Contract No.: 2022029 A1
Approved: _5/16/2023
FIRST AMENDMENT
TO
CONSTRUCTION CREDIT/REIMBURSEMENT AGREEMENT
FOR
INE AVENUE STREET IMPROVEMENT
Phase I, (Stages 1-3) & Stage 4
THIS FIRST AMENDMENT TO CONSTRUCTION CREDIT/REIMBURSEMENT AGREEMENT FOR PINE AVENUE STREET IMPROVEMENTS ("Amendment No. 1") is made and entered into this 16" day of May 2023 ("Effective Date"), by and between the 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
WHEREAS, Pine Avenue, between Euclid and Hellman Avenues, is a major roadway arterial within The Preserve Specific Plan area that will be a total of six-lanes with a raised landscaped median when fully constructed; and
WHEREAS, traditionally, new developments within The Preserve that are adjacent to Pine Avenue are required by the City to dedicate the necessary right-of-way for, and to design and construct portions of, the roadway segments as identified; and
WHEREAS, City and Developer entered into that certain Construction Credit/Reimbursement Agreement for Pine Avenue Street Improvements (Phase I, (Stages 1-3) & Stage 4) on June 15, 2021 ("Agreement") for the phased construction of the Pine Avenue Street Improvements for Stages 1-4; and WHEREAS, Developer is currently in active construction of the Stage 4 Pine Avenue Improvements ("Stage 4"), which includes three eastbound lanes and two westbound lanes from the westerly boundary of the Town Center at The Preserve to Harvest Way/Homecoming Drive; and WHEREAS, City requested that Lewis include additional roadway rehabilitation at the intersection of Pine Avenue/West Preserve Loop to mitigate associated noise and vibration resulting from vehicles traveling through subject intersection as shown in Exhibit I ("Additional Work"); and WHEREAS, Developer completed the bidding for the Additional Work, which is estimated to cost $84,050, which includes contingencies and soft costs; and WHEREAS, City is appropriating $84,050 from the unappropriated reserves of the Road Repair and Accountability Act Fund to offset costs associated with the Additional Work; and WHEREAS. City desires to amend the Agreement with Developer to include the Additional Work for an amount not to exceed $84,050 for a total contract amount of $16,789,318.
01225.0005/887368.3
TERMS
NOW, THEREFORE, the Parties agree to amend the Agreement as follows:
1. CONTRACT CHANGES.
(a) Section 2.1 is hereby added to the Agreement and shall read as follows:
2.1 Construction of Additional Improvements. In addition to the improvements described in Section 2, Developer shall perform grind and overlay work at the intersection of Pine Avenue and West Preserve Loop up to approximately 120 feet north of the intersection, as more fully detailed in Exhibit I ("Additional Improvements").
The anticipated cost of the Additional Work is $84,050 and is broken down in Exhibit J Upon substantial completion or upon the final acceptance by City of the Additional Improvements, Developer shall submit to City Engineer an invoice for the amount of the actual costs of constructing the Additional Improvements, including soft costs, including sufficient information and documentation to allow the City Engineer to calculate and verify such actual costs. The final determination of such actual costs shall be in the City Engineer's reasonable discretion.
City shall, within ten (10) days after the submittal of such invoice, review and approve the invoice or deliver to Developer a request for revisions to such invoice along with a detailed explanation of the reasons for such request for revision; provided that the City may extend this review period for a period not to exceed an additional ten (10) days if more time is reasonably needed in light of the submittal. In the event of the delivery by City to Developer of a request for revision, Developer, City, Construction Manager and the applicable contractor shall then promptly cooperate to revise and resubmit such invoice, as appropriate, and City shall then, within five (5) days after the resubmittal of such invoice, review and approve the invoice or deliver to Developer an additional request for revisions to such invoice along with a detailed explanation of the reasons for such request for revision. Such process shall continue until the invoice is approved by the City and, thereafter, the City shall provide payment of the invoice to Developer within five (5) days after such approval. City's review of invoices hereunder shall be conducted in good faith and City's approval shall not be unreasonably withheld, conditioned, or delayed.
Acceptance of the Additional Improvements shall be subject to the procedures in Section 4 of this Agreement. Developer shall be responsible for the maintenance of all Additional Improvements until the acceptable of the Additional Improvements by the City The Additional Improvements shall be the sole property of City upon acceptance of same by the City.
b) Section 5 of the Agreement is amended as follows (new text in underline):
5. Indemnity. Developer, to the fullest extent permitted by law, shall indemnify, defend, and hold the City and its elected and appointed officials, agents, employees, and authorized volunteers harmless from and against any and all actions, suits, claims, liabilities, losses, damages, penalties, obligations, and expenses (including but not limited to attorneys' fees, expert witness fees, and court costs) ("Claims") that
01225.0005/887368.3
arise, directly or indirectly, from Developer's negligence or willful misconduct in the design and/or construction of the public improvements, including the Additional Improvements; provided, however, the foregoing indemnity provision shall only apply to Claims which are tendered by the City to Developer by written notice delivered within one-year from the date on which the public improvements, including the Additional Improvements, are substantially complete and open for public use and shall survive the termination of this Agreement for the remainder of that one-year period to the extent applicable. This indemnification excludes such portion of any Claim to the extent caused by the negligence or willful misconduct of City, as determined by a court or administrative body of competent jurisdiction, and shall also expressly excludes injury or damage suffered by the public after the improvements are substantially complete and open for public use. It is understood that the duty to indemnify and hold harmless includes the duty to defend as set forth in section 2778 of the California Civil Code. For avoidance of doubt, the foregoing indemnify, defense and hold harmless obligations of developer shall not apply to any Claims which are tendered by the City to Developer by written notice delivered after the date which is one-year from the date on which the public improvements, including the Additional Improvements, are substantially complete and open for public use.
(c) Exhibits I and J, attached hereto are hereby added to the Agreement.
2. WARRANTY RE ABSENCE OF DEFAULTS. Developer represents and warrants to City that, as of the Effective Date of this Amendment No. 1, Developer is not in default of any material term of the Agreement, and that there have been no events that, with the passing of time or the giving of notice, or both, would constitute a material default under the Agreement by Developer.
3. CONTINUING EFFECT OF AGREEMENT. Except as amended by this Amendment No. 1, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this Amendment No. 1, whenever the term "Agreement" appears in the Agreement, it shall mean the Agreement, as amended by this Amendment No. 1.
4. COUNTERPARTS. This Amendment No. 1 may be executed in multiple identical counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
AUTHORITY. The persons executing this Amendment No. 1 on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (il) they are duly authorized to execute and deliver this Amendment No. 1 on behalf of said party, (iii) by so executing this Amendment No. 1, such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which said party is bound.
[SIGNATURES ON FOLLOWING PAGE]
01225.0005/887368.3
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed as of the day and year first above written.
DEVELOPER CITY
CHINO DEVELOPMENT CORPORATION, a CITY OF CHINO, a municipal corporation California corporat
is nored Agent Linda Reich
City Manager
CARY OF CHIN
CHINO PRESERVE DEVELOPMENT ATTEST:
• «СОВОМО»
FE8. 28, 1910
CLUFORNIA
папада
Bryan Goodman Natalie Gonzaga
Hs: Authonzed Agent City Clerk
APPROVED AS TO CONTENT:
Nick Liguori T
Director of Development Services
APPROVED AS TO FORM:
SIGNED IN COUNTERPART
Fred Galante
City Attorney
01225.0005/887368.3
DocuSign Envelope ID: 202A9497-8C49-4288-BCCC-96EE1D76DB35 IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to be executed as of the day and year first above written.
DEVELOPER CITY
CHINO DEVELOPMENT CORPORATION, a CITY OF CHINO, a municipal corporation California corporation
ryan boodmar Linda Reich
Its: Author (zed Agent City Manager
CHINO PRESERVE DEVELOPMENT ATTEST: VETT OF CHING
a California corporation
TV. 21, 1910
потада
Goodman Natalie Gonzaga
Its: Authonzed Agent City Clerk
APPROVED AS TO CONTENT:
Nick Liguori
Director of Development Services
APPROVED AS TO FORM:
-DocuSigned by:
Fred Galante
Fred Satante
City Attorney
01225.0005/887368.3
EXHIBIT I
DESCRIPTION AND LOCATION OF ADDITIONAL WORK
Description of Additional Work: Developer shall - All work shall be performed in accordance with the City's Standard Specifications.
Location of Additional Work:
171 172 173 174 175 176
ADDITIONAL GRIND OVERLAY LIMITS AT PINE WEST PRESERVE LOOP INTERSECTION EXTEND TO 120 NORTH OF BOR
PRESERT
EX
LOOP
WEST
N32111
Pine Avenue
LrUT IS LOT
F-
01225.0005/887368.3
EXHIBIT J
COSTS OF ADDITIONAL WORK
ALL AMERICAN ASPHALT
ALL AMERICAN AGGREGATES
ENGINEERING - CONTRACTORS - ASPHALT PAVING
ALL AMERICAN P.O. BOX 2229. CORONA. CA 42878-1229
- ASPHALT STATE CONTRACTORS LICENSE #269073-A DIR #IS
To: China Developrien Company Contact: Darlus Falakis
Address: PO Box 5098 Phone: 9099850971
Pasadena, CA 91107 Fax:
Project Name: COR 4374 AC GRIND & OVERLAY PINE AVE. & WEST PRESERVE Bid Number:
Project Location: Bid Date: 4/17/2023
Item # Item Description Estimated Quantity Unit Unit Price Total Price 1 TRAFFIC CONTROL 1.00 LS $5,200.00 $5,200.00
2 AC GRIND INTERSECTION 16,800.00 SF $1.10 $18,480.00
2" AC OVERLAY 205.00 TON $152.00 $31,160.00
4 REPLACE TRAFFIC SIGNAL LOOPS 12.00 EACH $850.00
$10,200.00
5 INSTALL STRIPING ONLY OVERLAY AREA 1.00 L5 $2,200.00 $2,200.00 Total Bid Price: $67,240.00
Soft Costs & Contingency 25% $16,240.00
Total not to exceed $84,050.00
ACCEPTED: CONFIRMED:
e above prices, specifications and conditions are satisfacto All American Asphalt d hereby accept
Buyer:
Signature: Authorized Signature:
Date of Acceptance: Estimator: DEL RIO, MIGUEL
(951) 736-7600mdelrio/@allamericanasphalt.com
01225.0005/887368.3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 notary public or other officer completing this certificate verifies only the identity of the individual who signed thi locument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document State of California
County of San Bernardino
On May 9, 2023 before me, Lacie Vick, Notary
Date Here Insert Name and Title of the Officer
personally appeared Bryan Goodman
Name(s) of Signers)
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 his/her/their authorized capacity(ies), and that by his/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.
LACIE VICK
Notary Public - California WITNESS my hand and official seal.
San Bernardino County
Commission# 2421003
My Comm. Expires Oct 13, 2026
Signature fine he w
Place Notary Seal Above
- OPTIONAL
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: First Amendment to Construction Credit/Reimbursement Agreement for Pine Street Improvements Document Date: 5/16/23 Number of Pages: 6
Signers) Other Than Named Above:
Capacity(ies) Claimed by Signers)
Signer's Name: Signer's Name:
• Corporate Officer - Title(s): • Corporate Officer - Title(s):
• Partner - • Limited • General • Partner - • Limited O General • Individual • Attorney in Fact • Individual • Attorney in Fact • Trustee • Guardian or Conservator ] Trustee • Guardian or Conservator • Other: Authorized Agent • Other:
Signer Is Representing: Signer Is Representing:
©2016 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
MEMORANDUM
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
COUNCIL MEETING DATE: MAY 16, 2023
TO: LINDA REICH, CITY MANAGER
FROM: JESUS PLASENCIA, ASSISTANT CITY ENGINEER
SUBJECT: AMENDMENT TO THE CONSTRUCTION CREDIT/REIMBURSEMENT
AGREEMENT FOR THE PINE AVENUE IMPROVEMENTS - PHASE I, STAGE 1-3 & STAGE 4.
RECOMMENDATION
1) Appropriate $84,050 from the unappropriated reserves of the Road Repair and Accountability Act Fund 327; 2) amend project ST203 (Pine Avenue Improvements - Stage 4 to include the Pine Avenue/West Preserve Loop Intersection Grind and Overlay Project; 3) increase the credit/reimbursement agreement with Chino Preserve Development Corporation by $84,050 for a total agreement not to exceed $3,023,745 and a revised total project budget of $3,918,113; 4) approve an amendment to the construction credit and reimbursement agreement with Chino Preserve Development Corporation for the Pine Avenue Improvements - Phase I, Stages 1-3& Stage 4 to include the Pine Avenue/West Preserve Loop Intersection Grind and Overlay Project for an amount not to exceed $84,050 for a total contract amount of $16,789,318; and 5) authorize the City Manager to execute the necessary documents on behalf of the City.
FISCAL IMPACT
Requires an appropriation of $84,050 from the unappropriated reserves of the Road Repair and Accountability Act Fund 327. Increase Project Budget ST203 (Pine Avenue Improvements - Stage 4 in the same amount to include the Pine Avenue/West Preserve Loop Intersection Grind and Overlay Project.
Upon the final acceptance of the Pine Avenue/West Preserve Loop Intersection Grind and Overlay Project, the City will pay Chino Preserve Development Corporation for the actual costs validated by the City Engineer.
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:
The recommendation detailed above further the City's values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
Positive City Image
Revenue: Expenditure: 3207100-40010-ST203
Transfer In: Transfer Out:
COUNCIL MEETING DATE: MAY 16, 2023
SUBJECT: AMENDMENT TO THE CONSTRUCTION CREDIT/REIMBURSEMENT AGREEMENT FOR THE PINE AVENUE IMPROVEMENTS - PHASE I, STAGE 1-3 & STAGE 4 PAGE 2
BACKGROUND
Pine Avenue, between Euclid and Hellman Avenues, is a major arterial roadway within The Preserve Specific Plan area that will be a total of six-lanes with a raised landscaped median when fully constructed. The phased construction of Pine Avenue includes, but is not limited to, additional right of way; relocation of existing utilities; changes in roadway grades; modification of intersections; new pavement and striping; provisions for new sewer; domestic water; recycled water; drainage; and water quality facilities.
On June 15, 2021, the City Council approved a construction credit and reimbursement (Exhibit 1) for the construction of Pine Avenue - Phase 1 (Stages 1-3) & Stage 4 with Chino Preserve Development Corporation (a Lewis Management Corporation company "Lewis").
Lewis is currently constructing the Stage 4 Pine Avenue Improvements, which include three eastbound lanes and two westbound lanes from the westerly boundary of the Town Center at The Preserve to Harvest Way/Homecoming Drive.
ISSUES/ANALYSIS
Recently, the City received complaints from local residents about the current condition of the roadway pavement at the intersection of Pine Avenue/West Preserve Loop and the associated noise and vibration resulting from vehicles traveling through the intersection at a high rate of speed. To better serve the residents and businesses in The Preserve and for efficiency purposes, City staff requested that Lewis include pavement rehabilitation at the Pine/est Preserve Loop intersection as part of Stage 4. The scope of work includes the subject intersection and roadway pavement on West Preserve Loop approximately 120 feet north of the intersection as shown in Exhibit 2. The additional work to this intersection will help mitigate the issues surrounding the noise and vibrations experienced by residents.
Consequently, staff desires to amend the existing agreement for the Pine Avenue Improvements to include the additional pavement rehabilitation. The estimated cost for the additional work is $84,050, which includes 25% for contingencies and soft costs. Upon completion of the work, the City Engineer will review the supporting documentation and will accounting is approved, staff will reimburse the developer for the actual approved costs.
Staff recommends that the City Council approve an amendment to the construction credit and reimbursement agreement with Chino Preserve Development Corporation to include additional amount of $84,050. The altered or constructed public improvements shall comply with City requirements at the time of their construction and will be reviewed by Council prior to project acceptance.
Attachments:
Exhibit 1 - Construction Credit/Reimbursement Agreement Exhibit 2 - Project Location
Exhibit 3 - Amendment No. 1