1 Contract No.: ____________________
Approval Date: ___________________
CONSTRUCTION CREDIT AND REIMBURSEMENT AGREEMENT
STORM DRAIN IMPROVEMENTS
THE PRESERVE DEVELOPMENT IMPACT FEE PROGRAM
(Various Locations)
This CONSTRUCTION CREDIT AND REIMBURSEMENT AGREEMENT
(“Agreement”) is entered into this 2nd day of April 2024 (“Effective Date”), by and between CITY OF CHINO , a California municipal corporation (“ City”), and CHINO DEVELOPMENT CORPORATION, a California corporation and CHINO PRESERVE DEVELOPMENT CORPORATION, a California corporation (collectively, “Developer”). City and Developer are sometimes hereinafter referred to individually as “Party” and jointly as “Parties”.
RECITALS
A. Pursuant to that certain Preserve Development Agreement No. 2004-073, effective July 1, 2004, as amended by those certain First, Second and Third Amendments thereto and that certain Amended and Restated Development Agreement No. 2023-0182285, effective June 20 , 2023 (“Amended and Restated Development Agreement ”), among City and Developer, and the conditions of approval for Tracts 16419, 16419 -1, 16420, 16420-1, 17057, 17058, 17571, 17572, 17574, 18480 and 19994, Developer wa s required to design and construct various Storm D rain Facilities as a condition to the development of The Preserve community.
B. Pursuant to the Storm Drain Credit and Reimbursement Agreement entered on June 16, 2015 (“Initial Reimbursement Agreement”) between the Parties, Developer completed approximately $36,755,652 in drainage improvements to support development in Ont ario Ranch located in the City of Ontario and The Preserve Specific Plan area located in the City of Chino. The improvements include the Kimball and Bickmore natural treatment system basins and channels, as well as various storm drain lines in the northern portion of The Preserve (“Regional Improvements”). The City’s fair share cost for the Regional Improvements is $23,818,767 (“Validated Costs”). City and Developer agreed that Developer would receive Storm Drainage Collection System Facilities Development Impact Fee program credits and / or be reimbursed from the Storm Drain DIF fund balance for an amount equal to the Validated Costs.
C. In addition to the Regional Improvements referred to in the preceding Recital B above which were the subject of the Initial Reimbursement Agreement, Developer has completed additional work required in connection with the design and construction of certain storm drain lines improvements and facilities which also service The Preserve, as more particularly shown on Exhibit 1 attached hereto (the “Additional Improvements”) and, in connection therewith, has expended an additional Six Million Four Hundred Eighty-Five Thousand One Hundred Twenty-Two and 11/100 Dollars ($6,485,122.11).
D. Developer has completed all work required in connection with the design and construction of the Additional Improvements according to the specifications of the City and under 2 1-19-24
the inspection of, and to the satisfaction of the City Engineer of the City.
E. The Additional Improvements comprise master-planned facilities and are included in the City’s Preserve Storm Drain DIF program. The Additional Improvements are eligible for reimbursement to Developer by the City and credits against development impact fees (“DIFs”) per the Chino Municipal Code, Chapters 3.45 entitled “Preserve Development Impact Fees” (the “ DIF Ordinance”) and, specifically, Section 3.45.130 thereof.
F. 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 DIF is imposed, Developer shall be eligible to receive reimbursement and a fee credit toward the DIFs imposed on the project for the same type of public facility so constructed, and shall be entitled to credit for eligible costs of constructing the public facilities.
G. City and Developer desire to enter into this Agreement (i) to memorialize the ir agreement as to the Total DIF Cost (defined in Section 2.1 below) to which Developer is entitled for its design and construction of the Additional Improvements, (ii) to confirm the amount of the Used Credits (defined in Section 2.3 below) and the Remaining Storm Drain DIF Credit and Reimbursement Amount (also defined in Section 2.3 below), to provide the methodology for the City’s future reimbursement to Developer and crediting to Storm Drain DIFs (defined in Section 2.2 below) of the Remaining Storm Drain DIF Credit and Reimbursement Amount (iii) to establish the requirements for Developer’s transfer or application of all or any portion of available Credits (defined in Section 2.3 below) to a third party.
H. Developer and City also desire to memorialize herein Developer’s right to the highest priority reimbursement of funds from The Preserve Storm Drain DIF fund.
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. Preserve DIF Credit and Reimbursement.
2.1 Total DIF Cost. The City Engineer has determined that the total costs of the Additional Improvements that are eligible for credit and reimbursement pursuant to the DIF Ordinance, is Six Million Four Hundred Eighty-Five Thousand One Hundred Twenty-Two and 11/100 Dollars ($6,485,122.11) (“Total DIF Cost”).
2.2 Credits and Reimbursements From Reimbursement Agreement.
Pursuant to the Initial Reimbursement Agreement, City previously approved of the issuance of credits to Developer or its assignees in the amount of Fourteen Million Nine Hundred Eighty-Three Thousand Two Hundred Ten and 36/100 Dollars ($14,983,210.36) against The Preserve Storm Drain DIFs (“Storm Drain DIFs”) otherwise due and payable in connection with development within that certain real property owned by Developer and/or its affiliates within The Preserve community (“Developer’s Properties ”) pursuant to the DIF Ordinance . Such credits and reimbursements approved for issuance pursuant to the Initial Reimbursement Agreement are separate and apart from