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Inland Empire Resource Conservation District A2013-31 413- 31 DEPOSIT AGREEMENT FOR EXPENSES INCURRED DURING NEGOTIATION This Deposit Agreement for Expenses Incurred During Negotiation ("Deposit Agreement") is entered into between the Inland Empire Resource Conservation District, a California resource conservation district ("RCD"), and the City of Chino Hills, ("the City") as of the date set forth below. RCD and the City may hereinafter be referred to as the"Parties." x. RCD. RCD is a Resource Conservation District formed for the control of runoff, the prevention or control of soil erosion, and the improvement of land capabilities pursuant to Public Resources Code section 9151 et seq. RCD may accept grants of money, land, and conservation easements to carry out its purposes, and may establish and charge fees for services provided upon request pursuant to Public Resources Code sections 9401 et seq. RCD may perform habitat restoration, conservation and/or similar activities ("conservation") for project proponents seeking permits from or with regulatory agencies. 2. City. The City of Chino Hills is located in the County of San Bernardino, State of California. The City is being required to mitigate for impacts resulting form maintenance of sediment basins, in the form of 2.o-A of enhancement and restoration work within and adjacent to the existing Hickory Creek channel within the City of Chino Hills. 3. Purpose. A proposed development project may adversely impact a species, habitat, riparian areas, or other sensitive environmental resources. As a condition to issuing a permit required for such project, a regulatory agency may require mitigation in the form of land set- aside, restoration or other activity. Regulatory agencies may approve the project proponent's retention of RCD to perform active habitat restoration for Project impacts. In negotiating and preparing the restoration and mitigation plan, reviewing associated documentation, and any other mitigation-related contracts, agreements, or other documents between the RCD and The City,the RCD Incurs expenses including, but not limited to,legal expenses, administrative and staff expenses, materials, labor, etc. ("Expenses"). If the proposed donation goes forward,or if it is cancelled, abandoned, modified, disapproved or otherwise does not proceed for any reason,then the RCD will have expended monies, resources and/or materials to pay for the Expenses. By this Deposit Agreement, RCD requests, and The City agrees to provide, an initial as well as potential further deposit(s)to RCD to cover • and defray RCD's Expenses. 4. Deposit. (a) Based on RCD's experience,the Parties agree that $5,000 is a reasonable RVPUB\WHS1754617.1 amount calculated to cover the anticipated Expenses incurred by RCD prior to execution of a mitigation agreement with The City with respect to the Project. If RCD determines that its incurred costs will exceed the Deposit amount, RCD shall notify The City in writing, and may request additional Deposit monies before proceeding with further negotiation and drafting of the mitigation documents contemplated by this Deposit Agreement. In the event that the City of Chino Hills' Hickory Creek project deposit costs exceed $25,000, staff City Council approval must be obtained prior to securing additional deposit funds. (b) In the event that the Parties ultimately enter into additional agreements with respect to the Project, RCD shall deduct from the Deposit all Expenses relating to the negotiation and preparation of the various contracts, agreements, and/or other documents relating to the agreement. Any unused portion of the Deposit shall be returned to The City. If further amounts are owed RCD, RCD may refuse to execute any documentations or agreements until such costs are fully reimbursed by The City. (c) In the event that the Parties do not enter into an agreement with respect to the Project, RCD shall deduct its Expenses incurred from the Deposit and return any unused portion of such Deposit to The City. Either party may terminate this Agreement at any time for any or no reason. Should The City terminate this Agreement, to obtain any refund owing,The City shall send to RCD, by certified mail, a written notice of cancellation, requesting an accounting and a refund of any remaining Deposit monies. RCD shall perform such accounting and refund any remaining Deposit monies to The City within 30 days of receipt of the cancellation notice and request. 5. Nature of Riahts Granted The City hereby acknowledges and agrees this Deposit Agreement only provides a deposit to cover or defray Expenses RCD will incur in the negotiation and preparation of the various contracts, agreements, and/or other documents relating to the agreement requested by The City. By this Deposit Agreement, RCD provides no guarantee that the parties will ultimately reach agreement on the terms of a mitigation agreement. 6. Mitigation Resoonsibility The Parties explicitly agree that this Deposit Agreement does not commit RCD to perform any mitigation, mitigation-related conservation,or related activity. No responsibility or liability therefore shall accrue to RCD. The parties agree to work cooperatively with each other during the process of attempting to negotiate a mitigation agreement for the Project. In particular,The City agrees to provide any appropriate documentation requested by RCD and to allow RCD staff and consultants to access the conservation sites,as may be necessary. 7, Miscellaneous RVPUB\WHS1754617.1 (a) Neither Party may assign its rights or obligations under this Deposit Agreement without the express written consent of the other, and both Parties agree not to unreasonably withhold such consent. In the event of an authorized assignment, this Deposit Agreement shall be binding upon and inure to the benefit of those permitted assigns. (b) The rights and obligations set forth herein are intended exclusively for the benefit of the Parties and shall not be construed to convey any rights or remedies to any third party. (c) This Deposit Agreement contains the entire understanding between the Parties with respect to its subject matter, and supersedes all prior agreements, oral or written, and all prior or contemporaneous discussions or negotiations between the Parties. This Deposit Agreement cannot be amended except in writing signed by both Parties. (d) This Deposit Agreement and all documents executed and delivered in connection herewith shall be governed by, and construed in accordance with, the laws of the State of California. (e) If any legal action or other proceeding is brought for the enforcement of this Deposit Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expenses, and other costs incurred in that action or proceeding in addition to any other relief to which such party may be entitled. IN WITNESS WHEREOF,the Parties have executed this Deposit Agreement as of the last date set forth below. INLAND EMPIRE RESOURCE The City of Chino Hills CONSERVATION DISTRICT,a California resourc onservation district By: I. Name: rIM ' bUJ '/k Name: Michael S. Fleager I Title: 1-2/10-04 AV /L�(� Title CityManager Date: — 11 1 3 Date: June 20, 2013 RVPUBIWHS1754617.1