OPERATING AGREEMENT
FOR
EKC DEVELOPMENT, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY
THIS OPERATING AGREEMENT ("Agreement"), is made as of July 30, 2018 by the Ginger Family Trust dated August 22, 1990 (as amended) ("Ginger").
RECITALS
A. Ginger desires to form a limited liability company pursuant to the Act (as defined herein).
B. Ginger enters into this Agreement in order to form and provide for the governing of the Company and the conduct of its business and to specify their relative rights and obligations.
NOW, THEREFORE, THE PARTIES BY THIS AGREEMENT SET FORTH THE
OPERATING AGREEMENT FOR THE COMPANY UNDER THE LAWS OF THE STATE
OF CALIFORNIA UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF THIS AGREEMENT.
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings set forth below (all terms used in this Agreement that are not defined in this Article I shall have the meanings set forth elsewhere in this Agreement):
1.1 "Act" shall mean the Beverly-Killea Limited Liability Company Act, California Corporations Code Section 17000 et seg., as may be amended from time to time.
1.2 "Agreement" shall mean this Operating Agreement, as originally executed and as amended from time to time.
1.3 "Articles" shall mean the Articles of Organization for the Company as originally filed with the California Secretary of State and as amended from time to time.
1.4 "Company" shall mean EKC Development, LIC, a California limited liability company.
1 ARTICLE V
MANAGEMENT OF COMPANY
5.1 Management.
Company, John L. Ingerosinese a the Company shall be managed by the manarer of ("Manager").
5.1.2 The Manager will serve until the earlier of (1) the manager's resignation, retirement, death or disability; (2) the Manager's removal by Ginger; and (3) the expiration of the manager's term as manager, if a term has been designated by Ginger. A new manager will be appointed by Ginger on the occurrence of any of the foregoing events.
5.1.3 Each manager will be appointed by Ginger for (a) a term expiring with the appointment of a successor; or (b) a term expiring at a definite time specified by Ginger in connection with the appointment. A manager who is not also a member may be removed with or without cause at any time by action of Ginger.
3 5.1.4 The Manager shall be president of the Company and will have the powers and duties described in Section 5.2 of this Agreement and any other powers and duties that may be prescribed in this Agreement or by Ginger. Notwithstanding the foregoing, the Manager will not take any of the following actions on behalf of the Company unless Ginger has consented to the taking of that action:
(a) Any act that would make it impossible to carry on the ordinary business of the Company;
(b) Any confession of a judgment against the Company;
(c) The dissolution of the Company;
(d) The disposition of all or a substantial part of the Company's assets not in the ordinary course of business;
(e) The incurring of any debt not in the ordinary course of business; (f) A change in the nature of the principal business of the Company; (g) T'he filing of a petition in bankruptcy or entering into an arrangement among the Company's creditors; and
(h) The entering into, on behalf of the Company, of any transaction constituting a "reorganization" within the meaning of Corporations Code Section 17600.
5.2 Officers of Company. The Company will have a president, who will be the Manager.
The President will be the chief executive officer of the Company and will have general supervision of the business and affairs of the Company, will preside at all meetings of members and of managers, and will have any other powers and duties usually vested in a chief executive officer. Ginger may provide for additional officers of the Company, may alter the powers and duties of all other officers and the compensation of all Company officers.
5.3 Title to Assets. All assets of the Company, whether real or personal, shall be held in the name of the Company.
Banking. All Company funds of the Company shall be deposited in one or more accounts with one or more recognized financial institutions in the name of the Company, at such locations as shall be determined by Manager or any other person or persons as the Manager may designate. Withdrawal from such accounts shall require the signature of the Manager 4 with the laws of the State of California, excluding any choice of law provisions.
11.9 Exhibits. All Exhibits referred to this Agreement are incorporated herein and shall be treated as if set forth in full, whether or not attached hereto.
11.10 Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement or the application of such provision to persons or circumstances other than those to which it is held invalid shall not be affected thereby.
11.11 Amendments. All amendments to this Agreement must be in writing and signed by Ginger.
11.12 Time Is of the Essence. All dates and times in this Agreement are of the essence.
11.13 Remedies Cumulative. The remedies under this Agreement are cumulative and shall not exclude any other remedies to which any person may be lawfully entitled.
IN WITNESS WHEREOF, Ginger has executed this Agreement, effective as of the date first written above.
GINGER FAMILY TRUST DATED
AUGUST 22, 1990 (as amended)
By
John I. Ginger, Trustee
8 AGREEMENT OF LIMITED PARTNERSHIP OF
EUCLID/KIMBALL PARTNERS, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP ("Agreement") is effective as of May 12, 2016 ("Effective Date"), by and between MG INDUSTRIAL, LLC, a California limited liability company ("MG"); and those persons listed in Exhibit "A" attached hereto and incorporated herein by this reference (collectively "Limited Partners"). MG may hereinafter be referred to as the "General Partner." The General Partner and the Limited Partners may hereinafter collectively be referred to as the "Partners" or individually as a "Partner." Capitalized words and phrases used in the Agreement have the meanings set forth in Exhibit "C," or as defined elsewhere in this Agreement.
RECITALS:
A. BOATMAN DEVELOPMENT COMPANY, INC., a California corporation (BDC"), an affiliate of the General Partner, has entered into two purchase and sale agreements to acquire approximately 9.98 acres of vacant land located in the City of Chino, County of San Bernardino, State of California, as more particularly described in Exhibit "B" attached hereto and incorporated herein by this reference (collectively "Property").
B. Concurrent with the execution of this Agreement, MG will cause BDC to assign to the Partnership the rights of BDC to purchase the Property.
NOW, THEREFORE, the Partners agree as follows:
1. THE PARTNERSHIP.
1.1. Formation. The Partners intend to (i) form the Partnership as a limited partnership pursuant to the provisions of the Act; and (ii) enter into this Agreement to establish the rights, duties and obligations of the Partners and the limitation of liabilities to the Limited Partners.
1.2. Filings.
1.2.1. The General Partner shall file the Certificate of Limited Partnership - Form LP-1 ("Certificate") in the office of the Secretary of State of the State of California. The General Partner shall cause further amendments to the Certificate to be filed whenever required by the Act. The Partnership may record in the office of the county recorder of any county in the State of California, a certified copy of the Certificate, or any amendment thereto, which has been filed with the Secretary of State.
1.2.2. The General Partner shall take any and all other actions as may be reasonably necessary to perfect and maintain the status of the Partnership as a limited partnership or similar in elimited tability entity under the laws of any other state or Jurisdiction in which the Partnership engages
1.2.3. The General Partner may cause appropriate fictitious business name and like statements to be filed and published for the Partnership under the name set forth in Subparagraph 1.3 hereof or such other name as the Partnership may have or use in any state or jurisdiction from time to time.
1.3. Name of Partnership. The name of the Partnership shall be:
EUCLID/KIMBALL PARTNERS, L.P.
1.4. Principal Place of Business. The principal place of business of the Partnership shall be , or such other place or places as the
General Partner may from time to time determine, after written notice to the Limited Partners of such change.
Purpose of Partnership Business. The principal purpose of the Partnership shall be to own, develop industrial improvements, operate, maintain, lease, hold for investment or dispose of the Property. The Partnership may engage in any and all other general business activities related to or incidental to such principal purpose. The Partnership is concerned only with the matters set forth herein. In view of the limited purposes of the Partnership, no Partner shall have any obligations (fiduciary or otherwise) with respect to the Partnership or to the other Partners insofar as making other investment opportunities available to the Partnership or to the other Partners. Except as herein provided, each Partner may engage in whatever activity such Partner may choose, whether the same are competitive with the Partnership, or otherwise, without having or incurring any obligation to offer any interest in such activities to the Partnership or to the other Partners. Neither this Agreement nor any activities undertaken pursuant thereto shall prevent any Partner from engaging in such activities, and the fiduciary duties of the Partner shall be limited solely to those arising from the purposes of the Partnership described in this Subparagraph. The General Partner shall devote such time to the Partnership as is necessary for the proper utilization of the Property and efficient operation of the Partnership business.
1.6. Term of the Partnership. The Partnership shall continue until the dissolution and winding up of the Partnership pursuant to Paragraph 9 of this Agreement.
2. MANAGEMENT OF THE PARTNERSHIP.
2.1. Authority of the General Partner. The General Partner, acting alone, shall be the "Managing General Partner" and shall have the exclusive right to manage the business of the Partnership and possess the rights and powers which may be possessed by general partners under the Act (excepting "Major Decisions," as described in Exhibit "D" attached hereto and incorporated herein by this reference), including, but not limited to, the right and power to:
2.1.1. Pay or reimburse any and all fees and expenses incurred or expended in the formation and operation of the Partnership, including, but not limited to legal and accounting fees and insurance expenses;
2.1.2. Execute any and all agreements, contracts, documents, certifications, and instruments necessary or convenient in connection with the ownership, development, operation, management, lease or disposition of the Property;
2.1.3. Care for and distribute funds to the Partners in accordance with the provisions of this Agreement;
2.1.4. Contract on behalf of the Partnership for the services of contractors, including, but not limited to, brokers, attorneys and accountants. Such persons or entities may be affiliated with the General Partner; provided, however, that such services shall be rendered at a cost to the Partnership not in excess of the cost customarily charged for such services in such geographic area;
2.1.5. Develop and improve, manage, operate, repair, replace or rebuild, all or any portion of the Property and any improvements thereon; and sell, assign, contribute, convey or otherwise transfer any real or personal property of the Partnership to any person or entity, regardless (in each case or cases) whether in exchange for cash, notes, other debt instruments, contractual rights (secured and/or unsecured) and/or other rights (including, but not limited to, the receipt of partnership or joint venture interests in general or limited partnerships, membership interests in limited liability companies, equity interests in corporations and/or any debt or other equity interests in any of the foregoing entity structures) from any person or entity, which may (in any of the foregoing circumstances) be convenient or incidental to the accomplishment of the purposes of the Partnership;
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2.1.6. Borrow on behalf of the Partnership such sums as may be required to finance the development and/or construction of improvements on or about the Property, and any permanent financing or refinancing thereof;
2.1.7. Execute and deliver such promissory notes, negotiable instruments, assignments, pledges, deeds of trust, mortgages, security instruments or other documents as are necessary to acquire such financing ("Loan Documents");
2.1.8. Obtain refinancing of or prepay all or any portion of such financing;
2.1.9. Enter into any and all obligations the General Partner deems necessary to effectuate the purposes of this Paragraph;
2.1.10. The execution and delivery of such instruments or documents consistent with this Paragraph by the General Partner shall be sufficient to bind the Partnership; and
2.1.11. Notwithstanding the foregoing, with respect to "Major Decisions," the General Partner shall have the right and power to act only with the written consent of a majority-in-interest of the Limited Partners.
2.2. Right to Rely on the General Partner. Any person dealing with the Partnership may rely upon a certificate signed by the General Partner as to:
2.2.1. The identity of any General Partner or Limited Partner; and
2.2.2. The persons who are authorized to execute and deliver instruments or documents on behalf of the Partnership.
On or before five business days after receipt of a written request, the General Partner shall provide such certificate.
2.3. Restrictions on Authority of the General Partner. Without the prior consent of the Limited Partners owning 75% or more of the "Partnership Interests," as hereinafter defined, owned by the Limited Partners, the Managing General Partner shall not have the authority to:
2.3.1. Do any act in contravention of this Agreement;
2.3.2. Do any act which would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;
2.3.3. Possess property or assign rights in specific property for other than a Partnership purpose;
2.3.4. Amend this Agreement, other than as set forth in Paragraph 8 herein. This Subparagraph shall not be construed as restricting transfers or re-allocation of "Partnership Interests," as hereinafter defined, between Partners.
WITHOUT AN OPINION. OF COUNSEL FOR THE PARTNERSHIP THAT THE PROPOSED SALE OR OTHER
TRANSFER OF THIS SECURITY DOES NOT AFFECT THE AVAILABILITY TO THE PARTNERSHIP OF SUCH
EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, AND THAT SUCH PROPOSED SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL SECURITIES LAWS. THE TRANSFER
OF THIS SECURITY IS FURTHER RESTRICTED UNDER THE TERMS OF THE LIMITED PARTNERSHIP AGREEMENT GOVERNING THE PARTNERSHIP, A COPY OF WHICH IS ON FILE WITH THE PARTNERSHIP.
IN WITNESS WHEREOF, the Partners hereto have executed this Agreement as of the Effective Date.
GENERAL PARTNER:
MG: MG INDUSTRIAL, LLC,
a Californią limited liability company
By: Heart boatmen
Its Manager
LIMITED PARTNERS:
JOHN L. GINGER trustee of The Ginger Family Trust
[TO BE DETERMINED]
'TO THE EXTENT APPLICABLE UNDER
SUBPARAGRAPH 4.2:
RICHARD C. BOATMAN
- 19 -
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WITHOUT AN OPINION OF COUNSEL FOR THE PARTNERSHIP THAT THE PROPOSED SALE OR OTHER
TRANSFER OF THIS SECURITY DOES NOT AFFECT THE AVAILABILITY TO THE PARTNERSHIP OF SUCH
EXEMPTIONS FROM REGISTRATION AND QUALIFICATION, AND THAT SUCH PROPOSED SALE OR OTHER TRANSFER IS IN COMPLIANCE WITH ALL APPLICABLE STATE AND FEDERAL SECURITIES LAWS. THE TRANSFER
OF THIS SECURITY IS FURTHER RESTRICTED UNDER THE TERMS OF THE LIMITED PARTNERSHIP AGREEMENT GOVERNING THE PARTNERSHIP, A COPY OF WHICH IS ON FILE WITH THE PARTNERSHIP.
IN WITNESS WHEREOF, the Partners hereto have executed this Agreement as of the Effective Date.
GENERAL PARTNER:
MG: MG INDUSTRIAL, LLC,
a California limited liability company
By:
Richard C. Boatman
1ig Manager
LIMITED PARTNERS:
(TO BE DETERMINED]
TO THE EXTENT APPLICABLE UNDER
SUBPARAGRAPH 4.2:
RICHARD C. BOATMAN
-19-
C:\Users\dfaragalli\Documents\Legal\2384.004\docs\Euclid Kimball Partners, LP\Euclid Kimball Partners LPS AG.02-29-2016.docx EXHIBIT "A"
Partner Name Initial Capital
and Address Partnership Interest Contribution
MG Industrial, LLC 50.000% Right to purchase
the Property
Limited Partner:
John L. Ginger, trustee 26.651%
Toni S. Ginger, trustee
Ginger Family Trust
[TBD] 23.349%
TOTAL 100.000%
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FIRST AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP OF
EUCLID/KIMBALL PARTNERS, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
THIS FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP (Amendment") is effective as of August 1, 2016 ("Effective Date"), by and between MG INDUSTRIAL, LLC, a California limited liability company ("MG"); JOHN L. GINGER, trustee of The Ginger Family Trust ('JLG"); and ANTIGUA INVESTMENTS, LLC, a Delaware limited liability company ("Antigua"). MG may hereinafter be referred to as the "General Partner." JLG and Antigua may hereinafter be collectively referred to as the "Limited Partners," and individually as a "Limited Partner." The General Partner and the Limited Partners may hereinafter collectively be referred to as the "Partners" or individually as a "Partner." Capitalized words and phrases used in this Amendment have the meanings set forth in that certain Agreement of Limited Partnership of Euclid/Kimball Partners, L.P., a California limited partnership ("Agreement"), or as defined elsewhere in this Amendment.
RECITALS:
A. MG and JLG entered into the Agreement on or about May 12, 2016, pursuant to which Euclid/Kimball Partners, L.P., a California limited partnership ("Partnership"), was formed.
B. The Partnership desires to admit Antigua as a Limited Partner, and to modify the Agreement in the manner set forth hereinbelow.
NOW, THEREFORE, the Partners agree as follows:
1. ADMISSION OF ANTIGUA. The Partnership hereby admits Antigua as a Limited Partner, with the Partnership interest set forth in the revised Exhibit "A" attached hereto and incorporated herein by this reference (which replaces in its entirety the Exhibit "A" set forth in the Agreement), conditioned upon contribution by ANTIGUA to the capital of the Partnership the amount set forth in Exhibit "A."
3. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original Agreement, but such counterparts, when taken together, shall constitute but one Agreement.
4. INCORPORATION OF RECITALS. The Recitals to this Agreement are herein incorporated by this reference.
C:\Users|dfaragalli\Documents\Legal\2384.004 \docs\Euclid Kimball Partners, LP\Euclid Kimball Partners 1st AM to LPS AG.08-01-2016.docx IN WITNESS WHEREOF, the Partners hereto have executed this Amendment as of the Effective Date.
GENERAL PARTNER:
MG: MG INDUSTRIAL, LLC,
a California limited liability company
By:
Richard C. Boatman
its Manager
LIMITED PARTNERS:
ILG:
JOHNIL GINGERUSte of The Ginger Family Trust
ANTIGUA ANTIGUA INVESTMENTS LLC.
a Delaway limited libility company
By:
'Remo Polselli, Its Sole Member
EXHIBIT "A"
Partner Name Initial Capital
and Address Partnership Interest Contribution
MG Industrial, LLC 45.00% Right to purchase
the Property
Limited Partner:
John L. Ginger, trustee 32.39%
Toni S. Ginger, trustee
Ginger Family Trust
Antigua Investments LLC 22.61%
Attention: Anna Sigurdson
100.00%
SECOND AMENDMENT TO
AGREEMENT OF LIMITED PARTNERSHIP OF
EUCLID/KIMBALL PARTNERS, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
THIS SECOND AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP ("Amendment") is effective as of December 8, 2016 ("Effective Date"), by and between MG INDUSTRIAL, LLC, a California limited liability company ("MG"); JOHN L. GINGER, trustee of The Ginger Family Trust ("JLG"); and ANTIGUA INVESTMENTS, LLC, a Delaware limited liability company ("Antigua"). MG may hereinafter be referred to as the "General Partner." The General Partner, JLG and Antigua may hereinafter collectively be referred to as the "Partners" or individually as a "Partner." Capitalized words and phrases used in this Amendment have the meanings set forth in that certain Agreement of Limited Partnership of Euclid/Kimball Partners, L.P., a California limited partnership ("Agreement"), or as defined elsewhere in this Amendment.
RECITALS:
MiG and JLG entered into the Agreement on or about May 12, 2016, pursuant to which Euclid/Kimball Partners, L.P., a California limited partnership ("Partnership"), was formed.
On or about August 1, 2016, Antigua was admitted to the Partnership as a Limited Partner, with the capital account and Partnership Interest as set forth in the First Amendment to Agreement of Limited Partnership of Euclid/Kimball Partners, L.P., a California limited partnership ("First Amendment").
C. Antigua desires to withdraw from the Partnership and JLG has agreed to acquire the interest of Antigua in the Partnership.
NOW, THEREFORE, the Partners agree as follows:
1. WITHDRAWAL OF ANTIGUA. Antigua hereby withdraws from the Partnership and has assigned all right, title and interest in its Partnership interest to JLG. From and after the Effective Date, Antigua shall have no interest in the Partnership. Exhibit "A" to the First Amendment is hereby deleted and a new Exhibit "A" setting forth the Partners and their Partnership Interests is set forth in Exhibit "A" attached hereto.
. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original Agreement, but such counterparts, when taken together, shall constitute but one Agreement.
3. INCORPORATION OF RECITALS. The Recitals to this Agreement are herein incorporated by this reference.
IN WITNESS WHEREOF, the Partners hereto have executed this Amendment as of the Effective Date.
GENERAL PARTNER: MG INDUSTRIAL, LLC,
a California limited liability company
BY:_
Its Manager
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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JOHN L. GINGER trustee of The Ginger Family Trust
ANTIGUA: | ANTIGUA INVESTMENTSALC,
à Delaware/limited liability company
By:
fémo Polselli, Its Sole Member
EXHIBIT "A"
Partner Name Initial Capital
and Address Partnership Interest Contribution
MG Industrial, LLC 45.00% Right to purchase
the Property
Limited Partner:
Jahn L. Ginger, trustee 55.00%
ToniS. Ginger, trustee
Ginger Family Trust
100.00%
THIRD AMENDMENT TO AGREEMENT
OF LIMITED PARTNERSHIP OF
EUCLID/KIMBALL PARTNERS, L.P.
THIS THIRD AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP OF EUCLID/KIMBALL PARTNERS, L.P. ("Amendment") is made this 27th day of July, 2018 ("Effective Date") among EKC Development, LLC, a California limited liability company ("EKC"), John L. Ginger, Trustee of the Ginger Family Trust dated August 22, 1990 (as amended) and MG Industrial, LL C, a California limited liability company ("MG"). Capitalized words and phrases under this Amendment shall have the meaning set forth in the Partnership Agreement (as defined below), or elsewhere in this Amendment.
RECITALS
A. On or about May 12, 2016, John L. Ginger, as the Trustee of the Ginger Family Trust dated August 22, 1990 (as amended) ("Ginger Trust") and MG executed that certain Agreement of Limited Partnership of Euclid/Kimball Partners, L.P., a California limited Partnership ("Partnership Agreement"). The Partnership Agreement provides that MG would act as the general partner of Euclid/Kimball Partners ("Partnership") and the Ginger Trust would be a limited partner thereof.
B. The Partnership was formed to own, develop industrial improvements, operate, maintain, lease, hold for investment or to dispose of certain real property located in the City of Chino, State California and described in the Partnership Agreement ("Property").
C. On or about August 1, 2016, MG, the Ginger Trust and Antigua Investments, LLC, a Delaware limited liability company ("Antigua") executed that certain First Amendment to Agreement of Euclid/Kimball Partners, L. P.., a California limited partnership ("First Amendment"). The First Amendment admitted Antigua as a limited partner of the Partnership and made certain other modifications as set forth therein.
D. On or about December 8, 2018, MG, the Ginger Trust and Antigua executed that certain Second Amendment to Agreement of Euclid/Kimball Partners, L.P., a California limited partnership ("Second Amendment"). The Second Amendment provides for the withdrawal of Antigua as a limited partner of the Partnership and acknowledges the assignment of Antigua's limited partnership interest to the Ginger Trust.
E. As of the Effective Date, MG is the sole general partner of the Partnership and the Ginger Trust is the sole limited partner of the Partnership.
F. EKC and MG executed that certain Partnership Interest Purchase Agreement wherein MG sold to EKC all of MG's interests in the Partnership of whatever kind or nature, including, without limitation, MG's Forty-Five percent (45%) Partnership Interest in the Partnership (as that term is defined in the Partnership Agreement, as amended), subject to the terms and conditions set forth herein and in the Partnership Agreement.
G. The Partnership Agreement provides that MG would not transfer or convey its Partnership Interest "without the express written consent of the holder of 75% or more of the Partnership Interests owned by the Limited Partners. " The Ginger Trust as the sole limited partner desires to consent to the sale of MG's Partnership Interest to EKC and admission of EKC as the general partner of the Partnership.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Ginger Trust hereby consents to the transfer of MG's Partnership Interest to EKC and admission of EKC as General Partner of the Partnership as of the execution of this Amendment by all of the parties hereto.
2. MG hereby withdraws from the Partnership as the General Partner and has assigned all if it right, title and interest to EKC as of the execution of this Amendment by all of the parties hereto. From such time and after, MG shall have no interest in the Partnership.
3. EKC hereby agrees to act as the General Partner of the Partnership and has purchased all of MG's right, title and interest of EKC as of the execution of this Amendment by all of the parties hereto. In addition, thereto, EKC hereby agrees to be bound by the terms of the Partnership Agreement (as amended).
4. Exhibit "A" of the Partnership Agreement (as amended) is hereby deleted and a new Exhibit "A" attached hereto and by this reference incorporated herein sets for the Partners and their Partnership Interests.
5. The Amendment may be executed in counterparts, each of which shall be deemed an original Amendment, but such counterparts, when taken together, shall constitute but one Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date.
MG as Withdrawing General Partner:
MG Industrial, LLC, a California limited
lability company
By: Stut
Richard C. Boatman, Manager
EKC as the New General Partner:
EKC Development, LLC, a California
limited liability company
Limited Partner:
Ginger Family Trust Dated August 22, 1990
(as amended)
John L. bringer, Trustee
EXHIBIT "A"
Partner Name Partnership Interest Capital Contribution
General Partner
EKC Development, LLC 45%
Limited Partner
Ginger Family Trust 55%
#12
MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
COUNCIL MEETING DATE: FEBRUARY 15, 2022
TO: MATTHEW C. BALLANTYNE, CITY MANAGER
FROM: NICHOLAS S. LIGUORI, AICP, DEVELOPMENT SERVICES DIRECTOR SUBJECT: REIMBURSEMENT AGREEMENT (PM 19830 & 19831) - EUCLID/KIMBALL PARTNERS, LP A CALIFORNIA GENERAL PARTNERSHIP.
RECOMMENDATION
Approve the Construction Reimbursement Agreement with Euclid/Kimball Partners, LP, a California General Partnership for public improvements associated with Parcel Map Nos. 19830 and 19831; and authorize the City Manager to execute the necessary documents on behalf of the City.
FISCAL IMPACT
There is no direct fiscal impact at this time. Upon the final acceptance of the public improvements, staff will bring back to the City Council requests for reimbursement as funds become available.
Revenue: Expenditure:
Transfer In: Transfer Out:
COUNCIL MEETING DATE: FEBRUARY 15, 2022
SUBJECT: REIMBURSEMENT AGREEMENT (PM 19830 & 19831) - EUCLID/KIMBALL •
PARTNERS, LP A CALIFORNIA GENERAL PARTNERSHIP
PAGE 2
BACKGROUND
On November 13, 2017, the Chino Planning Commission conditionally approved Parcel Map Nos. 19830 and 19831 to subdivide approximately ten (10) acres of land to construct a 186,618 square-foot industrial park consisting of four (4) light industrial buildings with six (6) units ranging in size from 21,828 to 46,652 square-feet within the Airport Related (AR) land-use designation of The Preserve Specific Plan. This development is located at 15723-15739 Euclid Avenue, APN: 1056-071-12 and 14 (Exhibit A).
The conditions of approval require the developer (Euclid Kimball Partners, LP) to construct public improvements, including but not limited to curb, gutter, sidewalk, street lights, paving, water, sewer, and storm drain. Additionally, some of the required public improvements are master-planned facilities, which are included in the City's Development Impact Fee (DIF) Nexus Calculation Report and correlating Master Facilities Plan ("the Report"). Public improvements included in the Report are eligible for DIF credit/reimbursement per the City's Municipal Code Chapter 3.45 and, therefore, necessitate a reimbursement agreement.
ISSUES/ANALYSIS
Currently, the developer is constructing the 12" potable water line and 8" recycled water line, along the developer's frontage to Euclid Avenue. Initially the project was to construct the recycled water line in Euclid Avenue from the project's southerly border to Kimball Avenue.
However, in order to minimize the disturbance to Euclid Avenue, the pipeline was realigned to be constructed within an easement on the property and adjacent to the potable water alignment.
Tie-in locations for both the potable and recycled water lines are along the southern edge of Kimball Avenue approximately 500-feet east of Euclid Avenue.
Upon completion of the master-planned facilities, the City Engineer will review the final accepted/approved "as-built" plans, specifications, and supporting 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. If that is the case, City staff may include the updated costs for the project in an annual update to the DIF Nexus Report.
Additionally, once the final cost accounting is approved, staff will bring back to the City Council an action to appropriate funds to make progress payments to the Developer until the terms of the agreement are fulfilled.
The requirements made at the time of the tentative maps have been met with the execution of a Subdivision Improvement Agreement to guarantee the construction of the public improvements required as a Condition of Approval of the development. The developer provided securities and surety acceptable to the City of Chino in concurrence with the Subdivision Improvement Agreement.
The City Attorney has reviewed and approved the reimbursement agreement.
Attachments: Exhibit A - Location Map
Exhibit B - Construction & Reimbursement Agreement
Contract No: 2022-263
Approval: 2.15: 2022#12
CONSTRUCTION REIMBURSEMENT AGREEMENT
PRESERVE DEVELOPMENT IMPACT FEE PROGRAM
PARCEL MAP NOS. 19830 & 19831
This CONSTRUCTION REIMBURSEMENT AGREEMENT ("Agreement") is entered into this day of February 15, 2022 ("Effective Date"), by and between CITY OF CHINO, a California municipal corporation ("City"), and EUCLID KIMBALL PARTNERS, LP, a California General Partnership ("Developer"). City and Developer are sometimes hereinafter referred to individually as "Party" and jointly as "Parties".
RECITALS
A. On November 13, 2017, the Chino Planning Commission conditionally approved Parcel Map Nos. 19830 and 19831 to subdivide approximately ten (10) acres of land to construct a 186,618 square- foot industrial park consisting of four (4) light industrial buildings with six (6) units ranging in size from 21,828 to 46,652 square-feet within the Airport Related (AR) land-use designation of The Preserve Specific Plan ("Project"). This development is located at 15723-15739 Euclid Avenue, APN: 1056-071-12 and 14 located at 15723-15739 in the City of Chino, County of San Bernardino, California as depicted in Exhibit A ("Property").
B. Developer has requested from City certain entitlements and/or permits for the Project, and City has granted the entitlements and/or permits subject to certain conditions of approval provided on Exhibit B which will require certain public improvements to be constructed in excess of those applicable to the Project ("Conditions of Approval").
Developer has elected to construct certain public improvements in excess of those specifically required by the Conditions of Approval as described in Exhibit C ("Public Improvements").
D. The DIF Ordinance provides that if, as a condition of approval of a development project, a developer constructs a public facility identified in the Nexus Reports, for which a development impact fee is imposed, Developer shall be entitled to reimbursement for eligible costs of constructing the Public Improvements, provided that developer complies with the requirements of the DIF Ordinance as it may be amended from time to time. The DIF Ordinance specifically requires that the developer and City enter into a reimbursement agreement.
E. City and Developer desire to enter into this Agreement for the following purposes: (i) to provide for the timely construction and completion of the Public Improvements, (ii) to ensure that construction of the Public Improvements is undertaken in accordance with the Plans and Specifications, and the laws and ordinances pertaining to the construction of public improvements, (ili) to provide the methodology for establishing the reimbursement amount to which Developer may be entitled after completion of the Public Improvements ("Reimbursement"); and (iv) the requirements for Developer's transfer or application of all or any portion of the Reimbursement to a third party.
NOW, THEREFORE, for the purposes set forth herein, Developer and City hereby agree as follows:
AGREEMENT:
1. Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above and agree to the incorporation of the Recitals as though fully set forth herein.
2. Construction of Public Improvements. Developer shall construct or have constructed, at its own cost and expense, the Public Improvements in accordance with the Plans and Specifications and the provisions of this Agreement. Developer shall provide all equipment, tools, materials, labor, tests, design work, and engineering services necessary to fully and adequately complete the Public Improvements.
Public Works Requirements. Developer shall ensure that the bidding, awarding, and construction of the Public Improvements are undertaken as if such Public Improvements were constructed as a public works project under the direction and authority of City, pursuant to all provisions of law applicable to governmental entities. Developer shall also comply with the requirements of City's Bidding and Contract Requirements for Public Improvements Policy, as adopted by City Council, hereby incorporated by reference and made a part of hereof (as may be amended from time to time). (a) Developer's general contractor for the construction of the Public Improvement ("General Contractor") shall pay prevailing wages (in accordance with Articles 1 and 2 of Chapter 1, Part 7, Division 2 of the Labor Code) and otherwise comply with applicable provisions of the Labor Code, the Government Code, the Civil Code, and the Public Contract Code relating to public works projects of cities and as required by the procedures and standards of City with respect to the construction of its public works projects or as otherwise directed by City Engineer.
All contractors shall be required to provide proof of insurance coverage throughout the term of the construction of the Public Improvements which they will construct in conformance with Section 5 of this Agreement.
2.2 Standard of Performance. Developer and its contractors shall perform all work required, constructing the Public Improvements in a skillful and workmanlike manner, and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and maintains that it or its contractors shall be skilled in the professional calling necessary to perform the work. Developer warrants that all of its employees and contractors shall have sufficient skill and experience to perform the work assigned to them, and that they shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the work, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.
2.3 Alterations to Public Improvements. All work shall be done and the Public Specifications, it shall provide written notice to City of such proposed alterations. City shall have ten (10) business days after receipt of such written notice to administratively approve or disapprove such alterations, which approval shall not be unreasonably withheld, conditioned or delayed. If City fails to provide written notice to Developer of its approval or disapproval of the alterations within such ten (10) business day period, City will be deemed to have disapproved such alterations to the Plans and Specifications. Any and all alterations in the Plans and Specifications and the Public Improvements to be completed may be accomplished without first giving prior notice thereof to Developer's surety for this Agreement.
Force Majeure. Developer agrees that the time within which it shall be required to perform any act under this Agreement shall not be extended except as follows: (i) Developer is delayed by City (including, without limitation, restrictions on priority, initiative or referendum, or moratoria), in 2 which case Developer shall provide written notice to City specifically describing the nature and extent of the delay caused by City and Developer's detailed efforts to avoid such delay, which references this Section and deliver such notice within twenty (20) days of discovering such delay, and Developer's obligations shall be extended for such time as City deems reasonable as a result of the delay if and only if Developer provides such written notice to City within such time; or (ii) Developer is delayed due to war, insurrection, strikes, lock-outs, riots, floods, earthquakes, fires, casualties, natural disasters, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, processing with any governmental agencies, unusually severe weather, or any other similar causes beyond the control of Developer or without the fault of Developer. An extension of time for any such cause shall be for the period of the enforced delay equal to the number of days during which Developer's performance was delayed and shall commence to run from the time of the commencement of the cause, if written notice by Developer claiming such extension is sent to City within twenty (20) days of knowledge of the commencement of the cause.
3. Indemnification. Developer shall defend, indemnify, and hold harmless City, its elected officials, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental agency, arising out of or incident to any acts, omissions, negligence or willful misconduct of Developer in connection with the performance of this Agreement ("Claims"). This indemnification includes, without limitation, the payment of all penalties, fines, judgments, awards, decrees, attorneys' fees, and related costs or expenses, and the reimbursement of City, its elected officials, employees, and/or agents for all legal expenses and costs incurred by each of them. This indemnification excludes only such portion of any Claim which is caused solely and exclusively by the negligence or willful misconduct of City, as determined by a court or administrative body of competent jurisdiction. Developer's obligation to indemnify shall survive the expiration or termination of this Agreement, and shall not be restricted to insurance proceeds, if any, received by City, its elected officials, employees, or agents.
Maintenance of Improvements. City shall not be responsible or liable for the maintenance or care of, and shall exercise no control over, the Public Improvements until such Public Improvements are accepted by City. Developer shall have no obligation to make the Public Improvements available for public use at any time before the Public Improvements are accepted by City. Any use by any person of the Public Improvements, or any portion thereof, shall be at the sole and exclusive risk of Developer at all times prior to City's acceptance of the Improvements. Developer shall maintain all of the Public Improvements in a state of good repair until they are completed by Developer and accepted by City, and until the security for the performance of this Agreement is released. It shall be Developer's responsibility to initiate all maintenance work, but if it shall fail to do so, it shall promptly perform such maintenance work when notified to do so by City. If Developer fails to properly prosecute its maintenance obligation under this section, City may, upon written notice and Developer's failure to remedy as provided in Section 14, do all work necessary for such maintenance, and the cost thereof shall be the responsibility of Developer and its surety under this Agreement. City shall not be responsible or liable for any damages or injury of any nature in any way related to or caused by the Public Improvements or their condition prior to acceptance, except to the extent such damage or injury is caused by the negligence or willful misconduct of City, its elected officials, employees, and/or agents.
City Inspection of Public Improvements. Developer shall, at its sole cost and expense, and at all times during construction of the Public Improvements, maintain reasonable and safe facilities and provide safe access for inspection by City of the Public Improvements and areas where construction of the Public Improvements is occurring or will occur. Developer shall give notice to City when the construction of all or a portion of the Public Improvements is complete. Upon receiving such notice, City may inspect the Public Improvements and request any modifications or corrections as may be deemed reasonably necessary by City Engineer, in his or her sole discretion, to bring the Public Improvements into conformity 3 with the Plans and Specifications, including any approved revisions thereto. Developer or Developer's contractors shall make all such modifications and corrections requested by City Engineer.
Liens. Developer shall not permit any liens to be filed against the Public Improvements and indemnifies City with respect to any such liens. Upon the expiration of the time for the recording of claims of liens as prescribed by Sections 8412 and 8414 of the Civil Code with respect to the Public Improvements, Developer shall provide to City such evidence or proof as City shall reasonably require that all persons, firms, and corporations supplying work, labor, materials, supplies, and equipment to the construction of the Public Improvements have been paid, and that no claims of liens have been recorded by or on behalf of any such person, firm, or corporation. Rather than await the expiration of the said time for the recording of claims of liens, Developer may elect to provide to City a title insurance policy or other security acceptable to City guaranteeing that no such claims of liens will be recorded or become a lien upon any of the Property.
Acceptance of Improvements; As-Built or Record Drawings. If the Public Improvements are completed by Developer in accordance with the Plans and Specifications, as determined by City Engineer, City shall be authorized to accept the Public Improvements. City may, in its reasonable discretion, accept fully completed portions of the Public Improvements prior to such time as all of the Public Improvements are complete, which shall not release or modify Developer's obligation to complete the remainder of the Public Improvements. Upon the total or partial acceptance of the Public Improvements by City, Developer shall file with the Recorder's Office of the County of San Bernardino a notice of completion for the accepted Improvements in accordance with California Civil Code Section 9204 ("Notice of Completion"), at which time the accepted Public Improvements shall become the sole and exclusive property of City without any payment therefor. Notwithstanding the foregoing, City may not accept any Public Improvements (or the applicable portion thereof) unless and until Developer provides two (2) sets of "as-built" or record drawings or plans to City for all such Public Improvements (or the applicable portion thereof). The drawings shall be certified and shall reflect the condition of the Public Improvements as constructed, with all changes incorporated therein.
8. Warranty and Guaranty. Developer warrants and guarantees all the Public Improvements against any defective work or labor done, or defective materials furnished in the performance of this Agreement, including the maintenance of the Public Improvements, for a period of one (1) year following completion of the work and acceptance by City ("Warranty"). During the Warranty, Developer shall repair, replace, or reconstruct any defective or otherwise materially unsatisfactory portion of the Improvements, in accordance with the Plans and Specifications. All repairs, replacements, or reconstruction during the Warranty period shall be at the sole cost and expense of Developer, and shall not be eligible for reimbursements. As to any Public Improvements which have been repaired, replaced, or reconstructed during the Warranty, Developer hereby agree to provide a warranty for a one (1) year period following City acceptance of the repaired, replaced, or reconstructed Public Improvements. Nothing herein shall relieve Developer from any other liability it may have under federal, state, or local law to repair, replace, or reconstruct any Public Improvement following expiration of the Warranty or any extension thereof. Developer's warranty obligation under this section shall survive the expiration or termination of DIF Reimbursement.
9.1 Calculation of Eligible Costs. Upon or prior to completion of the Public Improvements by Developer, Developer shall submit to City Engineer such information as City Engineer may require to calculate the actual costs incurred by Developer to construct the Public Improvements ("Actual Costs").
4 9.2 Reimbursement Limits. The reimbursement amount owed to Developer for construction of the Public Improvements ("Reimbursement Amount") shall be equal to the Actual Costs, subject to the following limitations:
9.2.1 Reasonable Soft Costs. City Engineer shall, in his or her sole reasonable discretion, determine the amount of reasonable soft costs eligible for reimbursement under the DIF Ordinance. Such amounts may include professional engineering and design services, construction management, soils testing, permits, plan check fees, and inspections, but shall not include interest or attorneys' fees. For soft costs to be reimbursable to Developer pursuant to this Agreement, City must be able to verify that such soft costs are specifically attributable to the specified Public Improvements for which reimbursement is being made, by reference to separate subcontracts) or by another means approved by City in writing. The total amount of the soft costs shall not exceed fifteen percent (15%) of the Reimbursement Amount. City Engineer may, in his or her reasonable discretion, reduce or disallow reimbursement for any costs he or she finds excessive or unreasonable.
Nexus Report Costs Estimates. The Reimbursement Amount shall not exceed the cost estimates for the Public Improvements included in the Nexus Reports, unless approved by City council.
Conditions Precedent to Final Reimbursement. City's obligation to provide reimbursements for the Public Improvements pursuant to this Agreement is conditioned upon the prior satisfaction by Developer or written waiver by City Manager of each of the following Conditions Precedent within the times designated below:
9.3.1 Completion of Construction. Developer shall have completed the construction of the Public Improvements acceptable to City, and thirty (30) days have elapsed since notices of completion have been recorded in relation to the Public Improvements, in accordance with California Civil Code Sections 9204 and/or 8182 (as applicable). The purpose of this provision is to ensure that the Public Improvements will be independently functional and to maintain consistency with vesting rights, and nothing herein shall be deemed to make any part of the Project a public work other than the Public Improvements.
Submission of Documents. Developer shall have made full and complete payment of all undisputed claims for work performed on the Public Improvements, or in the event of a dispute between Developer and the General Contractor or a subcontractor, Developer shall have obtained a commercially reasonable bond reasonably satisfactory to City to release any applicable mechanics' lien or stop notice, and Developer shall have submitted and City shall have approved a written request for the reimbursement, including copies of all bills and/or invoices evidencing the costs of constructing the Public Improvements actually incurred by Developer and any other documents reasonably required by City.
9.3.3 As-Built Drawings. Pursuant to Section 9, Developer shall have submitted two (2) sets of final as-built drawings for the Public Improvements to City Engineer.
9.3.4 Acceptance of Required Public Improvements by City. The City Council shall have accepted title to the Public Improvements.
9.3.5 No Default. Developer shall not be in default in any of its obligations under the terms of this Agreement, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
9.3.6 Compliance with DIF Ordinance and Conditions of Approval.
Developer shall be in compliance with all requirements of the DIF Ordinance and the Conditions of 5 10. Assignment. Prior to completion of the Public Improvements, Developer may assign this Agreement to a third party ("Assignment"), subject to the approval of City's Director of Development Services ("Director") in his/her reasonable discretion. If Developer desires to assign this Agreement, Developer shall provide detailed information as to the proposed assignee ("Assignee") as requested by City including but not limited, evidence of Assignee's right to acquire the Property, its background and financial information evidencing the ability of Assignee to complete the Public Improvements. Any assignment of this Agreement shall not release Assignor.
11. Default; Notice: Remedies.
Notice. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or if City determines there is a violation of any federal, state, or local law, ordinance, regulation or code, City may at any time thereafter declare Developer to be in default or violation of this Agreement and make written demand upon Developer or its surety, or both, to immediately remedy the default or violation ("Notice of Default"). Developer shall substantially commence the work required to remedy the default or violation within five (5) business days of the Notice of Default. If the default or violation constitutes an immediate threat to the public health, safety, or welfare, City may provide the Notice of Default verbally, and Developer shall substantially commence the required work within twenty-four (24) hours thereof. Immediately upon City's issuance of the Notice of Default, Developer and its surety shall be liable to City for all costs of construction and installation of the Public Improvements and all other administrative costs or expenses, as provided for in Section 15 of this Agreement.
11.2 Failure to Remedy; City Action. If the work required to remedy the noticed default or violation is not commenced within the time required under Section 14.1 of this Agreement and diligently prosecuted to completion, City may complete all remaining work, arrange for the completion of all remaining work, and/or conduct such remedial activity as in its reasonable discretion it believes is required to remedy the default or violation. All such work or remedial activity shall be at the sole and absolute cost and expense of Developer and its surety, without the necessity of giving any further notice to Developer or surety. In the event City elects to complete or arrange for completion of the remaining work and the Public Improvements, City may require all work by Developer or its surety to cease in order to allow adequate coordination by City.
11.3 Other Remedies. No action by City pursuant to this Section 14 shall prohibit City from exercising any other right or pursuing any other legal or equitable remedy available under this Agreement or any federal, state, or local law. City may exercise its rights and remedies independently or cumulatively, and City may pursue inconsistent remedies. City may institute an action for damages, injunctive relief, or specific performance.
12. Administrative Costs. If Developer fails to construct and install all or any part of the Public Improvements, or if Developer fails to comply with any other obligation contained herein, Developer and its surety shall be jointly and severally liable to City for all administrative expenses, fees, and costs, including reasonable attorneys' fees and costs, incurred in obtaining compliance with this Agreement or in processing any legal action or for any other remedies permitted by law.
13. Miscellaneous.
13.1 Relationship between the Parties. The Parties hereby mutually agree that this Agreement shall not operate to create the relationship of partnership, joint venture, or agency between City and Developer. Developer's contractors are exclusively and solely under the control and dominion of Developer. Nothing herein shall be deemed to make Developer or its contractors an agent or contractor of City.
13.2 Authority to Enter Agreement. Each person executing this Agreement on behalf of Developer represents and warrants that he or she has the legal power, right and authority to execute this Agreement on behalf of Developer and that this Agreement is binding upon Developer.
13.3 Notices. Any notice, demand, request, consent, approval, or communication either Party desires or is required to give to the other Party or any person shall be in writing and either served personally, communicated electronic mail (with a receipt requested), or sent by prepaid, first-class mail to the address set forth below. Notice shall be deemed communicated immediately upon personal delivery, fax or email receipt, or forty-eight (48) hours from the time of mailing if mailed as provided in this Section:
To City: City of Chino
13220 Central Ave.
Chino, CA 91710
Attn: Director of Development Services
Email: [email protected]
With Copy to: Aleshire & Wynder, LLP
188881 Von Karman Ave., Suite 1700
Irvine, CA 92612
Attn: Fred Galante, Esq.
Email: [email protected]
To Developer: Euclid/Kimball Partners
3410 La Sierra # F-225
Riverside Ca 92503
Attn: John Ginger, Managing Member
Email: [email protected]
13.4 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, appropriate, or convenient to attain the purposes of this Agreement.
13.5 Construction; References; Captions. The Parties agree that the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party.
Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, unless specified therein. All references to Developer include all personnel, employees, agents, and contractors of Developer, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. 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.
13.6 Amendment; Modification. No supplement, modification, or amend-mint of this Agreement shall be binding unless executed in writing and executed by both Parties.
13.7 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, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise.
13.8 Binding Effect. Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns.
This section shall not be construed as an authorization for any Party to assign any right or obligation. 7 13.9 No Third-Party Beneficiaries. There are no intended third-party beneficiaries of any right or obligation assumed by the Parties.
13.10 Invalidity; 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.
Governing Law; Consent to Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of California. Any legal action or proceeding brought to interpret or enforce this Agreement, or which in any way arises out of the Parties' activities undertaken pursuant to this Agreement, shall be filed and prosecuted in the appropriate California State Court in the County of San Bernardino, California.
13.12 Time is of the Essence. Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions.
13.13 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument.
13.14 City Officers and Employees. No officer or employee of City shall be personally hable to Developer or any successors in interest in the event of any default or breach by City or for any amount that may become due to Developer or any successor(s) in interest or for breach of any obligation of the terms of this Agreement. No officer or employee of Developer shall be personally liable to City or any successors) in interest in the event of any default or breach by Developer or for any amount that may become due to City or their successors in interest or for breach of any obligation of the terms of this Agreement.
13.15 Entire Agreement. This Agreement contains the entire agreement between City and Developer and supersedes any prior oral or written statements or agreements between City and Developer.
13.16 Exhibits. The following exhibits are attached hereto and incorporated herein by reference:
Exhibit A Location Map
Exhibit B Conditions of Approval
Exhibit C Public Improvements
[SIGNATURES ON FOLLOWING PAGE]
8 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written.
DEVELOPER: CITY:
EUCLID KIMBALL PARTNERS, LP, a CITY OF CHINO, a municipal corporation California General Partnership
By:
Matthew C. Ballantyne
: Managing partien City Manager N
DATED: March 10,20242
Its: ATTEST:
WelCot 3: 102007
Angela Robles, City Clerk
APFROVED AS TO CONTENT:
Nicholas S. Diguori, AICP
Development Services Director
APPROVED AS TO FORM:
LESHIRE & WYNDER, Li
IN SIL
By
Fred Galante, City Attorney
DEVELOPER: TWO PERSONS AUTHORIZED BY THE APPLICABLE ENTITY FORMATION DOCUMENTS SHALL EXECUTE THIS AGREEMENT. COPIES OF APPLICABLE DOCUMENTS EVIDENCING SUCH AUTHORITY SHALL BE PROVIDED TO CITY.
DEVELOPER SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE
ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE APPLICABLE FORMATION DOCUMENTS FOR THE ENTITY.
9 ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of los Angeles _)
On 01. 11. 2022 before me, Evelyn Romero, Notary Public (insert name and title of the officer)
personally appeared John Ginger
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) iS/are subscribed to the within instrument and acknowledged to me that He/she/they executed the same in Kis/her/their authorized capacity(ies), and that byLis/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
EVELYN ROMERO
Notary Public - California
Los Angeies County
Commission # 2302568
deep My Com. Expires 582 19, 2023
Signature. (Seal)
Hear mori Print Form
EXHIBIT A
LOCATION MAP
[ATTACHED]
PARCEL A
BLOG El BLDG F
PARCEL 3
BLDG A BLDG B PM 10830
PARCEL 1 PARCEL 2 PARCEL 1 PARCEL 2
BLDG C BLDG D
PARCEL
9831
101
EUCLID AVENUE
GRAPHIC SCALE IN FEET
120 240
Kimley» Horn
401 B STREET, SUITE 600. EUCLID COMMERCE CENTER
SAN DIEGO, CA 92101 8/29/2019
(619) 234 9411
PARCEL A
BLDG E BLDG F
PARCEL 3
BLDG A BLDG B PM 10830,
A
PARCEL 1 PARCEL 2 PARCEL J PARCEL 2
BLDG C BLDG D
PARCEL
831
TOTIOTT 110 10|
=M/&=
EUCLID AVENUE
GRAPHIC SCALE IN FEET
120 240
Kimley» Horn EXHIBIT "A"
401 B STREET, SUITE 600 EUCLID COMMERCE CENTER
SAN DIEGO, CA 92101 8/29/2019
(619) 234 9411
EXHIBIT B
CONDITIONS OF APPROVAL
[ATTACHED]
NL X CM _X. DH X
-
GP IA MK
MB DC AC
E-Mail Sent: 11/20/18
To: Brian Sitton
PUBLIC WORKS DEPARTMENT CONDITIONS OF APPROVAL
PL 16-0703 (PARCEL MAP NO. 19380), PL 17-0048 (PARCEL MAP NO. 19831), PL 16-0701 (MASTER SITE APPROVAL), PL 16-0702 (SITE APPROVAL)(DEV MOD) DATE: November 20, 2018 PC MEETING DATE: December 3, 2018 PROJECT DESCRIPTION: Proposed commerce center with four industrial buildings (6 units) ranging in size from 22,690 to 47,890 square feet on approximately 10 acres of land.
PROJECT LOCATION: 15723-15739 Euclid Ave
APPLICANT: Brad Boatman PROJECT ENGINEER: Gabor Pakozdi
PRIOR TO THE THREE MAJOR DEVELOPMENT EVENTS, THE APPLICANT SHALL SATISFY AND FULFILL ALL CONDITIONS OUTLINED BELOW. FAILURE TO COMPLY WITH ANY CONDITIONS OF
APPROVAL SHALL BE DEEMED JUST CAUSE FOR REVOCATION OF PROJECT APPROVAL BY THE PLANNING COMMISSION. HOWEVER, THE DIRECTOR OF COMMUNITY DEVELOPMENT,
THE ASSISTANT CITY MANAGER, AND/OR THE DIRECTOR OF PUBLIC WORKS SHALL HAVE THE
AUTHORITY TO APPROVE MINOR DEVIATIONS IN THE CONDITIONS OF APPROVAL, AND ALL PLANS INCLUDING THE CONSTRUCTION DRAWINGS.
1.0. PRIOR TO MAP RECORDATION:
1.1 Provide a preliminary Title Report no older than 60 days.
1.2 Submit a preliminary soils report to the project engineer for review and approval in accordance with Government Code, Section 66434.5.
1.3 Dedicate to the City a 26-foot wide easement for landscape and pedestrian access purposes, along the project frontage of Euclid Ave.
1.4 Prepare and record necessary drainage easements to implement the project in accordance with drainage law.
1.5 Provide and record a reciprocal use agreement to assure common ingress and egress and joint maintenance of all common access, parking areas and drives.
1.6 Provide a set of proposed Covenants, Conditions and Restrictions (CC&R) for review and approval. The proposed CC&Rs shall contain the Association's/Owner's maintenance obligations with respect to various facilities including, but not limited to, right-of-way landscaping, private streets, sidewalks, utilities, street lights, and Water Quality Management Plan (WQMP) features. This shall also address internal circulation and maintenance of common drive aisles between subject properties and adjacent properties (McBride's RV Storage LLC, Chino Valley Center LLC). This document must be submitted to and approved by the City before it is submitted to any other governmental entity.
PL 16-0703 (PM 19380), 2 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
1.7 Execute a Subdivision Agreement and submit security in an amount acceptable to the City Engineer to guarantee construction of the public improvements listed in 2.7 and 2.23. All security must be accessible to the City at any time and in a form acceptable to the Assistant City Manager, pursuant to Government Code, Section 66499.
1.8 Provide a Monumentation Bond in an amount specified in writing by a Registered Engineer or Licensed Land Surveyor of Record.
1.9 Comply with all applicable requirements of the City Code.
1.10 Pay all applicable fees pursuant to City Code including, but not limited to, plan check fees.
2.0 PRIOR TO ISSUANCE OF BUILDING PERMITS FOR ANY LOT WITHIN THE SUBDIVISION
2.1 Record Parcel Map No. 19380 and 19831 pursuant to the Subdivision Map Act and in accordance with City Code. Provide a duplicate photo mylar of the recorded map to the City Engineer's office.
2.2 All required plans and studies shall be prepared by a Registered Professional Engineer and submitted to the project engineer for review and approval. All project plans must be approved by the City Engineer's office before a Building Permit will be issued. All maps, studies, calculation sheets, reports, etc. must be on and/or folded in an 11-inch x 8 1/2-inch standard format.
2.3 Prepare and submit a drainage study, including supporting hydraulic and hydrological data to the project engineer for approval. The study shall confirm or recommend changes to the City's adopted Master Drainage Plan by identifying off-site and on-site storm water runoff impacts resulting from build-out of permitted General Plan land uses: In addition, the study shall identify the project's contribution and shall provide locations and sizes of catchments, system connection points, all downstream drainage-mitigating measures, and sizing of the interim earthen channel along the project frontage of Euclid Ave (see COA 2.7).
2.4 Prepare and submit a final grading plan showing building footprints, pad elevations, finished grades, drainage routes, retaining walls, erosion control, slope easements and other pertinent information in accordance with Appendix J of the California Building Code, latest edition.
2.5 Provide a certificate, from a Registered Civil Engineer, certifying that the finished grading has been completed in accordance with the City approved grading plan.
2.6 Design and install a monitoring manhole (per City Standard No. 530) on each domestic sewer lateral connection from any industrial building into the City's main sewer or into a private sewer main that is tributary to the City's main sewer. In addition, design and install a sampling Wye on a stubbed out sewer lateral connection into the main sewer for each industrial building in this development.
PL 16-0703 (PM 19380), 3 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
2.7 Design per City Standards full public improvements for all impacted and interior streets/facilites in accordance with City Code, Standards and Specifications. Such public improvements may include, but not be limited to the following: (Please coordinate and verify all requirements with the project engineer.)
Street Names
Euclid
Ave(®)
Curb & Gutter (Offset from Centerline) (1.2) 32'
Sidewalk (Width) 13'
Asphalt Concrete Pavement on Aggregate Base
(Width from Centerline)(3) 32'
Asphalt Concrete Overlay
Street Lights(1.4) X
Median Island and Landscaping
Parkway Landscaping(4,5) X
Striping and Traffic Controls(3) X
Traffic Signal Interconnect(10)
Conduit System for CATV
Sewer
Storm Drain (1.6) X
Domestic Water(7) X
Recycled Water(8) X
Fire Hydrants as required by CVIFD X
Driveway approaches(11) X
This is an interim improvement and is NOT eligible for DIF credit per the City Code. 2 Curb only.
3. Ultimate improvements that are above and beyond the first travel lane are eligible for DIF credit per the City Code.
4. See COA 2.17.
5. See COA 2.14.
6. Extend earthen channel along project frontage. This channel shall accommodate off-site runoff including, but not limited to, upstream flows north of the project and street flows from Euclid Ave. Size of the channel shall be determined per a drainage study. See COA 2.3
7. There shall be one of point of connection from the existing 12" domestic water line on the west side of Euclid Ave. A water meter manifold shall serve the project.
8. Construct a 12" recycled water line from Kimball Ave to southerly project frontage. This improvement is eligible for DIF credit per the City Code.
9. Improvements along Euclid Avenue (SR-83) require approval of the State of California Department of Transportation (Caltrans). Caltrans may require the developer to provide additional improvements. The developer is responsible for meeting the requirements of Caltrans in order to obtain Caltrans approval.
10. Coordinate these improvements with Caltrans
11. Northerly and southerly most driveway approaches off Euclid Ave will be restricted to right-in and right-out movements.
2.8 Obtain design and plan approval from appropriate utility companies for undergrounding all utility lines adjoining and interior to the project, including power lines of 34.5 kV or less, in accordance with City Code, Chapter 13.32.
PL 16-0703 (PM 19380), 4 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
2.9 Pay all applicable fees including, but not limited to, Development Impact Fees (DIF) and Sewage Facilities Development Fee (SFF) not previously paid under Item 1.0 above, in accordance with the City Code.
2.10 All projects developing one (1) acre or more of total land area, or which are part of a larger phased development that will disturb one acre of land, are required to obtain coverage under the State Water Resources Control Board's (SWRCB) General Permit for storm water discharges associated with construction activity. Proof of filing a Notice of Intent (NOI) with the SWRCB for coverage under this permit is required. A copy of the Waste Discharger's Identitication Number (WDID), issued by the SWRCB, must be submitted to the Project Engineer prior to issuance of grading permits. More detailed information regarding this General Permit, applicable fee information and the necessary forms to complete the NOI are available by calling (916) 341-5537 or on the SWRCB web site at:
http://www.swrcb.ca.gov/water_issues/programs/stormwater/constpermits.shtml.
2.11 Pursuant to Santa Ana Regional Water Quality Control Board Order Number R8-2010- 0036, NPDES Permit No. CAS618036, prepare a project-specific Water Quality Management Plan (WQMP) and submit to the project engineer for review and approval: To address NPDES Permit requirements to the maximum extent practicable, the project shall be designed to specify preferential use of Low Impact Development Best Management Practices that reduce pollutants and runoff volume through structural measures (e.g. infiltration, harvesting, and bio-treatment) and non-structural measures (e.g. preserving natural areas, clustering development, and reducing impervious areas).
The WQMP shall conform to the requirements of the San Bernardino County Stormwater Program, 2013 WQMP Technical Guidance Document.
2.12 Any future maintenance and repair of fire service and sewer laterals to the project site shall be the sole responsibility of the applicant/property owner in accordance with City Code, Chapter 13.04.175 and 13.12.150.
Convey ownership of all existing onsite water wells to the City and convert to monitoring wells as directed by the City's Water Utilities Supervisor. Prepare and record any necessary easements to provide the City with access to the monitoring wells. Any existing water wells that cannot be feasibly converted to monitoring wells shall be destroyed per City Standard No. 465.
2.14 City staff shall determine the type of water (potable or recycled) to be used for grading operations, dust control activities, and common area/public landscape irrigation at the time of permit issuance.
2.15 Provide adequate sight distance per City Standard No. 1025 for each project driveway and at all intersections. Landscaping type and height shall be maintained to ensure sight distance requirements are perpetuated.
2.16 Submit to the City electronic files, in Adobe Acrobat PDF format, of all submittals, including reports, studies, improvement plans and City redlines of previous submittals PL 16-0703 (PM 19380), 5 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
2.17 The developer is responsible for the continued operation and maintenance of perimeter street lights, common area landscaping, and parkway areas (landscaping, sidewalk). The project is required to establish an association for the continued operation and maintenance of above improvements. Alternatively the properties can be annexed into one of the following at the discretion of the Assistant City Manager:
• Preserve Master Maintenance Corporation (PMMC)
• City's Landscape and Street Lighting Maintenance District MD 2002-1 • An alternative maintenance district
The developer/association shall enter into a maintenance agreement with the City should the properties not be annexed into the PMMC. The developer shall also comply with any requirements from Caltrans for maintaining landscape on Euclid Ave.
2.18 Pay an in-lieu fee for future ultimate street improvements along Euclid Ave. The in-lieu fee will be based on an engineer's cost estimate of improvements and is subject to review and approval by the City.
2.19 Pay an in-lieu fee for future median (half width of 32-ft) along Euclid Ave. The in-lieu fee will be based on an engineer's cost estimate of improvements and is subject to review and approval by the City:
2.20 There is a private onsite sewer lift station that is owned and maintained by the adjacent property owner (McBride's RV Storage LLC). Obtain permission to connect and necessary easements from said owner to receive sewer service for this project. If this cannot be obtained an alternative solution for sewer service will need to be reviewed and approved by City staff.
Developer shall prepare signing and striping plans, signal plans and improvement plans for all affected street intersection and segments to include new lane configurations, appropriate transitions, modified lane configurations, utility location, etc. to the satisfaction of the City Engineer and the Assistant City Manager/Director of Public Works. Improvements along Euclid Avenue (SR-83) require approval of the State of California Department of Transportation (Caltrans). Caltrans may require the developer to provide additional improvements. The developer is responsible for meeting the requirements of Caltrans in order to obtain Caltrans approval.
2.22 Comply with all requirements of the final Traffic Impact Analysis (TIA) reviewed and approved by the City and Caltrans including participation in fair share contributions o equired improvements and mitigation measures as shown on the Mitigation Monitoring anc Reporting Program, to mitigate impacts. Internal traffic signing/striping should be implemented in accordance with the approved TIA.
PL 16-0703 (PM 19380), 6 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
2.23 Based on the approved plans, design the following intersection improvements as described in the final TIA. These improvements must be constructed and approved by the Public Works Department prior to the request and release of occupancy permits. Unless noted the improvements are assumed to be completed by others prior to certificate of occupancy. Refer to applicable exhibits in the TIA for intersection improvements:
Euclid Ave at Main Project Driveway
• Install a traffic signal. Traffic signal loops may be required by Caltrans at the Main Project Driveway. Caltrans may require an easement for the traffic signal loops. • Add a northbound right turn lane
• Add a southbound left turn lane
• Improvements along Euclid Avenue (SR-83) require approval of the State of California Department of Transportation (Caltrans). Caltrans may require the developer to provide additional improvements. The developer is responsible for meeting the requirements of Caltrans in order to obtain Caltrans approval.
2.24 Design new traffic signals as described in Section 2.23, to include all equipment, poles, traffic signal and electrical service cabinets, wheelchair access ramps, etc. to meet current City standards and Specifications and Caltrans requirements. Design shall include all traffic signal interconnect, fiber optic cable, and communications vaults, cabinets and equipment as required by Caltrans. Any widening that affects existing traffic signal equipment will require a traffic signal modification plan to be designed and constructed by developer, even if not specifically identified in Conditions of Approval.
2.25 Prior to installation of underground utilities, CCTV inspection of existing sewer and storm drain conduits that may be impacted by the construction shall be performed and recordings submitted to the City for comparison to post-construction inspection.
2.26 Development shall meet all truck turning requirements from the City of Chino and Chino Valley Independent Fire District (CVIFD).
3.0 PRIOR TO REQUEST AND RELEASE OF ANY OCCUPANCY PERMITS:
3.1 Construct and secure Public Works Department approval of all required improvements and public facilities enumerated under Section 2.0 above (per Resolution No. 88-23), including all required improvements in the Caltrans right of way.
3.2 Underground all utility lines adjoining and interior to the project, including power lines of
34.5kV or less in accordance with City Code, Chapter 13.32.
3.3 The applicant's Civil Engineer shall field verify that all BMPs are designed, constructed, and functional in accordance with the approved WQMP. Submit a completed City of Chino BMP field verification form to the project engineer for review and approval.
3.4 Slurry seal along all streets impacted by the development as directed by City staff. Install signing and striping per approved plans.
3.5 Submit to the City, electronic files of Tract/Parcel Map and "as-built" improvement plans in AUTOCAD format and Adobe Acrobat PDF format. AUTOCAD files shall be submitted as an archived zip file of the CAD drawings with all base files attached.
PL 16-0703 (PM 19380), 7 December 3, 2018
PL 17-0048 (PM 19831),
PL 16-0701 (MSA),
PL 16-0702 (SA)(DEV MOD)
3.6 Submit a report certifying that all public improvements constructed as part of the project are compliant with applicable ADA regulations. The report shall be prepared and submitted by a Certified Access Specialist (CASp). The report must be reviewed and approved prior to the City Council's acceptance of public improvements. The proposed public improvements may cause existing public improvements adjacent to or within the project GP
Attachment
CITY OF CHINO
PUBLIC WORKS DEPARTMENT
ENGINEERING DIVISION
ITEMS REQUIRED FOR FIRST PLAN CHECK SUBMITTAL
PARCEL MAP NO. 19380 (PL 16-0703) & 19831 (PL 17-0048)
PROJECT ENGINEER: _Gabor Pakozdi
DATE: November 13, 2018
A COPY OF THIS CHECK LIST MUST BE SUBMITTED WITH THE FIRST PLAN CHECK 1 Copy of Public Works Department Conditions of Approval 2 Sets of Maps (Subdivision Only)
2 Copies of preliminary Title Report (no older than six months) (Subdivision Only) 2 Copies of Closure Calculations (Subdivision Only)
1 Set of Referenced Maps (Subdivision Only)
2 Copies of Preliminary Soils Report (no older than sixty days) • 2 Copies of lot line adjustment certificate
2 Copies of lot merger
• 2 Copies of right-of-way dedication
• 4 Sets of Rough Grading Plans
5 Sets of Precise Grading Plans
4 Sets of Storm Drain Plans
X: 2 Copies of Hydrology and Hydraulic Calculations with Backup Data (Signed and Sealed by a Registered Civil Engineer)
2 Copies of Engineering Cost Estimate (On City Forms) with Engineer's Wet Signature and Stamp
2 Sets of Street Improvements Plans
2 Copies of Cross-Sections (if street plans are required) at 50' intervals and extended a minimum of 100' beyond limits of improvements
L 3 Sets of Sewer Plans
3 Sets of Domestic Water Plans
3 Sets of Recycled Water Plans
2 Sets of Street Light Plans
2 Copies of Voltage Drop Calculations (Signed and Sealed by a Registered Engineer) 2 Sets of Signing and Striping Plans
2 Sets of Traffic Signal Interconnect Plans
2 Sets of Traffic Signal Plans
• 1 Water Quality Management Plan
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EXHIBIT C
PUBLIC IMPROVEMENTS
*Reimbursement is based on the actual validated costs approved by the City Engineer. The actual validated costs shall not exceed the project's cost estimate included in the Nexus Report. The estimated costs below are contingent upon the Nexus and Calculation Report Update 2022.
Euclid Avenue Size Unit Cost Pipe Cost Soft Costs Estimated Costs Potable 12" 1,904.5 $140.00 $266,630.00 $93,32.50 $359,950.00 Recycled 8" 1,891 $105.00 $198,555.00 $69,494.25 $268,049.25 Total not to Exceed | $627,999.75