Agenda Item No. 15
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Fermin Preciado, Director of Development Services/City Engineer Landon Kern, Assistant City Engineer Ue
Todd Gutjahr, Public Works Analyst
FOR: City Council Meeting of February 14, 2022
SUBJECT: Development Agreement with Yucaipa Valley Water District for the New City Yard Relocation Project
RECOMMENDATION:
That City Council:
1. Approve and authorize the City Manager to execute a Development Agreement with the Yucaipa Valley Water District for the New City Yard Relocation Project located on APN No. 0303-181-28; and
2. Authorize the City Manager or his designee to work with the Yucaipa Valley Water District to make minor adjustments to the Development Agreement, provided that if any significant changes are made, the Development Agreement will be brought back to City Council for further consideration; and
3. Find that the Development Agreement is within the scope of the Oak Glen Creek Specific Plan Environmental Impact Report.
BACKGROUND:
In March 2011, City Council approved the preparation of a Specific Plan and an Environmental Impact Report (EIR) for the development of the Wilson Creek Business Park and Flood Control Basin Project.
On May 13, 2013, City Council approved and authorized the Mayor to execute an MOU between the San Bernardino County Flood Control District (SBCFCD) and the City for the Wilson III Basin Project (Basin Project). The MOU detailed the partnership efforts between the City and SBCFCD, including the understanding that the SBCFCD owned property, which would not be required for the Basin Project, would be deemed "surplus" property, and would be transferred to the City for sale as SBCFCD's contribution towards the Basin Project.
On July 11, 2016, City Council selected the "preferred" land use alternative for the Oak Glen Creek Specific Plan as primarily residential with some Innovation Center parcels and renamed the "Wilson Creek Innovation Center Specific Plan" to the "Oak Glen Creek Specific Plan" -129-
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accordingly. The Innovation Center parcels/areas are located on the north and east sides of the Oak Glen Creek Specific Plan area and the northern parcel has been designated for the New City Yard Relocation Project (Project) which will serve as the City's new Public Works maintenance yard.
On February 26, 2018, City Council adopted Resolution No. 2017-47 approving the Oak Glen Creek Specific Plan and the associated Environmental Impact Report, which includes the Project.
On June 8, 2020, City Council approved a Purchase and Sale Agreement with SBCFCD (APN 0303-181-19) to acquire an approximately 3.4 -acre portion of the property for the new City Yard in the amount of $94,715.
The City Yard Relocation Project consists of site preparation for the development of the new City maintenance yard, including mobilization, clearing, and grubbing, over-excavation/compaction of the proposed building pads, drainage improvements, final site grading, and the fabrication and installation of the new City Yard buildings and covered storage structure and associated amenities.
On July 13th, 2020, City Council awarded a construction contract to Three Peaks Corporation for the grading of the Project site. The grading work has been completed and the Notice of Completion was filed on May 24, 2021.
On January 11, 2021, City Council awarded and authorized the Mayor to execute a contract in the amount of $331,851 with Western Steel Buildings of Park City, Utah for the Provide Fabrication Services Including Delivery for Yucaipa City Yard Steel Buildings and authorized a contract contingency in the amount of $33,000 and the amount of $15,000 for design contract administration and permitting for a total budget of $379,851 for this phase of the Project.
On June 28, 2021 City Council awarded and authorized the Mayor to execute a contract in the amount of $442,411 with Three Peaks Corporation for the Unload, Assemble, and Install/Erect City Furnished Steel Buildings and Install Concrete Footings/Foundations for the Project and authorized a contract contingency in the amount of $30,000 and the amount of $5,000 for construction contract administration, materials testing, and permitting for a total budget of $477,411. As part of this contract two of the three required buildings are currently being installed/erected and are scheduled to be completed this month.
On December 13, 2021, City Council awarded and authorized the Mayor to execute a contract with Three Peaks Corporation in the amount of $73,000, for the installation of the third building which is currently under construction. The approved construction budget for the installation of the third building includes a contract contingency in the amount of $10,000 and $5,000 for construction contract administration, materials testing, and permitting for a total budget of $88,000. The construction of this third building is anticipated to be complete in March.
The FY2021/2022 DIF Program identifies the total estimated cost of the new City Yard Project to be in the amount of $2,583,429. The increase in cost is primarily due to the rise in construction costs over the three (3) year period. The total change in the Construction Cost Index (CCI) over the 3 year period was approximately 12.5%.
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Development Agreement with Yucaipa Valley Water District for the New City Yard Relocation Project
DISCUSSION
One of the remaining phases of construction for the Project includes the installation of the wet and dry utilities proposed to serve the Project. The wet utilities include drinking water, recycled water (for landscape irrigation) and sewer service. Since the Project lies within their service area and is a new land development project, the Yucaipa Valley Water District (YVWD) has prepared a Development Agreement (DA) for the Project. The proposed DA specifies the conditions for YVWD to provide wet utilities to the Project. Several noteworthy conditions included in the proposed Development Agreement include:
YVWD has identified the required point of connection for the sewer service as the existing sewer main in Oak Glen Road. Due to the location of the existing sewer main in Oak Glen Road and the Project site conditions, the installation of a private sewer lift station and sewer force main will be necessary for the Project. As with the other private utility facilities, these facilities are anticipated to be operated and maintained by the City. A discussion with the Santa Ana Regional Water Quality Control Board and YVWD staff took place in order to confirm the requirements for the handling of wastewater anticipated at the City Yard main building. As a result of that discussion and based on the proposed location of the facilities, it was determined that a septic system would not be compatible at this site and that sewer facilities would need to be installed in order to convey the City Yard generated wastewater to the existing YVWD sewer main located on Oak Glen Road.
• YVWD has indicated that an easement for a drain line serving an existing well site (W-44) may be required in order to establish access rights and maintenance for existing YVWD facilities. At the time the City acquired the property for the Project, it became evident that the existing YVWD underground drain line is not located within an easement and is within the City owned property for the Project. City staff will coordinate with YVWD to determine if an easement will be required to support existing YVWD facilities. YVWD staff has indicated that their request for an easement is independent of the utility service being requested by the City for the Project.
City staff has been coordinating with YVWD on the engineering design of the utilities required to serve the Project. If the DA is approved by Council, the design of these utilities can be completed and submitted to YVWD for their review and approval. Based on the preliminary design efforts to date, an easement will likely be needed in order to facilitate the installation and maintenance of these utilities required to support the Project. City staff will return to Council at a later date with a recommendation regarding any required easement(s), as well as recommendations regarding the installation of the required utilities.
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Development Agreement with Yucaipa Valley Water District for the New City Yard Relocation Project
FISCAL IMPACT:
The table below includes the funding identified in the FY2021/2022 Capital Improvement Program (CIP) for the overall Project:
Funding Source
Amount
City Yard Property Sale Proceeds Sale to Woodside Homes $1,000,000
Public Facilities Fees Funds
118,000
General Fund Transfer from Dunlap Blvd. Bridge Removal/Replacement Project
330,000
General Fund Transfer from Wilson III Basin Project
200,000
Pavement Management Program Funds
240,000
Total Funding Available
$1,888,000
The table below includes the costs to date and estimated costs for the items of work remaining to be completed for the New City Yard Project.
Completed Items
Actual Cost
Environmental Review/Permitting/Staff Costs to Date
$40,000
City Yard Grading Contract Costs
269,172
Fabrication and Delivery
331,083
City Yard Building Installation
545,568
Covered Storage Installation
881000
Subtotal
$1,273,823
Remaining Items to be Completed
Estimated Cost
Landscaping/Irrigation
$17,500
Wet and Dry Utilities
200,000
Furniture/Appliances/Equipment
36,500
Fire Suppression/Alarm
120,000
Tenant Improvements
115,000
HVAC
45,000
Plumbing/Electrical
50,000
Misc. Site Improvements (Paving, parking, etc.)
30,000
Subtotal
$614,000
Total Estimated Project Cost
$1,887,823
The table above includes the total estimated cost of the overall project and identifies the actual costs for the completed items, as well as the current estimated cost of the items remaining to be completed.
The cost of the completed items was higher than anticipated due to the rise in construction costs associated with the change in CCI and more specifically, the higher than normal cost of steel required for the three steel building structures.
With the estimated cost for the Project identified in the table above in the amount of $1,887,823 (which includes the $2,500 deposit required by YVWD as a condition of the proposed Project) and -132-
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the available funding in the amount of $1,888,000, there is sufficient funding available to accommodate staffs recommendation.
It is important to note that the total estimated cost of the overall project identified in the DIF Program is in the amount of $2,583,429. The City Yard Property Sale Proceeds identified in the table above is in the amount of $1,000,000. With the total cost associated with the property purchase a estimated to be in the amount of $94,715, the resulting net land proceeds is in the amount of $905,285, offsetting the net cost of the total project. Staff will return to Council with an update to the DIF Program in the fall of this year reflecting the net savings associated with property acquisition costs for the New City Yard Project based on the final actual cost to complete the project.
Staff will return to Council at a later date with a recommendation regarding the installation of the required utilities identified in the DA.
Attachments: YVWD Development Agreement No. 2021-09
7 Approved by:
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Yucaipa Valley Water District
Development Agreement No. 2021-09
AGREEMENT TO PROVIDE DRINKING WATER, RECYCLED WATER,
AND SEWER SERVICE TO APN: 0303-181-28
THE YUCAIPA CITY YARD IN THE CITY OF YUCAIPA,
COUNTY OF SAN BERNARDINO
This Agreement is made and effective this 21'h day of
December 2021, by and between the Yucaipa Valley Water
District, a public agency ("District"), and the City of Yucaipa ("Developer"). Each is sometimes referred to herein as a "Party" and jointly as the "Parties".
For contractual issues, the Parties are represented by the following responsible individuals authorized to execute this Agreement:
Yucaipa Valley Water District
12770 Second Street
Post Office Box 730
Yucaipa, California 92399
Attention: Joseph Zoba, General Manager
Telephone: (909) 797-5119 x2
City of Yucaipa
34272 Yucaipa Boulevard
Yucaipa, California 92399
Attention: Ray Casey, City Manager
Telephone: (909) 797-2489 x226
By executing this Agreement, the Developer represents that they are the owner of the following parcel(s) which is/are the subject of this Agreement and referred to herein as the "Property":
RECITALS
WHEREAS, the Developer desires to develop its Property situated within the service area of the District consisting of a development with 1 Lot; and
WHEREAS, the Developer has provided plans, drawings, and/or concepts to the District to construct the proposed "Project" as shown on Exhibit A attached hereto; and WHEREAS, the Developer desires to obtain drinking water service, recycled water service, and sewer service from the District for the Project in accordance with the current Rules, Regulations, and Policies of the District; and General Construction Conditions as provided in Exhibit B attached hereto; and
WHEREAS, it is the purpose of this Agreement to set forth the terms and conditions by which the District will provide service to the Project.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Developer and the District agree as follows:
A. Project Overview. The City of Yucaipa is developing the site described herein as a maintenance yard to store equipment and materials and provide staff meeting areas. The proposed Project is located within APN:0303-181-28. The Project is located south of Oak Glen Road and west of Bryant Street in Yucaipa, California. The Project will receive drinking water service, recycled water service, and sewer service from the District. As this parcel does not have frontage along an existing roadway, service connection locations must be approved by the District.
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Oak Glen Rd
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B. Special Conditions. The following conditions, being contained herein, will be required by the District for the Developer to receive service for the Project.
Prosect Specific Drinking Water Conditions: The Project will receive drinking water service from the District. The Developer will design and construct on-site and off- site drinking water infrastructure ("Facilities") pursuant to District approved plans and requirements.
a. This Project will be a dual -plumbed property that requires drinking water service and recycled water service to the landscaped areas. An approved Supplemental Engineering Report and permitted use authorization by the State Water Resources Control Board is required prior to the issuance of occupancy for this Project.
2. Project Specific Recycled Water Conditions: The Project will receive recycled water service from District. The Developer will design and construct on-site and off-site recycled water infrastructure ("Facilities") pursuant to District approved plans and requirements.
a. This Project will be a dual -plumbed property that requires drinking water service for indoor use and fire suppression and recycled water service for landscaping. A Supplemental Engineering Report approved by the State Water Resources Control Board is required prior to the issuance of occupancy for this Project.
b. Recycled water is required for all landscape areas to the Project. A booster pump may be required for the Project depending on the elevation and design of the irrigated area.
3. Project Specific Sewer Conditions: The Project will receive sewer service from the District. The Developer will design and construct on-site and off-site sewer infrastructure ("Facilities") pursuant to District approved plans and requirements. a. The Developer shall provide off-site sewer alignment proposals to the District for review and approval as part of the design process. Due to the elevation and location of the Project, a lift station may be required.
4. Project Specific Stormwater Conditions: The City of Yucaipa and/or the County of San Bernardino will retain responsibility and authority for stormwater capture and discharges from the Project. The Developer will provide approved plans, specifications, and construction drawings to the District for review and identification of onsite stormwater collection facilities and retention basins and the District will review such plans, specifications and drawings to ensure that the Facilities will not interfere with existing District infrastructure and/or the stormwater facilities.
5. Project Specific Conditions: The Developer shall design and construct all Facilities and related appurtenances pursuant to the District approved plans and construction drawings to serve the Project.
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a. The District will not provide drinking water, recycled water, or sewer service to the Project until the required onsite and offsite infrastructure is completed and accepted by the District.
b. Project phases will be coordinated and approved by the District.
C. The Developer shall provide electronic design drawings of parcels and infrastructure in native AutoCAD file formats consistent with existing District enterprise systems prior to the issuance of occupancy for any or all lots.
6. Rates, Fees and Charges: The most current rates, fees and charges will be payable pursuant to the Resolution/Ordinance in effect at the time building permits are issued or renewed for each lot.
Project Related Invoices: The Developer agrees to deposit funds with the District, as required herein, within 10 business days following the District's approval of this Agreement. The Developer acknowledges and hereby agrees that the District is authorized, from time -to -time, to reimburse itself from the funds on deposit for Project costs incurred and that the District will not release any structure for occupancy unless there is a minimum balance in the Project Cash Account. Funds deposited within this Project account are non-refundable until such time as the infrastructure to provide service to the Project is completed and all building permits have been issued for the Project.
8. Ownership; Operation and Maintenance: Once constructed and accepted by the District, title to the Facilities (excluding private, on-site Facilities) will be conveyed by the Developer to the District, and the District will operate and maintain the Facilities and provide service to the Developer's Property in accordance with the District's Rules, Regulations and Policies and the provisions of this Agreement.
Easements, Dedications, and Recorded Documentation: All easements, dedications, and recorded documentation required by the District shall be provided by the Developer to the District in a timely manner as required by the District.
NOTE: A easement for the existing well site (W-44) drain -line may be required.
10. Annexation: This Project is located within the service area of the District so an annexation is not required.
11. Annual Review of Construction Drawings: The District requires an annual review of approved construction drawings related to this Project. The District will not charge the Developer for the annual construction drawing review. However, the Developer will be required to update and resubmit construction drawings based on comments provided by the District at the sole cost and expense of the Developer prior to the start of construction.
12. Amendment: This Agreement may be amended, from time -to -time, by mutual agreement, in writing signed by both Parties. The District and the Developer further agree that to the extent this Agreement does not address all aspects of the Developer's Property and/or Project, the Parties will meet and confer and negotiate in good faith and execute a written amendment or supplement to this Agreement. -137-
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13. Assignment: This Agreement will not be assigned, whether in whole or in part by either Party.
14. Construction and Interpretation: This Agreement has been arrived at through negotiations and each Party has had a full and fair opportunity to revise the terms of this Agreement. As a result, the normal rule of construction that any ambiguities are to be resolved against the drafting Party shall not apply in the construction or interpretation of this Agreement.
15. Entire Agreement: This Agreement and the most recent Preliminary Project Service Evaluation constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement, specifically Tract No. 20130 and, except as expressly provided in this Agreement, supersedes any prior oral or written agreement, understanding, or representation relating to the subject matter of this Agreement.
16. Authority: Each signatory of this Agreement represents and warrants that s/he is authorized to execute this Agreement on behalf of the Party for which s/he signs.
Each Party represents that it has legal authority to enter into this Agreement and to perform all obligations under this Agreement.
17. Term and Termination of Agreement: Unless extended by mutual agreement of the parties in writing, this Agreement shall terminate at 5:00 p.m., on the day before the sixth (6th) anniversary date of this Agreement; provided, however, that this Agreement shall automatically terminate, without further liability to either party, as follows:
a. Immediately, upon abandonment by the Developer of the Developer's Property and/or the work hereunder. "Abandonment" is defined as the act of bankruptcy or Developer's failure to improve the Property in a manner consistent with the proposed development plan within twelve months of the effective date of this Agreement; and/or
b. Within 45 days of the date of the issuance of a Notice of Default by the District to the Developer in the event the Developer fails or refuses to perform, keep or observe any of the terms, conditions or covenants set forth in this Agreement.
18. Choice of Law; Venue: This Agreement is to be construed in accordance with the laws of the State of California. Any action at law or in equity brought by any of the parties hereto for the purpose of enforcing a right or rights provided by this Agreement shall be tried in a court of competent jurisdiction in the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for a change of venue in such proceedings to any other county. -138-
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IN WITNESS WHEREOF, the parties have executed is Agreement to be effective on the day and year first above written.
YUCAIPA VALLEY WATER DISTRICT
Dated:
By:
Chris Mann, Board President
DEVELOPER
Dated: By:
Print Name: Rav Cas
Print Title: City Manager
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Yucaipa Valley Water District
Development Agreement No. 2021-09
Exhibit A - Proposed Development Concept
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Yucaipa Valley Water District
Development Agreement No. 2021-09
Exhibit B - General Construction Conditions
DESIGN AND CONSTRUCTION
A. Licensed Professionals: All work, labor and services performed and provided in connection with, for example, the preparation of surveys and descriptions of real property and rights-of-way, the preparation of construction specifications, plans and drawings, and the construction of all Facilities shall be performed by or under the direction of professionals appropriately licensed by the State of California and in good standing.
B. Plan Acceptance; Facility Acceptance: Upon its final review and approval of the plans and specifications ("Plans"), the District shall sign the construction drawings ("Approved Plans") indicating such approval ("Plan Acceptance"). Plans are subject to an annual review by the District and modifications will be required by the District to conform to revised construction standards and policies as part of the Plan Acceptance. The Developer shall update and resubmit the Plans for final approval by the District.
The Developer shall not permit, or suffer to permit, the construction of any Facility without having first obtained Plan Acceptance or completed modifications required by annual updates. In the event the Developer fails or refuses to obtain the District's Plan Acceptance, the District may refuse, in its sole discretion and without liability to the Developer, to issue its Facility Acceptance (as that term is defined below) as to such Facility when completed.
2. The Developer shall not deviate from any Approved Plans and/or specifications without the District's prior written approval.
C. Facility Inspection: All construction work shall be inspected on a timely basis by District personnel and/or by District's consultants at the sole cost of the Developer. The Developer acknowledges that the inspector(s) shall have the authority to require that any and all unacceptable materials, workmanship, construction and/or installation not in conformance with either (i) the Approved Plans, or (ii) standard practices, qualities and standards in the industry, as reasonably determined by the District, shall be replaced, repaired or corrected at Developer's sole cost and expense.
In the event the Developer's contractor proposes to work overtime and beyond normal business hours, the Developer shall obtain the District's approval at least 24 hours in advance so that inspection services may be appropriately scheduled.
The Developer shall be solely responsible for paying all costs and expenses associated with such inspection services.
2. The District shall promptly upon request of Developer cause the final inspection of a Facility which Developer indicates is completed. If the District finds such Facilities to have been completed in conformance with the Approved Plans for which a Plan Acceptance has been issued, then District shall issue to Developer its letter ("Facility Acceptance") indicating satisfactory completion of the Facility and District's acceptance thereof. Neither inspection nor issuance of the Facility Acceptance shall constitute a waiver by District of any claims it might have against Developer for any defects in the work performed, the materials provided, or the Facility constructed arising during the one-year warranty period. -141-
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D. Project Coordination and Designation of Developer's Representative: The Developer shall be solely responsible for coordinating the provision of all work, labor, material, and services associated with the planning, design and construction of the Facilities required for the Project.
The Developer shall be solely responsible for compliance with all applicable federal, state, and local safety rules and regulations, and shall conduct periodic safety conferences as required by law and common sense.
2. Prior to proceeding with any Facility construction, the Developer shall schedule and conduct a preconstruction conference with the District. In the event the Developer fails or refuses to conduct any such conference, the District may refuse, in its sole discretion, to accept the Facilities constructed by the Developer.
3. The District and the Developer hereby designate the individual identified on page 1 of this Agreement as the person who shall have the authority to represent the District and Developer in matters concerning this Agreement. In order to ensure maximum continuity and coordination, the District and Developer agree not to arbitrarily remove or replace the authorized representative, but in the event of a substitution, the substituting Party shall promptly advise the other Party of such substitution, in writing.
E. District's Right to Complete Facilities: The District is hereby granted the unqualified right to complete, construct or repair all or any portion of the water and/or sewer Facilities, at Developer's sole cost and expense in the event there is a threat to the public's health, safety or welfare.
F. Construction of Connections to District Facilities: Unless otherwise agreed to in writing by the District, the District shall furnish all labor, materials, and equipment necessary to construct and install connections between the Developer's Facilities and the District's water, recycled water, and sewer systems. All costs and expenses associated therewith shall be paid by the Developer.
G. Compliance with Law and District Regulations: The Developer hereby agrees that all Facilities shall be planned, designed, and constructed in accordance with all applicable laws, and the District's Rules, Regulations and Policies in effect at the time of construction.
The Developer shall keep fully informed of and obey all laws, rules, and regulations, and shall indemnify the District against any liability arising from Developer's violation of any such law, rule, or regulation.
H. Developer's Warranties: The Developer shall unconditionally guaranty, for a period of one year following the District's Facility Acceptance thereof, any and all materials and workmanship, at the Developer's sole cost and expense. The provision of temporary water service through any of the Developer's Facilities, prior to District's acceptance of same, shall not nullify nor diminish the Developer's warranty obligation, nor shall the Developer's warranty obligation be voided if the District determines, in its sole discretion, to make any emergency repairs necessary to protect the public's health, safety or welfare or to ensure continuity of water or sewer service. The District shall notify Developer of such emergency repairs.
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Testing and Disinfection: Upon approval by the District, the Developer, at its sole cost and expense, shall undertake and satisfactorily complete a testing program, including without limitation, compaction, cleaning, video and air testing, and pressurized and disinfection testing (drinking water Facilities), for all Facilities prior to acceptance by the District.
Bond Requirements: The Developer shall provide to the District, in a form satisfactory to the District, the following bonds:
Performance and Warranty Bond: A performance bond issued by a corporate surety or sureties licensed and permitted to do business by and within the State of California in an amount representing not less than one hundred percent (100%) of any and all construction work to be conducted or performed under this Agreement.
A warranty bond issued by a corporate surety or sureties licensed and permitted to do business by and within the State of California in an amount representing not less than fifty percent (50%) of the total cost of any and all construction performed hereunder, insuring against any and all defects in the Facilities constructed hereunder, for a period of not less than one full year after the date of acceptance thereof by the District.
2. Labor and Materials Payment Bond: A labor and materials payment bond issued by a corporate surety or sureties licensed and permitted to do business by and within the State of California in an amount representing not less than one hundred percent (100%) of the total cost of any and all construction performed hereunder per California Civil Code Sections 9550 and following.
Miscellaneous Bond Requirements: All bonds required by this section are subject to the approval as to form and content by the General Manager and District's Legal Counsel. All bonds required by this section shall be provided by a surety that is an "admitted" surety insurer authorized to transact surety insurance in California, with assets exceeding its liabilities in the amount equal to or in excess of the amount of the bonds, and each bond shall not be in excess of ten percent (10%) of the surety insurer's assets. The bond shall be duly executed and shall meet all of the requirements of Section 995.660 of the Code of Civil Procedure.
K. Title to Facilities and Right -of -Way: Provided that the Developer's Facilities are designed and constructed as required hereunder and the District proposes to issue its Facility Acceptance, the Developer shall, concurrently with the District's Facility Acceptance, convey ownership title to all Facilities (and right-of-way, if applicable) to the District, free and clear of any and all liens and encumbrances except those that are expressly agreed to by the District. The District may require fee title or an easement, depending upon the location of the Facility through action by the Board of Directors. Upon conveyance of title, the District shall assume the responsibility of operating and maintaining the Facilities, subject to the Developer's warranty as provided herein. The Developer acknowledges and agrees that the District shall not be obligated to operate and maintain the Facilities and to provide service to and through them until all applicable conditions imposed by this Agreement hereunder are satisfied and title to the Facilities has been conveyed and delivered to the District in recordable form.
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Risk of Loss: Until such time as acceptance thereof by the District, and until good and marketable title to the easements, rights-of-way and Facilities are conveyed and delivered to the District in recordable form, the Developer shall be solely and completely responsible for any and all losses and/or damage of every kind or nature to the easements, rights-of- way and Facilities. In the event Developer believes the loss and/or damages arose from or are related to acts performed by the District, this provision does not preclude Developer's insurance carrier from seeking indemnity and/or reimbursement from the District.
M. Conditions Precedent to the Provision of Water and Sewer Service: Unless the District otherwise agrees in writing, the District shall not be obligated to provide any water and/or sewer service to the Developer's Property or any part thereof, including model homes, until Facility Acceptance by the District and Developer conveys to the District the right-of- way and Facilities associated with the requested service. Upon acceptance of the right- of-way and appurtenant Facilities, the District shall provide the service requested and assume the responsibility for operating and maintaining the affected Facilities. Service provided by the District shall be in accordance with its Rules, Regulations and Policies and shall be comparable in quality of service to that provided all similarly situated customers.
FEES AND CREDITS
N. Developer Fees, Charges, Costs and Expenses: The Developer shall be solely responsible for the payment to the District of all fees, charges, costs, and expenses related to this Project.
O. Developer Cash Account Deposit: The Developer acknowledges and hereby agrees that the District is authorized, from time -to -time, to reimburse itself from the funds on deposit for Project costs incurred.
The Developer shall provide the initial deposit to the District, and maintain the minimum balance in the Cash Account for the Project as provided below:
a. An initial deposit of $2,500 and a minimum balance of $1,000 for a Project that involves the construction of 1 to 2 proposed structures; b. An initial deposit of $5,000 and a minimum balance of $2,000 for a Project that involves the construction of 3 to 5 proposed structures; An initial deposit of $10,000 and a minimum balance of $3,000 for a Project that involves the construction of 6 to 20 proposed structures; d. An initial deposit of $25,000 and a minimum balance of $5,000 for all other Projects.
2. The initial deposit shall be received by the District within 10 business days following the District's approval of this Agreement.
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4. The Developer agrees to deposit funds with the District within 30 calendar days upon the date an invoice is issued by the District or a Notice of Default will be issued by the District.
5. The District will not release any structure for occupancy unless the minimum balance is available to the District in the Project Cash Account.
6. Should any unexpended funds remain in the Cash Account upon completion of the Project or termination of this Agreement, then such funds shall be reimbursed to the Developer within 60 days.
P. Current Fees and Charges: In the event of a change in the District's schedule of fees and charges, such change shall automatically be incorporated into this Agreement as though set forth in full. Unless otherwise agreed to in writing by the District, the Developer shall pay, when due, the then -current amount of the applicable fee or charge.
Q. Sustainability Water: The Developer shall pay for the purchase of a quantity of imported water pursuant to the Sustainability Policy adopted by the Board of Directors as a Resolution No. 11-2008 on August 20, 2008, or the latest version with a revised quantity or fee structure. The imported water rate shall be the rate in effect at the time water is secured from the San Bernardino Valley Municipal Water District or the San Gorgonio Pass Water Agency depending on the location of the Project. Imported water for compliance with the Yucaipa Valley Water District's Sustainability Policy may be pre -paid to lock in the Development Sustainability fee or purchased prior to the issuance of building permits and pay the fee in effect at that time.
R. District Financial Participation; Credits: The District may agree to participate in certain Facilities for this Project. Any participation or financial contribution to construct the water and/or sewer infrastructure associated with this Project is identified in the Special Conditions at the beginning of the Agreement.
PERMITS AND DOCUMENTATION
S. Permits, Licenses and CEQA Documentation: The Developer shall be solely responsible for securing and paying for all permits and licenses necessary to develop its project. The Developer shall be solely responsible for complying with the California Environmental Quality Act under the auspices of the City and/or County within which the Property is situated. However, upon request, the Developer shall furnish to the District all relevant environmental documentation and information.
The Developer, at its sole cost and expense, shall be solely responsible for defending against any and all legal challenges, including but not limited to permits, licenses and CEQA documentation.
T. Documents Furnished by the Developer: The Developer shall furnish to the District documentation as required by the District specified below, within the time periods specified. Each and every document submittal shall consist of a fully executed original or certified copy (in recordable form, if applicable) and two copies. -145-
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Certification of Streets to Rough Grade
Prior to Construction
City/County Encroachment Permits and Conditions
Prior to Construction
Field Engineering Surveys ("Cut Sheets")
Prior to Construction
Grant of Easements and Rights -of -Way
Prior to Construction
Labor and Materials Bond
Prior to Construction
Liability Insurance Certificate(s)
Prior to Construction
Performance Bond
Prior to Construction
Soil Compaction Tests
Prior to Acceptance
Warranty Bond
Prior to Acceptance
List of Approved Street Addresses and Assessor Parcel
Prior to Setting Meter
Numbers
Notice of High/Low Water Pressure
Prior to Setting Meter
Notice of Water Pumping Facility
Prior to Construction
Mechanic's Lien Releases
Ugon Reauest of District
NOTE: The DEVELOPER hereby acknowledges and agrees that the foregoing list is not intended to be exclusive; therefore, the DISTRICT reserves the right to request, from time -to -time, additional documents, or documentation.
INSURANCE AND INDEMNIFICATION
U. Indemnification and Hold Harmless: The Developer and the District agree that the District should, to the extent permitted by law, be fully protected from any loss, injury, damage, claim, lawsuit, cost, expense, attorneys' fees, litigation costs, defense costs, court costs or any other costs arising out of or in any way related to the performance by Developer of this Agreement. Accordingly, the provisions of this indemnity provision are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to the District, except for liability attributable to the District's intentional and/or negligent acts. Developer acknowledges that the District would not enter into this Agreement in the absence of this commitment from the Developer to indemnify and protect the District as set forth here.
Therefore, the Developer shall defend, indemnify and hold harmless the District, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, actual attorneys' fees incurred by the District, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation incurred in relation to, as a consequence of or arising out of or in any way attributable actually, allegedly or impliedly, in whole or in part in the performance by Developer of this Agreement. All obligations under this provision are to be paid by the Developer as incurred by the District. Notwithstanding the foregoing, the Developer shall have no obligation to defend, indemnify or hold harmless the District, its employees, agents or officials from any liability arising, in whole or in part, from the District's intentional and/or negligent acts. -146-
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V. Insurance: The Developer agrees to provide insurance in accordance with the requirements set forth here throughout the term of this Agreement. If the Developer uses existing coverage to comply with these requirements and that coverage does not meet the requirements set forth herein, the Developer agrees to amend, supplement, or endorse the existing coverage to do so. The following coverages will be provided by the Developer and maintained on behalf of the District and in accordance with the requirements set forth herein.
Commercial General Liability Insurance (Primary) shall be provided on ISO -CGL Form No. CG 00 01 10 93. Policy limits shall be no less than $1,000,000 per occurrence for all coverages and $2,000,000 general aggregate. The District and its officials, employees and agents shall be added as additional insureds using ISO Form CG 20 10 10 93. Coverage shall apply on a primary non-contributing basis in relation to any other insurance or self-insurance, primary or excess, available to the District or any employee or agent of the District. Coverage shall not be limited to the vicarious liability or supervisory role of any additional insured. Coverage shall contain no contractors' limitation endorsement. There shall be no endorsement or modification limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage.
2. Umbrella Liability Insurance (over Primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a minimum, and shall include a "drop down" provision providing primary coverage above a maximum $25,000 self- insured retention for liability not covered by primary policies but covered by the umbrella policy. Coverage shall be following form to any underlying coverage.
Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in addition to policy limits. There shall be no cross -liability exclusion and no contractor's limitation endorsement. Policy limits shall be not less than $1,000,000 per occurrence and $1,000,000 in the aggregate, above any limits required in the underlying policies. The policy shall have starting and ending dates concurrent with the underlying coverages.
3. Workers' Compensation/Employer's Liability shall provide workers' compensation statutory benefits as required by law. Employer's liability limits shall be no less than $1,000,000 per accident or disease. Employer's liability coverage shall be scheduled under any umbrella policy described above. Unless otherwise agreed, this policy shall be endorsed to waive any right of subrogation as respects the District, its employees, or agents.
4. The Developer and the District further agree as follows:
a. All insurance coverage provided pursuant to this Agreement shall not prohibit the Developer, and the Developer's employees or agents, from waiving the right of subrogation prior to a loss. The Developer waives its right of subrogation against the District.
b. Unless otherwise approved by the District in writing, the Developer's insurance shall be written by insurers authorized to do business in the State of California and with a minimum "Best's" Insurance Guide rating of "AMI".
Self-insurance will not be considered to comply with these insurance specifications.
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C. The Developer agrees to provide evidence of the insurance required herein, satisfactory to the District, consisting of certificate(s) of insurance evidencing all of the coverages required and an additional insured endorsement to the Developer's general liability and umbrella liability policies. Certificate(s) are to reflect that the insurer will provide 30 days' notice of any cancellation of coverage. The Developer agrees to require its insurer to modify such certificate(s) to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, and to delete the word "endeavor" with regard to any notice provisions. The Developer agrees to provide complete certified copies of policies to the District within 10 days of the District's request for such copies.
d. In the event of any loss that is not insured due to the failure of the Developer to comply with these requirements, the Developer agrees to be responsible for any all losses, claims, suits, damages, defense obligations and liability of any kind attributed to the District, or the District's officials, employees and agents as a result of such failure.
e. The Developer agrees not to attempt to avoid its defense and indemnity obligations to the District and its employees, agents, and officials by using as defense the Developer's statutory immunity under workers' compensation and similar statutes.
MISCELLANEOUS PROVISIONS
W. Status of the Parties: This Agreement is not intended to create, and nothing herein contained shall be construed to create, an association, a trust, a joint venture, a partnership or other entity of any kind, or to constitute either party as the agent, employee or partner of the other.
X. Force Majeure: If either the District or the Developer is delayed, hindered or prevented from performing any term of this Agreement by any cause beyond either party's control including, without limitation, any strike, walkout, prohibitions imposed by law, rules or regulations, riot, war, act of God or the default of the other party, then such performance may be excused or the time of performance tolled during the period of delay.
Y. Incorporation of Prior Agreements: This Agreement contains all of the agreements of the parties with respect to any matter covered or mentioned in this Agreement, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose.
Z. Waiver: No waiver by either Party of any provisions of this Agreement shall be deemed to be a waiver of any other provision hereof or of any subsequent breach by either Party of the same or any other provisions.
AA. Severance: If any provision of this Agreement is determined to be void by any court of competent jurisdiction then such determination shall not affect any other provision of this Agreement provided that the purpose of this Agreement is not frustrated.
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Development Agreement No. 2021-09
BB. Disclaimer: Utilizing fees and Facilities provided to the District by the Developer, the District will supply sewer collection and treatment services to the Developer's Property and Project, however, the District shall not be obligated to utilize public funds to subsidize the Project.
CC. Water SupplV Availability: The District does not guarantee water supply availability and shall not be required to authorize the issuance of grading, building, or occupancy permits during the period of time that the State of California and/or the Board of Directors have declared a water supply reduction of 20% or greater for a specific portion or all of the District's service area.
DD. Preparation of This Agreement: This Agreement shall not be construed against the Party preparing it but shall be construed as if both Parties prepared it.
EE. Alternative Dispute Resolution: Any dispute as to the construction, interpretation or implementation of this Agreement, or any rights or obligations hereunder, shall be submitted to mediation. Unless the Parties enter into a written stipulation to the contrary, prior to the filing of any complaint to initiate legal action, all disputes shall first be submitted to non-binding mediation, conducted by the Judicial Arbitration and Mediation Services, Inc./Endispute, or its successor, or any other neutral, impartial mediation service that the Parties mutually agree upon in accordance with its rules for such mediation. Mediation fees shall be shared equally by the DEVELOPER and the DISTRICT.
END OF SECTION
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