S. Ramos
PW/ADMIN
Contract No. 2017-152
Approved 8/2/2016 #I|
REIMBURSEMENT AGREEMENT
FOR
EDISON AVENUE IMPROVEMENTS
L.S., COLLEGE PARK, LLC
THIS REIMBURSEMENT AGREEMENT FOR EDISON AVENUE IMPROVEMENTS ("Agreement") is made and entered into this 2nd day of August, 2016, by and between the CITY
OF CHINO, AS SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF CHINO, a public body, corporate and politic, hereinafter called the "SUCCESSOR AGENCY" ", and LS COLLEGE PARK, LLC, a Delaware limited liability company, hereinafter called the "DEVELOPER"
WITNESSETH
WHEREAS, the City of Chino, a California general law municipal corporation (the "City"), the former Redevelopment Agency of the City of Chino ("Agency"), the State of California, acting by and through the Department of General Services ("State"), and SCC/College Park, LLC, a Delaware limited liability company ("SCC/College Park"), entered into that certain College Park Development Agreement on September 7, 2004 (Contract No. 2004-197), which was recorded in the Official Records of San Bernardino County on October 13, 2004, as Instrument No. 2004- 0743851 (the "Development Agreement"); and
WHEREAS, DEVELOPER purchased Tract Map No. 16837 at a foreclosure sale, and is the successor-in-interest to SCC/College Park; and
WHEREAS, pursuant to the Development Agreement, DEVELOPER agreed to construct certain public improvements, including the widening of Edison Avenue from Central Avenue to Oaks Avenue, including utilities and utility pole relocations, installation of storm drain and recycled water lines, and traffic signal modifications (collectively, the "Edison Avenue Public Improvements") in accordance with plans and specifications approved by the City Engineer of the City if Chino ("City Engineer"); and
WHEREAS, pursuant to the Development Agreement, the Agency agreed to reimburse DEVELOPER for all verified third party expenses incurred by DEVELOPER in connection with the design, permitting and construction of the Edison Avenue Public Improvements; and WHEREAS, pursuant to the Development Agreement, all verified third party expenses incurred by DEVELOPER in connection with the design, permitting and construction of the Edison Avenue Public Improvements are eligible for reimbursement by SUCCESSOR AGENCY, as the legal successor to the Agency; and
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WHEREAS, the Development Agreement has been listed on each of SUCCESSOR AGENCY'S Recognized Obligation Payment Schedules (each, a "ROPS"), and has been approved by the Department of Finance (the "DOF") as an enforceable obligation; and WHEREAS, the current ROPS lists the outstanding obligation for completion of the Edison Avenue Public Improvements as Eight Million Four Hundred Thirty-One Thousand Dollars ($8,431,000) (the "Estimated Amount"), which is the current estimate of the cost to design, permit, construct and/or install the Edison Avenue Public Improvements; and WHEREAS, SUCCESSOR AGENCY has Seven Million Dollars ($7,000,000) in bond and other funds on-hand (collectively, the "Cash Portion"), and anticipates that it will receive the remaining One Million Four Hundred Thirty-One Thousand Dollars ($1,431,000) of the Estimated Amount (the "RPPTF Portion) from the San Bernardino County Auditor Controller in January, 2017, out of the SUCCESSOR AGENCY'S redevelopment property tax trust fund (the "RPPTF"); and
WHEREAS, DEVELOPER and SUCCESSOR AGENCY now wish to set forth the parties' obligations with respect to the construction and/or installation of the Edison Avenue Public Improvements by DEVELOPER and reimbursement of the costs incurred by DEVELOPER in connection therewith by SUCCESSOR AGENCY.
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and for other valuable consideration, the sufficiency of which is hereby acknowledged, the following mutual promises and obligations are agreed to as follows:
1. Compliance with Public Contract Code. DEVELOPER shall advertise, publicly bid, and award a contract for construction and/or installation of the Edison Avenue Public Improvements in accordance with all applicable requirements of the Public Contract Code.
2. Construction/Installation of Edison Avenue Public Improvements; Reimbursement.
DEVELOPER shall complete all work incidental to the construction and/or installation of the Edison Avenue Public Improvements according to the specifications of the City of Chino.
Construction of the Edison Avenue Public Improvements shall be completed under the inspection, and to the satisfaction, of the City Engineer, and any change orders shall be approved by the City Engineer. The cost to construct the Edison Avenue Public Improvements is estimated to be Eight Million Four Hundred Thirty-One Thousand Dollars ($8,431,000).
DEVELOPER shall be reimbursed for the actual costs DEVELOPER incurs to construct the Edison Avenue Public Improvements pursuant to the procedure set forth in Section 4 below.
3. Compliance with Law; Public Works Requirements. DEVELOPER shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Edison Avenue Public Improvements, in conformity with all approved plans and permits, all applicable federal and state laws and regulations, including all applicable federal, state and local labor and wage standards, as to the Edison Avenue Public Improvements. Further, with respect to the development and construction activities undertaken by DEVELOPER pursuant to this Agreement, DEVELOPER acknowledges and agrees that DEVELOPER shall (i) be required to, and shall be required to cause all of its contractors and 882/060895-0058
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their contractors to, pay prevailing wages in compliance with California Health and Safety Code Sections 33423 through 33426 and California Labor Code Section 1770 et seq., and shall be responsible for the keeping of all records required pursuant to Labor Code Section 1770 et seq., including but not limited to Labor Code Section 1776, and complying with the maximum hours requirements of Labor Code Sections 1810 through 1815, and complying with all regulations and statutory requirements pertaining thereto; and i) prepare and retain, for a period of one (1) year following recordation of a Notice of Completion, a certified and completed Public Works Payroll Reporting Forms) as published by the California Department of Industrial Relations, Division of Labor Standards Enforcement" P.W. Form"). Upon the request of SUCCESSOR AGENCY or any other public entity, DEVELOPER shall provide to SUCCESSOR AGENCY or such other public entity, as applicable, a true and correct copy of any such certified and completed P.W. Form. DEVELOPER acknowledges and agrees that it shall be independently responsible for reviewing the applicable law and regulations with respect to the payment of prevailing wages and complying therewith. In addition to any other DEVELOPER indemnifications of SUCCESSOR AGENCY and the City set forth in this Agreement, DEVELOPER shall indemnify, defend and hold SUCCESSOR AGENCY and the City, and their respective officers, officials, employees, members, representatives, and agents (collectively, the "Indemnitees") harmless from and against any liability, loss, damage, cost or expenses including reasonable attorneys' fees, expert witness fees, and court costs) arising from the failure of DEVELOPER or its contractors or subcontractors to pay the applicable prevailing wages in accordance with applicable law.
4. Reimbursement Procedure. DEVELOPER may submit reimbursement requests to SUCCESSOR AGENCY no more than once per calendar quarter. Each such submittal shall include documentation that properly supports the reimbursement request and shall request a reimbursement for only those costs associated with the portion of the Edison Avenue Public Improvements that can be, or will be, used by the public immediately adjacent to, or abutting, or determined as receiving benefit from said Edison Avenue Public Improvements. Each such submittal shall also include an updated budget itemizing the funds spent to date and the remaining estimated cost to complete the Edison Avenue Public Improvements. Within thirty 30) days after SUCCESSOR AGENCY's approval of a reimbursement request, SUCCESSOR AGENCY shall provide the reimbursement payment to DEVELOPER, at the address set forth below. Notwithstanding the foregoing, however, DEVELOPER acknowledges and agrees that (i) SUCCESSOR AGENCY will not receive the RPTTF Portion until January 2017, and (i) SUCCESSOR AGENCY's obligation to provide reimbursement payments pursuant to this paragraph shall be subject to SUCCESSOR AGENCY's receipt of the RPTTF Portion from the San Bernardino County Auditor Controller (the "Controller").
SUCCESSOR AGENCY and DEVELOPER shall meet regularly, pursuant to a schedule acceptable to both parties, to manage construction activity and costs, including for purposes of enabling DEVELOPER to construct the Edison Avenue Public Improvements at a cost that does not exceed the Estimated Amount; provided, however, that if (a) it is not reasonably feasible to complete the Edison Avenue public Improvements for a cost that does not exceed the Estimated Amount, and/or (b) SUCCESSOR AGENCY approves change orders that result in the cost of constructing the Edison Avenue Public Improvements to increase above the Estimated Amount, then (1) SUCCESSOR AGENCY will be required to request additional funds from the RPTTF, 882/060895-0058
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by listing such additional amount on the next ROPS, or by amending the then current ROPS (as applicable, depending upon when SUCCESSOR AGENCY is made aware of the need for such additional funds), and (2) SUCCESSOR AGENCY's obligation to provide reimbursement payments for such additional funds pursuant to this paragraph shall be subject to SUCCESSOR AGENCY's receipt of such additional funds from the Controller. SUCCESSOR AGENCY agrees, however, at no cost to SUCCESSOR AGENCY, to diligently pursue the receipt of such additional funds.
5. Source of Funds for Reimbursement; No Charge on City's General Funds. It is agreed and understood between SUCCESSOR AGENCY and DEVELOPER that (i) the reimbursement obligations provided for in this Agreement shall not be a charge against the general funds of the City or any other funds of the CITY and shall not bear interest, and (i) DEVELOPER shall look only to the Cash Portion, RPTF Portion, and other funds from the RPTTF with respect to SUCCESSOR AGENCY's reimbursement obligations pursuant to this Agreement.
6. Indemnification. DEVELOPER shall indemnify, defend, and hold harmless the Indemnitees from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including expert witness fees, attorneys' fees, and costs), which may be caused by any of the activities of DEVELOPER or any of DEVELOPER's affiliates, successors, assigns, and successors-in-interest in and to this Agreement, the area described as Tract Map No. 16837, and the Edison Avenue Public Improvements under this Agreement.
7. Notices Between Parties. Written notices, demands and communications between SUCCESSOR AGENCY and DEVELOPER shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same-day or overnight messenger service that provides a receipt showing date and time of delivery, or (iii) dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of SUCCESSOR AGENCY and DEVELOPER at the addresses specified below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 7. Any written notice, demand, or communication shall be deemed received immediately if delivered by hand or delivered by messenger in accordance with this Section 7, and shall be deemed received on the third (3rd) day from the date it is postmarked if delivered by registered or certified mail in accordance with this Section 7.
Notices to SUCCESSOR AGENCY: City of Chino, as Successor Agency to the City of Chino
13220 Central Avenue
Chino, CA 91710
Attn: Executive Director
Notices to DEVELOPER: L.S. College Park, LLC
980 Montecito Drive, Suite 300
Corona, CA 92879
Attn: Jeff Clemens, Vice President
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8 Conflicts of Interest. No member, officer, official, or employee of SUCCESSOR AGENCY shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
Non-Liability of Officials and Employees of SUCCESSOR AGENCY or City. No member, official or employee of SUCCESSOR AGENCY or City shall be personally liable to DEVELOPER, or any successor in interest, in the event of any default or breach by SUCCESSOR AGENCY, or for any amount which may become due to DEVELOPER or its successors, or on any obligations under the terms of this Agreement.
Interpretation; Entire Agreement, Waivers; Attachments. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply.
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of SUCCESSOR AGENCY and DEVELOPER, and all amendments hereto must be in writing by the appropriate authorities of SUCCESSOR AGENCY and DEVELOPER. Except as otherwise expressly provided, in any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld.
The exhibits and attachments to this Agreement are incorporated herein and made a part hereof.
11. Defaults - General. Failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days after service of the notice of default (or within such other period as is set forth herein), the non-defaulting party shall be entitled to pursue whatever remedies to which such party is entitled under this Agreement; provided however that if the default cannot reasonably be cured within such thirty (30) day period, the defaulting party shall have such additional time to cure as is reasonable under the circumstances, as long as the defaulting party commences to cure within such thirty (30) day period and diligently prosecutes such cure to completion.
12. Legal Actions.
12.1 Specific Performance. The non-defaulting party, upon expiration of applicable notice and cure periods, shall be permitted, but not obligated, to commence an action for specific performance of the terms of this Agreement, or to cure, correct or remedy any default hereunder or to obtain any other legal or equitable remedy consistent with the purpose of this 882/060895-0058
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Agreement. SUCCESSOR AGENCY shall also have the right to pursue damages for DEVELOPER's defaults but in no event shall DEVELOPER be entitled to damages of any kind from SUCCESSOR AGENCY, including, without limitation, damages for economic loss, lost profits, or any other economic or consequential damages of any kind. The foregoing sentence shall not affect the right of DEVELOPER to receive attorney's fees pursuant to Section 12.2 below.
12.2 Institution of Legal Actions; Attorney's Fees. Any legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, or in the Federal District Court in the Southern District of California. In the event of any litigation between the parties hereto, the prevailing party shall be entitled to receive, in addition to the relief granted, its reasonable attorney's fees and costs and such other costs incurred in investigating the action and prosecuting the same, including costs for expert witnesses, costs on appeal, and for discovery.
12.3 Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflict of law principles.
12.4 Acceptance of Service of Process. In the event that any legal action is commenced by DEVELOPER against SUCCESSOR AGENCY, service of process on SUCCESSOR AGENCY shall be made by personal service upon the Executive Director in such other manner as may be provided by law. In the event that any legal action is commenced by SUCCESSOR AGENCY against DEVELOPER, service of process on DEVELOPER shall be made by personal service upon any officer or director of DEVELOPER and shall be valid whether made within or without the State of California or in such other manner as may be provided by law.
12.5 Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party.
13. Maintenance of Books and Records. DEVELOPER shall prepare and maintain all books, records, and reports necessary to substantiate DEVELOPER's compliance with the terms of this Agreement.
14. Right to Inspect. SUCCESSOR AGENCY shall have the right, upon not less than forty-eight (48) hours' notice, at all reasonable times during business hours, to inspect the books and records of DEVELOPER pertinent to the purposes of this Agreement.
Binding Effect of Agreement. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their legal representatives, successors, and assigns.
16. Severability. Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If, however, any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision 882/060895-0058
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shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which, when this Agreement shall have been signed by both of the parties hereto, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument.
Amendments to this Agreement. SUCCESSOR AGENCY's Executive Director (the "Executive Director") shall have the authority to approve, on behalf of SUCCESSOR AGENCY, amendments to this Agreement that would not substantially alter the basic business terms or substantially increase the cost or risk of this Agreement to SUCCESSOR AGENCY. All other amendments shall require the action of the Successor Agency Board of Directors. All amendments, including those authorized to be approved by the Executive Director, shall be in writing and shall be signed by authorized representatives of SUCCESSOR AGENCY and DEVELOPER.
19. Assignment. SUCCESSOR AGENCY shall have the right to assign this Agreement without the consent of DEVELOPER. DEVELOPER shall not assign this Agreement without prior written consent of SUCCESSOR AGENCY. Any assignment without such prior written consent shall be null and void.
III
//I
III
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IN WITNESS WHEREOF, DEVELOPER has signed and the SUCCESSOR AGENCY Board of Directors has authorized this Agreement to be executed on July 23, 2016, at Chino, California.
RagusT
ATTEST:
CITY OF CHINO, AS SUCCESSOR AGENCY
TO THE REDEVELOPMENT AGENCY OF
THE CITY OF CHINO, a public body, corporate
and politic
Angela Robles, Successor Agency Secretary Mattery C. Balatyne, Executive Director APPROVED AS TO FORM:
Lutan & Tucker, LLF
Successor Agency Counsel
APPROVED AS TO CONTENT:
Jose Attre, Assistant City Manager/PW
LS COLLEGE PARK, LLC, a Delaware limited
liability company
By: Lennar Homes of California, Inc.
Its: Managing g Members
/
Jeff Clemens
Its: Vice President
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