S. Ramos Contract No. Z011- 22 0
DS/ Administration Approved /// 51
43/€ 3,, #
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REIMBURSEMENT AGREEMENT
FOR
SEWER LIFT STATION/ FORCE MAIN ( Project SW- 143)
GRAVITY LINE ( Projects SW- 103)
THIS AGREEMENT is made and entered into this
15th
day of January, 2019 by and
between the CITY OF CHINO, a Municipal Corporation, hereinafter called the " CITY", and CHINO DEVELOPMENT CORPORATION, hereinafter called the " DEVELOPER" together referred to as " PARTIES".
WITNESSETH
WHEREAS, CITY, pursuant to that certain Preserve Development Agreement No. 2004- 073 effective July
1st,
2004 ( the " Agreement"), required DEVELOPER to install certain Public Facilities described in the approved Development Impact Fee Calculation and Nexus Report as a condition precedent to obtaining development approvals; and WHEREAS, DEVELOPER installed the Sewer Lift Station/ Force Main Project and Gravity Line described in Exhibit 1 ( the " Improvements") attached hereto and made a part of hereof which benefits property subject to the Agreement (the "Lewis Property) and other property within The Preserve Area and of the General City depicted in Exhibit 2 (" Area of Benefit") attached hereto and made part of hereof; and
WHEREAS, DEVELOPER agreed, at its own expense, to furnish all equipment and material necessary to perform and complete in a good and workmanlike manner, the Improvements. DEVELOPER agreed to advertise, publicly bid, and award a contract for construction of Public Improvement in accordance with Public Contract Code and comply with all applicable provisions of California law, including but not limited to the prevailing wage provisions contained in the Labor Code; and
WHEREAS, Chino Municipal Code ( CMC) Chapter 3. 45 ( the " Preserve DIF Ordinance") also specifies that any DEVELOPER in the portion of the City known as The Preserve that constructs sewer improvements described in the reports referenced in the Preserve DIF Ordinance that are in excess of what is needed for its development is entitled to a priority reimbursement from the sewer fee account and/or fee credit against its obligation to pay sewer development impact fees; and
WHEREAS, DEVELOPER has completed all work incidental to the installation of the said Improvements according to the specifications of the CITY, and said work was completed under the inspection of, and to the satisfaction of, the City Engineer of CITY and any change orders shall be approved by the City Engineer.
NOW, THEREFORE, the PARTIES acknowledge the truth of the foregoing recitals and agree as follows:
SEWER SYSTEM LIFT STATION, FORCE MAIN& GRAVITY LINE
PROJECTS SW143& SW103 Page 1 of 6
AGREEMENT
1. Preserve DIF Credit and Priority Reimbursement. a. DIF Ordinance Reimbursementor Credit Amount. The City Engineer has determined that the total cost of the Improvements that are eligible for credit or reimbursement pursuant to CMC Chapters 3. 45 and 3. 40 is estimated to be Nine Million, Five Hundred Fifty- Five Thousand 9, 955, 000. 00) dollars (" Total DIF Cost"). The foregoing estimate of the Total DIF Cost shall be subject to adjustment based on the final accepted and approved " as- built plans" and specifications and the review of actual cost documentation by the City Engineer pursuant to CMC 3.45. 110.6. 3 and C. 9.
b. DEVELOPERshall be reimbursedfor the actual, City Engineer-approved costs DEVELOPER incurs to construct the Public Improvements pursuant to the procedure set forth in this Section. The Public Improvements are apportioned as follows: estimated Sewer Collection Facilities DIF: Project SW- 143 Sewer Lift Station/ Force ($ 8,371,000.00) and estimated Gravity Line Project SW- 103 ($ 1, 584, 000. 00).
c. Project Credits. Of the Total DIF Cost, as of July 1st,
2018,
1, 220, 202. 00 (" Past Project Credit") has been used by DEVELOPER or its assignees as a project credit against The Preserve DIF Sewer Fees otherwise due and payable within the Lewis Property pursuant to CMC Section 3. 45. 110. 6 of (" Project Credit") as more particularly set forth in Exhibit 3 titled " Sewer Credit Reconciliation" attached hereto and made part of hereof.
d. Remaining Priority Reimbursement and Project Credit. An amount equal to the Total DIF Cost, as ultimately determined by the City Engineer, less the Past Project Credit ( the " Chino Amount") remains to be returned to DEVELOPER as a Priority Reimbursement collected from properties within the Area of Benefit and/ or as a Project Credit against Preserve DIF Sewer Fees otherwise due and payable by DEVELOPER anywhere within the Lewis Property. On the first business day on or following each February
1st
commencing on February
1st,
2019 ( each, a " Payment
Date"), CITY shall pay DEVELOPER 100% ( exclusive of any overhead rate collected by City per CMC Section 3.45. 030, K) of the amount of the Preserve Sewer Fees collected from properties ( within the Area of Benefit) during the preceding calendar year, unless the CITY and DEVELOPER agree in writing to a lower percentage, until the Chino Amount has been returned in full to DEVELOPER by reimbursement or Project Credit or by a combination. Any Project Credit used by the DEVELOPER toward any future project on the Lewis Property shall be applied against the amount of the Preserve Sewer DIF at the time the DEVELOPER becomes liable for its payment. Of the Chino Amount, the DEVELOPER agrees that not less than $ 2, 010, 597. 00 shall be utilized as
Project Credit, including the Past Project Credit. Whenever DEVELOPER elects to use all or any portion of the remaining Chino Amount as a Project Credit against Preserve Sewer Fees otherwise due and payable within Lewis Property, DEVELOPER shall provide written notice to the CITY of the amount to be applied from time to time and the portion of the Lewis Property for which the Project Credit will be used and the assignee, if applicable, of such Project Credit amount. Under no circumstances shall DEVELOPER and/ or its assignees receive Priority Reimbursement payments and Project Credit that, in total, exceed the Chino Amount. e. Annual Reconciliation. Once each year, commencing February 1St, 2019 and each February 1st thereafter, CITY and DEVELOPER representatives shall meet for the purpose ascertaining the amount of the reimbursement paid by CITY to the DEVELOPER from Preserve DIF Sewer Fees collected from properties in the Area of Benefit during the prior calendar year and the amount of Project Credit taken by DEVELOPER against its obligation to pay Preserve DIF Sewer Fees for its development of any portion of the Lewis Property. CITY and DEVELOPER shall prepare a document that reconciles the CITY' S reimbursement payment amount to DEVELOPER, if any, and Project Credit amount taken by the DEVELOPER, if any, attributable to the prior calendar year that shall be signed by said representatives. When so signed, said reconciliation document shall constitute a revision of Chino Amount then remaining and it shall be binding on the PARTIES.
2. Acceptance of Improvements. The Improvements shall be the sole property of CITY upon acceptance by the CITY. DEVELOPER shall notify CITY in writing when the Improvements are complete. Such written notification shall include a request that CITY accept the Improvements. The CITY shall accept the Improvements within ninety ( 90) calendar days from receipt of such notification by the DEVELOPER unless the Director of Public Works determines that the Improvements does not comply with the Plans and Contract Documentsin which case he may require DEVELOPERto remedy any deficiency of the Improvements. CITY shall further be the beneficiary of the construction agreement between DEVELOPER and the construction contractor, Pacific Hydrotech Corporation for the installation, completion, and maintenance of the Improvements dated May 8th, 2017, as amended on the same date and again on December 27, 2018 as well as the related warranty bond, dated January 9 , 2019.
3. Indemnity. DEVELOPER, to the fullest extent permitted by law, shall indemnify, defend, and hold the CITY and its elected and appointed officials, agents, employees, and authorized volunteers harmless from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses ( including but not limited to attorneys' fees, expert witness fees, and court costs) (" Claims") that arise, directly or indirectly, from the design and/or construction of the Improvements. In addition, the foregoing indemnity provision shall only apply to Claims which are tendered by the CITY to DEVELOPERby written notice delivered within one year from the date on which CITY accepts the Improvements and shall survive the termination of this Agreement
for that one- year period. It is understood that the duty to indemnify and hold harmless includesthe dutyto defendas setforth in section2778of the CaliforniaCivilCode.
4. Preservation of City' s Rights. The City hereby preserves its right to impose on any and all future development projects conditions of approval requiring the construction and/ or payment of development impact fees for the construction of any sewer facilities that may be deemed necessary and are part of the Master Plan of Facilities pursuant to CMC 3. 45.
5. Notices. All notices permitted or required under this Agreement shall be deemed made when delivered to the applicable party's representative as provided in the Agreement. Such notices shall be mailed or otherwise delivered to the addresses set forth below, or at such other addresses as the respective PARTIES may provide in writing for this purpose:
DEVELOPER: CITY:
CHINO DEVELOPMENT CORPORATION City of Chino
1156 N. Mountain Avenue 13220 Central Avenue
Upland, CA 91786 Chino, CA 91710
Attn: Mr. John M. Goodman Attn: City Manager
With copy to:
Lewis Management Corp.
1156 N. Mountain Ave
Upland CA 91786
Attn: General Counsel
Such notices shall be deemed made when personally delivered or when mailed, forty-eight 48) hours after deposit in the U.S. Mail, certified mail, return receipt requested, to the party at its applicable address.
6. Entire Agreement; Amendment. This Agreement contains the entire agreement of the PARTIES hereto with respect to the matters contained herein, and supersedes all negotiations, prior discussions and preliminary agreements or understandings, written or oral. No waiver or modification of this Agreement shall be binding unless consented to by both PARTIES in writing.
7. Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilegeor servicevoluntarilygivenor performedby a partyshall give the other party any contractual rights by custom, estoppel, or otherwise.
8. Invalidity and 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.
and maintenanceof
the ImprovementsdatedMay 8th, 2017, as amendedon the samedate andagainon December27, 2018 as well as the related
warranty bond, dated January9 , 2019. 3. Indemnity. DEVELOPER, to the fullest extent permitted by law, shall indemnify, defend, and hold the CITY and its electedand appointed officials, agents,employees, and authorizedvolunteersharmlessfrom and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses ( includingbut not limited to attorneys' fees, expert witness fees, and courtcosts) (" Claims") thatarise, directlyor indirectly, fromthe design and/ or constructionof the Improvements. In addition, the foregoingindemnityprovisionshallonly applyto Claimswhichare tenderedby the CITY to DEVELOPERby writtennoticedeliveredwithin one year from the date on which CITY acceptsthe Improvementsand shall survive theterminationof
9. 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, appropriateor convenientto attain the purposesof this Agreement.
10. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
11. Construction; Captions. Since the PARTIES or their agents have participated fully 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.
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.
12. Incorporation of Recitals. The Recitals are incorporated herein and made an operative party of this Agreement.
13. Authority to Enter into Agreement. Each party warrants that it has all requisite power and authority to execute and perform this Agreement. Each person executing this Agreement on behalf of their party warrants that he or she has the legal power, right and authorityto make this Agreementand bind his or her respectiveparty.
14. Assignment. This Agreement may not be assigned by the CITY.
DEVELOPER may assign its rights to all or any portion of the Priority Reimbursement provided that DEVELOPER stipulate in a written notice to the CITY the name and address of the assignee and the amount assigned.
15. Counterparts. This Agreement may be signed in counterparts, each pf which shall constitute an original.
SIGNATURE PAGE FOLLOWS
cation of thisAgreementshall bebinding
unless consented to by bothPARTIESin writing.7. Waiver. No waiverof any default shall constitute a waiverof any other default or breach, whether of the same or othercovenantor condition. Nowaiver, benefit,privilegeor servicevoluntarilygivenor performedby a party shallgive the otherparty
any contractual rights by custom, estoppel, or otherwise.8. Invalidity andSeverability.
If any portionof this Agreementis declared invalid, illegal, or otherwise unenforceableby a court of competentjurisdiction, the remaining provisionsshallcontinuein
full force and
effect.Page 4 of 6 and maintenanceof the ImprovementsdatedMay 8th, 2017,as amendedon the same date and againon
December27, 2018 as well as the related warrantybond, dated January 9 , 2019. 3. Indemnity. DEVELOPER, to the fullest extent permitted by law, shall indemnify, defend, and hold the CITY and its electedandappointed officials, agents, employees, and authorized volunteers harmless from and against any and all actions,suits, claims, liabilities, losses, damages, penalties, obligations, and expenses ( including but not limitedto attorneys' fees, expert witnessfees, and courtcosts) ("Claims") that arise, directlyor indirectly, from the designand/ or constructionof the Improvements.
In addition, the foregoingindemnity provisionshall only apply to Claimswhichare tenderedby the CITY to DEVELOPERby written noticedeliveredwithin one year fromthe date on whichCITYaccepts
IN WITNESS WHEREOF, DEVELOPER has signed and the CITY Council of CITY has authorized this Agreement to be executed on January / 7 , 2019, at Chino, California.
APPROVED AS TO CONTENT: APPROVED AS TO FORM:
Af a. 7/ 1
CITY Engineer Date CITY Attorney Date
CITY OF CHINO: CHINO DEVELOPMENT CORPORATION:
41 ' 13r ave 6.'" 4,1ity;14
Ma hl ntyne Name Title
CITY Marla. r
L« ir ", t„,..
Si. , ature Date
4-11
ATTEST:
t N / k
C-
Th
dress i""`
r. - OA
6\
1755 OVID
Ang - obles Date
CITY Clerk
Exhibit 1; Description of Sewer Lift Station/ Force Main Project and Gravity Line, 2- pages.
Exhibit 2; Area of Benefit; 1- page
Exhibit 3; Sewer Credit Reconciliation; 1- page
Exhibit 1
Improvements
Preserve Sewer projects within Preserve DIF Program
Sewer Lift Station / Force Main- Project SW- 143
Gravity Sewer Line from Pine Ave to Lift station in Johnson Avenue from- Project SW 103
CITY OF CHINO, CALIFORNIA
Master Facilities Plan Project Detail
As Of 2017- 18
Infrastructure: Sewer Collection System
Project Title/ Ref#: Pine To Lift Stafion( Reach Number 3) SW- 1 03 • Submitting Departments: Public Works- Engineering
Project Description:
Construct2,480`of 20" pipefromPine to liftstation. Project administrationconsisting of engineering,project management staking, surveying, soils,materialstestingandinspectionhasbeenaddedat20%ofconstructionscosts,and10%ocontingencycosthasbeenaddedtothe combined project administration and construction costs.
Justification/ Consequences of Avoidance:
Constructionofthislineisnecessarytobeabletomeetthesewagecollectioncapacitydemandsthatareanticipatedto occurwhenthe currentlyundevelopedupstreamparcelsarefullydeveloped. Unlikeotherinfrastructure,failureto constructneededsewercollectionprojects willeliminateanypossibilityoffutureprivateconstruction.
Relationshipto GeneralPlanDevelopment
TheprojectisrelatedtothecollectionofwastewaterfromThePreserveareaofChino.Theamountofanyprojectcostsnotfullyattributedto newdevelopmentwithinthegeneralarea(ifany)representsthepercentageofproposedsewercollectionandtransmissionlinescurrently needed (ora portionthereof)thusthatpercentageIsrecognizedasacurrentdefidencyandwillneedtobefinancedby sourcesotherthan RIFs.
Allocation To General Plan Buildout 100. 00%
Reference Document
Sewer MasterPlan, Subareas1and 2, ChinoAgriculturalPreserve, as amended by LDKING.05/04/10.
Project Timing:
The projectwillbeconstructedas neededbasedupontherateofdevelopmentand/orDevelopmentImpactFeesareavailable.As a result all projects default to the final year column.
PROPOSED EXPENDITURES FY2017- 18 FY2018- 19 FY 2019- 20 FY2020- 21 FY2021- 36 Total all Years
1. Design 1 Engineering/ Adminlstratic 0 0 0 0 240, 000 240, 000
2. Land Acquistion/ Right Of Way 0 0 0 o 0 o
3. Construction 0 0 0 0 $ 1, 200, 000 $ 1,200, 000
4. Contingency 0 0 0 0 144, 000 144, 000
5. Equipment/ Other 0 0 0 0 0 0
TOTAL COST: 0 0 0 0 $ 1, 584, 000 $ 1, 584, 000
6 and maintenanceof theImprovementsdatedMay8th,
2017, as amendedon
the samedate
andagain on December27, 2018 as well as the relatedwarrantybond, datedJanuary9 , 2019.
3. Indemnity. DEVELOPER, to the fullest
extent permitted by law, shall indemnify, defend, and hold the CITY and its elected and appointedofficials, agents, employees, and authorizedvolunteers harmless from and againstany and all actions,suits, claims, liabilities, losses, damages, penalties, obligations, and expenses ( includingbut not limited to attorneys' fees, expertwitness fees, and court costs) (" Claims") that arise, directly or indirectly, from the designand/ or constructionof the Improvements. In addition, the foregoingindemnityprovision shall only applyto Claims which are tenderedby theCITY to DEVELOPERby writtennoticedeliveredwithinone yearfrom the date on whichCITYacceptsthe Improvementsand shall survivethe terminationof this AgreementPage 3 of 6
CITY OF CHINO, CALIFORNIA
Master Facilities Plan Project Detail
As Of 2017- 18
Infrastructure: Sewer Collection System
Project Trtle/ Ref#: Lift Station And Force Main SW- 1 43 Submitting Departments: PublicWorks- Engineering
Project Description:
Construct 8,200' of force mainand a liftstationatthe intersectionsofReach# 2 and Reach# 3. Project administration consistingof engineering, projectmanagementstaking,surveying,soils,materialstestingandinspectionhasbeenaddedat20%ofconstructionscosts,and10% contingencycosthasbeenaddedtothecombinedprojectadministrationandconstructioncosts.
Justification/ Consequences of Avoidance:
Constructionofthislineisnecessaryto beabletomeetthesewagecollectioncapacitydemandsthatareanticipatedtooccurwhenthe currentlyundevelopedupstreamparcelsarefullydeveloped. UnlikeotherInfrastructure,failureto constructneededsewercollectionprojects will eliminate any possibilityoffutureprivate construction.
Relationship to General PlanDevelopment
The projectis relatedtothecollectionofwastewaterfromlimitedportionsoftheGeneralAreaoftheCityandThePreseiveareaofChina. The amountofanyprojectcostsnotfullyattributedtonewdevelopmentwithinthegeneralarea(if an representsthepercentageofproposed sewercollectionandtransmissionlinescurrentlyneeded (oraportionthereof)thusthatpercentageisrecognizedasacurrentdeficiencyand will need to be financed by sources otherthan DIFs.
Allocation To General Plan Buildout 100. 00%
Reference Document
Sewer MasterPlan, Subareas1 and 2,ChinoAgricultural Preserve,as amended by LDKING.05/04/10. • Project Timing:
The projectwillbe constructedasneededbasedupontherateofdevelopmentand/orDevelopmentImpactFeesareavailable.As a result all projects default to the final year column.
PROPOSED EXPENDITURES FY2017- 18 FY2018- 19 FY2019- 20 FY2020- 21 FY 2021- 36 Totes an Years
1. Design/ Engineering/ Administratic o 0 0 0 $ 1, 235, 000 $ 1, 235, 000
2. Land Acqulstlon/ Right Of Way 0 0 0 0 200, 000 200, 000
3. Construction 0 0 0 0 $ 8, 175, 000 $ 8, 175, 000
4. Contingency 0 0 0 0 761, 000 761, 000
5. Equipment/ Other 0 0 0 0 0 0
TOTAL COST: 0 o 0 o $ 8, 371, 000 $ 8, 371, 000 maintenanceof the
Improvementsdated May8th, 2017, as amendedon the same dateand againon December27, 2018 as well as the relatedwarranty
bond, dated January 9 , 2019. 3. Indemnity. DEVELOPER, to the fullest extent permitted by law, shall indemnify, defend, and hold the CITY and its elected and appointed officials, agents, employees, and authorizedvolunteersharmlessfromand againstany and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees, expert witness fees, and court costs) ("Claims") that arise, directlyor indirectly, from thedesignand/ or constructionof the Improvements. In addition, the foregoingindemnityprovisionshall onlyapply to Claimswhicharetendered by the CITY to DEVELOPERby writtennoticedeliveredwithinone year from the dateon whichCITY accepts the Improvementsandshallsurvive the terminationof this
Exhibit 2
Area of Benefit
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Credit Reconciliation- Exhibit 3
DIF Cost Estimates Citywide Allocation Preserve Allocation SW- 143 Lift Station& Force Main $ 8, 371, 000. 00 $ 1, 674, 200. 00 $ 6, 696, 800. 00 SW- 103 Pine Ave to Lift Station( Reach 3) $ 1, 584, 000. 00 $ 1, 584, 000. 00 Reimbursement Amount $ 9, 955, 000. 00 $ 1, 674, 200. 00 $ 8, 280, 800. 00 Credits
Audited Sewer Credits- 1, 573 units $ ( 1, 220, 202. 00) Future Credits- 764 $ 790, 395. 00)
Total Credits to be Applied $ ( 2, 010, 597. 00)
Fund Balance
Available DIF Fund Balance Citywide $ ( 1, 674, 200. 00) Available DIF Fund Balance The Preserve $ 25, 000. 00) Payment No. I $ ( 1, 699, 200. 00)
Reimbursement Amount $ 9, 955, 000. 00
Audited Sewer Credits- 1, 573 units $ ( 1, 220, 202. 00) Payment No. 1 $ ( 1, 699, 200. 00)
Balance Forward $ 7, 035, 598. 00
Executed in Triplicate
Bond No.: 24070286
Contract No.: 21171 OS 50010 TPAC
Approved:
WARRANTY BOND
The Preserve City of Chino Sewer Lift Station
for Community Facilities District No. 2003-3
WHEREAS, Pacific Hydrotech Corporation, a California Corporation, hereinafter designated as PRINCIPAL," agrees that it shall warrant and guarantee, for the benefit of the City of Chino, State of California, hereinafter designated as " CITY," the installation, completion, and maintenance of certain designated public improvements, as stipulated in the construction agreement between the developer; Chino Development Corporation, a California Corporation and Principal, dated May 8th, 2017, and identified as The Preserve City of Chino Sewer Lift Station for Community Facilities District No. 2003- 3 project, is hereby referred to and made a part hereof; and WHEREAS, said Principal is required under the terms of said agreement to furnish a bond for the warranty of said improvements,
NOW, THEREFORE, we, the Principal, and Liberty Mutual Insurance Company as surety, are held and firmly bound unto the City of Chino in the penal sum of Four Hundred Twenty- Eight Thousand Four Hundred Ninety- Three Dollars ($ 428,493.00) lawful money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents, The condition of this obligation is such that if the above bound 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, and provisions in said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed thereof made as therein provided, on his or its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless City, its officers, agents, and employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall be and remain in full force and effect.
As a 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 attorneys' fees, incurred by the City in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
The surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same 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 to the terms of the agreement or to the work or to the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by Principal and Surety above named, on January 9, 2019
Pacific Hydrotech Corporation Liberty Mutual Insurance Company PRIG -
AL SURETY
r 1t
Sy: irllrl Ey.
e grw
Lawreftoe'=. McMahon, Attorney-in-Fac
SIGNATURE( S) MUST BE NOTARIZED
Document No. 19808( PWFORiMS\ BONDS- Warranty\ rev. 04/ 2017) Page 1 of 1 CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT CML CO':, E§ 1189 x. z„( ._ s: t " Wi _ n 0 , s; s15x. s, w em, alloc,> xnz mass.,. :; i'. r., 1;t- fis.. sxx _ . ri:,: lav .,_: x., _ ,._.' A notarypublicor otherofficercompletingthiscertificateverifiesonlytheidentityof the individualwhosignedthe document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of RIVERSIDE
On January 11, 2019 before me, Kristine Lew" Notary Public' Date Here Insert Name and Title of the Officer
personally appeared Joselito Guintu
Name( s) of Signer( s)
who proved to me on the basis of satisfactory evidence to be the person(x) whose name(g) is/axe subscribed to the within instrument and acknowledged to me that he/sKe/they executed the same in his/ her/ their authorized capacity( ia ), and that by his/ her/ their signature(:) on the instrument the person(:), or the entity upon behalf of which the person(:) acted, executed the instrument. 1certify under PENALTYOF PERJURYunder the laws
of the State of California that the foregoing paragraph is true and correct.
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71( 1P."51' riverside County z rales f nz '
Commission * 21353 2,' Signature,{
tr., tS1
M Comm. Ex fres Dec 25, 2019 ature o ,. Not Public
Place Notary Seal Above
OPTIONAL
Thoughthissectionis optional, completing this informationcan deter alterationof the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: WARRANT`( BOND Document Date: January 9, 2019 Number of Pages: 1 Signer( s) Other Than Named Above: NONE Capacity( les) Claimed by Signer( s)
Signer' s Name: Joselito Guintu Signer' s Name:
Corporate Officer — Title( s): vine President Corporate Officer — Title( s):
Partner — Limited General Partner — Limited General individual Attorney in Fact Individual Attorney in Fact 7 Trustee 0 Guardian or Conservator 17 Trustee 7 Guardian or Conservator Other: Other:
Signer is Representing: Signer is Representing:
Pacific Hydrotech Corporation
2014 National Notary Association . , wwvvnw.NationalNotary. org . 1- 800- US NOTARY( 1- 800- 876- 6827) item# 5907 greesthat no change, extensionof time, alteration, or
addition to the termsof the agreementor to theworkto be performedthereunderor the specificationsaccompanying the same
shall in any way affectits obligationson this bond, andit does herebywaive noticeof any suchchange, extension of time, alteration, or additionto the terms of the agreement or to the work or to the specifications.IN WITNESS WHEREOF, this instrumenthas beenduly executedby PrincipalandSuretyabove named, on January9, 2019 PacificHydrotech CorporationLibertyMutual InsuranceCompanyPRIG - AL SURETY r 1t Sy: irllrlEy. e
grwLawreftoe'=. McMahon, Attorney-in- Fac SIGNATURE(S) MUST BENOTARIZEDDocumentNo. 19808( PWFORiMS\ BONDS- Warranty\rev.04/
2017) Page 1 of 1 ITY accepts
the
Improvements and
shallsurvive
the terminationof
this Agreement
CALIFORNIA ALL- PURPOSE ACKNOWLEDGMENT Civil Code § 1189 iII A notary public or other officer completing this certificate verifies only the identity of the individual who signed I I
1 the document, to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. 1 11 STATE OF CALIFORNIA
i
1l
i Oounty of San Diegoi 1
JANIr, before me, Janice R. Markin I\ iota;- y ublic, 1 Date insert Name of Notary exactly as it appears on the official seal I, I1 I,1
personally appeared Lawrence F. McMahon
I
I Name( s) of Signer( s)
1 !
it
who proved to me on the basis of satisfactory evidence to be the person( whose name(, is/ tl/# subscribed to the within instrument and acknowledged to me that he,' tn/ J/ I executed the same in his/%* / 1/ authorized
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and that by his/ fd, M* signature(*} on the instrument the 1 i
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1 t ,: :, I certify under PENALTY OF PERJURY under the laws . f tJLr . o2o the State of California that the foregoing paragra jh to true and correct. 1
I II
Witness ni e land official seal.
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II Sign
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I I iPlace Notary Seal Above Signaturea+ r Noary Public Janice R. Martin I
OPTIONAL
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Though the information below is not required by law, it may crave valuable to persons relying on the document and could prevent fraudulent removal and reattachment of the form to another document 11 Description of Attached DocumentII
it
II Title or Type of Document:
I I
II Document Date; Number of Pages; I
I
I Signer( s) Other Than Named Above:
I1
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I Signer' s Name: Signer' s Name: II
Individual Individual
I I_ iCorporate Officer— i itie( s): i] Corporate Officer — I Ilfle( s):
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i Partner Limited General Partner Limited General i l Attorney n Fact. RIGHT THUMBPRINT Attorney it aci RIGHT THUMBPRINT I h Trustee
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1 1Surety Company
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TARIZEDDocumentNo. 19808(PWFORiMS\BONDS-Warranty\rev.04/ 2017) Page 1 of 1 ITY accepts the Improvementsand shall survivethe terminationof this AgreementPage3 of 6 This Powerof Attorney limits the acts of those namedherein,and they have no authority to V.,
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bind the Companyexcept in the mannerandto the extent herein stated.
Liberty Mutual Insurance Company
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1 lto The Ohio Casualty Insurance Company Certificate No: 8197174 West American Insurance Company
SURETY
POWER OF ATTORNEY
KNOWN ALL PERSONSBY THESEPRESENTS:That The Ohio CasualtyInsuranceCompanyis a corporationduly organizedunder the lawsof the Stateof New Hampshire,that Liberty MutualInsuranceCompanyis acorporationdulyorganizedunderthelawsofthe Stateof Massachusetts,andWestAmericanInsuranceCompanyis a corporationdulyorganized underthe lawsof the Stateof Indiana(hereincollectivelycalledthe"Companies"),pursuantto andby authorityhereinsetforth,doesherebyname,constituteandappoint, Janice Martin, Lawrence F. McMahon, Sarah Myers
all of the city of San Diego state of CA eachindividuallyif therebemorethanonenamed,itstrueandlawfulattorney-in-factto make, execute,seal, acknowledgeand deliver,forandonits behalfassuretyandasitsact anddeed,anyandallundertakings,bonds,recognizancesandothersuretyobligations,in pursuance of these presentsandshall be as bindinguponthe Companiesas if theyhavebeen duly signedby the presidentand attestedby the secretaryof the Companiesin their ownproper persons.
IN WITNESSWHEREOF,this PowerofAttorneyhasbeensubscribedby an authorizedofficeror officialorthe Companiesandthe corporatesealsof theCompanieshavebeenaffixed thereto this 23rd day of October , 2018 .
LibertyMutualInsuranceCompany
t suR f rrusp Su. The Ohio CasualtyInsurance Company I JPoOaPORikli- !!!/' J° o POR9''
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ti West American Insurance Company
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E Stateof PENNSYLVANIA
15 2 Countyof MONTGOMERY
ss
CCa
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O On this 23rd day of October , 2018 before me personally appeared David M. Carey,who acknowledged himself to be the Assistant Secretary of LibertyMutual Insurance 0
6.. Company,The Ohio CasualtyCompany,and West American Insurance Company,and that he, as such, being authorized so to do, execute the foregoinginstrument for the purposes = I-
8 > therein contained bysigning on behalf of the corporations by himself as a duly authorized officer. U W N = IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my notarial seal at King of Prussia, Pennsylvania, on the day and year first above written. cu Q L O
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C MyCommissionExpires zrc, 28 zazi l Teresa Pastella,astella, Notary Public O m ere aper. Pannsvlvanie Association or nloiaries
a O
a) This Power of Attorney is made and executed pursuant to and by authority of the followingBy-laws and Authorizations of The Ohio Casualty Insurance Company, Liberty Mutual w
6-5
o. c Insurance Company, and West American Insurance Company which resolutions are now in full force and effect reading as follows: o aa)
ai ARTICLEIV- OFFICERS:Section12.Powerof Attorney.
0 2- AnyofficerorotherofficialoftheCorporationauthorizedforthatpurposeinwritingbytheChairmanorthePresident, andsubjecttosuchlimitationastheChairmanortheas15 o > President may prescribe, shall appoint such attorneys- in- fact, as may be necessary to act in behalf of the Corporation to make, execute, seal, acknowledge and deliver as surety > c co c any and all undertakings, bonds, recognizances and other surety obligations. Such attorneys- in- fact, subject to the limitations set forth in their respective powers of attorney, shall N ci)
have full power to bind the Corporation by their signature and execution of any such instruments and to attach thereto the seal of the Corporation. When so executed, such c°
Z instruments shall be as binding as if signed by the President and attested to by the Secretary.Any power or authority granted to any representative or attorney- in- fact under the M provisions of this article may be revoked at any time by the Board, the Chairman, the President or by the officer or officers granting such power or authority. o ARTICLE XIII- Execution of Contracts: Section 5. Surety Bonds and Undertakings. a
Any officerof theCompanyauthorizedfor thatpurposein writingbythe chairmanor the president,andsubjectto suchlimitationsas the chairmanor the presidentmay prescribe, i— shall appointsuchattorneys-in-fact,as maybe necessaryto act in behalfof the Companyto make,execute,seal, acknowledgeand deliveras surety anyand all undertakings, bonds,recognizancesandothersuretyobligations.Suchattorneys-in-factsubjectto the limitationsset forthin their respectivepowersof attorney,shallhavefull powerto bindthe Companyby theirsignatureandexecutionof any such instrumentsandto attachtheretotheseal of the Company.Whenso executedsuchinstrumentsshall be as bindingas if signed bythe presidentandattestedbythe secretary.
Certificate of Designation- ThePresidentofthe Company,actingpursuantto the Bylawsofthe Company,authorizesDavidM.Carey,AssistantSecretaryto appointsuchattorneys-in- fact as may be necessary to act on behalf of the Company to make, execute, seal, acknowledge and deliver as surety any and all undertakings, bonds, recognizances and other surety obligations.
Authorization- By unanimousconsentof the Company's Boardof Directors,theCompanyconsentsthatfacsimileor mechanicallyreproducedsignatureof cry assistantsecretaryofthe Company,whereverappearingupona certifiedcopyof anypowerof attorneyissuedby the Companyin connectionwithsuretybonds,shall bevalidandbindinguponthe Companywith the sameforce andeffectas thoughmanuallyaffixed.
i, ReneeC. Liewellyn,the undersigned,AssistantSecretary,-TheOhio CasuaityinsuranceCompany, LibertyMutualinsuranceCompany, and vilestAmericaninsuranceCompanydo herebycertifythat theoriginalpowerof attorneyof whichthe foregoingis a lull,trueand correctcopyof the Powerof,Attorneyexecutedby said Companies,is in full'forceand effectand has not been revoked.
iN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals orr said Companies this 9th day of January , 2019 .
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LMS- 12873 LMIC OCIC NVAIC Multi Co 062018
12. 24
MEMORANDUM
qtkow
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
COUNCIL MEETING DATE: JANUARY 15, 2019
TO: MATTHEW C. BALLANTYNE, CITY MANAGER
FROM: NICHOLAS S. LIGUORI, AICP, DEVELOPMENT SERVICES DIRECTOR SUBJECT: FINAL ACCEPTANCE OF PUBLIC IMPROVEMENTS — PRESERVE/ PRADO SEWER LIFT STATION, FORCE MAIN & GRAVITY LINE.
RECOMMENDATION
1) Appropriate $ 1, 699, 200 from the unappropriated reserves of the Sewer Fund and schedule corresponding year- end transfers in the amount of $ 1,674, 200 from the Citywide Sewer Development Impact Fee Fund and $ 25, 000 from The Preserve Sewer Development Impact Fee Fund; 2) accept the Preserve/ Prado Sewer Lift Station, Force Main and Gravity Line project constructed by Chino Development Corporation as complete; 3) authorize the release of Performance Bond No. 839108S and initiate the three- year warranty period; 4) approve a credit and priority reimbursement agreement in the amount of $ 9, 955, 000 with Chino Development Corporation for the Preserve/ Prado Sewer Lift Station, Force Main and Gravity Line project; and 5) authorize the City Manager to execute necessary documents, in a form approved by the City Attorney, to accept ownership of the facility.
FISCAL IMPACT
Requires an appropriation from the unappropriated reserves of the Sewer Fund in the amount of 1,699,200 with corresponding year- end transfers from the Citywide Sewer Development Impact Fee Fund in the amount of $ 1, 674, 200 and The Preserve Sewer Development Impact Fee Fund in the amount of$ 25, 000.
Upon completion and final acceptance, the Sewer Lift Station, Force Main and Gravity Line project shall become the sole exclusive property of the City to operate and maintain. There are sufficient funds included in the FY 2018- 19 Sewer Sanitary Preserve Operating Budget to cover utility costs associated with the Sewer Lift Station.
Revenue: 5401000- 50000 Expenditure: 5407360- 43640, 2621000- 40001, 2541000- 40001
bow Transfer In: Transfer Out:
NEW BUSINESS Packet Pg. 314
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c DavidM. Carey,
Assistant
Secretary
E
State of
PENNSYLVANIA 15 2
County
of
MONTGOMERYss CCa N C
O On this
23rd
day
of
October ,
2018 before mepersonallyappeared David
M. Carey,whoacknowledged
himselfto be the Assistant
Secretary
of
Liberty Mutual
Insurance 0 6.. Company,TheOhio Casualty Company,and West American Insurance Company,andthat he, as such, beingauthorizedso to do, executethe foregoing instrument for the purposes =I- 8 > therein containedby signingon behalf of the corporationsby himselfas a duly authorizedofficer. U W N = IN WITNESS WHEREOF,I have hereunto
subscribedmy name andaffixed my notarial sealat King of Prussia, Pennsylvania,on the day and yearfirst above written. cu Q LO CZ 0 O N7t1OWNEA3F,, a 1 fLVAN!._ Z 4 i i y Pa I II V, ia etc 1- e- 4,--) 441616uN zie o
l UpperZeno,
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MyCommission
Expires
zrc, 28 zazi l Teresa Pastella,astella, Notary
PublicO m ere aper.
Pannsvlvanie
Association or nloiaries a O a) This Power
of Attorneyis made and executedpursuantto and byauthorityof the followingBy- laws and Authorizations of The Ohio
CasualtyInsurance
Company, LibertyMutual w 6- 5 o. c Insurance Company, andWest AmericanInsurance Companywhichresolutionsarenow in full forceand effect reading as follows: o aa) ai
ARTICLEIV-
OFFICERS:Section12. Power of Attorney.0 2- Any officer or other official of the Corporationauthorizedfor that purposein writing by
the Chairmanor the President, andsubjectto such
limitationas theChairmanortheas15 o > Presidentmay prescribe,shallappointsuch attorneys-in- fact,asmay benecessaryto actin behalfof the Corporationto make,execute,seal,acknowledge and deliver as surety > c co c any andall undertakings,bonds,recognizancesand othersuretyobligations.Such attorneys-in- fact, subjectto the limitations set forth in their respective powers of attorney,shall N ci) have full power to bind the Corporation by their signatureand execution of any such instrumentsand to attach thereto the seal of the Corporation.
When
so executed, such c° Z instrumentsshall be as binding as if signedby the President and attestedto by the Secretary.Any poweror authority grantedto any representative
or attorney- in- fact underthe M provisionsof thisarticlemay be revoked at anytime by the Board, the Chairman, the Presidentor by the officer or officersgranting such power or authority. o ARTICLE XIII- Executionof Contracts:Section5. SuretyBondsand Undertakings. a Any officer of theCompanyauthorized for that purpose in writing by the chairman or the president, and subject to suchlimitationsas the chairman or
the presidentmayprescribe, i— shall appointsuchattorneys-in-fact, asmaybe necessaryto act in behalf of the Companyto make,execute, seal,acknowledgeand deliveras surety any and all undertakings,bonds,recognizancesandothersuretyobligations.Suchattorneys-in-fact subjectto the limitationsset forth in their respectivepowersof attorney,shallhavefullpower to bind the Companyby their signatureand executionof any suchinstrumentsand to attachtheretothe seal of theCompany.Whenso executedsuch instrumentsshallbe as bindingas if signedby thepresidentand attested by thesecretary.Certificateof Designation-ThePresidentof the Company,acting pursuantto the Bylawsof the Company,authorizes David M.Carey,AssistantSecretaryto appointsuchattorneys- in- factas maybe necessaryto act on behalf of the Companytomake,execute, seal, acknowledgeanddeliveras surety anyand all undertakings,bonds, recognizancesandothersuretyobligations.Authorization-By unanimousconsentof the Company' s Board of Directors,the Companyconsentsthatfacsimileor mechanicallyreproducedsignature of cry assistantsecretaryof the
Company, whereverappearingupon a certifiedcopy ofany powerof attorneyissued by the Companyin connection with surety bonds,shallbe valid andbinding upon the Companywith thesame forceandeffectas thoughmanuallyaffixed.i, ReneeC. Liewellyn,the undersigned,AssistantSecretary,-The OhioCasuaityinsuranceCompany, LibertyMutualinsuranceCompany, andvilest AmericaninsuranceCompanydoherebycertify that
theoriginalpowerof attorneyof which the foregoingis a lull, true and correctcopy of the Powerof, Attorney executed by said Companies,is in full' force andeffect andhas not been revoked.iNTESTIMONYWHEREOF,I have hereuntosetmy hand andaffixed the sealsorr said Companiesthis9thday of January , 2019 .
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Renee
C. Llewellyn, AssistantSecretary LMS- 12873 LMICOCIC
NVAIC
Multi Co
062018
12. 24
COUNCIL MEETING DATE: JANUARY 15, 2019
SUBJECT: FINAL ACCEPTANCE OF PUBLIC IMPROVEMENTS — PRESERVE/ PRADO
SEWER LIFT STATION, FORCE MAIN & GRAVITY LINE
PAGE 2
BACKGROUND
The Preserve Specific Plan' s sewer system for portions of the Preserve north of Pine Avenue was originally designed to divert sewage to the Inland Empire Utilities Agency' s Regional Plant located on El Prado Road north of Pine Avenue. However, due to topography challenges and the inability to provide a gravity- based sewer system, an alternate design was proposed for the Preserve/ Prado Sewer Lift Station, Force Main and Gravity Line project ( Project) to permanently meet the sewer demands of the Preserve at build- out.
Chino Development Corporation ( Developer) constructed the Project as a condition of approval for its residential developments in The Preserve. The Project has been satisfactorily constructed to meet City specifications and all punch list items have been addressed.
Additionally, this Project is a master- planned facility and is included in the City's Development Impact Fee ( DIF) program. This Project is eligible for DIF credit and reimbursement per the Chino Municipal Code, Chapters 3.40 and 3.45. City staff has completed a detailed review of the credits issued to the Developer for its multiple development projects in The Preserve, which is outlined in Exhibit 1.
ISSUES/ ANALYSIS
City staff and the developer stayed engaged throughout the course of the Project to ensure its timely delivery and that the Project was built to the satisfaction of the City Engineer. The City Engineer will review the final accepted/ approved " as-built" plans, specifications and supporting M1{' '`
documentation and will determine what costs are eligible for reimbursement. There may be a possibility that the eligible costs approved by the City Engineer exceed the original estimate included in the DIF Nexus Study. If that is the case, City staff will include the updated costs for the Project in the next annual update to the Nexus Study, which is tentatively scheduled in the Spring 2019. Additionally, once the final cost accounting is approved, the City will remit Payment No. 1 to the Developer in the amount of$ 1, 699, 200.
Additionally, Pacific Hydrotec Corporation ( the Developer' s prime contractor) shall provide to the City securities in form and content and issued by a surety acceptable to the City in concurrence with the final acceptance of the Project. The term of the warranty period shall be for three- years.
Upon completion and final acceptance, the Project shall become the sole exclusive property of the City to operate and maintain. Sufficient funds are included in the Sewer Sanitary Operating Budget to cover costs for the electricity required to operate the Sewer Lift Station.
Therefore, it is staff' s recommendation to the City Council to accept the Project as complete, initiate the warranty bond and approve a priority credit/ reimbursement agreement to the Developer in the amount of$ 9, 955, 000.
The reimbursement agreement has been reviewed and approved by the City Attorney.
Attachment: Exhibit 1 - Reimbursement Agreement
0600.
NEW BUSINESS Packet Pg. 315
mmissionExpireszrc, 28 zazil Teresa Pastella, astella,Notary PublicO m ere aper. Pannsvlvanie
Associationor
nloiariesa O a) This Powerof Attorneyis made andexecutedpursuantto and by authority of the followingBy- lawsand Authorizationsof The Ohio CasualtyInsurance Company,
LibertyMutual
w 6- 5 o. c InsuranceCompany, and West American Insurance Companywhich resolutionsare now in full force and effect reading as
follows: o aa) ai ARTICLEIV- OFFICERS:Section12.
Powerof Attorney.0 2- Anyofficerorotherofficial of theCorporationauthorizedforthat purposein writingbytheChairmanor the President, andsubjecttosuchlimitationasthe Chairman or theas 15 o > President may prescribe, shall appointsuch attorneys-in- fact,as maybe necessaryto act in behalf of the Corporation to make, execute, seal, acknowledgeand deliver as surety >c co c any and all undertakings,bonds, recognizancesand other surety obligations.Such attorneys- in- fact, subject to the limitationsset forth in their respective powers of attorney,
shall N ci) havefull powerto bindthe Corporation by their signatureand executionof any suchinstrumentsand to attach theretothe seal of the Corporation. When so
executed, such c° Z instrumentsshall be asbinding as if signed by the Presidentandattestedto by the Secretary.Any power or authoritygranted to any representativeor attorney- in- fact under the M provisionsof this article maybe revokedat any time by the Board,the Chairman,thePresidentor by the officer or officers grantingsuch power or authority. o ARTICLEXIII- Executionof Contracts:Section 5. Surety Bonds
and Undertakings. a Anyofficer of theCompanyauthorizedforthat purposein writing bythe chairmanor the president,and subject to suchlimitationsasthe chairmanor the president may prescribe, i— shall appointsuchattorneys-in- fact,as maybe necessaryto actin behalf of the Companyto make, execute,seal, acknowledgeand deliveras suretyany and all undertakings,bonds,recognizancesand othersurety obligations.Suchattorneys-in-factsubject to the limitationsset forth in theirrespectivepowersof attorney,shall havefull power to bindthe Companyby their signatureand executionof anysuchinstrumentsand to attachtheretothe seal of theCompany.Whenso executedsuchinstrumentsshall be as bindingasif signed by the presidentandattested
by thesecretary. Certificateof Designation-ThePresident of the Company,actingpursuanttothe Bylaws of the Company,authorizesDavid M. Carey,AssistantSecretaryto appoint suchattorneys-in- factas maybe necessaryto acton behalf of the Companyto make, execute,seal, acknowledgeand deliveras suretyany and all undertakings,bonds,recognizances and
other suretyobligations.Authorization-Byunanimousconsent ofthe Company's Boardof Directors,the Companyconsentsthat facsimile or mechanicallyreproducedsignatureof cryassistant secretary of the Company,whereverappearingupona certifiedcopy of any power of attorneyissued bythe Companyin connectionwith suretybonds,shallbe valid andbinding upon the Companywith the sameforceand effect as
thoughmanuallyaffixed.i, ReneeC. Liewellyn,the undersigned,AssistantSecretary,-The Ohio CasuaityinsuranceCompany, Liberty MutualinsuranceCompany, and vilest American insuranceCompanydo herebycertify that theoriginal powerof attorneyof whichtheforegoingis a lull, true andcorrectcopy of the Power of, Attorneyexecuted bysaidCompanies,is in full' force and effectand has
not been revoked. iNTESTIMONYWHEREOF,I havehereuntoset my handand affixedthe seals orr said Companiesthis 9th day of January ,
2019 . INSuR y' q r LVg
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Llewellyn,Assistant SecretaryLMS- 12873 LMIC OCICNVAIC
Contract No.: 2019- 220 Al
Approved: ( 0I2//. o j{
Ig
FIRST AMENDMENT
TO
CREDIT/ REIMBURSEMENT AGREEMENT
FOR
SEWER LIFT STATION/ FORCE MAIN ( Project SW- 143)
GRAVITY LINE( Project SW- 103)
THIS FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT FOR SEWER IMPROVEMENTS (" Amendment No. 1") is made and entered into this 2nd day of June 2020 (" Effective Date"), by and between the CITY OF CHINO, a municipal corporation (" CITY") and CHINO DEVELOPMENT CORPORATION (" DEVELOPER") together referred to as " PARTIES".
RECITALS
WHEREAS, CITY and DEVELOPER entered into that certain Credit/Reimbursement Agreement on January 15, 2019 ( the " Agreement") whereby the CITY agreed to reimburse DEVELOPER for certain sewer improvements and appurtenances (" Improvements") in an amount not to exceed $ 9, 955, 000. 00; and
WHEREAS, DEVELOPERconstructedthe Improvementsto the satisfactionof the CityEngineer which were formally accepted by the City Council on January 15, 2019; and WHEREAS, CITY approved an update to the Development Impact Fee ( DIF) Nexus and Calculation Report that became effective in October 2019 to include updated cost estimates for the Sewer Lift Station/ Force Main Project ( SW- 143) and Gravity Line ( SW- 103); and WHEREAS, CITY completed its review of the final accepted/ approved " as- built" plans, specifications and supporting documentation and determined that $ 12, 162, 432 is eligible for DIF credit and reimbursement.
WHEREAS, an amendment to the Agreement is required to update the " estimated costs" to the actual costs" approved by the City Engineer that shall not exceed $ 12, 162, 432.
TERMS
NOW, THEREFORE, the Parties agree to amend the Agreement as follows:
1. CONTRACT CHANGES.
a.
Section1(a) of theAgreementis herebyreplacedits entiretywiththe following:
DIF Ordinance Reimbursement or Credit Amount. The City Engineer has determined that the actual cost of the Improvements that are eligible for credit or reimbursement pursuant to CMC Chapters 3.45 and 3.40 is Twelve Million, One Hundred Sixty-Two
5- 18- 20
Thousand Four Hundred Thirty- Two ($ 12, 162, 432) dollars (" Total DIF Cost"). The foregoingTotalDIFCostisbasedonthefinalacceptedandapproved "as-builtplans"andspecificationsandthereviewofactualcostdocumentationbytheCityEngineerpursuant to CMC 3.45. 110. B.3 and C. 9. b) Section1(b) oftheAgreementisherebyreplacedinitsentiretywiththefollowing:
DEVELOPERshall receivecreditor be reimbursedfor the Total DIF Cost DEVELOPERincurstoconstructthePublicImprovementspursuanttotheprocedureset forth in this Section. The Public Improvementsare apportionedas follows:
estimatedSewerCollectionFacilitiesDIF: ProjectSW-143SewerLiftStation/Force 10, 422, 982) and estimated Gravity Line Project SW- 103 ($ 1, 739, 450).
2. WARRANTY RE ABSENCE OF DEFAULTS. DEVELOPER represents and warrantstoCitythat, asoftheEffectiveDateofthisAmendmentNo. 1, Cityisnotin defaultofanymaterialtermoftheAgreement, andthattherehavebeennoevents that, withthe passingof timeor thegivingof notice, or both, wouldconstitutea materialdefaultunderthe Agreementby the City. Likewise, City representsand warrantsto DEVELOPERthat, as of the EffectiveDateof this AmendmentNo. 1, DEVELOPERisnotindefaultofanymaterialtermoftheAgreement, andthatthere havebeennoeventsthat, withthepassingoftimeorthegivingofnotice, orboth, wouldconstitutea materialdefaultundertheAgreementbyDEVELOPER.
3. CONTINUINGEFFECTOFAGREEMENT. ExceptasamendedbythisAmendment No. 1, all provisionsof the Agreementshallremainunchangedand in full force and effect. Fromandafterthe dateof thisAmendment, wheneverthe term "Agreement" appearsin theAgreement, it shallmeantheAgreement, as amendedby thisAmendment to the Agreement.
4. COUNTERPARTS. This AmendmentNo. 1 may be executedin multipleidentical counterparts, each of which shall be deemedan original, but all of which together will constitute one and the same instrument.
5. AUTHORITY. ThepersonsexecutingthisAgreementonbehalfofthepartieshereto warrant that ( i) such party is duly organized and existing, ( ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, ( iii) by so executing thisAgreement, suchpartyisformallyboundto the provisionsof thisAgreement, and (iv) theenteringintothisAgreementdoesnotviolateanyprovisionofanyotherAgreementto whichsaid partyis bound.
SIGNATURES ON FOLLOWING PAGE]
5- 18- 20 Page 2 of 3
INWITNESSWHEREOF, CityhascausedthisAmendmentNo. 1tobeexecutedinitsbehalfby its CityManageranddulyattestedby its CityClerk, and DeveloperhasexecutedthisAmendmentNo. 1, as of this day and year first above written.
APPROVED AS TO FORM: APPRO ED AS TO CONTENT:
rI
Fred Galante, City Attorney Nicholas S. LLgSVOri, AICP
Director of Development Services
CHINO DEVELOPMENT
CORPORATION:
Dated: By:
Signature)
Name: 13," as Eo ee,/i ,-;
ease Print or Type Name)
CITY OF CHINO
Dated:
Matt 717%a ty - d Manager
EST:
Angela - s, City-Clerk
5- 18- 20
DocuSign Envelope ID: 6CD4E945- 48E1- 4COC- B27A- EC466CBOOEB2 IN WITNESS WHEREOF, City has caused this Amendment No. 1 to be executed in its behalf by its City Manager and duly attested by its City Clerk, and Developer has executed this Amendment No. 1, as of this day and year first above written.
APPROVED AS TO FORM: APPR VED AS TO CONTENT:
r—
Ddr-
ocuuSSSignedby:
420- Lt.;
Fred Galante, Ity° forney Nic olas S.
14D
ori, AICP
Director of D-+ elopment Services
CHINO DEVELOPMENT
CORPORATION:
Dated: By:
Signature)
Name: iei- qh 694,
4: 44/ 7
Please Print or Type Name)
CITY OF CHINO
Dated:
Matt Ballantyne, City Manager
ATTEST:
Angela Robles, City Clerk
5- 18- 20
8. 8
MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
COUNCIL MEETING DATE: JUNE 2, 2020
TO: MATTHEW C. BALLANTYNE, CITY MANAGER
FROM: NICHOLAS S. LIGUORI, AICP, DEVELOPMENT SERVICES DIRECTOR SUBJECT: AMENDMENT TO THE PRESERVE/ PRADO SEWER LIFT STATION
CREDIT/ REIMBURSEMENT AGREEMENT AND ANNUAL RECONCILIATION OF SEWER CREDITS FISCAL YEAR 2019- 20 ( CHINO DEVELOPMENT CORPORATION).
RECOMMENDATION
1) Approve an amendment to the Credit/ Reimbursement Agreement ( Agreement) with Chino Development Corporation ( CDC) for the Preserve/ Prado Sewer Lift Station, Force Main and Gravity Line project to include the actual cost approved by the City Engineer in the amount of 12, 162, 432; 2) authorize Sewer Development Impact Fee Credits in the amount of $ 1, 198, 656 issued to CDC for properties in The Preserve; 3) apply the Sewer Development Impact Fee Credits to the balance owed to CDC per the terms of the Agreement, bringing forward the remaining balance owed to CDC in the amount of $ 8, 044, 374; and 4) authorize the City Manager to execute all necessary documents on behalf of the City.
FISCAL IMPACT
Sewer credits issued to developer off-set a portion of the project costs for the sewer improvements completed in The Preserve per the terms of the Agreement. The credited amount is applied to the balance owed to developer by the City, bringing the remaining balance owed to the developer to $ 8, 044, 374.
Staff will continue to monitor the fund balances in the Citywide and Preserve Sewer DIF programs and will begin making progress payments to the developer ( when funds are available) until the terms of the agreement are fulfilled. Each progress payment will require an appropriation of funds and, therefore, each paymentwill be brought back to the City Council for approval.
Revenue: Expenditure:
Transfer In: Transfer Out:
CONSENT CALENDAR Packet Pg. 130
8. 8
COUNCIL MEETING DATE: JUNE 2, 2020
SUBJECT: AMENDMENT TO THE PRESERVE/ PRADO SEWER LIFT STATION
CREDIT/ REIMBURSEMENT AGREEMENT AND ANNUAL RECONCILIATION OF SEWER CREDITS FISCAL YEAR 2019- 20 ( CHINO DEVELOPMENT CORPORATION) PAGE 3
Updated DIF Estimates Citywide Allocation Preserve Allocation SW- 143 Lift Station& Force Main 10, 941, 000. 00 $ 2, 188, 200. 00 $ 8, 752, 800. 00 SW- 103 Pine Ave to Lift Station( Reach 3) $ 1, 637, 856. 00 $ 1, 637, 856. 00 Nexus Report Cost Estimate $ 12, 578, 856. 00 $ 2, 188, 200. 00 $ 10, 390, 656. 00 Validated Costs $ 12, 162, 432. 00 $ 2, 432, 486. 40 $ 9, 729, 945. 60 FY2019) Payment No. 1 $ 1, 699, 200. 00) $ 1, 674, 200. 00) $ 25, 000. 00) FY2019) Audited Credits- 1, 575 Units $ 1, 220, 202. 00) $ 1, 220, 202. 00) Balance Forward Subtotal $ 9, 243, 030. 00 $ 758, 286. 40 $ 8, 484, 743. 60 Balance Forward $ 9, 243, 030. 00 $ 758, 286. 40 $ 8, 484, 743. 60 FY2020) No Cash Payment $
FY2020) Audited Credits- 1, 941 Units $ 1, 198, 656. 00) $ 1, 198, 656. 00) Balance Forward Subtotal $ 8, 044, 374. 00 '$ 758, 286. 40 $ 7,286, 087. 60 Therefore, it is Staff' s recommendation that the City Council approve an amendment to the existing agreement to include the actual costs for the Project for a not to exceed amount of 12, 162, 432; authorize the credits issued to the Developer in the Preserve and approve the new balance owed to the Developer in the amount of$ 8, 044, 374.
Attachments:
Exhibit A- Original Credit and Reimbursement Agreement No. 2019- 220 Exhibit B - Credit Reconciliation
Exhibit C - Amendment No. 1
CONSENT CALENDAR Packet Pg. 132
8. 8
COUNCILMEETINGDATE: JUNE2, 2020
SUBJECT: AMENDMENTTOTHEPRESERVE/PRADOSEWERLIFTSTATION
CREDIT/REIMBURSEMENTAGREEMENTANDANNUALRECONCILIATIONOFSEWER CREDITSFISCALYEAR2019-20 (CHINODEVELOPMENTCORPORATION)
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BACKGROUND
ThePreserveSpecificPlan's sewersystemforportionsofthePreservenorthofPineAvenue wasoriginallydesignedtodivertsewagetotheInlandEmpireUtilitiesAgency'sRegionalPlant2 locatedon El PradoRoadnorthof PineAvenue. However, RegionalPlant2 willbede- commissioned. Duetotopographychallengesandtheinabilitytoprovideagravity-basedsewer system, analternatedesignwasproposedforthePreserve/PradoSewerLiftStation, Force MainandGravityLineproject (Project)topermanentlymeetthesewerdemandsofthePreserve at build- out.
ChinoDevelopmentCorporation (Developer) constructedtheProjectasaconditionofapproval foritsresidentialdevelopmentsinthePreserve. TheProjecthasbeensatisfactorilyconstructed to meetCityspecificationsandwasformallyacceptedascompletebytheCityCouncilon January 15, 2019.
Additionally, thisProjectisa master-plannedfacilityandisincludedintheCity's Development ImpactFee (DIF) program. ThisProjectis eligibleforDIFcreditandreimbursementperthe ChinoMunicipalCode, Chapters3.40 and 3.45 and per the termsof the DIF Creditand ReimbursementAgreement No. 2019-220 (ExhibitA).
ISSUES/ ANALYSIS
AftertheProject's finalacceptance, theCityCouncilapprovedanupdatetotheDIFNexusand CalculationReportthat becameeffectivein October2019. The updatedReport includesa revisedcostestimatefortheSewerLiftStation/ForceMainProject (SW-143) andGravityLine SW-103)fora nottoexceedamountof$12,578,856. ThisamountwasagreeduponbytheCity and the Developerduring the course of construction.
The City Engineer reviewed the final accepted/ approved " as- built" plans, specifications and supporting documentation and determined that $ 12, 162, 432 is eligible for DIF credit and reimbursement. The remaining Project balance of $ 416, 424 will be used to off- set costs associatedwith the future expansionof this Project for the purchaseand installationof additionalpumps to increasethe capacityas developmentwithin the Preservecontinues.
Therefore, an amendmentto the existingDIFCreditandReimbursementAgreementis required to updatethe "estimatedcosts" to the "actualcosts" approvedbytheCityEngineerthatshallnot exceed $ 12, 162, 432.
The Developer received Sewer DIF credits in the Preserve for multiple development projects totaling $ 1,198,656. These credits were deductedfrom the amount owed to the Developer per thetermsof theAgreement, bringingforwarda newbalanceof $8,044,374, whichis outlinedin Exhibit B attached and itemized below.
CONSENT CALENDAR Packet Pg. 131