01225.0006/367559.3 Updated 10-2020
PUBLIC IMPROVEMENT AGREEMENT
by and between
CITY OF CHINO
and
JL POWER INVESTMENTS, LLC, A CALIFORNIA LIMITED COMPANY 01225.0006/367559.3
PUBLIC IMPROVEMENT AGREEMENT BETWEEN
THE CITY OF CHINO
AND
JL POWER INVESTMENTS, LLC, A CALIFORNIA LIMITED COMPANY
Agreement Date: September 5, 2023 (City Council Approval date October 17, 2023)
Developer Name: JL Power Investments, LLC, a California Limited Company
Description: PL21-0020 (Administrative Approval) for the construction of a duplex and two (2) detached Accessory Dwelling Units (ADUs) located at 12938 Monte Vista Avenue.
Estimated Total Cost of Improvements: $39,700.00
Security
Bond No.: _100168334___________________
Surety: _Merchants Bonding Company
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Designees for the Service of Written Notice:
CITY: DEVELOPER
Jesus Plasencia
Assistant City Engineer
13220 Central Avenue
Chino, CA 91710
(909) 334-3417
JL Power Investments, LLC, a California
Limited Company
Attn: Gerardo Limon
4195 Chino Hills Parkway, #505
Chino Hills, CA 91709
(714) 726-5078
CITY PROJECT INSPECTOR
Isaac Ortega
Permit & Inspection Supervisor
13220 Central Avenue
Chino, CA 91710
(909) 334-3501
[email protected]
01225.0006/367559.3
TABLE OF CONTENTS
1. Construction Obligations
1.1 Works of Improvement
1.2 Other Obligations Referenced in Conditions of Approval
1.3 Intent of Plans
1.4 Survey Monuments
1.5 Performance of Work
1.6 Changes in the Work
1.7 Defective Work
1.8 No Warranty by City
1.9 Authority of the City Engineer
1.10 Documents Available at the Site
1.11 Inspection
1.12 Compliance With Law; Applicable Standards for Improvements
1.13 Suspension of Work
1.14 Erosion and Dust Control and Environmental Mitigation
1.15 Final Acceptance of Works of Improvement
1.16 Vesting of Ownership
1.17 Developer’s Obligation to Warn Public During Construction
1.18 Injury to Public Improvements, Public Property or Public Utility
2. Time for Performance
2.1 Commencement and Completion Dates
2.2 Phasing Requirements
2.3 Force Majeure
2.4 Continuous Work
3. Labor
3.1 Labor Standards
3.2 Nondiscrimination
3.3 Licensed Contractors
3.4 Workers’ Compensation
4. Security
4.1 Required Security
4.2 Form of Security Instruments
4.3 Developer’s Liability
4.4 Letters of Credit
4.5 Release of Security Instruments
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5. Cost of Construction and Provision of Inspection Service
5.1 Developer Responsible for All Related Costs of Construction
5.2 Payment to City for Cost of Related Inspection and Engineering Services
5.3 Payment of Development Impact Fees
6. Acceptance of Offers of Dedication
7. Warranty of Work
8. Default
8.1 Default by Developer
8.2 Remedies
8.3 Remedies Not Exclusive
8.4 Attorney’s Fees and Costs
8.5 Waiver
9. Indemnity/Hold Harmless
10. Developer’s Indemnity of Project Approval
11. Insurance Requirements
12. Environmental Warranty
13. General Provisions
13.1 Successors and Assigns
13.2 No Third Party Beneficiaries
13.3 No Vesting Rights
13.4 Developer is Not Agent of City
13.5 Time of the Essence
13.6 Notices
13.7 No Apportionment
13.8 Severability
13.9 Captions
13.10 Incorporation of Recitals
13.11 Interpretation
13.12 Entire Agreement; Waivers and Amendments
13.13 Counterparts
14. Authority
01225.0006/367559.3
1 PUBLIC IMPROVEMENT AGREEMENT
THIS PUBLIC IMPROVEMENT AGREEMENT (this “Agreement”) is entered into this 5th day of September, 2023, by and between the CI TY OF CHINO, a munici pal corporation, organized and existing in the County of San Bernardino, under and by virtue of the laws of the State of California, (“CITY”), and JL Power Investments, LLC, a California Limited Company (“DEVELOPER”).
RECITALS
A. Developer is the owner of certain rea l p roperty located i n the Ci ty of Chino, County of San Bernardino , State of California (the “Property”), as described o n Exhibit “A”, which Developer proposes to develop and construct certain works of improvement thereon, as hereafter set forth.
B. Developer entered into a purchase and sa le agr eement wit h the Chino Valley Unified School District , which requires the develope r to construct the off -site, backbone facilities supporting the future develo pment of the second school site in The Pres erve.
Currently, Lewis is looking to accelerate the required public improvements for the future twelve (12) acre school site located on the north-east corner of East Preserve Loop and Market Street (the “Project”).
C. The City desires to assure that said i mprovements proposed for the Project will be constructed in a goo d workmanlike manner and in accordance with all applicable laws, statues, ordinances, resolutions and regulations now i n force and effect in the Cit y of Chino and the State of California, all of which are incorporated herein.
D. The Developer acknowledges familiarity with the various requirements for public improvements contained in the Chino Municipal Code and agrees to comply therewith.
COVENANTS
Based upon the foregoing Recitals which are i ncorporated herein by re ference and in consideration of City’s site plan or other entitlements for the Property and permitting development of the Property to proceed, Developer agrees to timely perform all of its obligations as set forth herein.
1. Construction Obligations.
1.1. Works of Improvement. Developer agrees, at its sole c ost and expense, to construct or install, or cause to be constructed or installed the street, drainage, domestic water, sanitary sewer , street lighting, l andscaping, utility, and other improvements more fully described as Exhibit “B” attached hereto (the “Works of Improvement ”), as the same may be supplemented and revis ed from time to time a s s et forth in this Agreem ent (said plans and specifications, together with all related documents, the “Plans”). The estimated construction cost for the Works of Improvement is $39,700.00.
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2 1.2. Other Obligations Referenced in Conditions of Te ntative Map Approval . In addition to the foregoing, Developer shall satisfy all of the other Conditions associated with the Project and the Property. The Conditions associated with the Map are included in Exhibit “B” attached hereto.
1.3. Intent of Plans. The intent of the Plans referenced in Section 1.1 is to prescribe a complete work of improvement which Developer shall perform or cause t o be perfo rmed in a manner acceptable to th e City Engineer, (or designee), and in full compliance with all codes and th e term s of this Agre ement. Developer shall complete a functional or opera ble improvement or facility, even though t he Plans may not speci fically call out all items of work required for Developer’s contractor to complete its tasks, incidental appurtena nces, materials, and the like. If any omissions are made or information neces sary to car ry out the full intent and mean ing o f the Plans, Developer or i ts c ontractor shall imme diately n otify its design engineer who will seek approval of the City Engineer f or furnishing of detailed instructions. In the event of any doubt or question arising re garding the true meaning of any of t he Plans, reference shall be made to the City Engineer whose decision thereon shall be final.
Developer recognizes that the Plans consist of general drawi ngs. All authorized alterations affecting the requir ements and information given on the Plans shall be in writing and approved by the C ity Engineer. The Plans shall be supplemented by such working or shop drawings as are necessar y to adequately control t he work. Without the C ity Engineer’s prior written a pproval, no change shall be made by Developer or its contractor to any pla n, specification, or working or shop drawing after it has been stamped as approved.
1.4. Performance of Work . Developer shall furnis h or cause to be furnis hed all materials, labor, tool s, equipment, utilities, transportation, and incidentals required to perform Developer’s obligations under this Agreement.
1.5. Changes in the Work . The City Engineer, without inval idating this Agreement and without notification to any of the sureties or fina ncial institutions referenced in Paragraph 4, may order extra work or may make changes by altering or deleting any portion of the Works of Improvement as specified herein or as d eemed necessary or desirable by the City Engineer as determined necessary to a ccomplish t he purposes of thi s Agre ement a nd to protect the public health, safety, or welfare. The City Engineer shall notify Developer or its c ontractor in writing (by Correction Notice) at the time a determination has been made to require changes in the work. No f ield changes perfo rmed o r p roposed b y Developer or it s co ntractor s hall be binding on City unless approved in writing by the City Eng ineer. The City and Developer may mutually agr ee upon chang es to the Works of Impr ovement, subject to the securi ty requirements in Section 4.
1.6. Defective W ork. Developer shall cause its con tractor to re pair, r econstruct, replace, or otherwise make acceptable any work found by the City Engineer to be defective.
1.7. No Warranty by City . The Plans for the Works of Impro vement have been prepared by or on behalf of Developer or its co nsultants or c ontractors, a nd City makes no representation or warranty, express or implied, to Developer or to any other person regarding the adequacy of the Plans or related documents.
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3 1.8. Authority of the City Engineer . I n addi tion to the authority granted to the City Engineer elsewhere in this Agreement, the City Engineer shall have the authority to decide all questions which may arise as to the quality and accept ability of materials furnished and work performed, and all questions as to the satisfactory an d acceptable fulfillment of the terms of this Agreement by Developer and its contractor.
1.9. Documents Available at th e Site. Developer shall cause its contractor t o keep a copy of all approved Plans at the job site and shall give access thereto to the City’s inspectors and engineers at all times.
1.10. Inspection. Developer shall have an a uthorized representative on the jo b site at all times durin g which work is being d one who has full authority to act for Developer, or its design en gineer, and Developer’s contr actor(s) regar ding th e Works of Im provement.
Developer shall cause its contract or to furnish the City with every reasonable f acility for ascertaining whether or not the Works of Improvement a s performed are in accordance with the requirements and intent o f th is Agreeme nt, inc luding the Pl ans. If the City inspector requests it, the Developer’s contractor, at any time before acce ptance of the Works of Improvement, shall remove or uncover such p ortions of the finished work as may be directed which have not previously been inspected. After examination, the Developer’s contractor shall restore said portions of the work t o the standards required hereunder. Inspection or supervision by the City Engineer (or designee) shall not be considered as direct control of the individual workmen on the job site. City’s inspectors shall have the autho rity to stop any and all work not in accordance with the requirements contained or referenced in this Agreement.
The inspection of the work b y City shall not relieve Developer or its contractor of any obligations to ful fill this Agreement as herein provide d, and unsuitable materials or wor k may be rejected notwithstanding that such mate rials or work may have been pr eviously overlooked or accepted.
1.11. Compliance With Law; Applicable Standards for Improvements. In addition to the express provisions of this Agreement and the Plans, Developer shall cause construction of the Works of Improveme nt to be completed in accordan ce with all other applicable federal, state, and local laws, ordinances, rules and regulations. In addition, without limiting the foregoing, the Developer shall, at its expense, obtain and comply with the conditions of all necessary permits and licenses fo r the construction of the Wor ks of Improvement. The Developer shall also give all necessary notices and pay all fees and taxes as required by law.
Developer shall construct the i mprovements in accordance with the City standard s in effect at the time of the adoption of this Agreement. City reserves the right to protect the public safety or welfare or comply with applicable Federal or State law or City zoning ordinances.
1.12. Suspension of Work. The City Engineer shall have authority to order suspension of the work for fa ilure of the Developer’s contractor to comply with la w pu rsuant to Section
1.12. In case of sus pension of work for any cause what soever, Developer and its contractor shall be res ponsible for all materials and shall store them properly if necessary and shall provide suitable interim drainage and/or dust control measures, and erect temporary structures where necessary.
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4 1.13. Erosion and Dust Control and Environmental Mitigation. All grading, landscaping, and construction activities shall be performed in a manner to control erosio n and prevent flooding problems. T he C ity Engine er shall have the au thority t o require erosion plans to prescribe reasonable controls on the method, manner, and time of grad ing, landscaping, and construction activities to prev ent nuisanc es to surrounding properties. Plans shall include without limitati on temporary drainage and ero sion control requirements, dust contr ol procedures, restrictions on tru ck an d other construction traffic routes, noise abatement procedures, storage of material s and equipment, r emoval of garbage, trash, and refus e, securing the job site to prevent injury, and similar matters.
1.14. Final Acceptanc e of Works of Improvement . After Developer’s contractor h as completed all of the Works of Improvement, Developer shall then request a final inspection of the work. If items are found by the City’s inspectors to be incomplete or not in compliance with this Agreement or any of the require ments contained or referenced herein, City will inform the Developer or its contractor of such items. After the Developer’s contractor has com pleted these i tems, t he procedure shall the n be the same as specified above for the Developer’s contractor’s initi al re quest f or final insp ection. If items are f ound by City ’s inspector s to b e incomplete or not in compli ance a fter tw o (2) “final” inspections, the City may req uire t he Developer or its contractor, as a condition to per forming further field inspections, to submit in writing a d etailed statement of th e work performed subsequent to the date o f the previous inspection which was found to be incomplete or not in compliance at that time. Developer shall be responsible for pay ment to City Engineer of re -inspection fees in the amount n ecessary to cover the City’s costs for additional final inspections, as determined by the City Engineer.
No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by the City Engineer is made. The City Engineer shall make a c ertification of completion and acce ptance on the Works of Improvement by recordation of a Notice of Acceptance on b ehalf of the City.
Final acceptanc e sha ll not constitute a waiver by the City Engineer of defective work subsequently discovered.
The date o n which the Works of Improvement wi ll be considered as complete shall be the date of the Notice of Acceptance.
1.15. Vesting of Ownership. Upon recordation of the Notice of Accepta nce, ownership of the Works of Improvement shall vest in the City.
1.16. Developer’s Obl igation t o Wa rn Pu blic During Const ruction. Until recordation of the Notice of Acceptance, Developer shall give goo d and adequate warning to the publ ic of any dangerous condition of the Works of Improvements and shall take rea sonable actions to protect th e publ ic from such dangerous condit ion. Until re cordation of t he Noti ce of Acceptance, Developer shall provide forty-eight ( 48) hours’ advance writte n not ice to all neighboring property owners and tenants affected by Developer’s operations or construction of the hours, dates and duration of any planned construction activities.
1.17. Injury to Public Improvements, Public Pro perty or Public Utility. Until recordation of the Notice of Acceptance of the Works of Improvement, Developer assumes responsibility 01225.0006/367559.3
5 for the care and maintenance of, and any da mage to, the Works of Improvements. Developer shall replace or repair all Works of Improvements, public property, public utility facilities, and surveying or subd ivision monuments and benchmar ks which ar e destroyed or dam aged f or any reason, regardless whe ther resulting from t he acts of th e Developer, prior to the recordation of the N otice of Acceptance. Developer shall be ar the entire cost o f such replacement or r epairs regardless of what enti ty owns the underlying property. Any repair or replacement shall be to the satisfaction, and subject to the approval, of the City Engineer.
Neither the City, nor any officer or employee thereof, shall b e liable or responsible for any accident, loss or dam age, regard less of cause, occ urring to the work or Works of Improvements prior to recordation of the Notice of Acceptance of the work or improvements.
2. Time for Performance.
2.1. Commencement and Completion Dates. Subject to Secti ons 2.2 and 2.3 below, Developer shall (i) commence with co nstruction and installation of the Works of Impro vement thirty (30) d ays following City ’s approval of the Plans ( “Commencement Date ”); and (ii) complete or cause to be completed all of the Works of Improvement within two (2) years after the Commencement Date. In the event good cause exists as determined by the City Engineer, the ti me for commencement of construction o r completion of the Works of Impro vement hereunder may be extended by up to three (3) additional one-year periods. Extensions shall be executed in writing by t he City Engineer. The City Engi neer in his o r her s ole discr etion determines whether the Developer has established good caus e for an ext ension. As a condition of such exten sion, the City Engineer may re quire Developer to furnish ne w security guaranteeing performance of this Agree ment, a s extended, i n an incr eased amount to compensate for any in crease in construction costs as de termined by the City Engi neer. If Developer requests and is granted an extensi on of time for completion of the improvements, City may apply the standards in effect at the time of the extension.
2.2. Phasing Requirements. Notw ithstanding the provisions of Sect ion 2.1, the City reserves the right to control and regulate the phasing of co mpletion of specific Works of Improvement as re quired to comply with applicable City ordinances, r egulations, and rules relating to the timely p rovision of public services and fa cilities. In addition to whatever other remedies the City may have for Developer’s failure to satisfy such phasing requirements, as the same now exist or m ay be a mended from t ime to ti me, Developer acknowledges City ’s right to withhold the issuance of fur ther building permits on the Property until such phasing requirements are sati sfied. Prior to issuance of building permits, Developer shall p rovide satisfactory e vidence that all appli cable requirements that are a conditi on to issuance of building permits have been s atisfied. Suc h requirements may incl ude the payment of fees, construction of improvements, or b oth. Final i nspections or issuance of Certificates of Occupancy may be withheld from the Developer by the City, if , upon a determination by the City Engineer, completion of specific Works of Improvements or other requirements associated with the developme nt of the Property have not been co mpleted to the City E ngineer’s satisfaction.
2.3. Force Majeure. Notwithstanding th e provisions of Section 2.1, Developer’s time for commencem ent and completion of t he Works of Improvement shall be extended for the 01225.0006/367559.3
6 period of any enforced delay caused due to c ircumstances beyond the control and without the fault of Developer, including to the extent applicable adverse wea ther conditions, flood, earthquakes, strikes, lockouts, pandemics, acts or failures to act of a public agen cy (including City), required changes to the scop e of work required by City, a nd similar causes; provided, however, that the period of any enforced d elay hereunder shall not include any period long er than five (5) days prior to City’s rec eipt of a written notice from Developer or its contractor detailing the gr ounds for Developer’s claim to a right to extend its time f or performance hereunder. The City Eng ineer s hall evaluate all claims to Force Ma jeure and make a reasonable de termination regarding the len gth of any ex tension of time for co mmencement and/or completion of the Works of Improvement and the City Engineer’s decision shall be final.
2.4. Continuous Wo rk. A fter commencement of construction of the Works of Improvement (or separate po rtion thereof), Developer shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecut ive period or more than thirty (30) days, events of Force Majeure excepted.
3. Labor.
3.1. Labor Standards. This Agreement is subject to, and Developer agrees to comply with, all of the applicable provisions of the L abor Code including, but not limited to, the w age and hour, prevailing wage, wor ker c ompensation, and var ious other labor requir ements in Division 2, Part 7, Chapter 1, including section 1720 t o 1740, 1770 to 1780, 1810 to 1815, 1860 to 1861, which provisions are s pecifically incorporated herein by re ference as set forth herein in their entirety. Developer shall expressly require compliance with the provisions of this Section in all agreem ents w ith con tractors and subcontra ctors for the performance o f the Works of Improvement.
3.2. Nondiscrimination. In a ccordance with the California Fair Employment and Housing Act (“FEHA”), California Government Code Section 12940 et seq., Developer agrees that Developer, its agents, employees,2 contractors, and subcontractor performing any of the Works of Improvement shal l not discriminate, in any way, against any person on the basis of race, ethnicity, religious creed, color, national origi n, ancestry, physic al dis ability, me ntal disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexu al or ientation, o r military and veteran status . Developer shall expressly requ ire complia nce with the provis ions o f this Section in all agreeme nts with contractors and subcontractors for the performance of this Agreement.
3.3. Licensed Contractors. Developer shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors’ licenses for the type of w ork bei ng performed. All of Developer’s contractors and subcontra ctors shall obtain a valid City o f Chino business license prior to performing any work pursuant to this Agreement. Developer shall provide th e City Engineer with a list of all of its contractors and subcontractors prior to initiating any work, and all vali d Contractor ’s licenses and busin ess licenses issued thereto as a condition of constructing the Works of Improvements.
3.4. Worker’s Compensation . Developer shall cause every cont ractor and subcontractor performing any of the Works of Improvement to carry Wor kers’ Compensation 01225.0006/367559.3
7 Insurance as required by the Labor Code of the State of Califo rnia and shall cause each such contractor and subcontractor to sub mit to City a Certificate of Insurance veri fying s uch coverage prior to such contractor or subcontractor entering onto the job site.
4. Security.
4.1. Required Security.
(a) At the time Developer executes this Agreement, Developer shall furnish to City the follo wing b onds, letters of credit, inst ruments of cre dit (as signment of deposit ac count) or other security acceptable t o City in its sole and absolute discretion and satisfying the requirements of the applicable provisions of this Section 4 below (hereinafter “Security Instruments”):
(i) A Security Instrument securing Developer’s faithful performance of all of the Works of Imp rovement ( “Faithful Performance S ecurity Instrument”), in the amount of $39,700.00 equal to 100% of the estimated construction cost referenced in Section 1.1.
(ii) A Security In strument guarante eing th e payment to contractors, subcontractors, and other persons furnishing labor, materials, and/or equipment (“Labor and Materials Security Ins trument”) with respect to the W orks of Im provement in an a mount equal to $19,800.00 equal to 50% of the estim ated co nstruction co st referenced in Section 1.1.
This Agreement shall not be effective for any p urpose until such Security Instruments are supplied to and approved by City in accordance herewith. (b) Required Security Inst rument for Maintenan ce and Warranty. Prior to the City C ouncil’s acceptance of the Works of Improvem ent and recordation of a Notice o f C ompletion, Developer shall deliver a Security I nstrument warranting the work a ccepted fo r a pe riod of on e (1) year foll owing said acceptanc e (“Maintenance a nd Warranty S ecurity Instrument”), in the amount of $4,000.00 equal to 1 0% of the estimated con struction cost set forth in Se ction 1.1 or a suitable amount determined by the City Engineer.
4.2. Form of Secur ity Instruments. All Security I nstruments shall be in the amounts required under Section 4.1 (a) or 4.1(b), as a pplicable, shall meet the following minimum requirements, may be secured by either developer or its construction contractor, and otherwise shall be in a form provided by City or otherwise approved by the City Attorney:
(a) Bonds. For Security In struments provided in the form of bonds, any such bond must be issued and executed by an insurance company or bank authorized to tr ansact surety business in the State of C alifornia. Any insurance company acting as surety sh all ha ve a minimum rating of A -IX, as rated by the cu rrent edition of Best’s Key Rating Guide published by A.M. Best’s Company, Oldwick, 01225.0006/367559.3
8 New Jersey, 08858. Any bank acting as surety shall have a minimum r ating of AA, as rated by Moody’s or Standard & Poor’s.
(b) Letters of Credit. For Secur ity Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, irrevocable, negotiable and transferable commercial letter o f credit issued by a financial instit ution with offices in the State of California acceptable to City. Any such letter of credit shall specifically permit City to draw on same by unil ateral certificat ion of t he City Engineer of the City that Developer is in de fault under its payment or performance obligati ons he reunder or in the event Developer fails to deli ver a replacement letter of c redit not less than thirty (3 0) days prior to the date of expiration of any such letter of credit and shall further be subject to the provisions of Section 4.4.
(c) Instrument of Credit. For Security Instrumen ts which are Instrum ents of Credit, any Instrumen t of Credit shall be an assig nment of deposit acco unt assigning as security to City all of Developer’s interest in funds on deposit in one or more bank accounts with financial institutions acceptable to City. (d) General Requirements for all Security Instruments.
(i) Payments under any Securi ty Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintai ned) in the Cit y of Chino, State of California (and the Security Instrument shall so provide).
(ii) Each Security Instrument shall have a minimum term o f one (1) year af ter the deadline for Developer’s completing the Works o f Improvement, in accordance with Sec tion 2.1 (other than Instruments of Credit, whic h shall have no defi ned ter m or expiration date).
(iii) Each Security Instrument sha ll provide that changes may be made in the Wor ks of I mprovement pursuant to the terms of this Agreement without notice to any issu er or surety an d with out affecting the obligations under such Security Instrument. (iv) If the Developer seeks to replace any security with another security, the replace ment sha ll: (1) comply with all the requirements for security in this Agreement; (2) be prov ided by the Developer to the City Engineer; and (3) upon its written acceptance b y the City Engineer, be deemed a part of this Agreement. Upon the City Engineer’s a cceptance of a replacement security, the former security shall be released by the City.
4.3. Developer’s Liability. While no action of Developer shall be required in order for City to realize on its security under any Sec urity Instrument, Developer agrees to cooperate with City to facilitate City ’s realization un der any Security Instrument, and to t ake no action t o 01225.0006/367559.3
9 prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subseq uent expiration o f any Se curity Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Developer shall be personally l iable for performance under this Agreement and for payment of the cost of the labor and material s for th e improvements required to be constructed or in stalled hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute security as City shall require satisfying the requirements in this Section 4.
4.4. Letters of Credit.
(a) In the event a letter of credit is given pursuant to Section 4.2(b), City shall be ent itled to draw o n any such letter of credit if a replacement letter o f credit (expiring in not le ss than one (1) year, unless C ity agrees to a lesse r term in City’s sole and absolute discretion) is not delivered not less than thirty (30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial instit ution acceptable to City as of the date of delivery of the replacement letter of credit. (b) In the event of draw by the City on a letter of credit, the City may elect , in its sole and absolute discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hol d such funds in an account under the control of the City, with no in terest accruing thereon for the benefit of the Developer. If the City elects t o hold the funds in an ac count p ursuant to the foregoing, City may there after at any time elect instead to ap ply such funds as provided in the foregoing. Developer agrees and h ereby grants City a security interest in such account to t he extent required fo r City to realize on its interests therein and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of C ity’s security interest in such account.
4.5. Release of Securi ty Instruments. The City shall release all Security Instruments consistent with Government Co de Se ctions 66499.7 and 66499.8 , Sect ion 1 9.09.010 o f the Chino Municipal Code, and as follows:
(a) City shall release the Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred:
(i) Developer has made written request for release and provided evidence of satisfaction of all other requirements in this Section 4.5; (ii) the Works of Improvement have been accepted;
(iii) Developer has deli vered the Mainten ance and Warranty Security Instrument; and
(iv) after passage of the time within which lien claims are required to be made pursuant to Title 3 (c ommencing with Secti on 9000) of 01225.0006/367559.3
10 Part 6 of Division 4 of the Civil Code of the State of California. If lien claims ha ve been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Developer has provided a statutory bond, or otherwise as required by applicable law.
(b) City shall release the Maintenance and Warranty Security Instrument upon Developer’s written request upon the e xpiration of the warranty period , and settlement of any claims filed during the warranty period. (c) The City m ay retain from any se curity released, an amount suf ficient to cover costs and reasonable expenses and fees, including reasonable attorney ’s fees.
5. Cost of Construction and Provision of Inspection Service.
5.1. Developer Responsible for All Costs of Constr uction. Developer shall be responsible for payment of al l costs incurred for construction and installation of the Works of Improvement. In the event Developer is entitled to reimburseme nt from City fo r any of the Works of Improvement , such reimbursement shall be subject to a separ ate Reimbursement Agreement to be entered into between Developer and City prior to construction of the Works of Improvement.
5.2. Payment to City for Cost of Related Inspection and Engineering Services .
Developer shall compensate C ity for all o f City ’s costs reasonably incurred in having its authorized repres entative make the usual a nd cust omary inspections of the Works of Improvement. In addition, Developer shall c ompensate City for al l design, plan check, evaluating any proposed or agreed-upon changes in the work. The procedures for deposit and payment of s uch fees shall be as esta blished by the City. In no event shall Developer be entitled to additional inspectio ns or a final i nspection and acceptance of any o f the Works of Improvement until all City fees a nd charges have been fully pai d, including without limitation, charges for applicable penalties and additional required inspections.
5.3. Payment of Development Impa ct Fees. Developer shall pay Development Impact Fees pursuant to and in acc ordance with Chino Mu nicipal Code Chapter 3.40 and Chapter
3.45, as applicable.
6. Acceptance of Off ers of Dedication. The City Council shall pas s as appropriate resolution or resolu tions accepting all o ffers of dedication shown o n the approvals for the Project, with acceptance to become effective upon comp letion and acceptance by City of the Works of Improvement.
7. Warranty of Work . Developer shall gua rantee all Works of Improvement against defective mat erials and workmanship for a period of one (1) year fr om the date of final acceptance. If any of the Wor ks of Improvement should fail or prove defective within said one (1) year period due to any r eason other than improper maintenance , or if any settlement of fill or backfill occur s, or should any por tion of the W orks of Improve ment fail to fulfill any requirements of the Plans, Developer, withi n fiftee n (15) days after written notice of such 01225.0006/367559.3
11 defects, or within such shorter time as may reasonably be determined by the City in the eve nt of emergency, sha ll commence t o repair or rep lace the same together with an y o ther work which may be damaged or d isplaced in so doing. Should Developer fail to remedy defective material and/or workmanship or m ake replac ements or repairs within the peri od of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Developer. The warranty provided herein sh all not be in l ieu of , but shall be in addition to, any warranties o r other obligations otherwise imposed by law.
8. Default.
8.1. Default by Developer. Default by Developer shall include, but not be limited to:
(a) Developer’s fai lure to timely commence construction of Works of Improvement under this Agreement;
(b) Developer’s failure to timely complete constructio n of the Works of Improvement;
(c) Developer’s failure to perform substantial construction work for a period for 20 consecutive calendar days after commencement of the work; (d) Developer’s insolvency, appointment of a receiver, or the filing of any petition in ba nkruptcy, either voluntary or involuntary, which Developer fails to discharge within 30 days;
(e) The commencement of a foreclo sure action against the Property or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (f) Developer’s failure to perform any other obligation under this Agreement.
8.2. Remedies. The City reserves all remedies available to it at law or in equity for a default or breach of Developer’s ob ligations under this Agreement. T he City shall have t he right, subject to this Section, to draw upon or use the appropriate security to mitigate the City’s damages in the event of default by Developer. The City’s right to draw upon or use the security is in addition to any other remedy available to City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the improvements and, therefore, City’s damages for Developer’s defaul t shall be meas ured b y the cost of completing the required improvements. The City may use the su ms provided by the securities for the completion of the Works of Improvement in accordance with the plans. In the event the Developer fails to cure any default under this Agreement within 20 days after the Ci ty mails a notice of such default to the Developer and the Developer’s surety, Developer authorizes the City to perf orm the obligation for which Developer is in default an d agrees to pay the entire cost of su ch performance by the City. The City may take ov er the work and comp lete th e Works of Improvemen t, by contract or by any other method City deems ap propriate, at the expense of the Developer. In such event, City, without liability for doing so, may complete the Works of I mprovement using any of Developer’s materials, applia nces, p lans a nd other 01225.0006/367559.3
12 property that are at the work site a nd that are necessary to complete the Works of Improvement.
8.3. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a default by Developer hereunder, the Developer agrees that the choic e of remedy or remedies for Developer’s breach sha ll be in the disc retion of the C ity. Additionally, any remedy specifically provided in this Agreement shall be in addition to, and not exclusive of, City’s right to pursue any o ther administrative, legal, o r equitable remedy to which i t may by entitled.
8.4. Attorney’s Fees and Costs. In th e event that Developer fails to perform any obligation under this Agreement, Developer agrees to pay all costs and expenses i ncurred by City in s ecuring performance of such o bligations, including costs o f s uit and reasonable attorney’s fees. In the event o f any dispute arising out of Developer’s performance of its obligations under this Agreement or under any of the Security Ins truments referenced herein, the prevailing party in such action, in addition t o any other relief wh ich may be grante d, shall be entitled to recover its reasonable attorney ’s fees and costs. Such attorney’s fees and cost shall include fees and costs on any appeal, and in addi tion a party entitled to atto rney’s fees and costs shall b e entitled to all oth er reasonable costs incurred in investigating such action, taking deposi tions and discovery, retaining expert witnesses, and all o ther necessary and related costs with respect t o the litigation. All such fe es and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the act ion is prosecuted to judgment.
8.5. Waiver. No waiver by the City of any breach or default by the Developer shall be considered valid unless in writing, and no such waiver by the City shall be deemed a waiver of any subsequent breach or default by the Developer.
9. Indemnity/Hold Harmless . City or an y officer, empl oyee o r agent thereof shall not b e liable for any inj ury to persons or property oc casioned by reason of the act s or omissions of Developer, its agent s, employees, contractors and subcontractors in the per formance of this Agreement. Developer further agrees to protect, defend, indemnify an d hold harmless City, its officials, boards and c ommissions, and members there of, agents, and emplo yees from any and all claims, demands, causes of action, liability or lo ss of any sort, because of, or arisin g out of, acts or omissions of Developer, its agents, employees, contractors and subcontractors in the performance of this Agr eement, except for su ch claims, demand s, causes of ac tion, liability or loss arising out of t he so le active negligence of the City , its officials , boar ds, commissions, the member s thereof, agents an d employees, including all cl aims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design or construction of the improvements. This inde mnification and agreement to hold harmless shall extend to injuries to persons and damages or tak ing of property resulting fro m the design or construction of said Project, and the public improvements as provided herein, and in addition, to adjacent property owners as a c onsequence of the diversion of wa ters from the design and construction of public d rainage systems, streets and other improvements. R ecordation of the Notice of Acce ptance by the City of the Works of Improvements shall not constitute an assumption by the City of any responsibility for any damage or taking covered by this Section.
City shall not be responsible for th e design or construct ion of the proper ty to be dedicated or 01225.0006/367559.3
13 the improvements pursuant to the approved improvement p lans or map, re gardless of any negligent action or inaction tak en by the City in ap proving the p lans or map, unl ess the particular improvemen t d esign was specific ally required by City ove r writt en objection by Developer submitted to t he Ci ty Engineer before approval of t he particular i mprovement design, which objectio n indicated that the particular i mprovement desig n was dangerous or defective and suggested an alternative safe and feasible design.
After recordation of the Notice of Ac ceptance, the Developer shall remain obligated to eliminate any latent defect in desi gn or dangerous cond ition c aused by the design or construction defect for a pe riod of o ne (1) year ; however, Developer shall not be responsible for routine maintenance. It is the intent of this section that Developer shall be responsible for all liability for design and cons truction of the improvements installed or work done pursua nt to this Agreement and that City shall not be liable for any negligence, nonfeasance, misfe asance or malfeasance in approving or reviewing any work or construction. The improve ment security shall not be required to cover the provisions of this Paragraph.
Developer shall reimburse the City f or all costs and expenses, including but not limited to fees and charges of architects, engi neers, attorney s, and other professionals, and c ourt costs, incurred by City in enforcing this Section.
10. Developer’s Indemnity of Project Approval. Developer shall defend, indemnify, and hold harmless the City and its a gents, officers, a nd employees from a ny claim, actio n, or proceeding against the City or its agents, offi cers, or employees to attack, set aside, void, or annul, an approval of the Cit y, advisory agency, appeal board, or legislative body concerning the Project. The City sha ll promptly notify the Developer of any claim, action, or proceedin g and cooperate full y in the defense of any such claim, action, or proceeding. In the event City fails to promptly n otify the Developer of any claim, action, or proceeding , or if the City f ails to cooperate i n the defense, the Developer shall not thereafte r be responsible to defend, indemnify, or hold ha rmless the City. Nothing in t his Section prohibits the City from participating in the defense of any claim, action, or pro ceeding if City be ars its own attorne y’s fees and costs and defends the action in goo d faith. Developer shall not be required to pay or perform any settlement unless the settlement is approved by the Developer.
11. Insurance Requirements. Developer, at Developer’s sole cost and expense and for t he full term of this Agreement and any extension s thereto, shall obt ain and maintain all of the following minimum insurance re quirements in a fo rm approved by the City’s au thorized designee for Risk Management prior to commencing any work:
(a) Commercial Gene ral Liability p olicy with a minimum $1 million c ombined single limit for bo dily i njury and proper ty damage providing all of th e f ollowing minimum coverage without deductibles:
(i) Premises operations; including X, C, and U coverage; (ii) Owners’ and contractors’ protection;
(iii) Blanket contractual;
01225.0006/367559.3
14 (iv) Completed operations; and
(v) Products.
(b) Commercial Business Auto po licy with a minimum $1 million c ombined single lim it for bodily inj ury and property damage, providing all of the following minimum coverage without deductibles:
(i) Coverage shall apply to any and all leased, o wned, hired, or non - owned v ehicles used in pursui t of any of the activities as sociated with this Agreement; and
(ii) Any and all mobile equipment including cranes which are no t covered under th e above Commercial Business Auto p olicy shall have said coverage pr ovided under the Com mercial General Liability policy.
(c) Workers Compensation an d Employers’ Liability policy in accor dance with the laws of the State of California and prov iding coverage for any and all employees of the Developer:
(i) This policy shall provide coverage for Worker s’ Compensation (Coverage A); and
(i) This policy shall provi de coverage for $1,000,000 Employers’ Liability (Coverage B).
(ii) Pursuant to Labor Code section 1861, Developer by executing this Agreement certifies: “I am aware of the provisions of Section 3700 of the Lab or Code which requires every employer to be insured against liability fo r Workers’ Compensation o r t o un dertake self - insurance in accordance with the provisions of that Code, and I will comply wit h such provisions before commenci ng the performance of the work of this contract.”
(iii) Prior to commencement of wor k, the Developer shall file with the City’s Ri sk Manager a Certificate of Insurance or certif ication of permission to self -insure workers’ compensation conforming to the requirements of the Labor Code.
(d) Endorsements. All the following endorsements are r equired to be made a part of each of the above-required policies as stipulated below:
(i) “The City of Chino, its officers, employees and agents are hereby added as additional insureds.”
(ii) “This policy shall be considered primary i nsurance with respect to any other valid and colle ctible insurance the City may po ssess, 01225.0006/367559.3
15 including any self - insured reten tion the City may have and any other insurance the C ity does possess shall be conside red excess insurance only.”
(iii) “This insurance shall act for each insured and ad ditional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company.” (iv) “Thirty (30) days prior written notice of cancellation shall be given to the C ity of Chino in the event of cancellation and/or r eduction in coverage, except that ten (10) days prior written notice sha ll apply in the ev ent of cancellation for non -payment of p remium.” Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below.
(v) Subsection d(iv ) herei nabove “Cancellation Noti ce” is the only endorsement required of the Wor kers’ Compensation and
Employers’ Liability policy.
(e) Admitted Insurers. All insurance companies providing insurance to the Developer under this Agreement shall be admitted to transact the business of insurance by the California Insurance Commissioner.
(f) Proof of Coverage. Copies of all require d endorsements shall be attached to the Certific ate of Insurance whi ch shall be p rovided by the Developer’s insurance company as evidence of the co verage required h erein an d s hall be mailed to:
City of Chino
Risk Management
13220 Central Avenue
Chino, CA 91710
12. Environmental Warranty.
12.1. Prior to the ac ceptance of any dedi cations or Works of Improveme nt by City, Developer shall provide City with a written warranty in a form substantially similar to Exhibit “C” attached hereto and incorporated herein by reference, that:
(a) Neither the property to be dedicat ed nor Developer are in violation of any environmental law, and neither the pr operty to be dedicate d nor the Developer are subject to any existing, pending or threatened i nvestigation by an y federal, state or local governme ntal a uthority under or in connec tion with the environmental laws relating to the property to be dedicated. (b) Neither Developer nor any other person with Developer’s permission to be upon the property to b e dedicated shall use, generate, manufacture, produce, or release, on, under, or abou t the property to be dedicated, a ny Hazardous 01225.0006/367559.3
16 Substance except in compliance w ith all applicable en vironmental laws. For the purposes of this Agreement, the term “Hazardous Substances” shall mean any substance or material which is capable of posing a risk of injury to health, safety or pr operty, includin g all those materials and sub stances designated as hazardous or tox ic by an y federal, state or local law, ordinance, rule, regulation or pol icy, including but not limited to, all o f those materials and subst ances defined as “Toxic Materials” in Sections 66 680 through 66685 of Title 22 of the California Co de of Regulations , Divisi on 4, C hapter 30, as the same shall be amended from time to time, or any other mater ials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies. (c) Developer has not caused or permitted t he release of, an d has no knowledge of the release or presence of, any H azardous Substance on the property to be dedicated or the migration of any hazardous substance from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. (d) Developer’s prior and present use of the property to be dedicate d has not resulted in the release of any hazardous s ubstance on the property to be dedicated.
12.2. Developer shall give prompt written notice to City of:
(a) Any proceeding or investigation by any federal, state or local governmental (b) authority with respect to th e presence of any hazardous substance on the property to b e dedicated or the migratio n thereof from or to any other property adjacent to, or in the vicinity of, the property to be dedicated. (c) Any claim s made o r t hreatened by any third party against City or the property to b e dedicated relatin g to any loss o r inju ry resulting from any hazardous substance; and
(d) Developer’s discovery of any occurrence or condition on a ny property adjoining or in the vicini ty of th e property to be dedicated that could cause the property to be dedicated or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which it is intended, transferability or suit under any environmental law.
13. General Provisions.
13.1. Successors and Assigns . T his Agreement shall be binding upon a ll successors and ass igns to Developer’s right, title, and interest in and to the Property and an y portion thereof. Developer hereby consents to City recording this Agreement as official records of San Bernardino County, affecting fee t itle interest to th e Property to p rovide constructive notice of the rights and obligati ons incurred by Developer in the City’s approval of this A greement. In the eve nt the Property i s subseq uently conveyed by Developer to a third party p rior to completion of the Works of Im provement, wher eby th e third party is intended t o assume Developer’s responsibilities with regard to this Agreement, (the “Replacement Developer”), the 01225.0006/367559.3
17 rights and obligations of this Agreement shall transfer to the Replacement Developer; however, the Security Instruments required pursuant to Section 4 o f this Agreement, an d furnished by Developer as a condition of the City ’s approval of this Agreemen t, shall remain Developer’s responsibility to maintain until such time a s Developer and its Replacement Developer enter into a Tra nsfer and Assignment of Public Improvement Agreement, (the “Transfer Agreement”), to acknowledge the tran sfer of fee title to the Property from the Developer to its Replacement Developer, and to ack nowledge the right s and obligations a ssociated with this Agreement upon the Replaceme nt Developer, includ ing Rep lacement Developer’s responsibility to furnish replacement Security Instruments meeting the City’s approval pursuant to Section 4 of this Agreem ent. Until such t ime as a Transfer A greement, meeting the City’s approval, is executed by Developer and its Replacement Developer, and replacement Security Instruments meeting City ’s approval are furn ished by the Replacement Developer, Developer retains sole responsibility for maintaining all Security Instruments required pursuant to Sect ion 4 of this Agreement.
13.2. No Third Party Beneficia ries. This Agreement is int ended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Developer intend to create any third party beneficiary rights in this Agree ment in any contract or, subcontractor, member of the general public, or other person or entity.
13.3. No Vesting Rights. Performance by the Developer of this Agreement shall not be construed to v est Developer’s rights with respec t to a ny change in any zoning or building law or ordinance.
13.4. Developer is Not Agent of City. Neither Developer nor Developer’s agents , contractors, or subcontractors are agents or contractors of the City i n con nection with the performance of Developer’s obligations under this Agreement.
13.5. Time of the Essence. Time is of the essence of Developer’s performance of all of its obligations under this Agreement.
13.6. Notices. Unless otherwise specified in this Agreemen t, al l notices req uired or provided for under this A greement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Not ice shall be effe ctive on the date is delivered in person, or, if mailed , on the date of d eposit in the Unite d States Mail.
Notice shall be provided to the p ersons listed on Pag es 1 an d 2 of this Agreement by the parties for this purpose.
Either party may provide a new des ignated representative and/or address by written notice as provided in this Section.
13.7. No Apportionment. Nothing contained in this Agreement s hall preclude City f rom expending monies pursuant to agreements concurrently o r previously executed between the parties, or from entering into agreements with other Developers for the apportionment of costs of water and sew er mai ns, or other improvements p ursuant to the provi sions o f the City ordinances providing, therefore. Nor shal l anything in the Agr eement commit Cit y to any such apportionment.
01225.0006/367559.3
18 13.8. Severability. I f any porti on of this Agreeme nt is held invalid by a court of competent jurisdiction, the remain der of the Agreement shall remain in full force a nd effect unless amended or modified by mutual written consent of the parties.
13.9. Captions. The captions of this Agreement a re for convenience and reference only and shall not be used in the interpretation of any provision of this Agreement.
13.10. Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into the terms of this Agreement.
13.11. Interpretation. This Agreement shall be interpreted in accordance with the laws of the State of California.
13.12. Entire Agreement; Waivers and Amendments. T his Agreement integrates all of the terms and cond itions mentioned herein, or incidental hereto, and supersedes all negotiations and previou s agreements betwee n the parties w ith re spect to all or part of the subject matter here of, exc ept as may be expressl y provided herein. All waiver s o f the provisions of this Agreement must be in writing and signed by an authorized represen tative of the part y to be charged, an d all amendment s here to must be in writing and s igned by the appropriate representatives of both parties.
13.13. Counterparts. This Agreement may be execu ted in one or mor e counterparts, all of which taken together shall be deemed one original.
14. Authority. The persons executing this Agreement on behalf of the parties warrant the (I) party is duly organized and existing, (ii) they are dul y authorized to execute and deliver this Agreement on behalf of said party, (iii) by so execu ting this Agreement, such party is fo rmally bound to the provisions of this Agreement , and (iv) the enter ing into of this Agreement do es not violate any provisions of any other agreement to which said party is bound. [SIGNATURES ON NEXT PAGE]
01225.0006/367559.3 B-1
EXHIBIT “B”
WORKS OF IMPROVEMENT
A. Removal of undesirable, dangerous and dead plant materials and roots.
B. All onsite and offsite grading as specified on the approved grading plan.
C. Relocation of all public utility struct ures as necessary to properly construct the required improvements.
D. Storm drain facilities as required and shown on the approved construction plans and in accordance with City Standards.
E. Sanitary sewers constructed as shown on the approved, engineered plans and in accordance with City Standards.
F. Water mains, valves, hydrants, services, meters and appurtenances to serve each lot as shown on the approved construction plans and in accordance wit h City Standards.
G. Underground installation of all electrical, telep hone, cable television and any other energy or communication lines that abut or are within the project site.
H. A street lighting system (City-owned) in accordance with City Standards.
I. Disposal of all rocks and debris located within any public right -of-way wi thin said development or on the boundary streets thereof.
J. Installation of concret e curbs, gutters, sidewalks, cross gutters, dr iveways and intersections as shown on approved construction pl ans and in accordance with City Standards.
K. Installation of asphalt concrete or Portland Cement Concrete street pavement on base material as shown on approved construction plans and in accordance with City Standards.
L. Street signs at intersections per the City Standards.
M. Installation of approved landscaping (plants and materials).
N. Setting monuments as required by the State Code.
The Developer shall also perform all work and furnish all materials ne cessary, in t he opinion of the Director of Development Service s or his designee and on his order, to complete the improvements in accordance with the plans and specifications on file as hereinbefore specified, or any changes required or ordered by said Eng ineer which, in his opinion, are necessary or required to complete this work.