside County x.
Commission # 2365760
w" My Comm, Expires Aug 10, 2025
SEAL)
15.E
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 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 Los Angeles
On SEP 2 2 2022 before me, M.Gonzales , Notary Public, personally appeared Brenda Wong who proved to me on the basis of satisfactory evidence to be the person(--,) whose name( s) is/ are subscribed to the within instrument and acknowledged to me that #e/ she/ t#ey executed the same in 44-s/ her/ the# authorized capacity4es4, and that by 4i-s/ her/ their 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 hand and official seal.
seal) Signature -
M. Gonzales, Nota4 Public
M CCNZALES
Notary P,; sic California
Lcs Angeles County >
Commission -= 2176493
My Comm. Expires Oct 5. 2025
15.E
NOTE: APPROPRIATE NOTARIAL ACKNOWLEDGMENTS
BY PRINCIPAL AND SURETY, AND A COPY OF
ATTORNEY TO LOCAL REPRESENTATIVES OF
COMPANY MUST BE ATTACHED TO THIS BOND.
OF EXECUTION
THE POWER OF
THE BONDING
RIV # 4830- 8901- 9593 v1 3
SUBDIVISION IMPROVEMENT AGREEMENT
DRAFT
15.E
POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY- IN-FACT Know All Men By These Presents, That The Continental Insurance Company, a Pennsylvania insurance company, is a duly organized and existing insurance company having its principal office in the City of Chicago, and State of Illinois, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Brenda Wong Individually
of
Los Angeles California , its true and lawful Attorney( s)- in- Fact with frill power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature Surety Bond Number:
Principal:
Obligee:
gni52Ba5
KB Home Coastal. Inc
Hemet
In Unlimited Amounts —
and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the insurance company and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed.
This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly adopted, as indicated, by the Board of Directors of the insurance company.
In Witness Whereof, The Continental Insurance Company has caused these presents to be signed by its Vice President and its corporate seal to be hereto affixed on this 2nd day of February, 2021.
The Continental Insurance Company
Paul T. Bruflat ice President
State of South Dakota, County of Minnehaha, ss:
On this 2nd day of February, 2021, before me personally came Paul T. Bruflat to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is a Vice President of The Continental Insurance Company, a Pennsylvania insurance company, described in and which executed the above instrument; that he knows the seal of said insurance company; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said insurance company and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said insurance company.
NNbbNNNNkN6sNbNNN4bNNmsNN^ e +
s M. RENT
NOTARY PUBLIC
SEAL SOUTH DAKOTA REAL
b'bNNNNbNNNNbbNdsNbNbNb4b +
My Commission Expires March 2, 2026 M. Bent Notary Public
CERTIFICATE
I, D. Johnson, Assistant Secretary of The Continental Insurance Company, a Pennsylvania insurance company, do hereby certify that the Power of Attorney herein above set forth is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the insurance company printed on the reverse hereof is' still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said insurance company this 22 day of", September 2022
t; Kt1'•,
f.
The Continental Insurance Company
OW46 rC . l • "' MMR. •
011
D. Johnson Assistant Secretary
Form F6850- 2- 2021
15.E
Authorizing By -Laws and Resolutions
ADOPTED BY THE BOARD OF DIRECTORS OF THE CONTINENTAL INSURANCE COMPANY:
This Power of Attorney is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company at a meeting held on May 10, 1995.
RESOLVED: That any Group Vice President may authorize an officer to sign specific documents, agreements and instruments on behalf of the Company provided that the name of such authorized officer and a description of the documents, agreements or instruments that such officer may sign will be provided in writing by the Group Vice President to the Secretary of the Company prior to such execution becoming effective.
This Power of Attorney is signed by Paul T. Bruflat, Vice President, who has been authorized pursuant to the above resolution to execution power of attorneys on behalf of The Continental Insurance Company.
This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company by unanimous written consent dated the 25` 1' day of April, 2012.
Whereas, the bylaws of the Company or specific resolution of the Board of Directors has authorized various officers (the " Authorized Officers") to execute various policies, bonds, undertakings and other obligatory instruments of like nature; and Whereas, from time to time, the signature of the Authorized Officers, in addition to being provided in original, hard copy format, may be provided via facsimile or otherwise in an electronic format ( collectively, " Electronic Signatures"), Now therefore be it resolved: that the Electronic Signature of any Authorized Officer shall be valid and binding on the Company."
15.E
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
CITY OF HEMET
FINAL
CONDITIONS OF APPROVAL
PLANNING COMMISSION DATE: March 16, 2021
PROJECT NO.: Site Development Review No. 20-009 & Model Home Complex No. 21-002
OWNER/APPLICANT: Vernell Williams, KB Homes Coastal Inc.
LOCATION: Southeast corner of McSweeny Parkway and South Village Loop Road in the McSweeny Farms Specific Plan
TRACT(S): TTM 33824-2
DESCRIPTION: Site Development Review 20-009, For the design, architecture, placement, fencing, and landscaping of 102 single-family homes in Tract 33824-2 on 34.2 acres within the McSweeny Farms Specific Plan, and Model Home
Marketing Complex No. 21-002 for a model home complex
consisting of three (3) models on lots 47, 48, and 49, trap fencing, landscaping, signage, and parking on lot 46.
OCCUPANCY: This project has been reviewed as a/an R-1 Occupancy; any other use will require further review.
Note: Any conditions revised at a hearing will be noted by strikeout (for deletions) and/or underline (for additions), and any newly added conditions will be added at the end of all conditions regardless of the Department originating the condition.
STANDARD CONDITIONS
The following conditions of approval were approved by the City Council (Resolution No. 3523) as standard conditions of approval for all projects. Questions regarding compliance with these conditions should be directed to the Planning Department at (951) 765-2375.
General Requirements:
1. Site Development Review No. 20-009 and Model Home Complex No. 21-002 shall become null and void on March 16, 2023 (two calendar years from the date of Planning Commission approval), unless use in reliance on the Site Development Review and Model Home Complex is established prior to the expiration date. A time extension may be granted by the Planning Commission in accordance with Hemet Municipal Code, provided a written request for a time extension is submitted the Planning Division prior to the expiration date. No
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
formal notice of expiration will be given by the City.
2. Approval of Site Development Review No. 20-001 and Model Home Complex No. 21-002 shall become effective on March 30, 2021 unless it is appealed to the City Council by March 29, 2021 (10 calendar days after action by the Planning Commission). The appeal shall be in writing and shall be accompanied by the required fee.
3. The conditions of approval of this project shall supersede all conflicting notations, specifications, dimensions, typical sections, and the like, which may be shown on the tentative project plans.
4. This project site shall be developed in accordance with the approved plan(s) and the conditions contained herein.
5. This project shall comply with all sections of the Zoning Ordinance, Subdivision Ordinance and all other applicable Local, State and Federal laws and regulations in effect at the time of the building permit application and/or time of recordation.
6. The applicant shall be subject to all applicable development fees at the rate in effect at the time of building permit application. Such fees may include, but not be limited to: Development Impact Fees, Park Fees, School Fees, Master Plan Storm Drainage Fees, Transportation Uniform Mitigation Fees, Permit and Plan Checking Fees, Water and Sewer Service Fees, Capital Facility Fees, Multiple Species Habitat Conservation Plan and Stephen’s Kangaroo Rat Fees.
7. The applicant shall indemnify, protect, defend, and hold harmless, the City, and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, from any and all claims, demands, law suits, writs of mandamus, and other actions and proceedings (whether legal, equitable, declaratory, administrative or adjudicatory in nature), and alternative dispute resolutions procedures (including, but not limited to arbitrations, mediations, and other such procedures), (collectively “Actions”), brought against the City, and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof, that challenge, attack, or seek to modify, set aside, void, or annul, the any action of, or any permit or approval issued by, the City and/or any of its officials, officers, employees, agents, departments, agencies, and instrumentalities thereof (including actions approved by voters of the City), for or concerning the project, whether such Actions are brought under the California Environmental Quality Act, the Planning and Zoning Law, the Subdivisions Map Act, Code of Civil Procedure Section 1085 or 1094.5, or any other state, federal, or local statute, law, ordinance, rule, regulation, or any decision of a court of competent jurisdiction. It is expressly agreed that the City shall have the right to approve, which approval will not be unreasonably withheld, the legal counsel providing the City’s defense, and that applicant shall reimburse
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. City shall promptly notify the applicant of any Action brought and City shall cooperate with applicant in defense of the Action.
8. The developer shall install U.S. Postal Service approved neighborhood mailboxes prior to occupancy.
PLANNING DEPARTMENT CONDITIONS
Please contact the Planning Division for compliance with the following conditions:
Site Development Review
9. The conditions of approval of this project shall be completed in addition to the underlying conditions of approval for Tentative Tract Map No. 33824 approved by the Planning Commission on April 4, 2006 (Resolution No. 06-14).
10. Prior to the issuance of building permits for lots located in Tract No. 33824-2, the Planning Division shall review the proposed plotting for conformance with the single-family design guidelines, the McSweeny Ranch Development Guidelines (Resolution No. 3439) and the Single-Family Zone.
11. All Elevation A and B Plans shall offer garage door windows as option.
12. All corner lots and lots backing up to a street shall provide enhanced street side elevations to be reviewed and approved by the Community Development Director.
13. Exterior vents on side and rear elevations shall match the decorative front vents.
14. View fence panels should be interrupted by pilasters of stone, rock, masonry, or stucco with decorative accent material, or by accent stakes of similar materials as the view fence. • A stone, stucco, rock or masonry wall may be used for the lower two feet (2’).
15. The interior fencing shall consist of vinyl fencing, with the exception on the corner lots and wall returns that require decorative block wall construction.
16. During initiation of the purchase agreement, the builder shall discloser to the buyer that the covered patio option is not available for the lot and that the minimum yard patio setback is 10 feet should purchaser decide to building in future.
a) The buyer shall sign an acknowledgement of the covered patio disclosure.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
17. Prior to the close of escrow for each residential lot, the builder shall have the buyer sign an acknowledgement statement indicating that the buyer is:
a) Aware that flood insurance will be required and must be provided by the home builder until such time as the master drainage improvements have been completed and the Letter of Map
Revision (LOMR) and Conditional Letter of Map Revision (CLOMR) is approved by FEMA
Master Tract 33824-2 Landscaping
18. The proposed landscape plan shall be modified to include front yard trees that are in compliance with the approved plant palette (Table 5-1) of the McSweeny Farms Specific Plan.
19. This project shall comply with the landscape design requirements outlined in the City’s Single-Family Residential Design Guidelines approved by the City Council on February 25, 2003 (CC Resolution No. 3960).
20. The applicant shall submit a detailed drought tolerant plant pallet for landscaping on and offsite improvements. The plan shall include a breakdown for the landscape area square footage, percent landscape lot coverage, and percent landscape in parking lot area.
21. The applicant shall provide a disclosure notice to each prospective buyer and to each new property owner within this subdivision. The disclosure notice shall be recorded against all properties within this subdivision which states the following:
a) The property owner is aware of any required financing mechanisms for the subdivision project such as Landscape-Lighting & Maintenance District (LLMD), Landscape-Lighting & Parks Maintenance District (LLPMD) or Conditions, Covenants and Restrictions (CC&R’s).
b) The property owner is responsible for the irrigation of parkway landscaping adjacent to their home as well as any landscaping adjoining their exterior side yard. Any lack of landscape/irrigation maintenance is subject to code violation actions.
c) Prior to the issuance of a Certificate of Occupancy or finalization of the Building Permit, landscaped areas shall have an automatic irrigation system, with automatic timers, installed and operational, unless cash or a bond is posted to guarantee completion.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
22. A one-year Faithful Performance bond shall be posted to guarantee installation, plant health, and established growth prior to the issuance of occupancy permits.
The bond may be reduced by the City after installation has been approved.
23. All interior residential streets shall have parkways adjacent to curb. Street trees shall be planted at a minimum of one (1) tree for every 40 feet of street frontage in accordance with City guidelines. Parkway areas within the public R-O-W shall include the installation of ground cover (planted a minimum of 12-inches oncenter) or turf and the installation of automated irrigation. Maintenance of the street trees shall be through a Lighting & Landscaping Maintenance District (LLMD) or alternative maintenance mechanism acceptable to the City.
24. All public landscaped areas shall be maintained by the developer for a minimum of one-year to assure continued growth and health. Continued maintenance of public areas shall be guaranteed by establishment of a home owners association or alternative mechanism approved by the Planning Director.
25. The developer shall provide as indicated in the typical front yard landscaping with a drought tolerant landscaping plan for landscaping on and offsite improvements.
Additionally, provide breakdown for the landscape area square footage, percent landscape lot coverage, and percent landscape in parking lot area.
26. All corner lots shall provide enhanced street side landscaping to be reviewed and approved by the Community Development Director.
27. Block walls or fencing constructed adjacent to street side yards shall have a minimum landscape area of 2.5 feet between the planting of vines and shrubs adjacent to the street side yard wall.
28. Landscape plans shall show planting for all slopes over five (5) feet in height and shall show the location of all walls throughout the subdivision.
29. All public areas are to be landscaped interior and exterior to the subdivision, including, but not limited to the bollard areas in each neighborhood and the Wildland Interface Area. All public areas shall be in the Lighting and Landscape Maintenance District (LLMD) and may include, but not be limited to the public park, the retention basin, and exterior subdivision walls, landscaping, and the Wildland Interface Area.
30. All landscaped areas shall be maintained in a healthy and thriving condition, free from weeds, trash, disease, vermin, and debris, during the term of this project.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
31. All graded slopes, over three (3) feet in vertical height, and/or on slopes graded to a 2:1 or greater ratio shall be seeded, planted, mulched or hydro seeded or otherwise protected to prevent erosion. A permanent irrigation system shall be installed for nonnative vegetation.
Model Home Complex
Operational Characteristics
32. All trap fencing shall be constructed of 48” high 2 rail vinyl equestrian style or other acceptable material with access/emergency gates provided.
33. All access gates for drive-thru purposes shall be provided with a “Knox lock” or “Knox paddock” for emergency access subject to Fire Department approval.
34. The design of the parking lot shall be approved by the City Engineer and Building Official prior to construction providing required disabled access to the Model Home Complex and restroom facility. Designate the 4' path of travel to the restroom facility. Said parking areas shall be double striped to City standards.
35. Prior to the issuance of the Certificate of Occupancy for model home/sales office use, complete tenant improvement plans at a ¼" scale shall be submitted to, and approved by, the Building Official.
36. Prior to the issuance of the Certificate of Occupancy for residential use, all temporary improvements shall be removed to the satisfaction of the Building Official.
37. Prior to the issuance of the last Certificate of Occupancy for the production homes, all model homes shall be converted from a model to a single-family residential dwelling unit. This conversion includes but is not limited to any interior modifications used to accommodate the model home, the garage area, and any other spaces that are used for model home purposes.
38. A deposit of $10,000 shall be paid to the City of Hemet as security by the builder to ensure all of the model home complex shall be restored to residential use.
39. The City of Hemet has an exclusive Franchise Agreement with CR&R Inc. to collect and dispose of all waste including commercial, residential and construction debris within the City of Hemet. Contact CR&R at 1-800-755-8112 to help you meet your waste reduction goals.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
Landscaping and Fencing
40. Landscape and irrigation plans for the Model Home Complex shall be submitted to and approved by the Community Development Director prior to issuance of a certificate of occupancy.
41. All permanent rear yard and side yard fencing shall be constructed in its ultimate design according to City standards and the Single-Family Residential Design Guidelines.
Model Home Complex Signage
42. Signs, in accordance with the Zoning Ordinance, may be approved at a later time prior to the issuance of sign permits.
43. Construction traffic shall be directed via appropriate signage to an alternate entrance from the models.
44. All model flagpoles shall be placed in accordance with Section 90-1275(b)(2) of the Hemet Municipal Code and shall pay all applicable fees and permits.
45. All signs shall be placed outside the corner cut-off areas for visibility.
46. All temporary signage is required to obtain a temporary sign permit from the Planning Division and a Building Permit, if required.
47. Prior to any grading or drainage activity, a grading and/or drainage plan shall be prepared and submitted to the City Engineer and Planning Department for review and approval. No grading or drainage work shall occur without a grading permit and/or the permission of the City Engineer.
Environmental
48. During construction, should any archaeological artifacts be discovered, the Planning Department shall be notified immediately, and all work shall cease until a qualified archeologist has examined the artifacts and the site and submitted findings and recommendations to the Planning Department. Recommencement of construction shall be upon the approval of the Planning Department.
PUBLIC WORKS DEPARTMENT, CONDITIONS OF APROVAL
49. Prior to installation of any irrigation sprinkler system or landscaping within the public right-of-way, landscape plans shall be submitted to the city engineer for review and approval.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
50. The irrigation system within the public right-of-way shall be in accordance with the Valley-Wide Recreation & Park District Standards and Specifications, latest edition. (sec. 12, 25 and 29) http://www.gorecreation.org/standards-andspecifications.
51. Trees to be located within the public right of way shall be in accordance with the City of Hemet’s approved Street Tree list. Trees shall be installed 40 feet off center. (Must be 24 in. box, min. 1 ¾ caliper)
52. Vines, shrubs and groundcover to be located within the public right of way shall be in accordance with the approved list shown in the Valley-Wide Recreation and Parks District’s Standard Landscape Specifications and Design Guidelines, latest edition.
53. No Turf. Use drought tolerant shrubs and groundcover.
54. All irrigation for planters shall be point-to point drip irrigation per Valley-Wide Recreation & Park District Standards and Specifications, latest edition.
55. All controllers shall be Calsense. Contact Bob Moxley with Calsense at (800) 572-8608 for specific requirements and communication components.
56. The irrigation system shall have a separate water meter and a reduced pressure principle assembly, on a separate hot tap at the water main.
57. The irrigation system shall be in accordance with the valley-wide recreation and park district standard and specifications “point of connection equipment sequence”.
58. Parkways must be free of all debris (asphalt, rocks, concrete, and trash) and existing soil must be rototilled to a depth of 4” – 6” prior to installation of plant material.
59. Developer or property owner is responsible for the maintenance and replacement (if necessary) of trees, landscaping and irrigation equipment, within the right-ofway for one year after the date of acceptance by the city council.
60. The irrigation system within the right-of-way shall have its own service pedestal (city std. G-808a)
61. All right-of-way areas shall be separately delineated from private areas.
62. All planters shall receive 4” of shredded bark mulch, “forest floor” 0 – 2” or approved equal.
15.E
City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
63. Plans must list separate square footage for irrigated landscape and hardscape within the right-of-way.
64. Plans must identify the landscape located within the right of way.
Refuse Requirements
65. The City of Hemet has an exclusive Franchise Agreement with CR&R Inc. to collect and dispose of all waste including commercial, residential and construction debris within the City of Hemet. Contact CR&R at 1-800-755-8112 to set up solid waste collection services and to help you meet your waste reduction goals.
66. Developers must submit a Waste Management Plan and must recycle and or salvage for reuse a minimum of 65 percent of the nonhazardous construction and demolition waste in accordance with the 2019 California Green Building Standards Code.
BUILDING DEPARTMENT CONDITIONS
The following conditions of approval are project specific and were recommended by the Building Department. Questions regarding compliance with these conditions should be directed to the City of Hemet Building Department at (951) 765-2475.
67. A legal address assigned by the Building Division will be required prior to submittal of any plan check documents to the Building Division. Please coordinate directly with Building for required application, fees, and documentation required. This address must be posted on the site at all times.
68. Address shall be posted in a manner approved by the City of Hemet Building Department.
69. Construction activity shall only occur between the hours of 6:00 a.m. and 6:00 p.m. during the months of June through September and between the hours of 7:00 a.m. and 6:00 p.m. during the months of October through May. Saturday construction shall be permitted between the hours of 7:00 a.m. and 6:00 p.m.
Sunday construction shall be prohibited. Exceptions to these standards may be granted only by the Hemet Building Official and/or the Hemet City Council.
70. All new structures shall be designed in conformance to the latest design standards adopted by the State of California in the California Building Standards Code, Title 24, California Code of Regulations (CBC, CEC, CMC, CPC and Green Building Standards) and City of Hemet Ordinances including requirements for allowable area, occupancy separations, fire suppression systems, etc.
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City of Hemet -Final Conditions of Approval
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71. Roofing materials shall be Class A. CBC 1507
72. Fire Resistance Rating of Exterior walls shall be based on CBC Table 602
73. The Maximum Area of Exterior Wall Openings shall be per the adopted California Building Code Table 705.8 at time of plan check. An elevation of all sides indicating the location of protected/unprotected openings based on the fire separation distance shall be provided as well as the vertical separation of openings per CBC Section 705.8.5 where applicable.
74. Provide an allowable area calculation for the proposed structure based on CBC Table 503. If using the Area Modifications of CBC Section 506 the following shall be documented on the Site Plan:
1. Allowable Area
2. Tabular Area
3. Area increase due to frontage as calculated in accordance with Section 506.2
4. Area increase due to sprinkler protection as calculated in accordance with Section 506.3
75. Means of Egress: The construction documents shall show in sufficient detail the location, size and character of all portions of the means of egress in compliance with the provisions of CBC Chapter 10.
76. Provide occupancy separation(s) in the building(s) per CBC Table 508.4.
77. Provide draft stops as required by the currently adopted California Building Code section 717.3 at time of submittal.
78. Provide occupancy separation(s) in the building(s) per CBC Table 508.4. The following building(s) are affected.
79. Access, sanitary facilities, and parking shall comply with Title 24 Accessibility Requirements per the currently adopted California Building Code.
80. At least 1 accessible route shall be provided within the site from accessible parking spaces and accessible parking loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve.
If more than 1 route is provided, all routes must be accessible.
81. Submit five (5) complete sets of architectural plans and/or 5 sets of booklets if the following documents are applicable to your project: DRC Comments, mitigation Monitoring Reporting Plans or Conditions of Approval.
• Plot Plan
• Foundation Plan
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
• Floor Plan
• Structural Framing Plan
• Accessibility Plan
• Exit Study Plan
• Green Building Compliance Plan and Documentation
• Energy Compliance Plan including compliance and mandatory measures forms.
• Electrical Plans (electrical service shall be underground per Hemet Municipal Code, including size of main switch, number and size of service entrance conductors, circuit schedule and demand load. • Plumbing and sewer plan, isometric, including underground diagram, water piping diagram, sewer or septic tank location, fixture units, gas piping and vents, heating and air conditioning diagram. • Mechanical Plan including duct layout and sizing.
82. If your project is required to have a Mitigated Negative Declaration, the Mitigation Monitoring Plan compliance shall be printed in booklet form and submitted in equal numbers as architectural sets. All features shall be clearly identified on the plans.
83. Landscape and Irrigation plans: Submit four (4) complete sets detached from building plans.
84. If your project is required to have a Noise Study, the compliance forms shall be printed in booklet format and as part of the architectural submittal set. All features shall be clearly identified on the plans.
85. Submit two (2) sets of structural calculations, energy conservation calculations and soils reports. Architects/Engineers stamp and wet signature is required prior to submittal of plan check.
86. The City of Hemet is located in Seismic Design Category “D”. Buildings and structures shall be designed to adequately transmit the dynamic lateral forces in accordance with the requirements of the latest adopted California Building Code.
87. Trash enclosure provided shall be constructed per the city standards, a copy of which can be obtained at the Engineering Division. A Building Permit is required and shall be submitted as a separate permit application.
88. Sites subject to parcel line adjustments shall reflect the existing parcel lines and the proposed parcel lines and the distances to the structure accordingly. No permits will be issued by the Building Division until the recordation of such adjustments is received by the City of Hemet.
89. Upon tenant improvement plan check submittal there may be additional Building Division requirements.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
90. Upon plan check submittal and after review of the submitted plans, specifications and documents, additional requirements may be required.
91. The proposed project will be subject to approval by the Eastern Municipal Water District and all applicable fees and charges shall be paid to the District prior to permit issuance. Contact the water district at 951.928.3777 for specific details. • Approval (First Release) from Eastern Municipal Water District (EMWD) will be required prior to permit issuance.
• Approval (Final Release) from Eastern Municipal Water District (EMWD) will be required prior to permit final.
92. The proposed new development is subject to the payment of School Fees as required by law. The applicant is required to submit a Certificate of Compliance from the school district(s) to obtain building permits from the City.
93. Permit fees shall be paid in accordance to the City’s adopted fee schedule at the time of building permit is issued.
94. Separate permits are required for all fences, walls, paving, signage, trash enclosure and any other work not included in your original submittal.
95. Riverside County Health Department approval will be required prior to permit issuance. An original set of the approved plans will need to be provided to the City of Hemet.
96. Riverside County Health Department approval will be required prior to permit issuance for the swimming pool. An original set of the approved plans will need to be provided to the City of Hemet.
97. Prior to issuance of a Certificate of Occupancy, the applicant shall pay all development fees, including but not limited to Development Impact Fees (DIF) per City of Hemet Municipal Code; Transportation Uniform Mitigation Fees (TUMF) per City of Hemet Municipal Code; Multi Species Habitat Conservation Plan (MSHCP).
Said fees shall be collected at the rate in effect at the time of fee collection as specified by the current City of Hemet Council fee resolutions and ordinances.
98. All contractors must show proof of State and City licenses, and workmen’s compensation insurance to the City prior to the issuance of permits.
99. Businesses shall not open for operation prior to posting of Certificate of Occupancy issued by the Building Division.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
Agency Approvals:
100. The proposed project will be subject to approval by the Eastern Municipal Water District and all applicable fees and charges shall be paid to the District prior to permit issuance. Contact the water district at 951.928.3777 for specific details. 101. Approval (First Release) from Municipal Water District (EMWD) will be required prior to permit issuance.
ENGINEERING DEPARTMENT CONDITIONS
Please contact the PUBLIC WORKS-ENGINEERING DEPARTMENT for compliance with the following conditions:
102. Verify that PRIOR TO ISSUANCE OF BUILDING PERMIT, developer shall pay Development Agreement Fee of $625 per unit as required by the development agreement for each single-family structure permitted.
103. PRIOR TO ISSUANCE OF FIRST CERTIFICATE OF OCCUPANCY, developer shall make fair share payment for the 102 residential lots in Tract Map No.33824-2 totaling $27,766.52 for off-site street and traffic signal improvements as determined by the fair share analysis included in the 2019 amended Development Agreement for Tentative Tract 33824.
104. Developer shall comply with all applicable conditions of approval of Tentative Tract Map No. 33824 (TTM), latest revision of the Development Agreement (DA) applicable to this subdivision and all other applicable laws, ordinances, policies, and procedures of the County, State, and Federal governments, and City of Hemet. 105. Developer shall comply with all mitigation measures contained in the final environmental Impact Report (FEIR) approved for the McSweeny Farms Specific Plan. 106. It is understood that Raintree Investments is responsible for construction of all infrastructure serving the entire subdivision). However, if developer has assumed any of the responsibility from Raintree Investments, or its successor for sewer and water, they must contact EMWD to have the ownership transferred into their name as necessary to complete EMWD processing for approval of water and sewer plans. 107. PRIOR TO ISSUANCE OF FIRST OCCUPANCY PERMIT (COO), Developer shall provide proof of Letter of Map Revision (LOMR) related to the Cactus Valley Wash from FEMA. Alternatively, Developer/Builder may provide verification that NFIP flood insurance has been purchased in the name of the owner of each lot. 108. PRIOR TO ISSUANCE OF FIRST OCCUPANCY PERMIT (COO), if the LOMR has not been issued from FEMA, the Developer shall enter into an agreement with the city, as approved by the City Engineer and City Attorney, to provide NFIP flood insurance, at no cost to the homeowner, for each of the residential lots of this development for such period of time until the LOMR has been issued. Developer shall provide security guaranteeing the performance of this agreement in the total amount of the estimated
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
cost for flood insurance for all lots for a period of 5 years. Improvement Security may be reduced, increased or term extended in accordance with the terms of the agreement. 109. Final Site Development plans must be approved by Planning Department prior to approval of Precise Grading Plan (PGP) by City Engineer and issuance of a precise grading permit issuance for residential units.
110. PRIOR TO ISSUANCE OF DRE PRELIMINARY PUBLIC REPORT OR FIRST BUILDING PERMIT, whichever is sooner, developer shall form a Homeowners Association (HOA) and all documents associated with the HOA shall be approved by the City Attorney.
111. PRIOR TO ISSUANCE OF DRE PRELIMINARY PUBLIC REPORT OR FIRST BUILDING PERMIT, whichever is sooner, developer shall form, or annex into a CFD for public safety.
112. PRIOR TO ISSUANCE OF DRE PRELIMINARY PUBLIC REPORT OR FIRST BUILDING PERMIT, whichever is sooner, developer shall form, or annex into, a Lighting and Landscape Maintenance District (LLMD) or Community Facilities District (CFD) for operation and maintenance of landscaping and street lighting within the rights-of-way of this subdivision and rights-of-way adjacent thereto.
113. All required Engineering plans and studies shall be prepared by a California Registered Professional Engineer or California Registered Professional Surveyor and be submitted to the City Engineer for review and approval.
114. The Developer shall submit digitized drawing files of all Engineering plans/documents/reports, in the City’s compatible CAD system along with original mylar plans. Also provide a PDF file of all City Engineer approved Improvement Plans showing City Engineer’s approval signature as well as Private Engineer’s approval signature. 115. The Applicant shall coordinate with affected utility companies and obtain any permits as necessary for the development of this project.
116. The developer is responsible for resolving any conflicts with existing or proposed easements. All easement(s) of record, including appurtenant easements, and proposed easements shall be shown on the grading plan, site plan and other improvement plans.
Easements of record not shown on the approved site plan exhibit shall be relinquished or relocated as necessary for construction as shown on the approved site plan. Any lots or portions of the site which are affected by any easements which cannot be relinquished or relocated as necessary to resolve conflicts with the easement holders’ rights may be required to be redesigned. Final clearance may be required from easement holders prior to approval of final plans.
117. Any improvements encroaching into S Village Loop right-of-way, including grading, must be shown on plans approved by the City Engineer. The Applicant shall obtain an Encroachment Permit, as required, for all work within the public right-of-way. 118. Existing City streets, which require reconstruction or other construction work within the street shall remain open for through traffic at all times with proper lane shifts or adequate detours, all to the satisfaction of the City Engineer.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
119. PRIOR TO ISSUANCE OF FIRST OCCUPANCY PERMIT (COO), or earlier if required by applicable developer impact fee program, the developer shall pay all applicable development impact fees, including but not limited to WRCOG TUMF and City of Hemet DIF at the currently adopted rate.
120. Where survey monuments exist, such monuments shall be protected or shall be referenced and reset, pursuant to Business and Professions Code, Sections 8700 to 8805 (Land Surveyors Act).
121. Driveway approaches shall be built to City Standard C-208 and as shown on street improvement plans approved by the City Engineer.
122. Prior to issuance of DRE preliminary public report or building permit for any production unit whichever is sooner the developer shall form, or annex to a CFD for public safety. 123. Prior to issuance of DRE preliminary public report or building permit for any production unit, whichever is sooner, the developer shall form, or annex to, an LLMD or CFD for maintenance and operation of landscaping and street lighting within the subdivision and adjacent right-of-way.
124. Prior to issuance of DRE preliminary public report or building permit for any production unit, whichever is sooner, the developer shall form a Homeowners Association (HOA) and all documents associated with the HOA shall be approved by the City Attorney. 125. All work in the public right-of-way requires plans approved by the City Engineer and for work in South Village Loop Rd right-of-way an Encroachment Permit from Engineering is required.
126. Water meters shall be located at the permanent location for service to each respective lot per city standard W–701 and plans approved by EMWD. 127. This subdivision is required to provide approved US Postal Service community or neighborhood mailbox units. Show location of mailbox units on the street plans. 128. PRIOR TO ISSUANCE OF FIRST BUILDING PERMIT, developer shall provide copy of all applicable CC&Rs pertaining to Tract No. 33824-2 as approved by the City Attorney.
Provide written approval for Precise Grading Plans (PGP) and Landscaping Plans for landscaping in right-of-way from the Master Developer Design Review Board. 129. In accordance with City Ordinance No. 821 all utilities serving the project shall be provided underground
130. All public areas are to be landscaped interior and exterior to the subdivision, including, but not limited to the landscape at the street entrances off of S Village Loop, the landscaping in the paseo, park and open space adjacent to Stargazer Street and any retention and water quality basin areas, All public areas, except interior street parkways, shall be in a Lighting and Landscape Maintenance District (LLMD) or Community facilities District (CFD) and this may include, but not be limited to, the paseo, public park, open space, retention basin, and exterior/perimeter subdivision walls landscaping, and the Wildland Interface Area.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
GRADING AND DRAINAGE
131. PRIOR TO ISSUANCE OF DRE PRELIMINARY PUBLIC REPORT OR BUILDING PERMIT, whichever is sooner, developer shall provide covenant and agreement with the city, or evidence that a current agreement is in effect and applicable to this subdivision, for perpetual operation and maintenance of water quality BMP features as described in a city approved Water Quality Management Plan (WQMP) recorded with the Riverside County Recorder.
132. PRIOR TO ISSUANCE OF BUILDING PERMIT, the developer shall submit a Precise Grading Plan (PGP) for each of the lots for approval of the City Engineer. Grading shall be in accordance with City Grading and Erosion Control Standards. All lots shall drain to the street and no cross-lot drainage is permitted.
133. PRIOR TO APPROVAL PRECISE GRADING PLAN (PGP), the Soils Engineer of Record shall sign the PGP or provide a copy of a previously approved soils report with updated cover letter from Soils Engineer of Record stating that all recommendations therein address all circumstances of the PGP and remain applicable or, if not, provide requirements and details where different or where additional requirements apply. 134. PRIOR TO ISSUANCE OF BUILDING PERMIT or GRADING PERMIT, the developer shall provide updated rough grade certification for the grading with within this subdivision which is current within the prior 6 months. Provide updated Pad Certification for each of the MHC lots which is current within the prior 6 months of the issuance of any Building Permit for work within the respective lot.
135. Effective July 1, 2010, all construction projects of one acre or more, in the San Jacinto Watershed, shall apply for coverage under the State’s NPDES General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (General Permit) Order No. 2009-0009-DWQ, as amended by Order Nos. 2010-00014- DWQ, 2012-0006-DWQ and any more current orders. The developer shall provide the project specific WDID number on the Grading plans.
136. PRIOR TO ISSUANCE OF BUILDING PERMIT, the developer shall provide clearance from EMWD that sewer and water infrastructure improvement plans are approved and that arrangements satisfactory to EMWD have been made for the construction and inspection of these improvements. Provide all water service connections and sewer house connections in accordance with EMWD standards.
137. PRIOR TO PLACEMENT OF ANY COMBUSTIBLE MATERIALS onsite provide water service as approved by the Fire Marshal.
138. PRIOR TO ISSUANCE OF FIRST OCCUPANCY PERMIT (COO), all infrastructure improvements in the public right-of-way, as necessary to provide service to the structure and lot shall be constructed to the satisfaction of the City Engineer and the serving utilities, including EMWD. Developer shall provide written clearance from EMWD.
Roadway pavement shall be completed unless the final lift of asphalt pavement, is deferred by the City Engineer.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
139. The plans shall be prepared in accordance with the City of Hemet Standard Specifications for Public Works Construction, City of Hemet Standard Drawings, and the City of Hemet Grading and Erosion Control Standards. Plans shall be approved by the City Engineer.
140. As part of the Grading Plan submittal, the Developer shall submit an Erosion Control Plan that addresses Site Construction BMPs.
141. The Grading Plan shall provide for onsite retention of the incremental increase in runoff between the developed and currently undeveloped site for the 100-year/3-hour storm. All storm water conveyance improvements or facilities shall be designed to handle the peak flow from a 100-year event. Calculations shall be provided for approval of the City Engineer. The site shall accept, convey, and properly discharge all offsite drainage flowing onto or through the site with adequate provisions to intercept and convey the onsite runoff in a manner which will not adversely affect adjacent or downstream properties. If offsite (outside Tract 31824-2) stormwater retention facilities have been previously approved developer shall contact City Engineer to determine appropriate equitable establishment of costs of operation and maintenance of such facilities. No grading permit will be approved until such arrangements are approved by the City Engineer.
142. Grading Plan shall clearly show all existing property lines with bearings and distances from record information.
143. As part of the Grading Plan submittal, the developer shall submit a final Water Quality Management Plan (WQMP) for approval of the City Engineer. The WQMP shall incorporate Low Impact Development (LID) Principles and LID BMPs. PRIOR TO GRADING PLAN APPROVAL, developer shall execute a covenant and agreement with the City providing for perpetual operation and maintenance of post-construction BMPs by the property Owner and record agreement with the County Recorder. If offsite (outside Tract 31824-2) post-construction facilities have been previously approved developer shall contact City Engineer to determine appropriate equitable establishment of costs of operation, and maintenance responsibilities of such facilities. No grading permit will be approved until such arrangements are approved by the City Engineer. 144. PRIOR TO ISSUANCE OF GRADING PERMIT, the Developer shall obtain all necessary easements required for the project to be constructed and provide for proper drainage as may be applicable to the satisfaction of the City Engineer.
STREETS and STORM DRAINS
145. Street and storm drain improvements, including but not limited to all underground infrastructure, curb, gutter, pavement, sidewalk, landscaping, etc. shall be completed for all streets and storm drains within Tract 33824-2 to include the intersection with S.
Village Loop and offsite storm drain connections unless construction phases of selected areas and streets are otherwise approved by the City Engineer and Fire Marshal. When streets are temporarily left with base course pavement only during periods of continued construction it shall be 3” minimum of AC over aggregate base. The final/top lift of asphalt pavement shall be a minimum of 1 ½ inches and may be deferred if approved by the City Engineer.
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
146. All interior residential streets shall have parkway type (curb separated) sidewalk in accordance with the City of Hemet Standard Specifications and Standard C-215. 147. All interior streets shall have streetlighting. The design and Installation of streetlights shall be in accordance with plans approved by the City Engineer which include city’s current standard for LED lighting. Any previously approved plans shall be revised to include the appropriate LED fixture for the classification of street and submitted for rereview. Reconcile street plans and precise grading plans (PGP) with approved streetlight plans prior to approval of PGP. Street light plans shall be prepared by a Registered Electrical Engineer.
148. All interior residential streets shall have parkways (curb adjacent planting area) adjacent to curb as shown per Standard C-215. Street trees shall be planted at a minimum of one (1) tree for every 40 feet of street frontage in accordance with City guidelines. Parkway areas within the public right-of-way shall include the installation of ground cover (planted a minimum of 12-inches on-center) or turf and the installation of automated irrigation.
Maintenance of the street trees shall be through a Lighting & Landscaping Maintenance District (LLMD) or alternative maintenance mechanism acceptable to the City. 149. Where phased street construction does not include all subdivision streets, a temporary vehicular turnaround shall be provided temporary terminations in accordance with City Standard G-801 or as otherwise directed by the City Engineer and the Fire Department.
Adequate provisions shall me made for runoff from the end of temporarily terminated street improvements. All such improvements must be completed to the satisfaction of the City Engineer and the Fire Department.
150. If the adjacent street improvements of Tract No 33824-1 and Tract No 33824 are not completed and accepted by the City, but are under construction the northerly termination of Homeward Street and southerly termination of Stargazer Street shall be provided with a barricade per City Standard G-802 unless otherwise fenced and gated by the developer for access to the adjacent subdivisions. Gates shall be equipped to provide access for emergency services as approved by the Fire Marshal. Adequate provisions shall me made for runoff to/from the end of temporarily terminated street improvements. 151. If the adjacent street improvements of Tract No 33824-1 and Tract No 33824 are completed and accepted by the City prior to or during the construction of improvements in this subdivision developer shall preclude any and all construction traffic from utilizing those streets.
152. Any street, storm drain, streetlight or other infrastructure plans which were previously approved, unless approved within the last 24 months prior to the start of construction, shall be resubmitted for re-review and reapproval by the City Engineer. Resubmittal shall be accompanied by certification of the Engineer of Record, or California licensed civil engineer succeeding as Engineer of Record, that plans, and proposed improvements meet current city standards. Provide digital file of resubmitted plans. 153. Show all driveway approach locations and widths on Precise Grading Plans (PGP) and on street plans. All driveway approaches shall be in accordance city standards for residential driveways, C-208, C-209, and C-210 and Specifications for Public Works Constn1ction. Maximum driveway width shall be 25 feet. In accordance with City of
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
Hemet Resolution No. 1783 driveway widths and locations shall be approved by the City Engineer.
154. No more than one (1) driveway approach will be permitted per lot and no shared or circular driveways will be permitted in this subdivision. Developer is strongly encouraged to critically evaluate all driveways/driveway approaches and make minor adjustments to optimize on-street parking spaces (consider 18’ minimum of full height curb for single parallel parking space) with consideration for other adjacent driveway approaches, street light poles, fire hydrants, community mailboxes, etc.
155. PRIOR TO ISSUANCE OF OCCUPANCY PERMIT (COO), the Developer shall replace any sidewalk, curb and gutter, driveway approach, AC pavement or other improvements damaged during construction as determined necessary by the City Engineer. 156. Homeward Street, Hedgewood Street, Stargazer Street, Farmstead Street, Corkwood Street and Sunshow Court, including intersections with S Village Loop, shall be designed and constructed to City standards and as shown on approved tentative map unless otherwise directed by the City Engineer.
157. Developer shall submit traffic signing, striping and marking plans for S Village Loop to provided painted left-turn lane at intersections with subdivision streets. Plans may be prepared by a California Registered Civil Engineer or Registered Traffic Engineer and may be combined with the street improvement plan set for approval of the City Engineer. 158. All interior streets and intersections with S Village Loop shall have street name signs at all intersections and stop signs and painted red curb at locations specified by the City Engineer. Developer shall submit traffic signing, striping and marking plans for interior streets combined with the street improvement plan set.
159. Developer shall design and construct curb, gutter and pavement for the full width of Stargazer Street south of Farmstead Street to the most southerly tract boundary including portion within Tract 33824 and provide temporary turnaround per Standard G801 if improvements for Tract 33824 have not been constructed. 160. Developer shall design and construct curb, gutter and pavement for the full width of Homeward Street north of Corkwood Street to the most northerly tract boundary including portion within Tract 33824-1 and provide temporary turnaround per Standard G-801 if improvements for Tract 33824-1 have not been constructed. 161. Developer shall provide improvement plans and construct improvements, including lighting, landscaping, irrigation and amenities for open space lots, paseos and parks as required by the approved tentative map and as approved by the Planning Department.
Schedule for completion of construction of these improvements shall be as determined by Planning Department.
162. The conditions of approval for Tentative Tract 33824 require that the property owner is responsible for the irrigation of parkway landscaping adjacent to the frontage of their property as well as any landscaping adjoining their exterior side yard. Any lack of landscape/irrigation maintenance is subject to code violation actions. PRIOR TO
ISSUANCE OF DRE PRELIMINARY PUBLIC REPORT OR BUILDING PERMIT, developer shall prepare new, or amend existing, covenant, conditions and restrictions
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City of Hemet -Final Conditions of Approval
SITE DEVELOPMENT REVIEW NO. 20-009 and MODEL HOME MARKETING COMPLEX 21- 002 – KB Homes at McSweeny Farms
(CC&Rs) to include this obligation of the property owner for approval of the City Attorney.
163. PRIOR TO ISSUANCE OF OCCUPANCY PERMIT (COO) the conditions of approval for Tentative Tract 33824 require that developer install "No Parking Any Time" signs at the location(s) specified by the City Engineer. Locations shall be shown on the street improvement signing and striping plans. for approval of the City Engineer.
SEWER AND WATER:
164. This project is located within the Eastern Municipal Water District (EMWD) sewer and water service area.
165. PRIOR TO ISSUANCE OF OCCUPANCY PERMIT (COO), the developer shall comply with all relevant standards, policies, and procedures and pay all fees as applicable in acquiring appropriate service to the project from EMWD.
FIRE DEPARTMENT CONDITIONS
Unless specifically stated herein, these conditions shall not be construed to permit or allow deviation from any Federal or State laws nor any of the local codes and ordinances adopted by this jurisdiction. Please contact the Hemet Fire Department Fire Marshal for any questions regarding compliance with the applicable codes or following conditions:
The City of Hemet enforces the California Code of Regulations (CCR), Title 24, Part 9, 2019 California Fire Code without local amendments. In addition, CCR Title 19 requirements may be applicable. The design professional should refer to these provisions for guidance when developing project drawings and specifications. 166. Fire Sprinklers compliant with NFPA 13D (Residential) are required for each unit. 167. A public water supply which provides a minimum of 500 gallons per minute shall be available within 500 feet of any lot prior to construction. 168. A public water supply and hydrant system capable of providing 500 gallons per minute at 20psi residual pressure shall be installed throughout the project. Hydrant construction and spacing shall be compliant with City of Hemet Engineering standards. 169. The proposed project is immediately adjacent to a High-Fire Severity Zone (FSHZ) as determined by the California Dept. of Forestry. The project shall be evaluated to determine necessary setbacks, fuel modification and additional fire protection features.
END
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City of Hemet
City Council Meeting
STAFF REPORT
Meeting: City Council Meeting - Nov 12 2024
Department: Public Works
Submitted by: Mark Prestwich, City Manager
Jilleen Ferris, Deputy Public Works Director/Assistant City Engineer; ☐ Receive and File ☒ Consent Calendar ☐ Business Item ☐ Public Hearing TITLE:
A Resolution of the City Council of the City of Hemet, California, Approving a Third Amendment to the Agreement for Professional Services to Prepare the City’s West Master Drainage Plan by and Between the City of Hemet and Michael Baker International, Direct the Administrative Services Director to Appropriate $160,430 of Unencumbered Flood Control Development Impact Fees, and Authorize the City Manager to Execute all Contract Documents in the Final Form and Format as Approved by the City Attorney
RECOMMENDED ACTION:
It is respectfully recommended that the City Council:
Adopt a Resolution of the City Council of the City of Hemet, California, Approving a Second Amendment to the Agreement for Professional Services to Prepare the City’s West Master Drainage Plan by and Between the City of Hemet and Michael Baker International, Direct the Administrative Services Director to Appropriate $160,430 of Unencumbered Flood Control Development Impact Fees, and Authorize the City Manager to Execute all Contract Documents in the Final Form and Format as Approved by the City Attorney.
BACKGROUND:
The preparation of the West Hemet Master Drainage Plan (MDP) began in 2013 when City Council approved a professional services agreement with Michael Baker International (MBI), formerly RBF Consulting. The project consists of areas that are not currently covered in the current Riverside County Flood Control & Water Conservation District (RCFC&WCD) Master Drainage Plan. The purpose of the MDP is to determine the necessary drainage infrastructure to provide flood protection and cost analysis that will facilitate the addition of these improvements to the City’s Development Impact Fee (DIF) program.
The agreement with MBI for the MDP was to be completed approximately 16 months from agreement approval (June 11, 2013), however, due to City staff changes over the years, the MDP was never completed. Additionally, the initial agreement was for a total of $421,847, of which RCFC&WCD was responsible for $113,793 because a portion of the MDP is located outside of the City of Hemet limits
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and within the unincorporated Riverside County area. Reimbursement is provided to the City from RCFC&WCD through a separate reimbursement agreement.
In February 2019, MBI provided an Additional Work Request Summary to the City of Hemet for additional work related to the preliminary design of the Line C/Line D system, as well as revised hydrology for the Hemet Channel. The amount for this additional work was $16,045, which brought the overall contract amount to $437,892. The first amendment that reflected these changes was approved by the City Council on September 13, 2022.
A second amendment to the contract was completed on March 12, 2024, reinstating the contract that had expired.
ANALYSIS:
In order to complete the MDP, additional costs are required for certain tasks, most of which are costs to be shared with RCFC&WCD. An additional contract amendment with RCFC&WCD is forthcoming related to these changes.
Due to the amount of time that has passed since the original contract, and changes in environmental policy, the costs associated with the Environmental Impact Report (EIR) have increased. There are also additional items that are required as part of other tasks related to revisions to the MDP alignment due to discussions/conclusions with Riverside Conservation Agency (RCA) staff, which then affects the hydrology and hydraulic analyses for the system. The costs for the EIR are shared with RCFC&WCD at a 50/50 cost share, while the other tasks are broken down by Zone. Zone A refers to systems/infrastructure within the City of Hemet limits, and Zone B refers to systems/infrastructure within the unincorporated County of Riverside limits.
The remaining budget left in Task 4.6 and the entirety of Task 4.7 are no longer needed as part of the MDP analysis, and therefore this remaining $35,409.25 is being removed from the contract.
DISCUSSION:
A net additional amount of $160,429.19 is needed for the completion of the MDP, including EIR preparation. The following overall breakdown for the contract is as follows:
Original Contract Amount: $421,847.00
Additional Line C/Line D Analysis: $16,045.00
First Amendment Contract Amount: $437,892.00
Third Amendment Additional Work: $195,838.44
Removal of Remaining Task 4.6 and 4.7: -$35,409.25
Third Amendment Contract Amount: $598,321.19
A detailed breakdown of each task is included as an attachment to this report. The additional contract amount that will be reimbursed through RCFC&WCD is $153,046.06. RCFC&WCD has
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agreed to pay 50% of the cost for the EIR preparation, which originally was a cost borne by the City (Phase 6 of the itemized tasks). Therefore, more will be reimbursed to the City than originally anticipated. A total of $229,377.92 has been paid to MBI on this project, leaving a total remaining amount of $368,943.27 proposed under the third contract amendment.
Tasks in Zone B shall not be billed until the agreement with RCFC&WCD is amended to reflect the revised cost share amounts. RCFC&WCD is actively working on this and completion is anticipated to be within the next 1-2 months.
PREVIOUS COUNCIL ACTION:
June 11, 2013 Council approved the professional services agreement with Michael Baker International (then RBF Consulting).
September 13, 2022 Council approved the first amendment to the professional services agreement with Michael Baker International.
STRATEGIC PLAN INTEGRATION:
GOAL ONE: QUALITY OF LIFE:
To ensure that Hemet is safe, clean, attractive and comfortable for all who live, work, and visit.
Objective 1: Enhance the visual appearance of the community to make it attractive and reduce blight.
Objective 2: Explore and implement homelessness solutions for the City of Hemet.
Objective 3: Increase Public Safety visibility and response.
FISCAL IMPACT:
The requested increase to the existing contract not to exceed amount is a net of $160,429.19. The following is the breakdown of the final contract amount:
$421,847.00 Originally Approved Contract Amount
$16,045.00 First Contract Amendment
-$12,539.25 Remaining Task 4.6 Not Needed
-$22,870.00 Remaining Task 4.7 Not Needed
$195,838.44 Additional Needed to Complete the Contract
$598,321.19 Third Amendment Contract Amount
$437,892.00 First Amendment Contract Amount
$160,429.19 Net Increase in Contract Amount
Staff is requesting an additional appropriation of $160,429.19 from unencumbered Storm Drain Development Impact Fees.
The portion of the contract that will be reimbursed by RCFC&WCD, once an amendment is approved for the interagency agreement, is $266,839.06, resulting in an overall cost to the City of $331,482.13.
The original cost to the City after cost sharing with RCFC&WCD was $308,054 and increased to
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$324,099 with the first amendment. This will equate to a net increase of $7,383.13 for the City from this amendment once the revised interagency agreement is processed.
ALTERNATIVE(S):
1.Do not approve the proposed second amendment.
2.Provide alternative direction to the City Manager.
ATTACHMENT(S):
Attachment 1 Resolution Contract Amendment
Attachment 2 - Itemized Contract Billing
Attachment 3 - Third Contract Amendment MBI Proposal
Attachment 4 - RCFC&WCD Cooperative Agreement
Attachment 5 - Third MBI Contract Amendment
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
CITY OF HEMET
HEMET, CALIFORNIA
RESOLUTION NO. 2024-xxx
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF HEMET, CALIFORNIA, APPROVING A THIRD
AMENDMENT TO THE AGREEMENT FOR
PROFESSIONAL SERVICES TO PREPARE THE CITY’S
WEST MASTER DRAINAGE PLAN BY AND BETWEEN
THE CITY OF HEMET AND MICHAEL BAKER
INTERNATIONAL, DIRECT THE ADMINISTRATIVE
SERVICES DIRECTOR TO APPROPRIATE AN
ADDITIONAL $160,430 OF UNENCUMBERED FLOOD
CONTROL DEVELOPMENT IMPACT FEES, AND
AUTHORIZE THE CITY MANAGER TO EXECUTE ALL
CONTRACT DOCUMENTS IN THE FINAL FORM AND
FORMAT AS APPROVED BY THE CITY ATTORNEY
The City Council of the City of Hemet, California (hereafter referred to as the “City Council”) does resolve as follows:
WHEREAS, the preparation of the West Hemet Master Drainage Plan (MDP) began in 2013 when City Council approved a professional services agreement with Michael Baker International (MBI), formerly RBF Consulting; and WHEREAS, the project consists of areas that are not currently covered in the current Riverside County Flood Control & Water Conservation District (RCFC&WCD) Master Drainage Plan; and
WHEREAS, the project consists of areas that are not currently covered in the current Riverside County Flood Control & Water Conservation District (RCFC&WCD) Master Drainage Plan; and
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
WHEREAS, the original agreement was for a total of $421,847, of which RCFC&WCD would be responsible for the payment of $113,793 since a portion of the MDP is located outside of the City of Hemet limits and within unincorporated Riverside County area and reimbursement is provided to the City from RCFC&WCD through a separate reimbursement agreement; and
WHEREAS, in February 2019, MBI provided an Additional Work Request Summary to the City of Hemet for additional work related to the preliminary design of the Line C/Line D system for $16,045, which brought the overall contract amount to $437,892, and was approved by City Council on September 13, 2022; and WHEREAS, in order to complete the MDP, additional costs are required for certain tasks, most of which are costs to be shared with RCFC&WCD; and WHEREAS, due to the amount of time that has passed since the original contract and changes in environmental policy, the costs associated with the Environmental Impact Report (EIR) have increased; and
WHEREAS, there are also additional items that are required as part of other tasks related to revisions to the MDP alignment which then affect the hydrology and hydraulic analyses for the system; and
WHEREAS, the remaining budget left in Task 4.6 and the entirety of Task 4.7 are no longer needed as part of the MDP analysis, and therefore this remaining $35,409.25 is being removed from the contract; and
WHEREAS, a net additional amount of $160,429.19 is needed for the completion of the MDP, including EIR preparation, resulting in a second amendment contract amount of $598,321.19; and
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
WHEREAS, tasks in Zone B shall not be billed until the agreement with RCFC&WCD is amended to reflect the revised cost share amounts. RCFC&WCD is actively working on this and completion is anticipated to be within the next 1-2 months.
WHEREAS, the portion of the contract that will be reimbursed by RCFC&WCD, once an amendment is approved for the interagency agreement, is $266,839.06, resulting in an overall net cost to the City of $331,482.13, an increase of $7,383.13 from the agreement after the first amendment approval.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HEMET FINDS, DETERMINES, ORDERS AND RESOLVES AS FOLLOWS:
SECTION 1. FINDINGS - The recitals set forth above are hereby adopted as findings in support of this Resolution.
SECTION 2. Approve a Second Amendment to the Agreement for Professional Services to Prepare the City’s West Master Drainage Plan by and Between the City of Hemet and Michael Baker International.
SECTION 3. Direct the Administrative Services Director to Appropriate $160,430 of Unencumbered Flood Control Development Impact Fees.
SECTION 4. Authorize the City Manager to Execute all Contract Documents in the Final Form and Format as Approved by the City Attorney.
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
PASSED, APPROVED AND ADOPTED this 12th of November, 2024. ____________________________
Joe Males, Mayor
ATTEST:
_____________________________
John Paul Maier, City Clerk
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CITY OF HEMET RESOLUTION NO. 2024-XXX 1
State of California )
County of Riverside )
City of Hemet )
I, John Paul Maier, City Clerk of the City of Hemet, do hereby certify that the foregoing resolution was adopted by the Hemet City Council on the 12th day of November, 2024, and was passed by the following vote:
AYES: Council Members:
NOES: Council Members:
ABSTAIN: Council Members:
ABSENT: Council Members:
_____________________________
John Paul Maier, City Clerk
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Task Task Description Total Fee
Total
Previously
Billed
City Share
(ZONE A)
RCFC&WCD
Share (ZONE B) Zone A % Zone B %
Additional
Needed to
Complete
City Share
(ZONE A)
RCFC&WCD
Share (ZONE B) Credit Total
Credit City
Share (ZONE
A)
Credit
RCFC&WCD
Share (ZONE
B)
PHASE 1
1.1 Field Reconnaissance Map 7,972.00 $ $ 7,972.00 $ ‐ 7,972.00 $ 100% 0% $ ‐ ‐ $ ‐ $
1.2 Technical Memo‐ Exisisting Constraints 7,180.00 $ $ 7,180.00 $ ‐ 7,180.00 $ 100% 0% $ ‐ ‐ $ ‐ $
1.3 Technical Memo ‐ Engineering Design Criteria $ 7,764.00 $ 7,764.00 $ ‐ 7,764.00 $ 100% 0% 1,960.0 $ 0 $ ‐ 1,960.00 $ PHASE 2
2.1 Field Inventory Exhibit 5,119.00 $ $ 5,119.00 $ 2,811.00 $ 2,308.00 54.91% 45.09% $ ‐ ‐ $ ‐ $
2.2 Base Sheet 7,909.0 $ 0 $ 7,909.00 $ 4,225.00 $ 3,684.00 53.42% 46.58% $ ‐ ‐ $ ‐ $ PHASE 3
3.1 Watershed boundaries & Update exhibits 16,008.00 $ $ 16,008.00 $ 8,224.00 $ 7,784.00 51.37% 48.63% 9,020.00 $ $ 4,633.96 $ 4,386.04
3.2 Hydrology Analysis for Revised System $ 16,646.00 $ 16,646.00 $ 8,323.00 $ 8,323.00 50.00% 50.00% 16,100.0 $ 0 $ 8,050.00 $ 8,050.00 PHASE 4
4.1 Hydraulic Calcs & Exist. Facilities Map 7,338.00 $ $ 7,338.00 $ 3,743.00 $ 3,595.00 51.01% 48.99% 1,960.00 $ $ 999.77 $ 960.23
4.2 Documentation of findings from Task 4.1 10,209.00 $ $ 10,209.00 $ 5,227.00 $ 4,982.00 51.20% 48.80% 1,960.00 $ $ 1,003.52 $ 956.48
4.3 Technical Memo ‐ Alternative Analyses 12,947.00 $ $ 12,947.00 $ 6,406.00 $ 6,541.00 49.48% 50.52% 1,960.00 $ $ 969.78 $ 990.22
4.4 Proposed Alternatives Exhibit 22,970.00 $ $ 22,970.00 $ 11,485.00 $ 11,485.00 50.00% 50.00% 22,770.00 $ $ 11,385.00 $ 11,385.00
4.5 Quantity & Cost Estimate 16,226.00 $ $ 16,226.00 $ 8,113.00 $ 8,113.00 50.00% 50.00% 9,330.00 $ $ 4,665.00 $ 4,665.00
4.6 Implementation Program and CIP Schedule 20,304.00 $ $ 7,764.75 $ 11,931.00 $ 8,373.00 58.76% 41.24% $ ‐ ‐ $ ‐ $ $ 12,539.25 $ 7,368.29 $ 5,170.96
4.7 Funding Study $ ‐ 22,870.00 $ $ 13,840.00 $ 9,030.00 60.52% 39.48% $ ‐ ‐ $ ‐ $ $ 22,870.00 $ 13,840.00 $ 9,030.00 PHASE 5
5.1 MDP Draft Report 11,164.00 $ $ 2,791.00 $ 5,939.00 $ 5,225.00 53.20% 46.80% 8,040.00 $ $ 4,277.10 $ 3,762.90
5.2 MDP Final Report 9,252.00 $ ‐ $ $ 4,593.00 $ 4,659.00 49.64% 50.36% 8,040.00 $ $ 3,991.32 $ 4,048.68
5.3 MDP Exhibits 22,564.00 $ $ 7,897.40 $ 13,945.00 $ 8,619.00 61.80% 38.20% 8,520.00 $ $ 5,265.53 $ 3,254.47
5.4 Project Meetings and Coordination $ 27,680.00 $ 27,680.00 $ 16,608.00 $ 11,072.00 60.00% 40.00% 10,920.0 $ 0 $ 6,552.00 $ 4,368.00 PHASE 6
6.1 EIR Kick off Meeting 1,520.00 $ $ 1,520.00 $ 760.00 $ 760.00 50.00% 50.00% 1,720.00 $ $ 860.00 $ 860.00
6.2 Background Research and Investigation 2,762.00 $ $ 2,762.00 $ 1,381.00 $ 1,381.00 50.00% 50.00% 3,620.00 $ $ 1,810.00 $ 1,810.00
6.3 Prepare Expanded NOP 4,194.00 $ $ 3,859.58 $ 2,097.00 $ 2,097.00 50.00% 50.00% 3,290.00 $ $ 1,645.00 $ 1,645.00
6.4.1 Bio Resource Assessment 8,277.00 $ ‐ $ $ 4,138.50 $ 4,138.50 50.00% 50.00% 6,410.00 $ $ 3,205.00 $ 3,205.00
6.4.2 Air Quality / Climate Change Assessments 12,213.00 $ ‐ $ $ 6,106.50 $ 6,106.50 50.00% 50.00% 5,010.00 $ $ 2,505.00 $ 2,505.00
6.4.3 Noise Analysis 8,133.00 $ ‐ $ $ 4,066.50 $ 4,066.50 50.00% 50.00% 1,840.00 $ $ 920.00 $ 920.00
6.4.4 Cultural Resources Assessment 7,600.00 $ ‐ $ $ 3,800.00 $ 3,800.00 50.00% 50.00% 3,460.00 $ $ 1,730.00 $ 1,730.00
6.4.5 $ ‐ ‐ $ ‐ $ ‐ $ 50.00% 50.00% 4,820.00 $ $ 2,410.00 $ 2,410.00
6.5 Prepare Administrative DEIR 50,448.00 $ $ 13,116.40 $ 25,224.00 $ 25,224.00 50.00% 50.00% 15,210.00 $ $ 7,605.00 $ 7,605.00
6.6 Prepare Preliminary DEIR 15,854.00 $ ‐ $ $ 7,927.00 $ 7,927.00 50.00% 50.00% 1,520.00 $ $ 760.00 $ 760.00
6.7 Complete and Distribute DEIR 11,228.00 $ ‐ $ $ 5,614.00 $ 5,614.00 50.00% 50.00% 1,075.00 $ $ 537.50 $ 537.50
6.8 Response to Comment on DEIR 16,876.00 $ ‐ $ $ 8,438.00 $ 8,438.00 50.00% 50.00% 1,600.00 $ $ 800.00 $ 800.00
6.9 Prepartion of MMRP 4,592.00 $ ‐ $ $ 2,296.00 $ 2,296.00 50.00% 50.00% $ ‐ ‐ $ ‐ $
6.1 Preparation of Final EIR $ ‐ 6,028.00 $ $ 3,014.00 $ 3,014.00 50.00% 50.00% $ ‐ ‐ $ ‐ $ PHASE 7
7.1 Draft Plan & Profiles $ ‐ ‐ $ 50.00% 50.00% 41,540.00 $ $ 20,770.00 $ 20,770.00
7.2 Meetings and Coordination $ ‐ $ 4,143.44 $ 4,143.44 100.00% 0.00% 4,143.44 $ $ ‐ 4,143.44 $ REIMBURSABLEEXPENSES $ 20,000.00 $ 3,510.35 $ 10,000.00 $ 10,000.00 50.00% 50.00% $ ‐ ‐ $ ‐ $ AWR#1
9 Addition Work $ 16,045.00 $ ‐ 16,045.00 $ ‐ $ ‐ $ TOTALS ORIGINAL CONTRACT AMOUNT 421,847.0 $ 0 $ 229,377.92 PAID TO DATE TOTAL ADDITIONAL $ 195,838.44 $ 103,453.92 $ 92,384.52 $ 35,409.25 $ 21,208.29 $ 14,200.96 FIRST ADDENDUM CONTRACT AMOUNT 437,892.0 $ 0 MINUS REMAINING TASK 4.6 and 4.7 $ 160,429.19 $ 82,245.63 $ 78,183.56NEW CONTRACT AMOUNT 598,321.1 $ 9 $ 153,046.06 RCFC ShareORIGINAL RCFC&WCD CONTRACT AMOUNT 113,793.0 $ 0 NEW RCFC&WCD CONTRACT AMOUNT 266,839.0 $ 6
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October 15th, 2024
Jilleen Ferris, P.E.
Deputy Public Works Director/Assistant City Engineer
City of Hemet
445 E. Florida Avenue
Hemet, CA 92543
Re: Proposal for Hemet Valley Master Drainage Plan – AWR 2024 Dear Jilleen Ferris:
Michael Baker International (MBI) is pleased to provide a fixed fee proposal for the preparation of AWR 2024 for the Hemet Valley Master Drainage Plan, in the City of Hemet and adjacent unincorporated areas within Riverside County, in compliance with the City of Hemet Drainage Criteria and the County of Riverside’s Hydrology Manual and Hydraulic Design Manual and guidelines.
As the proposal outlines, this request will provide an additional work request (AWR) to complete and revise the phases of the original contract as well as prepare preliminary plan and profiles for all proposed storm drain alignments as requested by the County. Due to changes in the recent development, infrastructure, and land use planning within the area, revisions to the work done for the original contract will need to be updated to meet the current existing conditions that vary from the original contract created in 2013 with RBF.
This fixed fee proposal includes preparing preliminary plan and profiles, revising the existing and proposed hydrology and hydraulic analysis, additional meetings and coordination, and completing environmental services as mentioned. The scope of services is included herein.
If you have any questions, please do not hesitate to contact Alexander Svecz at 760-776-6135 Sincerely,
Christopher Alberts
Office Executive
Michael Baker International
[email protected]
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EXHIBIT A SCOPE OF SERVICES:
ADDITIONAL ENGINEERING SERVICES
MBI will revise the previous hydrologic and hydraulic analysis tasks specific to Phases 1 – 5. The tasks to be updated will include 1.3, 3.1, 3.2, 4.1, 4.2, 4.3, 4.4, 4.5, 5.1, 5.2, 5.3, and 5.4. The hydrologic and hydraulic analysis will be revised due to changes in new development, infrastructure, and land use changes of the Hemet Valley/Winchester Area Plan that deviate from the original contract prepared for this work.
The analysis will follow the methodology as outlined in the scope of the original contract. In addition to the rational method hydrology mentioned in the original agreement, Synthetic Unit Hydrographs will be prepared for select basins greater than 500 acres on a case-by-case basis to follow the hydrologic and hydraulic criteria outlined by Riverside County and the City of Hemet.
ADDITIONAL ENVIRONMENTAL SERVICES
MBI will update the previous Phase 6 – Preparation of Program EIR subtasks to ensure the environmental analyses are sufficient to evaluate the potential significance of impacts to of the MDP in accordance with the California Environmental Quality Act (CEQA) and other applicable county, state, and federal laws. The tasks to be updated will include 6.1, 6.2, 6.3, 6.4.1, 6.4.2, 6.4.3, 6.4.4, 6.4.5, 6.5, 6.6, 6.7, and 6.8. This task includes additional effort necessary for a program-level Master Plan.
A new kick-off meeting is needed to discuss the new preferred project and alternatives for the programlevel Master Plan. Additional research is needed and revised text developed for the new preferred project and alternatives for the program-level Master Plan. These key components of the environmental review are necessary to ensure adequate analysis per current the California Environmental Quality Act (CEQA) guidelines. Additionally, the assessment of environmental impacts on air quality/greenhouse gases, biological resources, cultural resources, energy, and noise elements will need to be updated and include mitigation measures to reduce potential significant impacts, as necessary.
Specifically for the energy analysis, MBI will analyze the energy implications of the project pursuant to Public Resources Code Section 21100(b)(3) and Appendix G and Appendix F of the CEQA Guidelines.
This requirement was not part of the CEQA Appendix G Checklist in 2013 when MBI’s scope was approved for this project. These statutes and guidelines require a project to describe, where relevant, the wasteful, inefficient, and unnecessary consumption of energy caused by a project. In addition, Appendix G of the CEQA Guidelines requires a consistency analysis with state or local plans for renewable energy or energy efficiency. The analysis will analyze energy consumption associated with short-term construction activities and long-term operations using CalEEMod based on the project’s land use data. The analysis will also discuss the effects of the project on regional and local energy supply, demand, and resources, and the project’s consistency with energy standards and requirements. Additionally, the assessment of environmental impacts on energy resources will include mitigation measures to reduce inefficient and unnecessary consumption of energy, if necessary.
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Specifically for biological resources, the following assumptions and exclusions are part of this task:
1. Literature Review – this review will include soils survey, National Wetland Inventory, County of Riverside vegetation mapping, and endangered species database review to provide additional context for the region and to help identify areas with potential riparian/riverine and vernal pool resources. The Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) Criteria Cells, Species Survey Areas, Public Quasi-public lands, etc. will be reviewed for the Master Plan Area. The City will provide any technical reports of biological resources that have previously been prepared for the region. Please note that a Habitat Acquisition and Negotiation Strategy (HANS) analysis will not be done as part of this task. This is typically done on a project-by-project basis. If a HANS analysis is needed, we can provide a scope and fee for this effort including technical studies.
2. Habitat Assessment – this will include a desktop review of Zones A and B. The results of the literature review along with aerial imagery, historic aerial imagery, and County vegetation data will be used to determine the potential special-status species and natural resources present within the Master Plan Area.
No field work will be conducted as part of this effort. MBI will conduct a desktop review of the RCA MSHCP Mapping Tool and identify the areas within the Master Plan that would require further study for MSHCP species. The habitat assessment for areas with potential vernal pools and riparian riverine resources assessments will be based on NWI results, aerial imagery, and other obtainable drainage data.
If mapping of vernal pools and riparian/riverine resources is needed, this would be conducted on a project-by-project basis. Urban edge effects will be conceptually reviewed as it pertains to the MSHCP conservation requirements and wildlife movement goals for Non-Contiguous Blocks 5 and 7.
3. Biological Technical Report (BTR) – this report will outline the requirements for MSHCP consistency within and outside of the Criteria Area and the potential focused studies that will be necessary for species within the Master Plan Area. However, the MSHCP Consistency documentation provided in the BTR will not fulfill the MSHCP Consistency Analysis requirements by the RCA and wildlife agencies since this would need to be performed on a project-by-project basis. The BTR will identify the potential riparian/riverine and vernal pool resources within the Master Plan Area. This task includes a desktop evaluation of potential resources and does not include an aquatic resources delineation or focused vernal pool assessment. For the City to achieve MSHCP consistency, focused studies for MSHCP survey areas species (MSHCP Section 6.1.3 and 6.3.2) must be conducted where there is suitable habitat in addition to evaluation for riparian/riverine and vernal pools resources (MSHCP Section 6.1.2). The current scope does not include this focused review. Focused studies can be provided for an additional fee but is recommended on a project-by-project basis. Although the original scope of work includes the preparation of an equivalency analysis, this assessment would need to be conducted on a project-byproject basis, and will not be provided in the BTR. The equivalency analysis identifies how the projects specific impacts in the Criteria Area would be mitigated such that the project would be equivalent or better than the existing condition. However, recommendations and potential conservation measures will be identified that will align with the conservation goals and objectives of the MSHCP. Separate figures will be prepared for Zone A and Zone B. Anticipated biological resources and MSHCP information that will be mapped include a vegetation communities/ land covers, potential aquatic resources (riparian/riverine/vernal pool), Criteria Cells, survey areas, PQP and conservation areas, and CNDDB
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occurrence data within 5 miles of the Master Plan Area. No quantification of impacts to sensitive biological resources will be provided.
TASK 7.1: DRAFT PRELIMINARY PLAN & PROFILES FOR PROPOSED STORM DRAINS MBI will provide engineering services to draft preliminary plans and profiles for all proposed storm drain alignments in accordance with RCFC&WCD standards. This includes preparing a template for the plans and profiles based on the example provided by the county to comply with their MDP standards.
Deliverables:
1. Index Map of Proposed Facilities
2. Plan and Profiles of Proposed Facilities
Details:
1. Index Map:
- An overview of the proposed storm drain alignments and facilities as per the MDP.
2. Plan and Profiles:
- MBI will establish centerline alignments for all proposed storm drain facilities. - MBI will procure topographical data to establish the existing grade over the centerline of the storm drain alignments.
- Draft plans and profiles for each mainline and lateral as proposed in the MDP. - Drawings will include plans and profiles at an appropriate scale. - All drawings will use the North American Vertical Datum 1988 (NAVD 88).
Submission:
- Electronic copies of the drawings will be provided to both the City and County.
TASK 7.2: PROJECT MANAGEMENT AND COORDINATION
MBI will attend meetings and provide consulting services for the Client and other agencies as directed by the Client during each task identified above. MBI will coordinate and attend progress meetings with the Client. The meetings will review the work progress and provide direction regarding the MDP. The scope also includes coordination with various agencies, as required. If additional work is required exceeding this amount, then it will be completed through a contract addendum agreed to by the Client. For the purpose of estimation, we have included 9 hours for each employee.
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ADDITIONAL SERVICES: Services not explicitly identified herein as services to be performed by MBI or its consultants are considered "Additional Services" for purposes of this Agreement. The Client may request that MBI perform Additional Services. However, MBI is not obligated to perform such Additional Services unless an amendment to this Agreement has been fully executed setting forth the scope, schedule, and fee for such Additional Services. In the event, that MBI performs Additional Services before receipt of such executed amendment. In that case, the Client acknowledges its obligation to pay for such services at MBI’s standard rates within 30 days of receipt of MBI’s invoice.
EXCLUSIONS:
Consulting services relating to any of the following tasks may be completed by MBI if negotiated under a separate contract for an additional fee but are presently explicitly excluded from this Agreement:
1. Topographic Surveys
2. Preparation of improvement plans or specifications.
3. Non-Drainage Utility Locations.
4. Water Quality Analysis.
5. Geotechnical Engineering.
6. Structural Engineering.
7. Construction Support.
8. Construction Management.
9. Any other services not explicitly set forth in the above Scope of Services.
OWNER RESPONSIBILITIES:
1. The Client shall provide access to the site.
2. The Client is to provide all indemnification, abatement, disposal, or other actions required by local, state, or federal law regarding hazardous materials.
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EXHIBIT B COMPENSATION AND PAYMENT
Consultant (MBI) shall complete the work outlined above per the fee schedule identified below and invoice the Client (City of Hemet) monthly based on the completion percentage. Client agrees to compensate MBI for such services as follows:
WORK TASKS:
ITEM DESCRIPTION FEE
Task 1.3: Establish Engineering Design Criteria ..................................................... $1,960.00 Task 3.1: Delineate Existing Watershed Characteristics ......................................... $9,020.00 Task 3.2: Rational Method Hydrology Analysis ................................................... $16,100.00 Task 4.1: Existing Municipal Storm Drain - Hydraulic Model Preparation ............ $1,960.00 Task 4.2: Existing Municipal Storm Drain - Capacity Analysis and Hydraulic Deficiency Identification ......................................................................... $1,960.00 Task 4.3: Existing Municipal Storm Drain - Deficiency Removal & Alternative Formulation/Feasibility Analysis ............................................................. $1,960.00 Task 4.4: Drainage Improvement Facility Sizing & Alignment ............................ $22,770.00 Task 4.5: Preliminary Drainage Facilities Quantity & Construction Cost Estimates .................................................................................................. $9,330.00 Task 5.1: Draft Report – Master Drainage Plan ...................................................... $8,040.00 Task 5.2: Final Report – Master Drainage Plan ....................................................... $8,040.00 Task 5.3: Final Drainage Exhibits/Maps ................................................................. $8,520.00 Task 5.4: Project Review Meetings and Coordination .......................................... $10,920.00 Task 6.1: EIR Kick-Off Meeting ............................................................................. $1,720.00 Task 6.2: Background Research and Investigation .................................................. $3,620.00 Task 6.3: Prepare Expanded NOP ........................................................................... $3,290.00
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Task 6.4.1: BRA ......................................................................................................... $6,410.00 Task 6.4.2: Air Quality/Climate Change Analysis ..................................................... $5,010.00 Task 6.4.3: Noise Analysis ......................................................................................... $1,840.00 Task 6.4.4: Cultural Resources Analysis .................................................................... $3,460.00 Task 6.4.5: Energy Analysis ....................................................................................... $4,820.00 Task 6.5: Prepare Admin Draft EIR ...................................................................... $15,210.00 Task 6.6: Prepare Prelim Draft EIR ......................................................................... $1,520.00 Task 6.7: Complete and Distribute Draft EIR ......................................................... $1,075.00 Task 6.8: Responses to Comments on Draft EIR .................................................... $1,600.00 Task 7.1: Draft Preliminary Plan & Profiles for Proposed Storm Drains .............. $41,540.00 Task 7.2: Project Management and Coordination ................................................... $4,143.44 Total Fee: $195,838.44
Tasks 4.6 and 4.7 will be removed from the contract as of 8/8/2024. No more charges will be applied to either of these tasks. The remaining funds for Tasks 4.6 & 4.7 will reduce the contract amount by $35,409.25.
Progress billings will be forwarded to the Owner monthly. These billings will include the fees earned for the billing period plus all direct costs advanced by MBI.
The client shall make every reasonable effort to review invoices within fifteen (15) working days from the date of the receipt of the invoices and notify MBI in writing of any item alleged to be incorrect.
The fees proposed herein shall apply until December 31, 2025. Due to ever-changing costs, MBI may increase those portions of the contract fee for which work must still be completed after December 31, 2025, by ten percent (10%).
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9 SUBMITTALTO THEFLOOD CONTROLANDWATER CONSERVATIONDISTRICT
BOARDOF SUPERVISORS, COUNTYOF RIVERSIDE,STATE OF CALIFORNIA SUBJECT: Cooperative Agreement [$113,793];
West Hemet Master Drainage Plan
Project No.4-0-00870
District3/District3
SUBMITTALDATE: November 26, 2013
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BACKGROUND:
The Districtwishes to support the City's efforts to prepare a new MDPfor an area that is generally bounded by Warren Road on the east; Domenigoni Parkway to the south; Highway 79 to the west; and Esplanade Avenue to the north. The study area includes areas located within the city. the City's sphere of influence and some unincorporated County territory. The study area overlaps portions of three existing MDPs and encompasses some previously unstudied areas. In addition to preparing a new MDP.the City's study contractor willprepare a program level environmental document pursuant to the CaliforniaEnvironmental Quality Act.
The Districtwillcontribute an amount not to exceed $113,793.00 for Fiscal Year 2013-2014 toward preparation of the MDPand the associated environmental compliance (CEQA) document.
County Counsel has approved the Agreement as to legal form and the City has executed the Agreement.
Currently, the study area lacks adequate drainage infrastructure and is subject to flooding. Development of the MDPprovides a blueprint for the future development of drainage facilities necessary to alleviate the existing ?ooding problems. Additionally,the MDPwillfacilitate new development withinthe study area.
SUPPLEMENTAL:
The District is funding a portion of the total cost associated with the development of the MDP. Suf?cient funding is available in the District's Zone 4 budget for FY 2013-14 and willbe included in the proposed budget in future years as appropriate and necessary.
The City solicited proposals from qualified ?rms and selected RBF Consulting to perform the necessary engineering and environmentalwork.
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COOPERATIVEAGREEMENT
the souih; Highway 79 to the west; and EsplanadeAvenue to the nonh (the “STUDYAREA"). calledADOPTEDPLANS; and
C. CITY and DISTRICT wish to cooperatively fund the engineering and environmean studies necessary to producea new master drainage plan, hereina?ercalledthe 15542
1 The RIVERSIDE COUNTY FLOOD CONTROL AND WATER
CONSERVATIONDISTRICT (DISTRICT) and the CITY OF HEMET (CITY) hereby agree as follows:
RECITALS
A. CITY and DISTRICT share a mutual interest in identifyinglexisting?ooding problemsand the drainage infrastructurenecessary to support anticipatedfuture development withinan area that is generallyboundedby Warren Road on the east; Domenigoni Parkway to A more detailedmap of the STUDYAREAis attachedas Exhibit "A" hereto; and B. Approximatelysixty percent of the S DY AREA is located within CITY and/or CITY sphere of in?uence; hereinaftercalled "ZONE A". The remaining portionof the STUDY AREA is located within unincorporatedRiversideCounty; hereinafter called "ZONE B". C ntly there are three (3) adopted master drainage plans (MDP) within the STUDY AREA: 1) West Hemet MDP; 2) SouthwestHemet MDP; and 3) Winchester P; hereinafte r
"PLAN" consistent with the California EnvironmentalQuality Act (CEQA) and current regulationsregarding urbanstorrnwater management; and
D. PLAN will encompass areas currently includedwithin the ADOPTEDPLANS andother areas of interest as mutually agreed by DISTRICTand CITY; and E. CITY, has (i) selected a quali?ed consulting engineering?rm, RBFConsulting ,
called “CONSULTANT", to prepare PLAN, including all necessary engineerin NOV 6 20
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and environmentalstudies; (ii) negotiated a fee for CONSULTANT'Sservices; and iii) entere d
into a contract with CONSULTANT; and
F. DISTRICT is willing to support development and implementation of PLANin an administrative,technicaland ?nancial capacity as set forth herein; and G. It is in the public interest to proceed with the necessary engineering and environmentalstudiesto complete PLANin an expeditiousmanner.
NOW, THEREFORE, CITY and DISTRICTmutually agree as follows:
1. CITY shall assume the role of Lead Agency for i) preparation of PLAN; ii) administration of CONSULTANT'S contract, hereinafter called "CONSULTANT' S
CONTRACT"; and iii) preparing and processing an appropriate environmental documen t
pursuant to CEQA.
2. DISTRICT shall provide technicaladvice, consultationand review of variou s
elementsof PLANand assume the role of a ResponsibleAgency under CEQA.
3. Pursuant to its contract with CONSULTANT, CITY has established the following:(i) CONSULTANT'S "Scope of Work" consisting of Phases 1 through 6, hereinafte r
called "SCOPE", attached hereto as Exhibit "B" and made a part hereof, and (ii) CONSULTANT‘S"Compensation",hereinafter called COMPENSATION, attached hereto as Exhibit"C" and made a part hereof.
4. The total fee for the work to be performed by CONSULTANT in preparationof PLAN under CONSULTANT'S CONTRACT shall not exceed $421,847.00 (four hundre d
twenty-one thousandeight hundred forty-seven dollars) as set forth in Exhibit "C", unless a written amendment to CONSULTANT'S CONTRACT is executed by CITY and CONSULTANTprior to performance of additionalservices.
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5. DISTRICT'S total contributiontowardpreparationof PLAN, hereinafter called "DISTRICT'S CONTRIBUTION", shall not exceed $113,793.00 (one hundred thirteen thousandseven hundredninety-three dollars) unless a written amendmentto this Agreement is executed by both partieshereto.
6. CITY shall not authorize any change to or modi?cationof CONSULTANT' S
CONTRACTaffecting SCOPE, COMPENSATIONor DISTRICT'S CONTRIBUTIONfor ZONE B without ?rst obtaining DISTRICT'S prior written consent. Prior to authorizing CONSULTANTto perform any additional work for ZONE B, CITY and DISTRICT shall mutually agree in writing that the additionalservices are necessary. Prior to deleting any items from SCOPE, CITY and DISTRICT shall mutually agree in writing that the work that is to be deletedis no longer necessary.
7. DISTRICT and CITY shall each be responsiblefor their respective staff costs andexpensesincluding the cost of any additionalconsultantsretainedby either agency to assist with the administration of their respective responsibilities or with their review of CONSULTANT'Swork pursuant to this Agreement.
8. In the event of any con?ict between DISTRICTand CITY engineering criteria or policies,CITY criteria shall govern withinCITYportions of STUDY AREA and DISTRICT or County of Riverside criteria shall govern within the unincorporatedportions of STUDY AREA, except as CITY and DISTRICTmay otherwiseagree in writing.
9. As CONSULTANT'Swork on PLAN progresses, DISTRICT shall reimburs e
CITY for costs incurred in accordancewith the provisionsof this Section. Upon receipt of a "Tangible Work Product", as set forth in Exhibit "B" and hereinafter called a "DELIVERABLE", DISTRICT shall have ??een (15) working days to review said DELIVERABLEand provide any comments to CITY concerning the general completeness and
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adequacy thereof. Within ?fteen (15) working days alter receipt of a DELIVERABLE, DISTRICT shall either providenotice to CITY concerning a DELIVERABLE'Sde?cienciesor authorize payment to CITY for ?fty percent (50%) of DISTRICT'Sshareof the itemized cost set forth in Exhibit " “‘. When a DELIVERABLEis found to be generally satisfactory, DISTRICTshallmake payment to CITY withinthirty (30) days of receiptthereof. In the event that DISTRICT ?nds a DELIVERABLEto be unsatisfactory, DISTRICTshall withhold payment pending resubmissionof the DELIVERABLEand/or satisfactory resolution of DISTRICT‘Scomments.
10. Upon DISTRICTS ?nal approvalof a DELIVERABLE, DISTRICT shallmake payment to CITY for ninety percent (90%) of DISTRICT'S share of the itemizedcost as set forth in Exhibit "C"i Said payment shall be made within thirty (30) days of DISTRICT‘S?nal approvaland such ?nal approvalshall not be unreasonably withheld. ll. DISTRICT shallwithholdten percent (I 0%) of DISTRICT‘Sshare of the value ofeaeh DELIVERABLEpending satisfactory completionof the entire PLAN.
12. The General Manager-Chief Engineer of DISTRICT or his designee is authorizedto act on behalf of DISTRICT, and approve and make payments to CITY for DISTRICT‘Sshare of PLAN preparationcests,
13. CITY Manager is authorizedto act on behalf of CITY and authorizepayment to CONSULTANTfor its services
14. CITY shall indemnify, defend, save and hold harmlessDISTRICTand County of Riverside and their respective of?cers, agents, servants, employees and independent contractors free and harmless fromany and all claims, demands, debts, suits, actionsand causes of action of whatsoever kind, nature or sort, including, but not by way of limitation, wrongful death, the expenses of the defense of said parties and the payment of attorneys' fees in any such .4.
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action, arising out of or in any manner connected with any act or omissionof CITY, its of?cers, agents, servants andemployees. done or performed pursuant to this Agreement.
15. DISTRICT shall indemnify, defend, save and hold harmless CITY and its respectiveof?cers, agents, servants, employees and independentcontractors free and harmless fromany and all claims, demands, debts, suits, actions and causes of actionof whatsoever kind. nature or sort, including, but not by way of limitation, wrongful death, the expenses of the defense of said parties and the payment of attomeys' fees in any such action, arising out of or in any manner connectedwith any act or omission of DISTRICT, its of?cers.agents, servants and employees, done or performed pursuant to this Agreement,
16. All noticesand statements required to be sent to the parties of this Agreement will be mailed by ?rst class mail, postage prepaidto the following addresses:
RIVERSIDE COUNTY FLOODCONTROL CITY OF HEMET
ANDWATER CONSERVATION DISTRICT 445 East Florida Avenue
1995Market Street San Jacinto, CA 92583
Riverside, CA 92501 Attn: Jorge Biagoni,City Engineer
Attn: Warren D Williams
GeneralManager-Chief Engineer
17‘ Any waiver by DISTRICTor by CITY of any breach of any one or more of the terms of this Agreement shall not be construed to be a waiver of any subsequentor other breach of the same or of any other term hereo? Failureon the part of DISTRICT or CITY to require exact, full andcomplete compliancewith any terms of this Agreement shall not be construedas in any manner changing the terms hereof, or estopping DISTRICTor CITY from enforcement hereof.
l8i If any provisionin this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable.the remaining provisionswill neverthelesscontinue in full force without being impairedor invalidatedin any way.
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